Nikolaidis v Northern Beaches Council

[2017] NSWLEC 1439

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Nikolaidis v Northern Beaches Council [2017] NSWLEC 1439
Hearing dates:	21, 22 March 2017 and agreed preliminary questions filed on 31 March 2017
Date of orders:	15 August 2017
Decision date:	15 August 2017
Jurisdiction:	Class 2
Before:	Dixon C
Decision:	The Court orders: (1) The Direction proceedings matter number 2016/159227 are dismissed. (2) The Exemption proceedings matter number 2016/373497 are dismissed. (3) The Exhibits are returned except Exhibit 1.
Catchwords:	APPEAL - swimming pool on waterfront property containing residential buildings – whether a child resistant barrier is required between the residential buildings and the swimming pool – application for exemption
Legislation Cited:	Swimming Pool Act 1992 Swimming Pool Regulations 2008 Swimming Pool Regulations 1998
Cases Cited:	Medway v Pittwater Council [2014] NSWLEC 1006; Lismore City Council v Hamshaw [2013] NSWLEC 204 Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 142 ALR 322; (1996) 72 FCR 125 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 R v Young [1999] NSWCCA 166; 46 NSWLR 681
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Leon Nikolaidis (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr J Svehla (Applicants) Mr L Waterson (Respondent)   Solicitors: Self-Represented (Applicants) D. Townsend King & Wood (Respondent )
File Number(s):	2016/159227 & 2016/373497
Publication restriction:	No

Judgment

1. This judgment concerns two separate but related Class 2 appeals brought by Mr and Mrs Nikolaidis (the applicants),  pursuant to s26 of the Swimming Pool Act 1992 (the Act), in relation to their swimming pool (swimming pool) situated at 4 Princes Street, Newport (the site). They are:

(1)          Proceedings number 2016/159227 (Direction Proceedings); and

(2)          Proceedings number 2016/373497 (Exemption Proceedings).

2. In each case, the scope and operation of s10 of the Act and the relationship between s10 and s7 of the Act is a threshold issue.  To address these matters and other relevant issues the parties have formulated, in the document entitled “Agreed Decision Tree”, a series of questions and consequential orders which they would like me to address. Before I do so, it is important to understand the background facts. They are set out in the Council’s Statement of Facts and Contentions filed on 28 July 2016, and the affidavit of Mr Nikolaidis’ sworn on 3 March 2017. I do not propose to repeat all of those details save to note the following matters to give some context to the issues in the proceedings.

The property

3. The site is a waterfront property, and the western boundary adjoins the Pittwater waterway. There is sea wall located on this boundary. The swimming pool is located in the rear yard of the site and was constructed before 1990. Immediately adjoining the site to the north and south are two other private residential properties.

4. Also located on the site is a dwelling house and garage. The dwelling house and garage are together ‘residential buildings’ as defined by the Act. The dwelling house has three levels with a large entertaining deck to the west leading via a staircase to the swimming pool and a bar/rumpus room on the ground floor which opens onto the swimming pool area.

5. The swimming pool is a ‘swimming pool’ as defined under the Act which is located outdoors for the purposes of the Act. It exists on the site in the same size and, dimension, shape and in the same location that it had when the property was purchased by the applicants in 1983. 

6. The property, including the swimming pool, is publically accessible from the Pittwater waterway via a boat ramp, private jetty and from the neighbouring property to the north via the foreshore and boat ramp.

7. There are gates restricting access from Princes Street into the front of the property .There is access from the front of the property via a pathway on the southerner side of the property leading to the swimming pool.

8. There is no fence or wall of any kind separating the swimming pool from the residential buildings.

9. On 16 January 2003, the applicants obtained the 2003 development consent (DA) from the Council for extensive renovations to the residential buildings. On July 2003 the Council approved amendments to the 2003 DA. The renovations to the residential buildings at ground and first floor level allowed for “seamless flow” to the swimming pool area. The DA did not impose a condition or requirement for a fence or wall between the pool and the residential building.

10. In mid-2007, the works to the residential building under the DA, as amended reached lock-up stage.

11. In mid-August 2008, the applicants and their children resumed occupation of the residential building. In August 2008, after resuming occupation Mr Nikolaidis first noticed the locks in the bar room and gymnasium on the ground floor were not fitted at 1.5 m above the floor level.

12. In late August 2008, the Project Certifier engaged by Mr Nikolaidis upon inspecting the residential building drew Mr Nikolaidis attention to the access to the swimming pool area via the spiral staircases and the two doors on the ground floor which had direct access to the swimming pool. The Project Certifier orally informed Mr Nikolaidis that they did not comply with the swimming pool safety requirements.

13. Mr Nikolaidis then contacted MICOS, which had the significant contract to install the glass doors, windows and glazing in the residential building. In substance, from time to time until the date of the hearing, Mr Nikolaidis sought to have MICOS rectify those defective works.

14. In October/November 2008 Mr Nikolaidis orally informed a representative of MICOS that:

1. the doors accessing the swimming pool area needed to have locks at least 1.5 m above floor level;

2. the doors accessing the swimming pool area needed to have self-closers fitted to them;

3. a self-closing gate needed to be fitted to the top of the spiral staircase from the first level leading to the swimming pool area with the childproof latch at least 1.5 m.

15. In October 2008, MICOS took measurements for doing this rectification work. This comprised part of the MICOS Rectification Work which was significant and included replacing the defective glass panels where the glass was imported from Belgium.

16. By late 2010, MICOS had not undertaken these rectification works relating to the swimming pool safety barriers. A representative of MICOS informed Mr Nikolaidis that MICOS was unable to obtain replacement glass as MICOS was in dispute with the Belgium glass manufacture in relation to the defective glass. Court proceedings were in place and MICOS was awaiting the outcome and rectifying the swimming pool safety barrier issues would await and occur when the defective glass panels were replaced as part of the defective glass.

17. Between late 2010 and late 2015, Mr Nikolaidis had a number of discussions with MICOS and was told it was still awaiting the outcome of the Court case before it would do the rectification work.

18. In late 2015 Mr Nikolaidis was informed that MICOS was successful in the court proceedings and was now awaiting shipment of the Belgium glass to Australia.

19. In early 2016, MICOS replaced about 30% of the defective glass panels, but none of the swimming pool safety barrier rectification works.

20. By the end of October 2016 Mr Nikolaidis was informed that MICOS was expecting another shipment from the Belgian supplier in the first half of 2017 and would do the outstanding rectification work then but could no longer do the glass door on the top of the spiral staircase on the first-floor deck/patio because MICOS no longer did architectural glass work.

21. The applicants say that they have been dependent upon MICOS to perform the MICOS Rectification Work to install the required safety barriers to the swimming pool. MICOS had a major subcontract, namely the glassworks, the glass was high-quality glass from Belgium and the rectification works included MICOS matching the aluminium sections to the glass with existing sections.

22. The applicants contend that they did not anticipate completion by MICOS of these works would be delayed to the extent it has and further, the Project Certifier has informed Mr Nikolaidis that until the MICOS Rectification Work has been completed final certification would not issue.

23. In short, the building works the subject of the 2003 DA, as amended, have not been completed. These works include rectifying the failure of MICOS to install the complaint self-closing safety locks at least 1.5m above ground level on the doors on the western façade of the residential buildings opening onto the swimming pool area as well as other items including replacement of 70% of the Defective glass panels, landscaping, paving parapet. The further buildings works, excluding the MICOS Rectification Works, will be at least $500,000.

24. The applicants contend that because MICOS had not completed the MICOS Rectification Works and other works in relation to the swimming pool barriers, when Council issued the applicants the Direction to comply and, at the present time, the doors to the western facade of the residential building have not been kept child safe by means of a lock, latch or other child resistant device located at least 1.5 m above the finish floor level within the meaning of cl 6 (2) of the Regulation 1998.

Direction proceedings

25. The first proceedings (Direction proceedings) are an appeal against a decision of the Council on 28 April 2016 to give a Direction to the applicants under section 23 of the Act (the Direction).

26. The Direction requires the applicants  to comply with s 7 of the Act and ensure that the swimming pool on the premises is all times surrounded by a child-resistant barrier that:

1. separates the swimming pool from any residential building situated on the premises  and from any place (whether public or private) adjoining the premises; and

2. is designed, constructed, installed and maintained in accordance with the standards in the regulations prescribed for s7.

27. The applicants contend that the Direction should be set aside on the basis that they are not subject to s7 because they have the benefit of an exemption under s10 of the Act (Applicants Written Submissions (AWS [107]).

28. Section 10 is entitled “Exemption for swimming pools on waterfront properties”, and specifies the circumstances in which a pool on a waterfront is not required to be surrounded by a child-resistant barrier. Those circumstances arise where the “means of access” to the swimming pool from residential buildings on the premises “are at all times restricted” in accordance with the relevant standards. The standards referred to require that the doors of the residence with access to the pool be fitted with specific childproof locks no less than 1.5m above the floor (prescribed locks).

29. In this case, the Council contends that the exemption provided by s10 in respect of the swimming pool is not available to the applicants because for a lengthy period the doors of the residence at issue were not fitted with the prescribed locks. Therefore, the applicants are subject to the requirements under s7.

Exemption proceedings

30. The second proceedings (Exemption proceedings) relate to the applicants application made under s 22 of the Act on 17 October 2016 which the Council refused on 9 December 2016.

31. Section 22 of the Act allows the local authority (now the Court) to grant an exemption from the requirements of Part 2 of the Act of (which includes s 7) if the consent authority is satisfied that one or two criteria set out in section 22 is met (s 22 criteria) namely:

1. that it is impracticable or unreasonable (because of the physical nature of the premises because of the design construction of the swimming pool to comply with the requirements; or

2. that alternative provision, no less effective than those requirements, exist for restricting access to the swimming pool.

32. In this case, the applicants’ exemption application proposes that the swimming pool be separated from the house on the property by doors fitted with prescribed childproof locks, which were required for the purposes of the operation of the exemption in s10. The exemption application also seeks modifications to the sea wall separating the swimming pool from the Pittwater Waterway and an exemption in respect of that structure.

33. In summary, the applicants’ exemption application not only seeks an exemption from s7 of the Act - in the alternative to the applicants’ primary contention in the Direction proceedings that s 10 gives an exemption to s 7 - but as the Council submits also an exemption from s 10 i.e. an exemption from the exemption.

34. The Council submits that the exemption application should be refused because it is not permissible to seek or grant an exemption under s22 in respect of s10 - as s10 imposes no requirement on an owner of premises but operates to provide an exemption to the requirement in s7.

35. Furthermore, in relation to the exemption sought from the requirements under s7, it is submitted that the applicants have not met the criteria to justify an exemption because:

1. the  fitting of the prescribed child proof locks are plainly a less effective requirement for restricting access to the swimming pool than a fence or wall separating the pool from the dwelling house on the property;

2. there is nothing in the physical nature of the property or the design of the swimming pool that makes it unreasonable or impracticable for a wall or fence separating the swimming pool from the dwelling house to be erected.

36. Having carefully considered each parties submissions, and the oral and written evidence received at the hearing including that from; Mr Nikolaidis, Mr Fountain (the architect retained by the applicants), Mr Jackson and Ms Brown (the Council’s building surveyor), together with my observations of the site and its environs taken during the s34 conference which preceded the hearing – I will now deal with the first question in the Agreed Decision Tree.

Question 1

1. Do the applicants currently have the benefit of the exemption under s10 (2) of the Act in relation to the swimming pool situated on the applicants’ premises?

37. The parties agree that if the answer to question 1 is “yes”:

1. the appeal the subject of the direction proceedings should be upheld; and

2. the exemption proceedings are thereby redundant and will be discontinued by the applicants by consent. If the answer is ‘No” then a new set of questions arise.

38. As the Council submits the “lynchpin” of the applicants’ case, in the Direction proceedings, is that the Direction was improperly issued because the applicants have the benefit of the exemption from section 7 contained in section 10 (CWS p4 B).

39. Sections 7 and 10 are within Division 1 of Part 2 of the Act. Section 6 of Division 1 provides that this Division applies to outdoor swimming pools that are situated or installed on premises on which a residential building is located.

40. Section 7 provides the general requirements for outdoor swimming pools. It states:

7 General requirements for outdoor swimming pools

(1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier:

(a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and

(b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.

Maximum penalty: 50 penalty units.

(2) The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section.

Note. Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18, 19 and 22.

41. Section 10 provides an exemption to the general requirements for waterfront properties. It provides as follows:

10 Exemption for swimming pools on waterfront properties

(1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010.

(2) A swimming pool that is situated on premises having frontage to any large body of water (such as a permanently flowing creek, a river, a canal, a pond, a lake, a reservoir, an estuary, the sea or any other body of water, whether natural or artificial) is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations.

(3) The diagram in Part 4 of Schedule 1 illustrates the provisions of this section.

(4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes.

(5) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises.

42. It is agreed that the swimming pool in this case meets the requirements of section 10(1) and is situated on premises of a kind specified in s10 (2) – the property frontage is to the Pittwater waterway.

43. As discussed, in Medway v Pittwater Council [2014] NSWLEC 1006, at [65] the structure of Division 1 of Part 2 of the Act is a general requirement for the erection of a separate barrier surrounding a swimming pool (s7), and then a series of grandfathering provisions in sections 8,9,10 which exempt pools constructed prior to particular dates on properties with particular features from some or all aspects of the general requirement. The parties agree that for present purposes s8 and s9 are not relevant.

44. The applicants submit it is clear from the text of s 10 that the section provides an exemption from the requirements in s 7.  The section states this “… is not required to be surrounded by a child resistant barrier” (AWS [77(a)]). However, the Council submits, the exemption in s10 (2) only applies “…so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations” (emphasis added).

45. Accepting that the words “so long as” mean “provided that” (AS [80]-[81]) – the Council submits that it follows that the exemption under the section is conditional as it is only available in certain circumstances. That is, the requirement under s 7 (for the pool to be surrounded by a child-resistant barrier) is only relaxed by the exemption in s10 (2) in circumstances where “…the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations.

46. The applicants contend for a different interpretation of s10 (2). It is set out in their written submissions in particular at paragraphs [35] - [41]. In summary they submit that in circumstances where the building works have been commenced but not completed, and rectification works are required before a final certification will issued, but the owner is waiting for the contractors to perform the works, that the section allows for a suspension of the stipulation for the restriction “at all times”. On that basis they contend there is no losing of the benefit of the exemption under s10 on the facts of their case.

47. When the Direction was issued in this case the Swimming Pool Regulations 2008 (Regulations 2008) prescribed, for the purposes of s10 (2), that the applicable standards are those set out in AS 1926.1 -2007. In particular, cl2.8 of that standard which required that the relevant doors be fitted with self-latching /self-closing device located more than 1.5m above the floor level (AWS [126] and CWS [22]). However, because the swimming pool was constructed prior to 1 September 2008, cl 23 of the Regulations 2008 allows for  an alternative restricted access for the swimming pool comprising the provisions in Part 2 of the former regulation namely; the Swimming Pool Regulation 1998 (Regulation1998). Accordingly, for present purposes the relevant provision in Regulation 1998, cl 6.2 required the doors of the residential building in this case to be fitted with a lock, latch, bolt or chain located at least 1.5m above the floor.

42. The applicants accept that the doors leading from the residential building were not fitted with the relevant prescribed child proof locks at the time the Direction was issued (AWS [75], [106], [127]). Moreover, the evidence establishes that this has been the position since about August 2008 (AWS [57]-[58]). To be clear, for a period of nearly 8 years (prior to the issue of the Direction), the means of access to the swimming pool were not restricted in accordance  with  the relevant Regulations prescribed for the purposes of s10(2) of the Act.

43. For this reason, the Council submits that it “cannot sensibly be suggested” that the means of access to the swimming pool have “at all times” been restricted as required by the Regulations for the purposes of s10 of the Act. It rejects the applicants’ submissions that :

1. the phrase “at all times” in s 10 does not mean continuously or every moment in time;

2. the phrase is to be interpreted so that there is a “suspension” of the stipulation to the restriction of means of access during periods when certain events occur;

3. those events include renovating, replacing or upgrading a barrier and delays occasioning having works of that kind performed;

4. that the evidence demonstrates that an event of this kind occurred in the present case because the failure of the doors of the dwelling house on the property to be fitted with the prescribed child proof locks was part of the renovations to the property which commenced in 2004 (AWS at [87],[91], [96]-[97]).

50. The Council submits that the applicants had lost the benefit of the exemption provided in s10 when the Direction was issued (CWS at [27] - [34]). And, that the applicants’ interpretation of the phrase “at all times”, is not only contrary to the current authority in Medway; and Lismore City Council v Hamshaw [2013] NSWLEC 204 at [41] but contrary to a plain reading of the text of the section in context and a construction of the provision which promotes the apparent purposes of the legislation. Section s10 (2) does not contain any expressed qualification such as that provided in other parts of the Act for example; s20 which uses the phrase “…at all times when the spa is not in actual use”. Nor is there any expressed or implied limitation in s10 (2) which operates to displace the need for the prescribed locks to be fitted at the date of issue of the Direction.  

51. In accepting that s10 is a grandfathering provision, which specifies a less onerous compliance regime than that required by s7, for swimming pools on waterfront properties constructed before a particular date, the Council submits it must follow that the phrase ‘at all times” requires doors to be  continuously fitted with the prescribed locks. Moreover, if the Court were to accept the construction advanced by the applicants (that the locks are not required during the renovation time or continuously for whatever reason by implication or a limitation on the express words adopted by the legislature) then, the Court must also “… be able to state with certainty the solution which the legislature would have adopted to the problems with the provision perceived by the applicants”. In that regard, the Council refers me to the decision of Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 at 654 and paragraph [54] which provides:

The basis for construing s 79C in this way was not elucidated. The case-law suggests three possible preconditions to the implication of a limitation on the express words adopted by the legislature:

(1) first, the apparent omission must be one which requires a remedy in order for the apparent statutory purpose to be achieved: Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292 at 299 (Hope JA) and 302 (McHugh JA, referring to the principles stated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106);

(2) the words actually used in the statute must be reasonably open to the proposed construction: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [11] (Spigelman CJ), and

(3) the Court must be able to state with certainty the solution which the legislature would have adopted, absent inadvertence to the particular problem: Bermingham at 302E-F; Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276; 76 NSWLR 379 at [55] (Beazley JA) and [103].

52. The Council submits that none of these preconditions is satisfied in the present circumstances to justify a limitation on the express words of the section.

53. As stated at the outset, the Council’s position is that the exemption in s10 (2) is spent in respect of the swimming pool because for the considerable time the doors of the house on the residential buildings had not been fitted with the prescribed child proof locks. Therefore, the applicants are subject to the requirements in s7 which requires them to erect a wall or fence separating the swimming pool from the house on the property. On that basis they submit that the Direction was properly issued.

Findings - Question 1

54. I agree with the Council interpretation of s10 of the Act for the following reasons. 

55. First, it is consistent with the authority in Medway and Hamshaw which I accept. Secondly, it is consistent with the general principles of statutory interpretation as stated in Medway at [69] that requires “regard is had to the words used in their legal and historical context, which is to be understood in its widest sense to include the existing state of the law and the mischief or object to which the legislation is directed: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198. Moreover, I accept as a matter of statutory construction that “words and phrases should not be extracted from the statutory context and a construction which promotes the apparent purposes of the legislation is to be preferred to one which does not”: Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 per Basten JA at [17]; Medway at [69].

56. As the Court accepted in Medway the purpose of the legislative scheme under review is to limit the scope of the exemptions now phased out to those owners who have at all times complied with their obligations to ensure that their swimming pool meets the prescribed standards. The applicants admit that they have not ensured this and have thereby in my assessment have lost the benefit of the exemption available under s10 (2).

57. I cannot accept that the interpretation advanced by the applicants is reasonably open to me: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at [11] (Spigelman CJ). No, do I accept that such an interpretation promotes the apparent statutory purpose of the legislative scheme.

58. In my opinion the exemption in s10 (2) offers an alternate means for the pool to be surrounded by a child-resistant barrier as required by s7 without qualification continuously. The words “so long as “ and “ are at all times” are to be read together , and the phrase “so long as” in this context should be construed as meaning “provided that”. 

59. In this case the applicants did not have the benefit of the exemption in s10 (2) when the Direction was issued. The doors did not have the prescribed lock on them at that date or for that matter any reasonable time prior. In considering whether the legislature should be understood to have intended that the exemption in s10 (2) would cease to apply as a consequence of what might be regarded as a minor, or temporary, non -compliance I accept as discussed in Medway at [76] that it is relevant to have regard to the overall purpose of the legislative scheme. In saying that, I accept that the purpose of the legislative scheme in restricting access, as the long title to the Act suggests, is to avoid or minimise the risk of pool related drowning. As the Court observed in Medway to achieve this swimming pool legislation has been made more stringent over time, by amendments to ss8 (1), 9(1) and 10(1) in 2009, to restrict the availability of the relevant exemptions to swimming pools constructed before a certain date. 

60. On that basis I accept that it is consistent with the purpose of the legislative scheme to construe s10 (2) according to the natural meaning of the words used so as to limit the scope of the exemptions now phased out to those as I said who comply with their obligations to ensure that their swimming pool meets the prescribed standards at all times. I cannot accept that I should read into the section and words “at all times” a series of widely differing limitations – as advanced by the applicants at AWS [88].

61. That said, even if I were to accept that the words “at all times” were to be given some latitude (despite Medway) any such latitude could not extend to a period of nearly 8 years without the prescribed lock. Needless to say, 8 years without the prescribed locks is a significant period. On any view it is my considered opinion that the exemption under s10 (2) is not engaged by the facts of this case.

62. Moreover, the lack of continuity on the facts of this case cannot be remedied to reinstate the exemption under s10 (2) now lost as contended by the applicants. That said, as the Council submits I do not need to consider any shorter periods relied upon by the applicants - such as a short period of time taken for the replacement of a prescribed lock etc. – “de minimus non curat lex”: Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 142 ALR 322 - as this is not the present factual scenario that I must address.

Answer to Question 1

63.  For the reasons stated the answer to question 1 is “No. This now takes me to question 3 of the Agreed Decision Tree.

Question 3

(3) If the answer to question 1 is “No”, is it legally permissible under the Act for an exemption to be granted under section 22 of the Act in respect of section 10 (2) of the Act?

Findings –question 3

64. Again, I find that I must agree with the Council’s submissions at [36] – [44].

65. I cannot accept the applicants’ submission that a failure by the owner to comply with the “at all time” in s10 (2) is a breach of a “requirement”. Section 10 (2) only operates as an exception to the requirement in s7 and does not of itself impose another requirement or obligation on the owner – i.e. to have a prescribed lock in place – which requirement or obligation can then be breached (CWS at [33]). For that reason, the failure by an owner to comply with the “at all times” cannot be described as a “breach” of any requirement in s10 (2) such as to support any application for an exemption under s22 of the Act.

66. As the Council submits the heading to s 22 refers to “exemptions from barrier requirements”. Section 4 of the act defines a barrier as a fence or wall. Section 10 refers to prescribed childproof locks to the doors of a residential building (which is separately defined in s4). It is clear from the act that a barrier (a fence or wall) is not a door of a residential building.

67. As the Council submits an exemption under s22 may only be “…granted on application by the owner of the premises on which the pool is situated from all any of the requirements of this part”.

68. The word “requirement” is defined in the Macquarie dictionary to mean “a thing demanded or obligatory”. In this context, it follows that the requirements of Part  2 of the Act from which an exemption may be granted a obligations imposed under Part 2 on the person making the exemption application example the owner of the premises. This includes the obligations imposed on the owner under ss 7, 12 and 14. Sections 10 (on the other exemption provisions in ss 8,9,13, 20) do not require or oblige an owner to do or omit to do anything. As indicated, the exemptions define circumstances in which an exemption from an obligation under section 7 (and 12) arises.

69. The difference between s 7 and s 10 is underlined by the fact as the Council submits that a failure to meet the requirement in s7 is an offence (so too is a failure of an owner to comply with section 12 or section 14). Yet, it is not an offence to fail to comply with section 10 or the other exemption provisions. This is because they do not impose any obligations and therefore no requirements.

70. For the reasons articulated by the Council I find that an exemption may not be granted under s22 of the Act in respect of s10 (2) because that section does not impose a “requirement” under Part 2 of the Act. Section 10 does not have a dual character of both an exemption to s7 (which can never be lost even if a “breach” of s10 occurs), and an independent obligation - a breach of which can be remedied.

Answer to Question 3

71. For the reasons stated the answer to question 3 is “No”.  Consequently, the appeal the subject of the Direction proceedings is dismissed.

72. I now turn to the last question in the Agreed Decision Tree in the exemption proceedings.

Question 5

(5) Is the court satisfied, in the particular circumstances of the applicant’s case, that section 22(1) (a) or s22 (1) (b) of the Act (the section 22 criteria) is met to so the applicants be exempt from the requirement in section 7(1) (a) of the Act to ensure that the applicants’ swimming pool has a child resistant barrier that separates the applicants’ swimming pool from the residential building situated on the premises.

73. This question invites an assessment of the s22 exemption application in so far as it seeks an exemption from s 7 of the Act. Section 22 provides as follows:

Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases

22 Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases

(1) The local authority may, on application made by the owner of any premises in or on which a swimming pool is situated, or proposed to be constructed or installed, exempt the swimming pool from all or any of the requirements of this Part if it is satisfied, in the particular circumstances of the case:

(a) that it is impracticable or unreasonable (because of the physical nature of the premises, because of the design or construction of the swimming pool or because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption) for the swimming pool to comply with those requirements, or

(b) that alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.

(2) An exemption may be granted unconditionally or subject to such conditions as the local authority considers appropriate to ensure that effective provision is made for restricting access to the swimming pool concerned or the water contained in it.

(3) A person is not guilty of an offence under this Part:

(a) if the swimming pool concerned is the subject of an exemption under this section, and

(b) if the conditions (if any) to which the exemption is subject are being complied with.

(4) For the purposes only of any appeal proceedings arising in connection with an application under this section, the local authority is taken to have refused the application if it has not finally determined the application within 6 weeks after the application was made.

74. The Council contends that the scheme of the Act is based upon their being a fundamental difference between a separation barrier as required by s 7 and restricted doors access :see Medway at [97]-[98].

75. Section 7 requires a barrier separating the swimming pool from the residential building. Section 19 of the Act, sets out the circumstances where a house wall may be used to satisfy the requirement in s7 for a separate barrier.

76. Unsurprisingly, those circumstances are limited to a wall that contains no openings through which access may be granted to the swimming pool: s19 (1) (a). It is does not mean a wall that contains doors or windows – with the prescribed lock in place. With that in mind, the Council submits that fitting the prescribed child locks to the doors of a house cannot be regarded as being “no less effective” means of restricting access to a pool than the separate barrier requirement by s 7.

77. Despite the provisions the applicants offer such an alternative solution to the requirement in s 7, namely; the utilising the building, including the walls, windows and doors on the Western facade… as a child resistant barrier (AWS [162]). These are the same prescribed childproof locks that would have resulted in the exemption under s10 being available had they been fitted to the doors “at all times” with the meaning of that provision, as earlier discussed.

78. The Council submits that; “It is axiomatic that the fitting of the prescribed childproof locks is a less effective means for restricting access to the swimming pool than the requirement in s 7 for a separate barrier between the house and the swimming pool”. And, s19 supports a conclusion that a door lock as prescribed cannot be no less effective alternative than a barrier.

79. For those reasons, the Council submits that an exemption on the basis of the applicants alternative solution at [AWS162], within the meaning of s22 (1) (b) of the Act to the requirement in s 7 is not available.

Section 22 (1) (a)

80. The applicants summarise their position in relation to this criteria in their written submissions received on 21 March 2017. Shortly stated, they contend that the design and the construction of the swimming pool make it impracticable or unreasonable for the swimming pool to comply with the separation requirement in s7 (1) (a) of the Act. Therefore, the applicants submit that their circumstances fall within the exempting power in s22 (1) (a).

81. In fact they assert that it is the design and the construction of the swimming pool in close proximity to the residential building - built pursuant to the DA 2003 - which gives rise to this consequence. The child resistant barrier must comply, as required, with the BCA; cl 5(1) of the 2008 Regulations (2012 Standard and Part 2 2007 standard) AWS at [21] – and it cannot.

82. It is submitted  that the  Council Proposed Solution Report clearly indicates the impracticability and unreasonableness of compliance with the requirement for the child resistant barrier separating the swimming pool from the residential building in particular the references at ( AWS at [22] – [23]). The applicants contend that the barrier , if erected would unreasonably and impracticably impact on the useability of their entertaining area, result in variant heights of the pool fence ranging from 1.2m to 2m in height, “creating a prison and cage like effect outside the current swimming pool area” and when viewed from inside the gym and bar/rumpus area, safety concerns – by not providing a sufficient margin between the pool fence and water edge on the eastern side so as to encourage unsafe diving and jumping from the top of these barriers - to name a few consequences. The comprehensive list of problems associated with a barrier and the alterative measures are documented in the Solution Report and identified in the photographs referred to in the written submission which are before the Court.

83. That said, the Council submits that the criteria is narrow in scope. The words in parenthesis in s 22(1) (a) require that the impracticability or unreasonableness of the swimming pool to comply with the requirements (in this case s 7) must arise “because of the physical nature of the premises, because of the design construction of the swimming pool…” The criterion is directed to a physical constraint arising from the physical circumstances existing on the premises. Or in other words where the physical nature of the premises or pool is such that compliance with the requirement for a separate barrier is plainly unworkable or unnecessary. For example, such circumstances where the pool sits out of the ground at a height exceeding 1.8 metre (and thus has a built in barrier that complies with the relevant standard) or where the pool is built on a cliff edge and access by children to the pool from the bottom of the cliff is, for all intents and purposes physically impossible (see: Office Local Government Practice Note 17 Application of Section 22 of the Swimming Pools Act 1990 to March 2014 page 9).

80. The Council contends that in this case the applicants’ argument against the installation of a barrier of the kind required by s 7 between the house and the swimming pool is based on aesthetics and this is clearly insufficient to justify an exemption under s22 1(a) of the Act.

81. After careful consideration of the applicants’ evidence and their further submission I agree with the Council.

82. In my assessment the reasons given by the applicants to justify an exemption under s22 (1) (a) are directed to the aesthetics and costs of a barrier in that location rather than any satisfactory demonstration of the impracticality or unreasonableness arising from the physical circumstances existing on the premises. I am not satisfied on the evidence that a barrier could not be designed to accommodate the present physical environment of the pool and premises and if necessary incorporating alternative means to compliance with any BCA requirement, if that in fact that is an issue as I am not convinced of that fact of the evidence.

83. The pool fencing quotes provided to the Court offer two variations of a barrier which would satisfy s7 of the Act. The cost of the fencing in each case is less than 1% of the extensive renovation costs already incurred by the applicants. Therefore, to my mind the fencing costs provided to the Court cannot be described as an unreasonable expense or a basis to require an exemption under s22 (1) (a). In any event, should these fence designs prove problematic to build, as the applicants anticipate, then I am not convinced that there are no other design options available to accommodate the pool and the physical nature of the premises in order to satisfy s7 of the Act. Put simply, I have no satisfactory evidence to suggest that a compliant barrier cannot be erected as required by s7 of the Act because of the physical nature of the premises or the design or construction of the pool.

84. Accordingly, I am not satisfied on the evidence that it is physically impracticable or unreasonable to require the barrier under s7 on the evidence before me. The reasons articulated by the applicants for the exemption as submitted on the evidence do not satisfy the criteria under s22 (1) (a). Accordingly, the exemption proceedings are dismissed.

85. The Court orders are:

1. The Direction proceedings matter number 2016/159227 are dismissed.

2. The Exemption proceedings matter number 2016/373497 are dismissed.

3. The Exhibits are returned except Exhibit 1.

………………………….

Commissioner S Dixon 

Amendments

16 August 2017 - Judgment amended.

16 August 2017 - Cover sheet amended.

17 August 2017 - Administrative error uploading Judgment

Decision last updated: 17 August 2017