Tamworth Regional Council v Scott Arron Wynn-Taylor and Kerrie Alison Wynn-Taylor

Case •

[2005] NSWLEC 757

•

12/19/2005

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION:

Tamworth Regional Council v Scott Arron Wynn-Taylor and Kerrie Alison Wynn-Taylor [2005] NSWLEC 757
PARTIES:

APPLICANT
Tamworth Regional Council

RESPONDENTS
Scott Arron Wynn-Taylor and
Kerrie Alison Wynn-Taylor
FILE NUMBER(S):

40907 of 2005
CORAM:

Preston CJ
KEY ISSUES:

Swimming Pools :- statutory requirement for child resistant barrier to surround swimming pool - statutory requirement to erect instructional posters - breaches of statutory requirements - appropriate orders to remedy and restrain breaches
LEGISLATION CITED:

Land and Environment Court Act 1979 s 20(1)(c), s 20(1)(d)
Swimming Pools Act 1992 s 4, s 6, s 7, s 7(1)(a), s 7(1)(b), s 7(1)(c), s 8, s 8(2), s 9, s 10, s 17, s 17(1), s 23, s 30 (1), s 30 (2), s 30 (3),
Swimming Pools Regulation 1998 reg 9
DATES OF HEARING: 19/12/2005
EX TEMPORE JUDGMENT DATE:

12/19/2005
LEGAL REPRESENTATIVES:

APPLICANT
Mr A E Singh (Solicitor)
SOLICITORS
Everingham Solomons

RESPONDENTS
No appearance


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Preston J

      Monday 19 December 2005

      05/40907

      TAMWORTH REGIONAL COUNCIL v SCOTT ARRON WYNN-TAYLOR

      JUDGMENT

      HIS HONOUR:

      JUDGMENT

1 HIS HONOUR: The applicant, Tamworth Regional Council (“the Council”), brings these proceedings to remedy and restrain breaches of the Swimming Pools Act 1992 (“the Act”) by the respondents, Mr Scott Wynn-Taylor and Ms Kerrie Wynn-Taylor also known as Ms Kerrie Buchanan. The breaches consist of not restricting access to an outdoor swimming pool on the respondents’ premises on which a residential building is located in accordance with the requirements of the Act and not erecting certain instructional posters on resuscitation at the premises.

Jurisdiction of the court

2 The Council is authorised pursuant to s 30(1) of the Act to bring the proceedings in this Court to remedy or restrain a breach of the Act. Such proceedings are assigned to Class 4 of the Court’s jurisdiction: ss 20(1)(c and d) of the Land and Environment Court Act 1979. If the Court is satisfied that a breach of the Act has been committed, the Court may make such order as it considers appropriate to remedy or restrain the breach: s 30(2) of the Act. Such order may require the erection and installation of such structures (such as fencing, doors, gates or locks, latches or other safety devices) in compliance with the requirements of the Act, or may require the taking of such other action as the Court may specify in the order: s 30(3) of the Act.

The obligations under the Act

3 The Act applies, inter alia, to outdoor swimming pools that are situated on premises on which a residential building is located: s 4 of the Act.

4 A “swimming pool” is defined in the Dictionary to the Act to mean:


          “An excavation, structure or vessel:

          (a) that is capable of being filled with water to a depth of 300 millimetres or more, and

          (b) that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity,

          and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act.”

5 A “residential building” is defined in the Dictionary to the Act to include a dwelling house.

6 Division 1 of Part 2 of the Act sets out the requirements for outdoor swimming pools for a dwelling house: s 6 of the Act.

7 Section 7, in Division 1 of Part 2 of the Act, sets out the general requirements for outdoor swimming pools namely:

          “(1) The owner of the premises on which a swimming pool is situation 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,

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

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

8 The general requirements in s 7 are subject to the exemptions in s 8, 9 and 10 of the Act.

9 Section 8 of the Act provides an exemption for all existing swimming pools and for new swimming pools on very small properties (having an area of less than 230 square metres). An “existing swimming pool” is defined in the Dictionary to the Act to mean “a swimming pool whose construction or installation had been begun or completed before 1 August 1990”. 1 August 1990 was the date on which the Act commenced.

10 Section 9 of the Act provides an exemption for swimming pools on large properties (having an area of 2 hectares or more).

11 Section 10 of the Act provides an exemption for swimming pools on waterfront properties.

12 In addition to requiring the erection of a child-resistant barrier around a swimming pool, the Act requires warning notices to be erected near swimming pools. Section 17 of the Act provides:

          “(1) The occupier of any premises in or on which a swimming pool is situated must ensure that there is at all times maintained, in a prominent position in the immediate vicinity of the swimming pool, a sign erected in accordance with the regulations and bearing the notice required by the regulations.
          (2) The regulations may make provision for or with respect of the erection, display and maintenance of other signs, and the notices to be borne by those signs, by the occupier of any premises in or on which a swimming pool is situated.”

13 The Swimming Pools Regulation 1998 (“the Regulation”) provides in reg 9:

          “For the purposes of section 7(1) of the Act the sign referred to in that subsection:

          (a) must be erected in accordance with the provisions relating to instructional posters of the document entitled Policy Statement No. 9.4.1: Guidelines for the Preparation of Posters on Resuscitation , published in July 1995 by Australian Resuscitation Council, a copy of which document is deposited in the head office of the Department,

          (b) must bear a notice that contains the words “YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL”, together with details of resuscitation techniques (for children, infants and adults) set out in accordance with the relevant provisions of the document entitled Cardio Pulmonary Resuscitation published by the Australian Resuscitation Council, and as reprinted in 1989 a copy of which document is deposited in the head office of the Department, and

          (c) must be maintained in a clearly legible condition.”

The respondents’ swimming pool and surrounds

14 The respondents are the registered proprietors of premises comprising Lot 17 in Deposited Plan 39054 known as 38 Hall Street, East Tamworth (“the premises”).

15 The premises are within the suburban area of the city of Tamworth which is within the local government area of the Council.

16 The area of the premises is approximately 800 square metres.

17 A dwelling house is erected on the premises.

18 A swimming pool is installed in the ground at the rear of the premises behind the dwelling house. The swimming pool has a capacity of being, and is in fact, filled with water to a depth of 1.8 metres, that is greater than 300 millimetres required in the definition of swimming pool in the Act. It is solely or principally used and is designed, manufactured and adapted to be used, for the purpose of swimming and other human aquatic activities.

19 The pool was constructed prior to 1 August 1990, in about 1989.

20 Mr Steven Hill, a senior building inspector employed by the Council, gave evidence that he inspected the premises on 29 March 2005 and noted that:

          “- The swimming pool on the property is an outdoor swimming pool.

          - The pool appears to have once had fencing around it but that the said fencing has been removed sometime in the past.

          - The property is surrounded by a colourbond fence, however, there is no fencing between the house and the swimming pool. Similarly, a section of the colourbond fencing has been damaged.”

21 Mr Hill inspected the premises on the following day, 30 March 2005, and noted that there was no change in the state of the pool or the fencing from the previous day. The pool was still full of water. He photographed the pool. The photographs depict the state of affairs described by Mr Hill.

22 In oral evidence, Mr Hill pointed out certain features in the photographs that he took on 30 March 2005. Mr Hill stated that there is a colourbond fence around each of the side boundaries and the rear boundary. A panel is damaged and allows access through the rear fence.

23 On the eastern side of the premises, there is a fence from the side boundary fence to the house which prevents access to the rear of the premises. However on the western side, there are gates between the side fence and the dwelling house. Those gates are of a height similar to the colourbond fence on the western side boundary. However, the gates do not have self-closing mechanisms and do not have a child-resistant locking device.

24 To the rear of the dwelling house, there is a rear door which opens onto a veranda. The rear doorway comprises two doors. First, there is a standard hinged timber door. The door handle on this door is one metre above the finished floor level. Secondly, there is a screen door. The handle of the screen door is 1050 millimetres above the finished floor level. There is no lock, latch, bolt, chain or other child-resistant device on either of these doors located at least 1.5 metres above the finished floor level.

25 On the western side of the rear of the dwelling house is a window. This is a large aluminium-framed, sliding window. It has a sill 750 millimetres above the finished floor level. There is no child-resistant device or key locks on this window. The latch mechanism is one which can be opened by pushing with a person’s hand.

26 On the eastern side of the rear of the dwelling house is another window. This is another standard aluminium-framed sliding window. It has a sill level 900 millimetres above the finished floor level. It also does not have a child-resistant device or key locks on it. The latch is also a standard lever latch which can be pushed with a person’s hand.

27 There are no child-resistant barriers between the rear door or either of the two windows in the rear façade of the dwelling house.

28 On 15 December 2005, Mr Hill again inspected the premises. He observed that the respondents had not undertaken any activity to carry out works on the dwelling house or around the pool, in particular they had not installed a child-resistant barrier or the necessary signage.

29 On 19 December 2005, a Mr Stuart Stevens, another senior building inspector with the Council, inspected the premises. Mr Stevens observed that no work had been undertaken to install a child-resistant barrier or the necessary signage. He advised Mr Hill by telephone of these matters. Mr Hill gave evidence reporting Mr Steven’s observations.

Enforcement by the Council

30 Prior to bringing these proceedings in the Court, the Council has endeavoured on a number of occasions to enforce the obligations under the Act against the respondents.

31 On 7 January 2005, the Council wrote to Ms Buchanan, advising her of the obligation on the respondents as owners of the premises to ensure that there is a childproof barrier surrounding the swimming pool that complies with the requirements of the Act. The Council required the respondents to erect, first, a temporary fence, then a permanent fence that complies with the Act, within fourteen days of the date of the letter, that is to say by 21 January 2005. If the works were not completed within the time specified, the Council advised the respondents that it would issue a notice of intention to issue an order under s 23 of the Act to have the work completed within a specified time. Furthermore, the Council advised the respondents that the Council may pursue legal proceedings to recover a monetary penalty from the property owner if the work required by the order is not completed.

32 The respondents failed to undertake the work required by the Council at all.

33 On 1 February 2005, the Council issued a notice of intention to issue an order under s 23 of the Act. The terms of the order of which notice of intention to issue was given, was for the respondents to:

          “upgrade and maintain the swimming pool by the completion of surrounding barrier fencing, access gates and signage in accordance with the Swimming Pools Act 1992, within twenty-eight days of the date of the Order”.

34 The respondents were given fourteen days from the date of the notice to make representations to the Council as to why a notice should not issue.

35 The respondents made no representations and did not undertake the work at all.

36 On 21 February 2005, the Council issued a notice under s 23 of the Act requiring the respondents to:

          “upgrade and maintain the barrier fencing around the swimming pool, including access gates and signage in accordance with the Swimming Pools Act 1992”.

37 The works required by the order were to be completed by 21 March 2005.

38 The notice was served on the respondents on 22 February 2005.

39 On 21 March 2005, Mr Hill had a telephone conference with one of the respondents, Ms Buchanan. Ms Buchanan said she would have the fence installed before Friday 25 March 2005. Mr Hill and Ms Buchanan agreed in the conversation that if Ms Buchanan has the pool barrier erected by this time and to the requirements of the Act, no further action would be pursued by the Council. If the works are not completed by Friday 25 March 2005, the Council would proceed to issue the penalty notice (infringement notice) on Ms Buchanan by Tuesday 29 March 2005.

40 On 29 March 2005, Mr Hill inspected the premises and made the observations that I have earlier quoted to the effect that no work had been done in accordance with the notice to erect child-resistant barriers or the necessary signage.

41 Later on that day, Mr Hill spoke to Ms Buchanan on the telephone. Ms Buchanan identified herself as Ms Kerrie Buchanan and acknowledged that she had received the order and other correspondence from the Council, and had disobeyed the written instruction from the Council to reinstate the swimming pool childproof barrier. Ms Buchanan advised that she had appointed a fencing contractor and that she would have the pool barrier erected within another week from 29 March 2005. Mr Hill asked Ms Buchanan to provide him with the name and contact phone number for the contractor who would conduct this work. Ms Buchanan replied that she did not possess any of this information at the time of the phone call and that she would phone Mr Hill back with the information within fifteen minutes. Mr Hill states that Ms Buchanan did not telephone him back and did not provide any details regarding her fencing contractor.

42 On 30 March 2005, Mr Hill again inspected the premises and observed that the work had still not been done to erect a childproof barrier or the necessary signage.

43 Later on 30 March 2005, the Council, by Mr Hill’s authority, issued a penalty notice to Ms Buchanan for not complying with the notice under s 23 of the Act. The notice was sent to the respondents on 30 March 2005.

44 On 20 July 2005, the Council’s solicitors, Everingham Solomons, wrote to the respondents advising them that unless the works of erecting the childproof barrier and necessary signage were undertaken, proceedings would be commenced in the Land and Environment Court.

45 Still, the respondents failed to undertake the necessary works erecting the necessary childproof barrier or the necessary signage.

46 On 28 July 2005, the Council commenced these class 4 proceedings.

47 On 17 August 2005, the class 4 application was served personally on the respondents. An affidavit of service of Mr RC Lloyd, sworn 18 August 2005, deposes to personal service having been effected on the respondents.

48 The first return of the class 4 application before the Court was on 2 September 2005. There was no appearance for the respondents.

49 The matter came before the Court on numerous occasions thereafter; on 20 September, 4 October, 19 October, 7 November and 21 November 2005. There has been no appearance for the respondents on any of these occasions before the Court.

50 The Council has advised the respondents of the directions hearings before the Court: see the affidavits of Mr RC Lloyd sworn 5 October, 24 October and 8 November 2005 and the affidavits of Mr A E Singh sworn 8 November and 16 December 2005.

51 On 21 November 2005, the Court listed the matter for hearing today, 19 December 2005. The Council notified the respondents of the proceedings being listed for hearing on 19 December 2005: see affidavit of Mr AE Singh sworn 16 December 2005, paragraph 3 and annexure B, being a letter dated 21 November 2005 from the Council’s solicitors to the respondents. The Court also sent by registered mail a letter dated 15 December 2005 advising the respondents of the hearing before the Court on 19 December 2005.

52 Today, at the hearing of the matter, the matter was called three times outside the Court. There was still no appearance for the respondents.


53 The Council has established that:

      (a) The respondents are the owners of the premises being Lot 17 in Deposited Plan 39054 and known as 38 Hall Street, East Tamworth;

      (b) There is a residential building situated on the premises, being a dwelling house;

      (c) There is installed in the grounds on the premises a swimming pool that falls within the definition of a swimming pool in the Act;

      (d) Such swimming pool is an existing swimming pool, having been constructed or installed before 1 August 1990;

      (e) There is not, at all times or at all, surrounding the swimming pool a child-resistant barrier that separates the swimming pool from the residential building situated on the premises and from any place adjoining the premises and that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations; and

      (f) The means of access to the swimming pool from the residential building, being the dwelling house on the premises, are not at all times or at all, restricted in accordance with the standards prescribed by the regulations, namely:
          (i) the rear door to the dwelling house is not a child-safe door in accordance with regulation 6(2);
          (ii) the rear windows in the rear façade of the dwelling house do not comply with regulation 6(4) or (5) of the regulations; and
          (iii) the fencing and gates on the boundaries of the premises are not child resistant in that there is a panel missing in the rear colourbond fence which allows access, and the gates on the western side are not self closing and do not have a child-resistant locking device.

54 Accordingly, I find that the respondents are in breach of the Act. The respondents have not compiled with the general requirement in s 7(1) of the Act. By reason of the means of access to the swimming pool from the dwelling house not being restricted in accordance with the standards prescribed by the regulations, the exemption in s 8(2) of the Act does not apply to exempt the respondents from the general requirement to ensure that the swimming pool is at all times surrounded by a child-resistant barrier separating the swimming pool from the dwelling house situated on the premises. Accordingly, the respondents are in breach of s 7(1) of the Act.

55 I also find that the respondents are in breach of the Act in that warning notices in accordance with s 17 of the Act and reg 9 of the Regulation have not been erected near the swimming pool.


56 Under s 30(2), the Court, if satisfied that a breach of the Act has been committed, which I am in this case, may make such orders it considers appropriate to remedy or restrain the breach. The Council submits that the order that is appropriate to remedy and restrain the breach is to order the respondents to:

          “fence or enclose the swimming pool with a child-resistant barrier designed, constructed, installed and maintained in accordance with the standards set out in AS 1926 within twenty-eight days from the date of these orders”: see paragraph 4 (a) of the application class 4.

57 Such an order would ensure that the general requirement in s 7(1) is complied with.

58 An alternative means of ensuring compliance with the Act would be to require, first, the boundary fencing to be repaired so as to prevent access through damaged panels, secondly, installation of a child-resistant locking device and self-closing devices on the gates on the western side, and thirdly, the carrying out of works on the rear doors and rear windows so as to ensure that the means of access to the swimming pool from the dwelling house are at all times restricted in accordance with the standards prescribed by the regulations. The latter works would require access to the interior of the dwelling house. Furthermore, the precise scope of the works that would be required is not clear, although the performance standard that would need to be reached is able to be comprehended by reference to Clause 6 of the regulation. Access to the interior of the premises is made more difficult by reason of the fact that the premises are tenanted.

59 It is also relevant to note that at no time has the Council ever suggested that the means of bringing the premises into a state of compliance with the Act should be by carrying out works to the dwelling house itself or to do the other works to the boundary fences and gates. The Council has at all times required the respondents to erect a child-resistant barrier to surround the pool and to separate the swimming pool from the dwelling house on the premises. The respondents have always understood those to be the requirements. Equally at no time have the respondents ever suggested that any alternative means of bringing the premises into a state of compliance with the Act would be more appropriate.

60 In all of the circumstances, I consider that the appropriate order to remedy or restrain the breach of s 7(1) of the Act is to require the erection of a child-resistant barrier so as to separate the swimming pool from the dwelling house on the premises. That is to say, the appropriate order is to make order in terms of the order 4(a) of the class 4 application.

61 In addition, there is the further breach of the Act in that warning notices, in accordance with s 17 of the Act and regulation 9 of the Regulation, have not been erected near the swimming pool. The appropriate order to remedy this breach is to make an order requiring the erection of such warning notices. The Council claims an order in paragraph 4(b) of the application class 4 in these terms, that the respondents:

          “Erect in accordance with the provisions relating to instructional posters of the document entitled Policy Statement No. 9.4.1: Guidelines for the preparation of Posters and Resuscitation, published in July 1995 by the Australian Resuscitation Council and bearing a notice that contains the words “YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THE SWIMMING POOL” together with details of resuscitation techniques for children, infants and adults set out in accordance with the relevant provisions of the document entitled ‘Cardio Pulmonary Resuscitation’ published by the Australian Resuscitation Council and as reprinted in 1989 within twenty-eight days from the date of these orders”.

62 That is an appropriate order to make to remedy the breach of s 17(1) of the Act.


63 Accordingly, I make the following orders:

          1. The Court declares that the respondents are the owners of Lot 17 in Deposited Plan 39054 known as 38 Hall Street, East Tamworth upon which a swimming pool is constructed.
          2. The Court declares that the swimming pool situated on the premises:
              (a) is an outdoor swimming pool;
              (b) is situated on premises on which a residential building is located;
              (c) is within the meaning of the Swimming Pools Act 1992.


          3. The Court declares that the respondents are in breach of the s 7(1) and s 17(1) of the Swimming Pools Act 1992.

          4. The Court orders that the respondents:
              (a) Fence or enclose the swimming pool with a child-resistant barrier designed, constructed, installed and maintained in accordance with the standards set out in AS 1926 by 30 January 2006;

              (b) Erect in accordance with the provisions relating to instructional posters of the document entitled “Policy Statement No. 9.4.1: Guidelines for the Preparation on Posters on Resuscitation”, published in July 1995 by the Australian Resuscitation Council and bearing a notice that contains the words “YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL” together with details of resuscitation techniques for children, infants and adults set out in accordance with the relevant provisions of the document entitled “Cardio Pulmonary Resuscitation” published by the Australian Resuscitation Council and as reprinted in 1989 by 30 January 2006”

              (c) The Councils be permitted by itself, servants or agents, to enter upon the subject premises and carry out such works, or cause or permit the carrying out of such works as are necessary to comply with the orders referred to in paragraphs 4(a) and 4(b), if after 30 January 2006, the respondents have failed to comply with the said orders;
              (d) The respondents are to pay the Council’s reasonable costs of carrying out any works pursuant to order 4(c), such costs shall be recoverable by the Council against the respondents as a debt due to the Council.

          5. The Court orders the respondents pay the Council’s costs of these proceedings.

      **********

      I certify that this and the 14 preceding pages are a true copy of the reasons for the judgement of The Honourable Justice B. J. Preston.

      ………………………… …………………………
      Associate Date
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