Andrew Charles MacDonald v Blue Mountains City Council

Land and Environment Court (NSW)|2017-10-16

Judgment

Mr Andrew MacDonald is the proprietor of a beautiful property located at 169 Chapman Parade Faulconbridge, with well-tended grounds located within a bushland setting (the property). The property comprises his own residence as well as three self-contained dwellings known as Studio Cottages. At the rear of these buildings is a pool, surrounded by sandstone rock, loose soil and landscaped areas. Photographs of the pool, taken from Exhibit 9, appear below. The heavy black lines represent a hand-drawn fence added by Mr Brian Crane, Executive Principal of Health and Compliance Services for the Council, to indicate the possible location of a pool fence. This is the subject of further discussion and evidence below at [68ff].
After a lengthy history of engagement between the parties, on 12 July 2016 the Blue Mountains City Council (the Council) issued Mr MacDonald with a direction under s 23 of the Swimming Pools Act 1992 (SP Act) requiring Mr MacDonald to provide a child-resistant barrier ("CRB") to the pool, compliant with the relevant Australian Standard (AS 1926.1) (the Direction). It is against this direction that Mr MacDonald has appealed, filing this appeal on 9 August 2016.

The Direction the subject of the Appeal

The Direction to Comply (dated 12 July 2016) provides as follows: SWIMMING POOLS ACT 1992 (SECTION 23) DIRECTION TO COMPLY A swimming pool situated at premises known as L3 DP 1215861, 169 Chapman Parade, FAULCONBRIDGE NSW 2776 within the Council of the City of the Blue Mountains does not comply with the requirements of the Swimming Pools Act 1992 and the Swimming Pools Regulation 2008 in respect to the matters specified in Schedule 1 below. Take notice that you, as the owner of the subject premises, are directed to comply with the requirements by carrying out and completing the works or taking such measures that are specified in Schedule 2 below, within a period of 90 days from the date of this letter. SCHEDULE 1 The swimming pool situated on the premises L3 DP 1215861, 169 Chapman Parade, FAULCONBRIDGE is not surrounded by a child-resistant barrier that is designed, constructed, installed and maintained in accordance with the standards required by the Swimming Pools Act 1992 and Swimming Pools Regulation 2008. SCHEDULE 2 Provide a child-resistant barrier that separates the swimming pool from the tourist or visitor accommodation situated on the premises, and that is designed, constructed, installed and maintained in accordance with Australian Standard 1926.1-2012 Swimming Pool Safety Part 1: "Safety barriers for swimming pools". THIS DIRECTION is issued by the Council for the following reasons: 1. As the premises are used for tourist or visitor accommodation, the swimming pool is required to be surrounded by a child-resistant barrier that complies with the Swimming Pool Act 1992 the Swimming Pool Regulations 2008, and such a child-resistant barrier has not been provided. 2. Inspections by Council's authorised officers of your swimming pool and safety barrier on 18 March 2015, 26 May 2015 and 22 July 2015 revealed that a child-resistant barrier that separates the swimming pool from tourist or visitor accommodation has not been provided. 3. Council's swimming pool inspection program identifies bed and breakfast and tourist/visitor accommodation as being high risk. 4. There is no other effective child resistant barrier that will prevent or restrict young children from accessing the swimming pool.

The Property at Faulconbridge

Mr MacDonald acquired the property in 1987. At the time of purchase, it is (now) uncontested that there was a pool located on the property with the then-25 acre parcel including the family home (constructed in the 1960s), two carports and double garage: Ex C p. 5.
The swimming pool is located behind the main residence and, as described by Mr MacDonald, was built in the mid-1960s "between two large natural rock formations which form part of the pool wall while the remaining pool wall is concrete/stone. The pool is overhung by a large Morton Bay Fig tree that was also planted in the mid 1960s and [is] surrounded by other large natural rock formations": Ex C p. 5. The topography of the Site is steep, including slopes of more than 20 degrees.
In April 1995 Mr MacDonald was granted development consent and building approval (BA 1784/94) to undertake additions for bed and breakfast accommodation. The alterations were described as "Existing garage studio conversion to proposed bed and breakfast". Condition 16(f) of the development consent specified that "no cooking facilities are to be provided to the rooms without the written approval of Council": Ex 3, p 15.
On 7 August 1996, Mr MacDonald was granted an approval to operate a "Bed and Breakfast (B&B)" by the Council (Approval no 37/97/BB): Ex 3 p.22. The B&B approval made no mention of or reference to the swimming pool.
On 19 August 1997, Mr MacDonald was granted development consent (BA 679/97) for additions and alterations to the existing B&B accommodation and to the existing dwelling house: Ex 3 p.23. That consent contained the following conditions: to ensure compliance with Council's Development control Plan, "no cooking facilities are to be provided to the rooms without the written approval of Council. A small bar fridge and sink can be provided in each of the new rooms": Ex 3 p. 25.

Background to the Appeal

This matter has a long and difficult history. Some of the interactions between Mr MacDonald and the Council are set out in the affidavit of Mr Brian Crane, [Ex 2]. Mr MacDonald has also filed with the Court a detailed set of correspondence and other documentation. Mr MacDonald has kept meticulous and detailed records of his dealing with the Council over the years. It is not necessary for the purposes of this decision to recite all these interactions (indeed there is little utility in doing so), save to say that since at least 2008, there has been a dispute between the parties with respect to matters concerning the pool, including the matter at the heart of this appeal, being the obligation to fence it or provide a compliant CRB.
Mr MacDonald's chronology of events includes his recollection of conversations with various Council staff, starting from 2008 when he received a letter from the Council requiring the pool to be fenced, the first occasion on which this matter had been raised: Ex C, p.7.
Leading up to the issue of the Direction, over the years there have been numerous inspections by Council staff of the pool, as well as of the barriers put in place by Mr MacDonald in an effort to satisfy the CRB exemption (discussed further below). Separate to any matter concerning fencing the pool, but illustrative of the fact of regular contact between Mr MacDonald and the Council, from 1999 onwards there were various inspections of swimming pool water quality by the Council (necessitated by the pool's location on commercial premises), which produced satisfactory results.
There were vigorous disagreements between the parties as to what transpired during the various swimming pool inspections from 2015 onwards, as well as disagreements about remarks which were said to have been made and upon which Mr MacDonald says he is entitled to rely. However, it is not necessary for me to make a finding with respect to these interactions, but note that they contribute to the context of the present dispute.
The following incident, while ultimately not determinative of the outcome of this appeal, indicates some of the frustration Mr MacDonald has experienced and the difficulties the Council has had in grappling with pool legislation. On the first occasion that a council officer inspected the pool and accommodation in the context of the pool fencing matter (18 March 2015), according to Mr MacDonald she indicated to him that a certificate of compliance (CC) would be issued: Ex B, p.2. Mr MacDonald's version of events is supported by an affidavit sworn by a third party who was present: Ex E. The Council could not produce a record of this inspection, and in the event, changed its position from that which was said by Mr MacDonald to have been reached by the officer, to a new position such that a CC would not be issued. Mr MacDonald was instead directed to put a CRB in place.
I do not suggest that there was bad faith on the part of the Council or its officers; rather, this is indicative of the complexity of the legislation, and the incomplete nature of the Council's records.
Mr MacDonald and Mr Crane continued to communicate about the pool and the need for a CRB. Mr MacDonald wrote to Mr Crane on 23 June 2015 in the following terms: I would be most please[d] for Council to recognise that my situation here is unique in many respects, that I have made a concerted attempt to satisfy all requirements as they have been put to me by Council staff and to honour [a staff member's] commitments to issue me with a certificate of compliance for my pool: Ex 2, tab 23.
A Notice of Council's Intention to serve a Direction to Comply was provided to Mr MacDonald on 9 June 2016. Upon receipt of that notice, Mr MacDonald made further representations to the Council. The Council issued a response to Mr MacDonald's representations on the same day that a formal direction to comply was issued, on 12 July 2016. That direction was in the form set out at [3] above.
Mr MacDonald has been consistent and constant in his view, both with the Council and the Court, that he ought not have to erect a fence around the pool, for various reasons, including the following:

In view of the location (including the surrounding mature trees) and structure of the pool, it is not possible to construct a fence which would be compliant with the relevant Australian Standard
Not only would a compliant fence not be able to be built, but if it were possible to do so, the cost would be prohibitive
He ought to have been given notice of an opportunity to apply for an exemption available to large properties (as provided for in the SP Act)
He has already installed a child-resistant barrier through alterations made to window openings, locks on doors, etcetera.
The Council has been inconsistent, if not unfair, in its dealings with him over the years.

Mr MacDonald also maintained his position that the requirements of AS 1926.1(2012) did not apply to existing pools constructed prior to 1992 (see, for example, Ex B at (b)).
Following the filing of this appeal, several attempts were made to reach a conciliated outcome. A conciliation conference commenced on site on 16 January 2017, over which I presided. At that site inspection, attended by Mr MacDonald, Mr Brogan (the Council's Manager, Building and Compliance Branch), Mr Crane and Mr Cork, I was shown the location of the pool, its relationship to the residence and self-contained accommodation, as well as some of the natural features which would provide some challenges to the installation of a pool fence, were fencing of the pool to be required. I was also shown the location of various locking devices and other treatments on windows and doors in the residence and self-contained accommodation, the purpose of which was to restrict child access to the pool.
Ultimately, despite several adjournments to allow the parties to continue to conciliate, a conciliated outcome was not able to be achieved. The matter then proceeded to a hearing, which took place over a four day period. In addition, in the course of the hearing itself, the matter was adjourned twice, with one such adjournment taking place to allow for further opportunities for the matter to be resolved. This did not occur, necessitating this decision from the Court.
Perhaps unsurprisingly, but still regrettably, the relationship between Mr MacDonald and various Council staff has significantly deteriorated as this dispute has dragged on.

The Statutory Framework

At the outset, it is appropriate to note that the regulatory regime with respect to swimming pools is complex and technical, as well as being subject to not-infrequent amendment. This next section of the judgment sets out the statutory framework.
Part 2 of the SP Act deals with Access to Swimming Pools. Within that Part, Division 1 of the SP Act is described as being concerned with "outdoor swimming pools for dwelling houses etc", while Division 2 is concerned with outdoor swimming pools for moveable accommodation and tourist and visitor accommodation. Division 4 contains additional requirements for swimming pools, while Division 5 is concerned with inspections and compliance.
Turning to Division 1, this applies to "outdoor swimming pools that are situated, or proposed to be constructed or installed, on premises on which a residential building is located": s 6 (emphasis mine).
Section 9 of the SP Act provides for exemptions for swimming pools on large properties, being those having an area of 2 hectares of more. This section provides: Section 9 - Exemption for swimming pools on large 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 an area of 2 hectares or more 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 3 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.
Clause 7 of the Swimming Pools Regulation 2008 calls up Australian Standard AS 1926.1-2007 as the prescribed standard for a barrier for the purposes of the exemption provided under ss 9 and 10 of the SP Act. Clause 4 provides that For the purposes of this Regulation, a child-resistant barrier, window or doorway is taken to comply with the standards set out in a clause in AS 1926.1--2007 or the Building Code of Australia so long as it complies with the minimum requirements for that clause.
"Barrier" is defined under the SP Act to mean a fence or 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.
Amendments made to the SP Act in 2012 comprised a range of reforms regulating outdoor swimming pools for tourist and visitor accommodation, including the obligation to register all pools in NSW; and the implementation of a swimming pool inspection program for pools by councils, with such inspection program to include the inspection of all swimming pools associated with tourist and visitor accommodation every three years.
Mr MacDonald's pool was placed on the NSW Swimming Pool Register on 11 August 2013: Ex 5, Tab 1. There was some confusion from the Council about whether or not this had occurred. On the face of the Certificate of Registration appears the following wording: "You may be required to obtain a Pool Compliance Certificate before you lease or sell your property".
Following the amendments made in 2012, s 3 specifically carves out tourist and visitor accommodation from the definition of residential building, defining residential building as … 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.
"Tourist and visitor accommodation" is defined in the Standard LEP to mean: a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following: (a) backpackers' accommodation, (b) bed and breakfast accommodation, (c) farm stay accommodation, (d) hotel or motel accommodation, (e) serviced apartments, but does not include: (f) camping grounds, or (g) caravan parks, or (h) eco-tourist facilities.
For the purposes of this proceeding, it is important to observe that this definition is inclusive and not exhaustive.
As noted above, a bed and breakfast establishment falls within the definition of "tourist and visitor accommodation". It is defined as follows: bed and breakfast accommodation means an existing dwelling in which temporary or short-term accommodation is provided on a commercial basis by the permanent residents of the dwelling and where: (a) meals are provided for guests only, and (b) cooking facilities for the preparation of meals are not provided within guests' rooms, and (c) dormitory-style accommodation is not provided.
Since 29 April 2015, there has been a requirement for a CC to be a prescribed document for the contract of the sale of land: NSW Office of Local Government, Practice Note 17: Application of Section 22 of the Swimming Pools Act 1992, March 2014: Ex 5 at Tab 7.
Division 2 of the SP Act specifies the barrier and fencing requirements for pools situated on premises used for tourist and visitor accommodation (which is the case here). For completeness, the relevant sections are reproduced in full below. 11 Swimming pools to which Division applies This Division applies to outdoor swimming pools that are situated, or proposed to be constructed or installed, on premises on which a moveable dwelling or tourist and visitor accommodation is located. 12 General requirements for outdoor swimming pools The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is surrounded at all times by a child-resistant barrier: (a) that separates the swimming pool from any moveable dwelling or tourist and visitor accommodation situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is located immediately around the swimming pool, and (c) that contains within its bounds no structure apart from the swimming pool and such other structures (such as diving boards and pool filtration plants) as are wholly ancillary to the swimming pool, and (d) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Maximum penalty: 50 penalty units. Note. Section 12 should be read in conjunction with the other provisions of this Part, in particular sections 13, 18, 19 and 22.
The provisions contained in s 12 require not only separation of the pool from (relevantly) the tourist and visitor accommodation (s.12(a)), but also introduce the requirement for the child-resistant barrier to be "located immediately around the swimming pool": s 12 (b).
Exemptions to the need to fence are available, in the following terms: 13 Exemptions for existing swimming pools (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (1A) This section also applies to swimming pools: (a) that are situated on premises on which there is tourist and visitor accommodation (but not if there is a moveable dwelling, hotel or motel on the premises), and (b) the construction or installation of which commenced before 1 May 2013. (2) The child-resistant barrier surrounding the swimming pool: (a) is not required to be located immediately around the swimming pool, and (b) may contain within its bounds structures of the kind that, but for this section, would be required to be excluded by section 12 (c).
Section 13(1) thus applies to Mr MacDonald's pool, as it is a pool which was constructed prior to 1 May 2013 and it is also situated on premises on which is located tourist and visitor accommodation.
Section 22 of the SP Act recognises that there are circumstances where the default position (construction of a pool fence) is not practicable or reasonable. (The Council submitted that rather than "exemptions", the better description for this heading would be "concessions".) In those circumstances, the legislation allows for a local authority to grant an exemption, in the following terms: 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.
Clause 12 of the SP Regulations sets out the procedure to be followed if an application for exemption is made.
Thus under s 22, in order for a council to decide that circumstances exist which warrant the granting of an exemption, it must be satisfied either that it is impractical or unreasonable for the swimming pool to comply, or that the alternative provisions to restrict access are no less effective than those prescribed in Part 2 of the SP Act.
Guidance contained in Practice Note 17 from the Office of Local Government states that "a council should not unreasonably withhold the granting of an exemption in circumstances that satisfy the provisions of the Act and Regulation": Ex 5, Tab 7, p. 6. That Practice Note goes on to say that "it is up to councils to determine, with regard to the intent of this legislation what, if any, aspects of the access requirements it is prepared to exempt under the circumstances." An example given of an impracticable situation is where a pool sits on a cliff edge or steeply sloping ground: p.9.
Section 26 provides for a right of appeal to this Court in the event that a council refuses to grant an exemption under s 22 of the SP Act. An appeal must be made within 28 days after the date on which the decision was made or is taken to have been made: s.26(2).
As the matter of Certificates of Compliance arose during this proceeding, the relevant sections of the SP Act dealing with this are set out below.
Under s 22D of the SP Act: (1) The requirements for the issue of a certificate of compliance in respect of a swimming pool are that: (a) the swimming pool is registered under Part 3A, and (b) the swimming pool complies with the requirements of this Part. (2) A local authority or an accredited certifier must issue a certificate of compliance in respect of a swimming pool if the local authority or accredited certifier: (a) has inspected the swimming pool under this Division, and (b) is satisfied that the requirements for the issue of a certificate of compliance have been met.
If a pool does not comply, and inspection has been carried out by an accredited certifier under s 22C (inspections carried out at the request of the owner): (2) An accredited certifier must provide a written notice to the owner of a swimming pool if the accredited certifier has inspected the swimming pool and is not satisfied that the requirements for the issue of a certificate of compliance have been met. (3) A notice under this section is to set out the following: (a) the date of the notice, (b) the address of the swimming pool to which the notice relates, (c) the date on which the inspection took place, (d) the reasons why the accredited certifier is not satisfied that the requirements for the issue of a certificate of compliance have been met and the steps that need to be taken in order to meet those requirements, (e) whether the accredited certifier is of the opinion that the swimming pool poses a significant risk to public safety, (f) a warning that a copy of the notice will be forwarded to the local authority for the area in which the swimming pool is situated: (i) immediately, if the accredited certifier is of the opinion that the swimming pool poses a significant risk to public safety, or (ii) 6 weeks after the date of inspection (or such other time as may be prescribed by the regulations) if a certificate of compliance is not issued for the swimming pool before that time, (g) such other matters as may be prescribed by the regulations. (4) An accredited certifier who issues a notice under this section in respect of a swimming pool must forward a copy of the notice to the local authority for the area in which the swimming pool is situated: (a) immediately, if the accredited certifier is of the opinion that the swimming pool poses a significant risk to public safety, or (b) within 5 days after the end of the period specified in subsection (3) (f) (ii) in any other case. (5) An accredited certifier is not required to forward a copy of any notice to a local authority in respect of a swimming pool if, at the time at which the notice is due to be sent, the swimming pool has a valid certificate of compliance.

The Hearing

This hearing commenced on 29 May 2017. Having heard opening submissions and received documents tendered into evidence, an adjournment was granted and leave allowed for Mr MacDonald to make an application for exemption from compliance, as provided for under s.22 of the SP Act, as this was an avenue which Mr MacDonald had not explored throughout his extensive dealings with the Council. The Court suggested that in the course of making that application, Mr MacDonald procure a report or reports from fencing contractors, or some other appropriate entity or persons, to explain the difficulties in having the pool fenced, which was one of his contentions. The provision of relevant photographs supporting this position were also suggested.
The opportunity to apply for a s 22 exemption has been suggested to Mr MacDonald by the Council on many occasions. Mr Crane deposes in an affidavit dated 26 May 2017 that, to the best of his information, knowledge and belief, Mr MacDonald has not submitted any application seeking exemption from any requirements imposed under the SP Act, including the erection of child restraint barriers around the swimming pool: Ex 3 at [10]. Mr MacDonald's reluctance seems to stem not only from his genuinely-held belief that he should not have to fence his pool, but from his concern about the conditions that may be attached to any exemption (as can occur under s 22(2)(2)).
During the period of adjournment, rather than applying for an exemption, Mr MacDonald instead chose to procure a CC (pursuant to s 22D of the SP Act) from a private certifier. He also procured statements from two pool contractors with respect to the difficulty of fencing the pool. These documents were provided to the Court, and served on the Council, during this period.
The CC [Ex 6] purported to certify the pool as compliant on 19 July 2017 following an inspection by a pool certifier. The CC had effect until 19 July 2020, a three year period, and noted on its face that no s 22 exemption had been granted for the premises and pool. It stated that "the swimming pool complies with Part 2 of the Swimming Pools Act 1992…. The certificate ceases to be valid if a direction is issued pursuant to s 23 of the Swimming Pools Act. The swimming pool at [the property] is not required to be inspected under the inspection program of the local authority while this certificate of compliance remains valid pursuant to s 22B(3) of the Swimming Pools Act 1992".
The Council complained that the CC was given on the basis of the relevant provisions of the SP Act being Division 1 (regulating "dwelling houses etc") and not Division 2 (concerned with tourist and visitor accommodation). That produced a further dilemma as to the legal status of the CC.
A complicating factor for the Court was that the CC was issued in the course of a contest in respect of the issuing of a direction under s.23. Had a fresh direction been issued by the Council in answer to the provision by Mr MacDonald of such a certificate, that direction would have the effect of rendering the CC invalid.
The Council, in response to this turn of events (and as provided for under the Orders made by the Court in May 2017 ahead of the first adjournment), took the opportunity to re-inspect the property with two expert witnesses. This inspection resulted in the production of further expert evidence for the Council from Mr Crane (Ex 9) and Ms Kate Stoner, contract Building Surveyor and expert witness for the Council: Ex 8.
When the matter resumed for hearing on 23 August 2017, I raised concerns with the parties about my ability to continue to deal with these proceedings as a matter of jurisdiction, in light of the fact that the CC had the effect of providing a complete answer to the Direction the subject of this appeal. On its face, the CC ceases to be valid only if a direction is issued pursuant to s 23 of the SP Act. The reference to a direction under s 23 is sensibly read to refer to a prospective direction. The matter was again adjourned to allow the Council the opportunity to consider if it wished to bring Class 4 proceedings to challenge the validity of the Certificate.
Prior to taking any such action, unremarkably in the context of threatened litigation, the Council elected to write to the certifier in terms set out in the affidavit of Ms Johnson, employee solicitor of the Council's solicitors, affirmed on 14 September 2017. The Council's letter to the certifier of 25 August 2017 stated, amongst other things, that the CC should not have been issued in circumstances where:

the Applicant's property is not a dwelling house, as there are three dwellings on the Site, three of which are used for short-term accommodation for a commercial purpose;
two windows do not comply with AS 1926.1986 (relying upon the report of Ms Stoner); and
the Council had issued a direction requiring the construction of a CRB for the pool.

The letter further stated (at [11]) that class 4 proceedings would be commenced to challenge the validity of the CC "unless you act to withdraw the CC or replace it with a certificate of non-compliance".
Upon receipt of that correspondence from Council, the certifier subsequently withdrew the Certificate of Compliance, replacing it with a Certificate of Non-compliance (one of the options contemplated by the legislation). On 10 September 2017, the certifier provided a copy of a Certificate of Non-compliance to the Council: Affidavit of Ms Johnson, Annexure H. The Certificate of Non-compliance indicated the non-compliance area/s as being "Doors".
The certifier wrote to Mr MacDonald on 10 September 2017, stating that as the barrier had not been compliant at all times, the s 9 exemption is not available: Ex M Annex A. He reached this conclusion upon inspecting the photographs provided by the Council's solicitors, which revealed doors without chamfered angles. Those photographs were evidence of non-compliance with AS 1926.1-2012.
Mr MacDonald subsequently filed an affidavit on 4 October 2017, in which he complained about the manner in which the matter had proceeded, including complaints about the conduct of the Council.
The matter then returned for hearing for the third occasion. When Mr MacDonald raised concerns about the Council's conduct, I informed him that there were various options available should he wish to complain about the Council's actions, but they were not for this Court to consider in the context of this appeal.
In order to avoid a similar issue arising with respect to the CC, which effectively had the result of producing a jurisdictional stalemate, Mr MacDonald agreed not to seek to procure a further Certificate of Compliance while this matter remained on foot.

Evidence

At the hearing, evidence was provided for Mr MacDonald by Mr Adam Cole from Atom Fencing. Mr MacDonald also provided a written statement dated 8 June 2017 from Dunn & Farrugia Fencing and Gates, signed by Rob Smyth, stating that it would not be possible to construct a pool fence that fully complies with the SP Act "due to the steep slope of the site, rocky terrain and large overhanging rocks and trees." Moreover, that statement continued, "any pool fence constructed on this site would be excessively expensive as each panel would need to be custom built and due to the sloping and uneven ground would be unsightly and impracticable": Ex N. Mr MacDonald was also sworn in to allow his submissions to be tested.
Mr Smyth was not available to give evidence. I note that his document's contents reflect the submissions which Mr MacDonald has continued to put in relation to the difficulties which fencing the pool would generate. My own (lay) observations support the view that there would be a degree of difficulty involved with fencing the pool (see for example the description at [5]).
For the Council, Mr Brain Crane, Mr Jeffrey Neate, Director of My Pool Safety, and Ms Kate Stoner gave evidence on matters of compliance and whether it would be possible to construct a pool barrier. This evidence is considered further below.
Ms Stoner provided an expert report, in which she considered whether or not the steps taken by Mr MacDonald resulted in a compliant CRB. Included below are extracts of the expert evidence prepared by Ms Stoner, which outlines her site inspection undertaken for these proceedings. 14. During the site inspection on 14 August 2017 I observed a total of 38 windows and 11 doors from the buildings. The 11 doors provide minimum compliance with cl 6 of the Swimming Pools Regulations 1998. Each door has a lock at a height no less than 1500 mm from the finished ground level. Not all windows provide access to the pool area due to their height above the finished ground level. 15. there were two windows which open greater than 100 mm and the lowest opening panels of the windows were less than 1.2m from the finished floor level. Further, the windows have not been fitted with a child safe grille of fixed child safe flyscreen. These windows do not comply with cl 6(4) of the Swimming Pools Regulation 1998. The windows do not comply with the more current Australian Standard either. The maximum allowable opening for a window under Australian Standard 1926.1-2012 is 100mm. The first of these windows was located between the front door of the owner occupied building and the kitchen. The second window was identified beside the door that provides stair access directly to the swimming pool (in the room beside the owner's bedroom).These windows did not have a flyscreen. 16. An important factor observed was that keyed locking devices have been installed on windows within the building. I understand that the locks have been recently installed. Further, chamfered angles have been added to the house doors to remove hand/foot holds. Photographic evidence of changes to the doors were provided to me from Blue Mountains City Council (Council)… it is evident that the means of access to the swimming pool from the buildings were not at all times compliant with the previously enjoyed exemption under s 9 of the Act. …. 20. In my opinion, there can be no view that the portion of the building resided in by Mr MacDonald would still be the subject of any pre-existing exemption as compliance with the Act has not been provided at all times: Ex 8.
While there may be doubt as to whether or not Mr MacDonald's property could have been, at any time in the past after his development consents were granted, considered to be residential, at the time of the issue of the Direction, no such doubt existed. Mr MacDonald's property is tourist and visitor accommodation, and cannot therefore have the benefit of the s 9 exemption.
I find that in the absence of any exemption in place under s 13 (set out at [37]), Mr MacDonald is required to ensure that the swimming pool is surrounded, at all times, by a CRB: s.12.

Can a compliant Pool Barrier be Constructed around the Pool?

Having found that Mr MacDonald is required to have a CRB around his pool, I now turn to consider whether, and if so, how, that may be achieved.
At the outset, it is worth noting that the Council has not shied away from the difficulties of fencing the pool. The Council's letter of 12 July 2015 to Mr MacDonald acknowledges that "the location of the pool together with the surrounding landform will provide challenges in enclosing the pool with a CRB".
For Mr MacDonald, Mr Cole gave evidence, adopting a firm position that suppliers would not want to take on the task of fencing Mr MacDonald's pool, because of the prospect of a mistake being made. He also maintained his view that the best cost-effective control is a fence at the back of each door of the properties, with close parental supervision. However, under cross-examination he did concede that it would be possible to fence the pool, at an estimated cost of $30,000 - $40,000. It would need to be constructed through flange planting, core drilling, concrete and posts. His written quotation dated 26 June 2017 (forming part of Ex N) states as follows: As per our meeting on 20 June [2017] on how to fence the pool at 169 Chapman Parade Faulconbridge, it was found that the materials needed for a compliant pool fence would be astronomical in price and the materials needed have never been designed or engineered for the type of terrain and natural sandstone landscape surrounding the pool. Finding a supplier that would be willing to make the pool fencing would be near impossible also. It is my opinion the fence would still not be compliant in areas after the construction and considering the age and listing of the property that a fence surrounding this pool would be impracticable.
In his oral evidence Mr Cole emphasised the "astronomical" cost of building a pool fence at Mr MacDonald's property, when the typical pool fence cost is two to three thousand dollars.
Mr Neate for the Council holds a pool building licence and pool inspector licence, as well as holding various qualifications relating to construction and welding. Mr Neate inspected the property and pool the subject of this appeal on 14 August 2017. He observed that some challenges to be faced when installing a barrier on such a site are the varied heights in the natural rock, and the options and locations for affixing posts, as some areas of the rock would not be able to hold the materials required to fix the post in place: Ex 7 at [12].
Notwithstanding these challenges, he concludes that a barrier could be installed on this site to meet the current standard for pool compliance. This installation would be complex due to the varied finished ground level and the natural rock formations. Some of the complexity comes from appropriate locations to affix posts as well: Ex 7 at [13].
Mr Neate goes on to say that the barrier could be constructed of black tubular pool fencing, with the majority of panels needing to be custom made to size in order to fit with the surrounds. Standard panels cost $200 per metre to supply and install, with the price for custom made increasing to $500 - $600 per metre. Without taking measurements, Mr Neate estimated that the overall length of fencing required would be 40 to 50 metres. Overall, he was confident that the fence could be constructed.
Mr Neate also listed possible exemptions that could be applied to the site, including using the large natural rock wall at the end of the pool where the pool pump is located at the base to form part of the barrier. He goes on to say that an appropriate place to conclude the fence would need to be determined, and how it would be concluded, if that option were considered: Ex 7 at [15].
In his oral evidence, Mr Neate stated that factors which influence cost are aesthetics, placement and customer's requirements. His cost estimate was also in the range of $30,000, based upon a calculation of 50 m at $600 per metre. A 3 m glass panel costs $900 and a standard tubular panel is $200. The cost increases due to the customised nature of the fence required. Unlike Mr Cole, who believed contractors would be loath to take the job on, Mr Neate believed it could be done and a contractor could be found to build it.
Mr Crane contributed to the debate (although not a qualified pool fencer). Attached to Mr Crane's affidavit 18 August 2017 (Ex 9) was a rough hand-drawn sketch indicating the possible location of a pool fence. That affidavit also included a photograph of a swimming pool barrier fence on a rocky site at Mt Riverview, Blue Mountains: Ex 9, Annexure B.
Mr Crane has also been steadfast in his opinion that even if an application were made by Mr MacDonald under s 22 for an exemption, a fence should be constructed. In Mr Crane's opinion, a barrier should incorporate features which include the requirement for the pool to be fully enclosed by a CRB, with the fence/rock barrier height to be a minimum of 1.2m above the finished ground level: Ex 2 at [57].
Ms Stoner gave expert evidence as a contracted certifier. She was asked about the approach she took upon finding a minor non-compliance with the regime with respect to a CRB. Her approach is to issue a direction (as opposed to a warning) on each occasion, together with providing information to the owner about what needed to be done to achieve compliance.
Ms Stoner explained that there was no legal requirement to provide an inspection report, and a re-inspection would occur to assess whether the non-compliance had been attended to. Her approach is to issue a direction under s 23 of the SP Act within 7 days of the inspection, because of the significant risk of drowning. It would be a rare event for her to issue a notice.
Ms Stoner also maintained her position that a barrier could be constructed, and in her opinion, it is not unreasonable to require compliant barrier around the pool. While she does not install fences, Ms Stoner gave evidence that she has never seen a situation where a pool cannot be fenced.

Finding

Based upon the evidence, I accept the evidence of each of Mr Cole and Mr Neate that a compliant pool barrier can be constructed around the pool. The Council's position has consistently been that it is possible to construct a complying swimming pool barrier around the pool.
I therefore find that it is possible to construct a child-resistant barrier in the form of a pool fence around Mr M's pool. I accept that it will be difficult and expensive, but it is possible.

Are there other exemptions or concessions available?

The decision of Pearson C in Medway v Pittwater Council [2014] NSWLEC 1006 is authority for the proposition that the exemption for barriers which applies to pools on large properties no longer applies if the exemption has not been taken up.
My primary finding is that the s 9 exemption is not available to Mr MacDonald. Not only that, there are non-compliances (set out above in Ms Stoner's evidence) that would remove the availability of any such hypothetical exemption.
The Council's submission is that the fact that the windows could be made to be compliant does not assist, as the requirement is for them to be compliant at all times, not capable of becoming compliant. I accept that this is a correct statement of the position.
Mr MacDonald has complained that he was not issued with an inspection report on the various occasions that the inspections have occurred. Ms Stoner's evidence is that there is no obligation to provide such a report. Mr Crane also conceded in cross-examination that reports of inspections are usually prepared, but this did not happen in the case of Mr MacDonald's pool. I observe that while this may be the case, the system would operate more fairly if a report were in fact provided.
The Council holds the view that a s 13 exemption is not available in Mr MacDonald's situation. This is because, says the Council, since the new regime was introduced in 2012, there would be a collision between fire exit requirements, and pool fencing requirements, if there were no separate obligation to fence a pool.
The policy reason, says the Council, is that people who are staying in a place they do not know need to be able to evacuate quickly. Fencing the pool becomes the safer option (rather than relying upon barriers located within accommodation). The 2012 amendments removed the potential collision between the fire exit requirements, and the pool fencing requirements. The obligation to fence the pool allows for requisite fire protection.

Finding

An exemption is available for pre-existing pools under s 13 of the SP Act such that a child-resistant barrier is not required to be located around the swimming pool. I find that in order for that exemption to be operative, a child-resistant barrier is required to be in place. The evidence in this hearing is that there is no such child-resistant barrier in place, with the result that as at the date of this decision, the exemption is not available.
However, that does not mean that such a child-resistant barrier might not be put in place in the future. In that event, it would be open to Mr MacDonald to seek such an exemption.

Is the Direction of the subject of this appeal a valid direction?

The circumstances under which a direction may be given are set out at s 23. The Council complied with these requirements. There was a 90 day period allowed for compliance, and there was a long history of communication about it between the parties. The issuing of the Direction did not come as a surprise, unwelcome though it may have been.
There is no process flaw in the granting of the Direction to lead me to conclude that it ought not be upheld. Moreover, there has been no challenge to its validity from a procedural perspective; the exemption in s 9 does not apply; and I accept the evidence that a child-resistant barrier is not presently in place.
The Direction was properly issued, and in all the circumstances, there is no reason why it should be put aside.

Further Discussion

The Council's closing position is that there may still be an opportunity for Mr MacDonald to discuss what concessions may be available under the legislation.
The swimming pool regulatory regime is very complex: this was borne out not only by the history of this matter, but also by the evidence given by the experts, including Mr Crane for the Council. One need only turn to the careful and painstaking analysis undertaken by Pearson C in the case of Medway to gain an understanding of the technical and opaque nature of this particular legislative regime. Moreover, the Council's record-keeping has not been all that it should be. Mr Crane's own affidavit points to records that were not available, in paragraphs 10, 11, 19, 21 and 22, 24.
A fair statement of the difficulties in this case can be found in a letter dated 12 July 2016 to Mr MacDonald from Mr Chris Brogan, Manager Building and Compliance of the Council, when he states It is accepted that the history of the matter is somewhat protracted and that you have received what appears to be conflicting advice over the years regarding the relevant barrier fence requirements applying to your pool. Some of this has been due to misunderstanding by Council officers at that time, however much of it is due to evolving nature of changes in legislation and standards relating to your pool: Ex 2, tab 34.
Mr MacDonald has also sought to co-operate with Council officers in relation to his responsibilities with respect to the swimming pool, an acknowledgement which was made in correspondence from the Council to Mr MacDonald.
However, I am cognisant of the responsibility of the Council to ensure safety and protection of life and limb. The Council has chosen to prosecute its position with respect to the Direction forcefully. I appreciate the important public policy reasons which compel a local authority to apply strictly the obligations emanating from ownership of swimming pools.
It is also apparent that without some exemption or concession, there will be a significant cost - possibly in excess of $30,000 - associated with providing a custom-built pool fence around Mr MacDonald's pool. Notwithstanding the vital public interest in protecting (especially) children from drowning, some reasonableness must be brought to bear in determining what type of barrier is appropriate.
That said, I am heartened by Mr Cork's suggestion that Mr MacDonald may still pursue options with respect to exemptions under s 22 of the SP Act. Mr MacDonald has available to him the option of applying for an exemption from barrier requirements that are impracticable or unreasonable in certain cases.
Needless to say, any such application for exemption would need to be considered on its merits, without the decision maker (the Council) having formed a pre-determined view as to the outcome of such application. If refused, Mr MacDonald would have a right of appeal under the SP Act in the event that an application for exemption is not granted by the Council.
In all the circumstances the Direction is to stand, and Mr MacDonald must comply with its terms, subject to an amendment as to time for compliance. Mr MacDonald's appeal is to be upheld solely for the limited purpose of allowing him time to apply for a site-specific exemption to the applicable pool barrier standard under s 22 of the SP Act, and for the Council to consider it. I order that compliance with the Direction is required within 120 days of the date of these Orders.

Orders

The Orders of the Court are: 1. The Appeal is upheld. 2. The Direction dated 12 July 2016 issued to the Applicant by the Council is amended so that it is to be complied with by 120 days from the date of these Orders. 3. The Exhibits are returned. .................................................. Rosemary Martin Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2018

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (2)