Stuart Palmer v Ku-ring-gai Council

Case •

[2017] NSWLEC 1399

•

28 July 2017

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Stuart Palmer v Ku-ring-gai Council [2017] NSWLEC 1399
Hearing dates: 21 July 2017
Date of orders: 28 July 2017
Decision date: 28 July 2017
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court orders:

 (1) The appeal is dismissed.
Catchwords: SWIMMING POOLS: Appeal against a Direction; Application for an exemption.
Legislation Cited: Land and Environment Court Act 1979
Swimming Pools Act 1992
Swimming Pool Regulation 2008
Cases Cited: Nil
Texts Cited: Nil
Category:Principal judgment
Parties: Stuart Palmer (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Mr S. Palmer (In person)
Ms L. Finn (Respondent)

    Solicitors
Hones Lawyers (Respondent)
File Number(s): 2017/82822
Publication restriction: Nil

Judgment

Background

  1. COMMISSIONER: Mr Stuart Palmer (the Applicant) has appealed a decision by Ku-ring-gai Council (the Respondent) to issue a Direction to Comply under s23(1) of the Swimming Pools Act 1992 (the SP Act). The appeal is made pursuant to section 26(1) of the SP Act.

  2. The Direction to Comply was issued in relation to the Applicant’s premises at 37 Bayswater Road, Lindfield (the Subject Site) and an application made to Ku-ring-gai Council by Mr Palmer for a Swimming Pool Compliance Certificate under s22 of the SP Act.

  3. The Subject Site includes a two-storey residential building, constructed in 2004, and an outdoor swimming pool constructed prior to August 1990. These dates were agreed between the Parties.

  4. The swimming pool is bounded by:

  1. the neighbouring property to the south-west;

  2. a pool fence and gate to the north-west;

  3. a wooden fence adjoining the front carport to south-east; and

  4. the residential building to the north-east.

  1. In reviewing the application for a Swimming Pool Compliance Certificate, the Respondent undertook an inspection of the Subject Site on 13 January 2017 and identified certain non-compliances with respect to the requirements of Part 2 (Division 1) of the SP Act, which concerns access to outdoor swimming pools for dwelling houses etc. The Respondent issued a Direction to Comply (SPA0015/17) on 20 January 2017 requiring that the Applicant rectify the identified non-compliances.

  2. Following an exchange of communication between the Parties, the Respondent undertook a further inspection, with the Applicant’s consent, to review the basis for issuing the Direction. During that inspection the Respondent noted that certain matters identified in the Direction to Comply had been satisfactorily addressed. However, the Respondent also noted certain additional non-compliances in relation to the provisions of the SP Act and the Swimming Pools Regulation 2008 (the Regulation).

  3. Subsequently, the Respondent advised the Applicant that its original Direction to Comply, issued on 20 January 2017, had been revoked, and that a new Direction to Comply (SPA0035/17) would be issued. This was issued on 17 February 2017, and it is this most recent Direction to Comply that is the subject of this appeal.

  4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 21 July 2017. An inspection of the Subject Site was undertaken as part of the conciliation conference.

  5. During the inspection the Respondent’s expert, Ms Kate Stoner, a contract senior building surveyor, noted that certain works undertaken by the Applicant had satisfactorily resolved all but one of the matters identified as requiring rectification in the Direction to Comply.

  6. The unresolved matter concerned the non-compliance, in the Respondent’s opinion, of a door, located on the ground floor south west wall of the residential building, that provided direct access to the swimming pool from the internal laundry of the residential building on the premises.

  7. The Applicant said that he had installed treatments at the door to restrict access to the swimming pool from the residential building through the laundry. These treatments included a series of locks, a self-closing mechanism for the door, and a safety latch mechanism located at the height of more than1500mm above the floor level that could be operated from either side of the door.

  8. Having reviewed these treatments, the Respondent remained of the view that the laundry door was non-compliant with the requirements of the SP Act and the Regulation.

  9. According to the Respondent’s expert, Ms Stoner, the door formed part of the barrier between the residential building and the pool area, and, as a consequence, was subject to the requirements of s7 of the SP Act. Given this, Ms Stoner said that the door should comply with the current Australian Standard for Safety Barriers for Swimming Pools, AS1926.1-2012, as the relevant standard under the Regulation, which required that no access should be possible to the swimming pool through the door.

  10. The Applicant said that, because the pool was constructed prior to August 1990, the pool and its compliance requirements were subject to the provisions s8 of the SP Act, which provided an exemption to requirements of s7, owing to its date of construction before August 1990, and that the relevant standard for the door was the earlier version of the standard, AS1926.1-2007. It was agreed by the Parties that the treatments applied to the door by the Applicant would comply with that earlier standard.

  11. The Respondent’s expert, Ms Stoner, said that, in her opinion, the Applicant was not able to rely on s8 of the SP Act to claim an exemption from the requirements of s7, because:

  1. the current residential building, erected in 2004, had introduced a new barrier to the swimming pool that had replaced the previous barrier restricting access to the swimming pool;

  2. the laundry door formed part of the barrier to the swimming pool;

  3. these facts were consistent with the provisions of s8(4) of the SP Act under which the exemptions provided by s8 ceased to apply.

  1. In support of this opinion, the Respondent noted that the definition of a barrier in the SP Act included any door set in a wall that formed part of a barrier restricting access to a swimming pool.

  2. In response, the Applicant said that s8(4) did not apply because, in his opinion, the door formed part of the residential building, and so could not be considered part of a barrier between the residential building and the swimming pool.

  3. In his Class 2 Application initiating this appeal, the Applicant submitted that the Respondent had advised that the requirements cl23 of the Regulation, which provides a basis for exemptions for existing complying swimming pools, did not apply to the swimming pool on the Subject Site. During the conciliation conference, the Applicant said that he did not seek to rely on cl23 of the Regulation as a basis for seeking an exemption to the requirements of s7 of the SP Act.

  4. The Parties were unable to agree during the s.34 conciliation as to the compliance or otherwise of the laundry door, and so the conciliation process was terminated.

  5. The parties consented to me disposing of the proceedings under s34(4)(b)(ii) of the LEC Act on the basis of what occurred at the conciliation conference.

Regulatory context

  1. The long title of the SP Act is “an Act to require access to private swimming pools to be effectively restricted’. The general requirements for restricting access to outdoor swimming pools for private dwellings is provided in within Part 2, Division 1, Section 7 as follows:

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.

  1. The term ‘standards prescribed by the regulations’ refer to the Swimming Pool Regulation 2008 (the Regulation), and in relation to s7, the Regulation states:

5 General requirements for outdoor swimming pools

(1) For the purposes of sections 7(1) (b) and 12(d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the standards set out in the Building Code of Australia.

(2) This clause is subject to clause 18BB.

  1. The standards referred to in s5(1) are those contained in the current Australian Standard for Safety Barriers for Swimming Pools, AS1926.1-2012.

  2. Part 2 of the Act also provides, under ss8, 9 and 10, circumstances in which exemptions may be permitted to the requirements of s7.

  3. Relevantly for the current matter, s8 of the SP Act provides:

8 Exemption for swimming pools constructed before August 1990 and existing swimming pools on small properties

(1) This section applies to the following swimming pools:

(a) swimming pools the construction or installation of which commenced before 1 August 1990,

(b) swimming pools the construction or installation of which commenced before 1 July 2010 and that are situated on premises having an area of less than 230 square metres.

Note : 230 square metres is the smallest area on which a dwelling-house may currently be erected.

(2) The child-resistant barrier surrounding the swimming pool is not required to separate the swimming pool from any residential building situated on the premises so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations.

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

(4) 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.

  1. In relation to the requirements of s8, the relevant section of the Regulation is section 6, which states:

6 Standards required for certain swimming pools to be exempt from requirement to separate swimming pool from residential building

(1) For the purposes of section 8(2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are that:

(a) each doorway, and each opening portion of a window, that gives access to the swimming pool is to be designed, constructed, installed and maintained in accordance with the standards set out in AS 1926.1-2007, and

(b) in relation to each opening portion of a window giving access to the swimming pool-there must not be any footholds wider than 10 millimetres between the bottom of the lowest opening panel of the window and any point within 1.1 metres below the bottom of that panel.

(2) Subclause (1)(b) does not apply to a window that is:

(a) of substantial construction and is so fixed (by means of a keyed locking device or other child-resistant device) that it has no opening through which it is possible to pass a testing apparatus, or

(b) totally enclosed by a grille (including a fixed grille) that is of substantial construction and is so fixed (by means of a keyed locking device or other child-resistant device) that it has no opening through which it is possible to pass a testing apparatus.

  1. The single contention in this appeal concerns the application, or not, of s8(4) of the SP Act, and, more specifically, whether the laundry door forms part of a barrier, 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.

  2. The definitions within the SP Act of ‘barrier’ and ‘residential building’ are both relevant to resolution of the matter. Those definitions are:

  1. Barrier

"barrier" means a fence or a wall, and includes:

(a) any gate or door set in the fence or wall, and

(b) any other structure or thing declared by the regulations to be a barrier for the purposes of this Act.

  1. Residential building

"residential building" means a building (such as a dwelling-house, residential flat building or boarding-house) that is solely or principally used for residential purposes, and includes any structure (such as a garage or shed) that is ancillary to any such building, but does not include:

(a) a building that merely forms part of a complex of buildings (such as a school or recreational centre) that is principally used for non-residential purposes, or

(b) a moveable dwelling, or

(b1) tourist and visitor accommodation, or

(c) a shed that is ancillary to a swimming pool and the primary purpose of which is to store equipment that is used in connection with the swimming pool (but not a shed of a kind prescribed by the regulations), or

(d) a building or structure of a kind prescribed by the regulations.

  1. Finally, while not relied on by the Applicant as a basis for seeking an exemption to the general requirements for swimming pools under s7 of the SP Act, I note that cl23 of the Regulations states:

23 Existing complying swimming pools may continue to comply with earlier standards

(1) This clause applies to a swimming pool the construction or installation of which was completed before 1 September 2008.

(2) It is sufficient compliance with Part 2 of the Act for a swimming pool to comply with that Part on the basis of the requirements of Part 2 of the Swimming Pools Regulation 1998 (as an alternative to compliance on the basis of the requirements of Part 2 of this Regulation).

(3) However, this clause does not apply:

(a) in relation to an outdoor swimming pool-if the child-resistant barrier by which access to the swimming pool is restricted is substantially altered or rebuilt, and

(b) in relation to an indoor swimming pool-if the premises in which the swimming pool is situated are substantially altered or rebuilt in a way that affects the means of access to the swimming pool.

Does the laundry door constitute part of the barrier?

  1. Access to the outdoor swimming pool is restricted, in part, by the south-west wall of the residential building, including the laundry door in contention.

  2. The definition of a ‘barrier’ under the SP Act includes any door set in any wall forming a barrier restricting access to the swimming pool.

  3. The Applicant has argued that the laundry door forms part of the residential building and so cannot be part of a barrier between the residential building and the swimming pool under the SP Act.

  4. However, under the SP Act the definition of a ‘residential building’, such as a dwelling house, does not include:

(d) a building or structure of a kind prescribed by the regulation.

  1. A doorway giving access to a swimming pool is a prescribed structure under the Regulation, including under cl6(1)(a), which says:

(1) For the purposes of section 8(2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are that:

(a) each doorway, and each opening portion of a window, that gives access to the swimming pool is to be designed, constructed, installed and maintained in accordance with the standards set out in AS 1926.1-2007.

  1. I conclude that:

  1. the laundry door is a structure prescribed by the Regulation that is not included in the definition of a residential building;

  2. the laundry door forms part of the barrier restricting access from the residential building to the swimming pool on the premises.

Is the Applicant entitled to an exemption under s8 of the SP Act?

  1. Section 8 of the SP Act sets out the basis upon which swimming pools, the construction or installation of which commenced before 1 August 1990, may be entitled to an exemption to the general requirements for outdoor swimming pools.

  2. It was agreed by the Parties that the swimming pool at the Subject Site had been constructed before 1 August 1990.

  3. However, s8(4) of the SP Act states:

(4) 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.

  1. As noted at [28], under the definitions in the SP Act, in this case the laundry door does not form part of the residential building, but does form part of the barrier between the residential building and the swimming pool, as the door is a barrier erected on the premises, (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from the residential building on the premises.

  2. Consequently, I conclude that s8(4) applies to the swimming pool on the Subject Site, and that the Applicant is not entitled to an exemption under s8 of the SP Act.

Does the Applicant have a basis for an exemption under cl23 of the Regulation?

  1. As noted at [18], cl23 of the Regulation provides a basis for existing complying swimming pools to continue to comply with earlier standards, and so to be exempt from the general requirements for outdoor swimming pools under s7 of the SP Act.

  2. The Applicant did not seek to rely on cl23 of the Regulation as a basis for seeking an exemption to the requirements of s7 of the SP Act.

  3. However, for completeness, and as this matter was identified by the Applicant in his Class 2 application, and as the matter was discussed at the conciliation conference, I have considered the possible application of cl23 of the Regulation to the Applicant’s appeal.

  4. I am satisfied that the requirements of cl23 are not met by the circumstances of this appeal because the child resistant barrier by which access to the swimming pool was restricted at the time of its construction has been substantially altered and rebuilt as a consequence of the erection of the current residential building on the premises.

  5. This conclusion is consistent with the position of the Respondent on this question, as noted by the Applicant in his Class 2 Application.

Conclusion

  1. Based on the submissions of the Parties during the s34 conciliation conference and consideration of those submissions, I am satisfied that:

  1. an exemption under s8 of the SP Act 1992 is not available to the Applicant through the application of s8(4) of that SP Act because, based on definitions in that Act, as the laundry door does not form part of the residential building, but does form part of a barrier erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from the residential building on the premises;

  2. the provisions of cl23 of the Regulation, concerning existing complying swimming pools continuing to comply with earlier standards, is also not available to the Applicant as the child resistant barrier by which access to the swimming pool was restricted at the time of its construction has been substantially altered and rebuilt as a consequence of the erection of the current residential building on the premises;

  3. the outdoor swimming pool at the Subject Site should comply with the requirements of s7 of the SP Act; and

  4. the Direction to Comply (SPA0035/17) issued by the Respondent on 17 February 2017 should stand.

Orders

  1. The Court orders that:

  1. The appeal is dismissed.

………………………….

Michael Chilcott

Commissioner

Decision last updated: 10 April 2018

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