Redland Shire Council v Loricliffe Pty Ltd

[2007] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Redland Shire Council v Loricliffe Pty Ltd [2007] QPEC 101

PARTIES:

REDLAND SHIRE COUNCIL

Appellant

v

LORICLIFFE PTY LTD

Respondent

FILE NO/S:

BD 446 of 2007

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 November, 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 October, 2007

JUDGE:

Griffin SC

COUNSEL:

Mr P Smith for the appellant

Mr A Skoien for the respondent

1. The Redland Shire Council (the appellant) appeals pursuant to provisions of s 4.1.37 of the Integrated Planning Act 1997 against a decision of the Building and Development Tribunal (the Tribunal) setting aside the decision of the appellant contained in its Enforcement Notice dated 16 November 2006 requiring a pool fence enclosing a pool on the respondent’s premises to comply with requirements of the Building Act 1975 applicable to new pool fences.

1. The premises are situated at 30 Bollard Court, Cleveland, described at Lot 46 on C.6124 in the Redland Shire Local Government area. The property has a north and western common boundary to Flinders Canal at Raby Bay with a 70 metre water boundary line and canal access. Improvements on the land include a residential dwelling, an in-ground pool, two pontoons, boundary fences and driveway security gate. It is common ground there is no pool fence isolating the pool from the dwelling or from Flinders Canal.

1. The facts in this appeal are relatively undisputed. The questions arises as to the basis upon which the decision by the Tribunal was made and whether there is demonstrated (the onus being upon the appellant) any error of law in the way in which the Tribunal proceeded.  In 1985 the subject pool was approved pursuant to the appellant’s Schedule 42 Pool Fencing Bylaw.

1. In or about August 1986 a final inspection of the pool fencing was carried out and was assessed as complying with those requirements. In 1993 the respondent acquired the premises and is now the registered owner and was so at all times relevant to this appeal.

1. On 16 September 2004 the appellant received a complaint of a non-complying pool fence on the subject premises and on 14 October 2004 an inspection was carried out on the premises.

1. On 14 October 2004 photographs were taken of the pool and its surrounding area and these were forwarded, together with a covering letter dated 20 December 2006 to the Tribunal, the day after the hearing was completed and apparently upon request of Mr Rooney, the Tribunal Member.  Much reliance is placed upon what is evidenced by those photographs in the appellant’s argument and I will return to this issue below.

1. On 1 November 2006 an inspection of the pool fencing revealed that work had been carried out, which work apparently complied with 1991 provisions of the Local Government Act 1936 but not with the requirements that existed by November 2006 in relation to the security in and about in-ground pools. There is no precise evidence as to when this work was carried out. On 16 November 2006 the appellant issued the subject Enforcement Notice, the subject of the appeal, pursuant to s 248 of the Building Act 1975 to rectify what the appellant considered to be

   
   

   non-complying pool fencing. The non-compliance was in respect of the present legislation. The appeal was heard on 19 December 2006 and by letter dated 22 January 2007 the Tribunal rendered its decision, the subject of this appeal.

The Appellant’s Argument

1. The appellant argues that the Tribunal essentially, in considering the matter, asked itself the wrong question, namely whether the pool fencing substantially required with requirements of s 49H of the Local Government Act 1936 which was introduced in 1991 and specifically whether that compliance was at the date of hearing. It is argued by the appellant that the Tribunal was required to consider, in fact, whether the pool fencing substantially complied with requirements:

(a)     of the repealed swimming pool fencing provisions of s 49H of the Local Government Act 1936 introduced in 1991 (the 1991 Standard); or

(b) in the alternative, with the requirements of the repealed swimming pool fencing provisions of Pt 4B of the Building Act 1975 introduced by the Local Government Amendment Act 1993 on 26 March 1994 (the 1994 Standard)

and that assessment should have been as at the date of 1 October 2003, namely the date of the coming into force of the relevant provision of the Building Amendment Act 2003, No 53 of the 2003. The appellant further argues that in accordance with s 233 of the Building Act 1975 if the pool fencing did not comply with the 1991 Standard or, alternatively, the 1994 Standard on 1 October 2003, the pool fencing must be made to comply with the pool fencing standards currently required for new pool fences.

1. It is not contested that the present pool fencing does not comply with current pool fencing standards applicable to new pools.

History of the Legislation

1. Prior to 1991, Local Governments had the power to control swimming pool fencing by bylaws. In 1991 the Local Government Act 1936 was amended by the introduction of the Local Government (Swimming Pool Fencing) Amendment Act of 1991. That amendment Act provided in s 30H for a minimum standard for swimming pool fences. Local laws that provided a higher standard then still applied.  However, local laws that provided a lesser standard had no effect. Substandard swimming pool fences were required to be upgraded to meet the minimum standards set out in the 1991 Local Government Amendment Act. 

1. On 26 March 1994 the Local Government Act 1936 was repealed. The 1993 Local Government Act also amended the Building Act 1975 by introducing swimming pool fence provisions in Pt 4B. In 1998 Pt 4B of the Building Act 1975 that had been introduced by the 1993 Local Government Act was repealed and a new Pt 4B inserted by the Building and Integrated Planning Amendment No. 13 Act 1998. That new Pt 4B repealed the whole of the earlier Pt 4B and inserted new sections, including s 30H. The standards referred to in s 30H were included as Pt 5 of the Standard Building Regulation 1993. These provisions commenced on 30 April 1998. In 2003 the Building Amendment Act 2003 repealed most of Pt 4B by the insertion of a variety of new sections which were numbered ss 232 to 246.

1. Relevantly s 233 provides as follows:

“233     Meaning of Fencing Standards

(1)The fencing standards, for an outdoor swimming pool on residential premises, are –

(a)for a pool constructed before the commencement of this section –

the requirements including standards applying under this Act for the fencing of the pool immediately before the commencement; or

(b)for a pool constructed on or after the commencement of this section –

the standards prescribed under a regulation for the fencing of the pool.

(2)However if, on the commencement of this section, an existing outdoor swimming pool on residential premises is not fenced or the fencing does not comply substantially with the fencing standards under subsection (1)(a) for the fencing of the pool immediately before the commencement, the fencing standards for the pool are the standards prescribed under subsection (1)(b).”  (Emphasis added).

1. Relevant to this appeal, the operation of the various legislative provisions appears to be as follows:  Subsection (1)(a) of s 235, which requires that for a pool constructed “before the commencement of this section” the requirements, including standards applying under this Act, for the fencing of the pool immediately before the commencement of the Act shall apply. Subclause 2 describes a different position.  Upon the commencement of the section, if an existing outdoor swimming pool on residential premises is not fenced or the fencing does not comply substantially with the fencing standards under subsection (1)(a) for the fencing of the pool immediately before the commencement, the more stringent fencing standards applicable to new pools under subsection (1)(b) is the appropriate and prescribed standard.  The section commenced on 1 October 2003.

1. For the appellant it is argued that in fact the subject fencing and other safety requirements, including security on doors and windows did not comply with standards prior to 1 October 2003 in any substantial way and therefore the fence must be made to comply with the present relevant standards.

1. Furthermore and central to this appeal is the argument advanced by the appellant that the Tribunal assessed the propriety of pool fencing not as at 1 October 2003 but as at the date of appeal. It is common ground that such an assessment must have been carried out by the Tribunal, otherwise an error of law would be shown to have occurred in the way in which the Tribunal carried out its proper function. As part of the material before me in the appeal book produced by agreement by both parties is the document of submissions provided by the respondent to the Tribunal (commencing at p 5 to p 9 of the record). Included in this under Pt 4 – modifications is the following:

“4.1There have been some events, modifications or changes of relevance since 1 February 1991.

4.2Fixed security screens to windows.

4.2.1The previously existing diamond grill patterned security screens have been replaced with plain steel security screens.

4.3West side upper pool fence.

4.3.1The internal swimming pool fence being the west side upper pool fence was temporarily unbolted for the removal of old paving and its replacement with new paving and then re-bolted in the same position.  During the course of the work the pool was emptied of water.

4.4Additional fencing and gate.

4.4.1Additional pool fencing and automatically closing gate has been installed at the east side lower level.”

At 5.6:

“There has been no removal or modification of any of the pool fencing that existed prior to 1991 with the possible exception of the temporary unbolting of one part of the pool fence for removal and replacement …”

5.7:

“It is the case that the automatic closer on one of the protected openings, being the kitchen door, was not operating properly in that although it was coming to a close it was not latching at the time of the inspection by officers of Redland Shire Council on 1 November 2006.”

At 5.9, in concluding submissions made to the Tribunal, it is tolerably clear that the submissions are to the effect that the pool complied and, further, the surrounding security, including doors and windows complied with the relevant pre 1 October 2003 legislation. Furthermore, it is clear that the way in which this was submitted to the Tribunal was that the pool always complied with the 1991 legislation or phraseology to that effect.

The Decision of the Tribunal

1. The hearing took place at the premises of 30 Bollard Court and included a representative of the respondent, R McVicker, four representatives of the appellant and an observer from Hemming and Hart Lawyers. The decision describes the material which was considered as part of the submissions including, at p 3:

“Material Considered

6.Written submissions by Council with accompanying photos.”

This material clearly includes the photographs sent to the Tribunal after the hearing and included those photographs said to have been taken in October of 2004. There is no further reference to the photographs or the use (if any) they provided to the Tribunal or the evidential value assigned by the Tribunal to those photographs except for a reference in para 5(a) to this effect:

“Council photographs 2004 indicate no fence at that time.  The owner asserts this wall was in place when he bought the property in 1993 and that it was temporarily removed to allow new paving to be laid, then reinstated.”

I will deal with that particular fencing issue at once. Clearly the Tribunal accepted what the respondent submitted about the pool fencing, that is that it had been temporarily removed. The Tribunal rejected any other inference asserted by the appellant that no pool fencing had ever existed. The lack of fencing, it appears clear, was accepted by the Tribunal to be merely a temporary measure.

1. It is necessary to understand arguments of both appellant and respondent to analyse carefully and in detail the entire reasons for decision given by the Tribunal. A number of observations may be made about the decision.

1.The Tribunal did not specifically reject the evidence of the October 2004 photographs. However, by necessary implication the fact finding indulged in by the Tribunal by implication rejected what was and has, on this appeal, been asserted by the appellant as to the evidential value of those photographs.

2.Throughout the course of the decision itself, there is no reference to the condition and propriety of pool security at the premises as at 1 October 2003. However, that is not an end of the matter. The Tribunal has used consistently throughout its decision, by reference to its fact finding process, a reference to the 1991 legislation with references such as “the 1991 pool fencing standards (49)H Local Government Act 1936” and “The Local Government Act 1936 introduced in February 1991”.

In fact, in paragraph 12, the penultimate paragraph of the decision, the following appears:

“In summary, it is my opinion that the pool fencing satisfies the relevant legislation and is not dangerous.  The fencing is substantially that approved and took into consideration the requirements of the Local Government Act 1936 introduced in February 1991.  One exception was the maintaining of the ‘effective height’ of the eastern boundary fence at the canal revetment wall. This in itself is not sufficient to warrant upgrading to current standards.  As noted, 5(b) protection is now provided.” 

In para 7D the following appears:

“All window openings opening to the pool are ‘protected’.  Pools lawfully constructed before 1 February 1991 the Local Government could approve a sill height not less than 900 mm with a security fixed fly screen.”

And in 7A:

“Regarding protection of openings; I consider that the openings giving access from the building to the pool are protected in accordance with the requirements of the Local Government Act 1936 as amended and as described in paragraph 3.”

1. It is necessary, I think, to say something about the October 2004 photographs (referred to above). The photographs, apparently at the request of the Tribunal, were provided after the hearing. Although no point is taken by the respondent as to this, it seems to me to be entirely unsatisfactory that the Tribunal has received photographs with descriptive material, which amounts to evidentiary statements thereon, together with a letter from some Council officer, asserting substantial evidentiary matters contained in the photographs and in respect of which the respondent had no opportunity to address either orally or by written submission, nor could the respondent in fact have known precisely what was contained in the written “evidentiary” notations to the photographs nor in the letter sent between the appellant and the decision maker.

1. In the event, it seems, the Tribunal did not rely on the evidence as it was asserted in the photographs by the appellant. This seems to me to be entirely appropriate, having regard to the shortcomings of the photographs. Although the Tribunal is not bound by the rules of evidence, this so-called evidentiary material relied so heavily upon by the appellant in this appeal, should be demonstrated to have some real weight and value. It has neither of those qualities, in my view.

1. There is nothing about the photographs, which were black and white, which demonstrates when and by whom the photographs were taken. This so-called evidence is third hand, to say the least. The photographs do not display any relevant measuring devices against which the objects in the photographs may be properly understood in terms of their true dimensions. An example of this is photograph B where the notation described “original screen door – no security mesh. Latch less than 1500 millimetres”. In this photograph there is no comparative measurement by means of which that assertion may be supported. Furthermore, to use photo B as an example, the full height of the door is not shown in the photograph.

1. In summary, in my view the photographs, lacking in weight and value as they are, are entirely insufficient to support the submissions made either to the Tribunal or before this court on appeal.

1. At the commencement of the reasons for decision, the Tribunal set out the following, which, it seems to me, is the context in which the Tribunal fashioned its decision on the material before it.

“1.The Local Government Act 1936 to 1984 – section 49H which commenced 1 February 1991 required owners of existing pools to satisfy minimum fencing standards.

…

2.For a pool constructed before 1 February 1991 the new State standards for a compliant pool fence took into account some local laws allowing pool fencing 900 mm high provided it inhibited access by young children and allowed other concessions to the adopted Australian Standard 1926-1986.  However, it required all openings from a building giving access to the pool to be ‘protected’ to inhibit access to the pool by young children in the building.

3(a)The Local Government (Swimming Pool Fencing) Amendment Act 1991 – Act No. 49 of 1991 was an Act to amend the Local Government Act 1936.  It became effective on 14 September 1991.  It made amendments to clarify the intent and facilitate the administration of the Act and introduce some further provisions.”

Clearly, particularly having regard to the material before me (quite apart from what may have been said which is not before this Court at the on-site hearing of the Tribunal) the written submissions by the respondent left open for the Tribunal to conclude that pool security, including the fencing and protection to doors and windows satisfied what the Tribunal described as the “1991 legislation”.

1. The language that the Tribunal has used and in particular the present tense used as describing the present condition of the pool is relied upon by the appellant to advance the argument that the decision made by the Tribunal is one which was based on the state of the pool at the time of hearing. It is unsurprising that in rehearsing the evidence before it, the Tribunal naturally described the present state of the pool fencing and security. This is not to say, in my view, that the Tribunal misapprehended the role of determining whether the pool fencing, as it presently exists, complied with the requirements of the pre October 2003 legislation. There is nothing, in my view, in the argument advanced by the appellant that the Tribunal referred to the state of security in terms of fencing and other security in the present tense.

1. It is tolerably clear, from a fair and thorough reading of the decision, that the decision maker always had in mind the state of the pool and its security as he observed it but as it related to the legislative requirements pre-October 2003. So much is clear from both written submissions provided to the Tribunal by both respondent and appellant (both of which appear in the appeal record book and to which reference has already been made).

1. In my view, there was ample evidence upon which the Tribunal could conclude that the present state of the pool complied with the pre October 2003 legislation and did in fact comply with that legislation prior to 1 October 2003, apart from the temporary removal of fencing during repairs and a reference (which the Tribunal clearly has accepted) to an updating of security screens.

1. In the event, I am not satisfied that there has been any error in law in the decision which the Tribunal made. I therefore dismiss the appeal.