Skomba v Maroochy Shire Council
[2005] QPEC 1
•17 January 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Skomba & Ors v Maroochy Shire Council [2005] QPEC 001
PARTIES:
DR SKOMBA AND B & J TANNOCK
appellants
v
MAROOCHY SHIRE COUNCIL
respondentFILE NO/S:
BD1135 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Building Services Tribunal
DELIVERED ON:
17 January 2005
DELIVERED AT:
Brisbane
HEARING DATE:
26 November, 2004
JUDGE:
McLauchlan QC DCJ
ORDER:
Appeal refused.
CATCHWORDS:
SWIMMING POOL FENCING; - ‘direct access’ - ‘child resistant doorsets’
Building Act 1975, s12U
Standard Building Regulation 1993, s 60
Australian Standard AS 1926.2Integrated Planning Act 1997, s4.1.37
COUNSEL:
Mr Keim SC for the appellants; Mr Hughes SC for the respondent
SOLICITORS:
P & E Law for the appellants; Maroochy Shire Council for the respondent
This matter concerns a development application for a swimming pool and fencing at 32 Baker-Finch Place, Twin Waters, and in particular for the installation of “Chameleon pool gates” as part of the fencing. The application was refused by the respondent on 5 February 2004, upon the basis that the “gates” in question were in reality “child resistant doorsets” which are not permitted to be used in Queensland. There was then an appeal to the Building Services Tribunal which on 9 March 2004 confirmed the earlier decision of the respondent but on the somewhat different basis that the prohibition imposed by the relevant legislation upon “direct access” from the building to the pool area was flouted by the appellants’ proposal in that the legislation required that there be a separate space outside the house into which a person would enter upon leaving the house and before entering the pool area.
The appeal to the Court from a Tribunal is predicated upon an error or mistake in law on the part of the Tribunal, or that the Tribunal had no jurisdiction to make the decision or exceed its jurisdiction in making the decision: s 4.1.37 IPA. There is no question of lack of jurisdiction in this case so that the appellants must establish an error or mistake in law.
Part 3 of the Building Act 1975 makes provision for the fencing of swimming pools. Section 12U provides, relevantly, that the “fencing standards” for an outdoor swimming pool on residential land are the standards prescribed under a regulation for the fencing of the pool. The Standard Building Regulation, s 60 provides as follows:-
“For the Act, section 12U(1)(b), the standards prescribed for an outdoor swimming pool on residential land are –
(a) the standard for the design, building and performance of swimming pool fencing in AS 1926.1-1993, Swimming pool safety part 1: Fencing for swimming pools, other than clause 2.14 of the standard; and
(b) the standard for the location of fencing contained in AS 1926.2-1995, Swimming pool safety part 2: Location of fencing for private swimming pools, other than clause 1.4.4 of the standard.”
Australian Standard AS 1926.2 provides in clause 1.4, options for location of fencing. The particular provisions are as follows:-
“1.4.1 General.
Fences, gates, retaining walls and other such barriers in options (A), (B) and (C) shall comply with AS 926.1.
1.4.2 Option A.
Option A shall not permit direct access to the pool area from the building. Where the wall of a building forms part of the fencing of the pool, it shall not be possible to gain access to the pool area from the building.
NOTE:A gate that is deliberately propped open or a faulty gate that does not self-close and latch from any position or a fence that is not properly maintained compromises the safety of this option.
Typical examples of Option A fencing are given in figure 2.1.
1.4.3 Option B.
Option B shall not permit direct access from the building to the pool area. Where the wall of a building forms part of the fencing, a child-restraint openable portion of window which complies with AS 1926. is permitted.
NOTE:A gate that is deliberately propped open or a faulty gate that does not self-close and latch from any position or a fence that is not properly maintained compromises the safety of this option.
A typical example of Option B fencing is given in figure 2.2.
1.4.4.Option C.
Option C shall permit access from the building to the pool area. Where the wall of a building forms part of the fencing, child-restraint doorsets and child-restraints openable portion of windows which only comply with AS 1926.1 are permitted.
NOTE:In most circumstances allowing direct access to the pool area from a building via child-restraint doorsets compromises safety as the doorset may be treated as a normal door and not contained as a purpose-built safety device to form a barrier that will consistently restrict the access of young children to the swimming pool. Accordingly, this option should only be used with caution, primarily where physical circumstances preclude any other acceptable solutions.
Typical examples of Option C fencing are given in figure 2.3.”
It will be noted that Option C does not apply in Queensland by reason of the omission of clause 1.4.4 from the Standards prescribed for an outdoor swimming pool on residential land. The result is that child-restraint doorsets and child-restraint openable portions of windows are not permitted where the wall of a building forms part of the fencing.
So far as the design building and performance of swimming pool fencing, which is the subject of AS 1916.1 is concerned, there is also omitted clause 2.14 of the Standard which sets out various requirements with which such doorsets must comply. Presumably this has been done to avoid any implication that child-restraint doorsets may have some relevance to swimming pool fencing in Queensland.
In Queensland the options for location of swimming pool fencing are thus confined to Option A and Option B, Option C being specifically excluded. The options come with diagrams to assist in their understanding. The combination of the two options appears to me to result in the situation that there is to be no direct access from the building (dwelling house in this instance) to the pool area. Where the wall of a building forms part of the fencing of the pool, it shall not be possible to gain access to the pool area from the building, but a child-resistant openable portion of a window which complies with AS 1926.1 is permitted.
In the present case it is not proposed that there should be a child-resistant openable portion of a window, and consequently it is only the provisions of Option A which need to be considered.
There is a plan in the material showing the proposal in the present case. This shows that the wall of the house forms part of the fencing of the pool and that the proposal is to situate three Chameleon pool gates to the exterior of three secured windows or doors. As I understand it, they are in fact three sliding doors.
The features of a Chameleon pool gate have been summarised by Counsel for the appellants in his submissions. The prime features of the gate are that it is a free standing structure which is fixed by bolting to the concrete apron of the house, and is located outside the building line of the house but so close thereto that, until opened, it provides a complete barrier to anyone seeking to exit the house via the opened door of the house.
The argument of the appellants, as I understand it, is essentially that with the gate in place, there can be no “direct access” from the house to the pool area because in addition to the necessity to open a door in the house it is necessary also to open the gate which is a structure located outside the building line of the house and a structure independent of the house, before the pool area can be accessed. On this line of reasoning, the pool area may be accessed from the house but it could not be said that there was “direct access from the house’. The view taken by the Tribunal, on the other hand, was that if one could enter the pool area from the house without entering a space which was neither part of the house nor part of the pool area then this constituted “direct access” from the house to the pool area. Either argument is, I consider, maintainable. The primary purpose of the legislation being for the protection of children, I would favour the construction of the Tribunal over that of the appellants. However it appears to me that the wording of Option A distinguishes a situation where the wall of a building forms part of the fencing of the pool, from a situation where that is not the case. Where the wall of the building does not form part of the fencing of the pool, then direct access to the pool area from the building is not permitted; but where the wall of the building does form part of the fencing of the pool any access to the pool area from the building is not permitted or, in terms of the language of Option A, “it shall not be possible to gain access to the pool area from the building”.
The proper construction of the legislation in my opinion, produces the result that, where the wall of the house forms part of the fencing of the pool, no access to the pool area from the building is permitted, whether that access be “direct” or “indirect”.
In the present case it seems to me to be indisputable that, to get outside the house through an exit barred by a Chamelon pool gate, it is necessary to open the sliding door, and then to open the Chameleon pool gate, and having done that, one is in the pool area. It seems to me to be beyond argument that, in those circumstances, access is gained to the pool area from the dwelling house. This situation, obviously, would not obtain if it were necessary to leave the dwelling house in order to open the Chameleon pool gate, but this would destroy the appeal which such a gate evidently has.
There has been some doubt in my mind whether or not it has been established that the Tribunal made an error of law in coming to its decision. This is because the member’s interpretation of the expression “direct access” is a plausible one. However, I think he made an error of law in considering that the matter was to be resolved by the correct interpretation of that expression. In fact what needs to be considered, in a case such as the present, is whether it is possible to gain access to the pool area from the house itself, and in my opinion it clearly is.
Whether the Tribunal made an error of law or not does not in the end matter, because I have reached the conclusion that the decision of the Tribunal was correct in the result, although perhaps for reasons other than those stated by the Tribunal. In the result, the appeal is refused.
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