Ballina Shire Council v Leadbeatter and Anor

Land and Environment Court (NSW)|2022-11-01|Before: Robson J

Judgment

By summons filed 1 July 2021, Ballina Shire Council ('Council') commenced civil enforcement proceedings in Class 4 of the Court's jurisdiction against Matthew Lando Leadbeatter and Michelle Dianne Leadbetter (collectively, the 'respondents') seeking a declaration that a swimming pool that had been constructed on property owned by the respondents was not compliant with the Swimming Pools Act 1992 (NSW) ('SP Act') and consequential relief that the respondents fence or enclose the swimming pool with a child-resistant barrier in accordance with the Swimming Pools Regulation 2018 (NSW) ('2018 SP Regulation'). Subsequent to commencement of the proceedings, the respondents undertook works which resulted in structures being erected which satisfied the SP Act and 2018 SP Regulation.
Now before the Court is an application by Council seeking an order for its costs of the concluded proceedings. The hearing of the costs application proceeded on 21 April and 1 November 2022. Ms L A Walsh of counsel appeared for Council and Mr Leadbeatter appeared (without legal representation) for the respondents.

Background

To provide context to the submissions made by the parties, an understanding of the salient background facts is desirable.
While the following narrative is mostly undisputed, further facts, including a factual dispute, are noted in my consideration of submissions later in this judgment.
The respondents are the owners of Lot 33 in Deposited Plan 828679 and known as 16 Seahorse Place, Ballina ('site'). The site comprises land and a residential dwelling together with an outdoor swimming pool which, prior to December 2021, was not surrounded by a child-resistant barrier as required under the SP Act. The rear boundary of the site adjoins a lot owned by Council which comprises a canal.
In March 2005, Council became aware that a swimming pool, for which development consent had not been granted, had been constructed on the site. As a result of Council's concerns, an application for a building certificate was made, and on 4 July 2005, Council issued a building certificate pursuant to (then) s 149B of the Environmental Planning and Assessment Act 1979 (NSW) ('Building Certificate') which was noted to remain in force for seven years.
On 15 September 2005, Council approved a development application lodged by the respondents for "proposed alterations and additions to the existing dwelling", which included a timber deck at the rear of the site that was to be constructed close to the swimming pool. The development application did not relate to the approval of the swimming pool.
In January 2020, acting upon a complaint received from a member of the public, Council officers inspected the site and observed that there was no barrier surrounding the swimming pool and that access to the pool from Council's land, being the public walkway or public area, was not restricted.
On 17 February 2020, Council wrote to the respondents informing them that as a result of Council's audit of private swimming pools within the Ballina Shire in accordance with its "mandatory pool inspection program" required under the provisions of s 22B of the SP Act, the subject swimming pool had come to Council's attention as not having a compliant child-resistant barrier surrounding it.
On 17 February 2020, Council provided a written notice of non-compliance pursuant to s 22E(2) of the SP Act, titled "Certificate of non-compliance", noting that the swimming pool "poses a significant risk to public safety" by reference to the matters listed in s 22E(3)(e) and (f).
On 25 February 2020, the respondents wrote to Council objecting to Council's position in relation to the construction of a child-resistant barrier surrounding the swimming pool on the basis that the site was "waterfront property" and drawing Council's attention to an exemption pursuant to s 10 of the SP Act that applies to properties that have a frontage to "any large body of water (such as a permanently flowing creek, a river, a canal, a pond, a lake, a reservoir, an estuary, the sea or any other body of water, whether natural or artificial)".
On 28 February 2020, Council issued a notice of intention to serve a directive (pursuant to s 23(5) of the SP Act) ('First Notice') on the respondents in which Council detailed the history of the initial construction of the swimming pool without the required development consent and the later issuing of the Building Certificate on 4 July 2005; informed the respondents that the 2018 SP Regulation (which commenced on 1 September 2018) removed the opportunity for a property on waterfront land to use a house as the sole barrier to small children accessing the swimming pool area; informed the respondents that the Building Certificate for the unapproved swimming pool installation had lapsed on 3 July 2012; and stated that, having considered the respondents' submissions, Council had determined to issue a notice of intention to serve a directive on the basis that the swimming pool, as constructed, did not comply with the provisions of the SP Act, the 2018 SP Regulation, or the provisions of Australian Standard AS 1926.1-2012.
On 19 March 2020, Council received correspondence from the respondents detailing the history of the construction of the swimming pool (by Plateau Pools Pty Ltd), referring to various attendances on the site by a Council officer, and objecting to the suggested obligation to construct a child-resistant barrier surrounding the swimming pool.
On 14 April 2020, Council issued a directive pursuant to s 23(1) of the SP Act ('First Directive'). The schedule to the First Directive required the respondents to, inter alia, undertake works to construct a child-resistant barrier surrounding the swimming pool and other related works. The First Directive noted that there was a right to appeal against the order and that it was an offence to not comply with the order.
On 4 May 2020, the respondents wrote a detailed response to Council raising matters in response to the First Directive, noting that the development application for "proposed alterations and additions to the existing dwelling" approved by Council on 15 September 2005 required certain works to be undertaken in relation to the swimming pool (including that the doors or gates opening into the pool area be provided with automatic self-closing and latching security grills), and suggesting that Council records did not show that the site was non-compliant at the time that the exemption for waterfront properties ceased to apply. The respondents maintained that Council officers who had inspected the works the subject of the development application left the respondents with the impression that the proposed works would be compliant.
By letter of 22 May 2020, Council informed the respondents that a review had been conducted into the matter, that Council's records had been considered, and that Council did not consider there was a valid exemption in respect of the swimming pool, and that in the circumstances, Council required compliance with the terms of the First Directive by 26 June 2020.
On 30 September 2020, Council's solicitors wrote to the respondents and addressed the respondents' contention that because the site was a waterfront property and because the pool was constructed before 2010, it could be maintained in accordance with earlier regulations. The solicitors' letter confirmed that Council maintained its position - that the swimming pool was required to comply with the 2018 SP Regulation.
An inspection by Council officers on 20 October 2020 revealed that there was no child-resistant barrier surrounding the swimming pool as otherwise the subject of the First Directive; and on 30 November 2020, Council issued a further notice of intention to serve a directive (in accordance with s 23(5) of the SP Act) ('Second Notice'). The Second Notice informed the respondents that Council (again) intended to issue a directive to comply with the relevant provisions. The Second Notice set out reasons for the proposed order which included non-compliance with Australian Standard AS 1926.1-2007; and the absence of a child-resistant barrier as prescribed by s 7 of the SP Act and the 2018 SP Regulation.
On 1 December 2020, Council's solicitors wrote to the respondents informing them that Council had undertaken a further inspection and had issued the Second Notice, and noting again that the exemption prescribed by s 10 of the SP Act (for pools on waterfront property constructed before 2010) did not exempt the subject swimming pool from the requirements set out in the SP Act, including that it be surrounded by a child-resistant barrier.
On 21 April 2021, Council's solicitors sent a letter to the respondents' solicitors enclosing a directive (issued pursuant to s 23(1) of the SP Act) ('Second Directive') which required the respondents to undertake works to construct a child-resistant barrier surrounding the swimming pool.
Between 3 April 2021 and 7 June 2021, Council's solicitors and the respondents' (then) solicitors exchanged correspondence in an attempt to resolve the issue of the non-compliance with the SP Act in relation to the subject swimming pool.
On 7 June 2021, Council's solicitors informed the respondents' solicitors that Council intended to inspect the site on 16 June 2021. On 16 June 2021, Council officers observed that no child-resistant barrier surrounding the swimming pool had been constructed.
On 1 July 2021, these proceedings were commenced by summons seeking the following relief: "1 A declaration that the defendants are the owners of land comprised in Lot 33 DP828679, also known as 16 Seahorse Place Ballina (Premises), upon which a swimming pool is constructed. 2 A declaration 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 Swimming Pools Act 1992 (NSW) (SP Act). 3 A declaration that s 10 of the SP Act does not apply to the Premises. 4 A declaration that the defendants are in breach of ss 7 and 17(1) of the SP Act. 5 An order pursuant to s 30(2) of the SP Act that: a. The defendants fence or enclose the swimming pool with a child-resistant barrier designed, constructed, installed and maintained in accordance with the standards set out in the Building Code of Australia as prescribed in cl 5 of the Swimming Pools Regulation 2018; b. The defendants erect in a prominent position in the immediate vicinity of the swimming pool, a sign erected in accordance with s 17 of the SP Act and cl 10(1) of the Swimming Pools Regulation 2018; c. The Council 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 28 days from the date of this order the defendants have failed to comply with said orders; d. The defendants 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. 6 An order that the defendants pay the costs of these proceedings. 7 Such further order as the Court sees fit."
On 5 July 2021, the respondents met with Council's General Manager. As there is some dispute in relation to this meeting, the parties' respective positions are considered later in this judgment. At the meeting the respondents were unaware of the commencement of these Court proceedings.
On 21 July 2021, the respondents indicated in an email to Council, an intention to install a compliant child-resistant barrier surrounding the swimming pool.
On 27 July 2021, Council's solicitors wrote to the respondents recording the respondents' stated intention (expressed in their email dated 21 July 2021) to surround the whole of the swimming pool with a child-resistant barrier, and stating that Council would not be in a position to determine whether any such barrier was compliant until the works had been completed and a compliance certificate had been issued following construction.
Council's solicitors also noted that these proceedings had been commenced prior to correspondence being received from the respondents regarding their intention to construct a compliant swimming pool barrier (on 21 July 2021); that the proceedings were listed before the Court on 6 August 2021; and that the Court would be advised that steps were being taken to install a compliant child-resistant barrier surrounding the swimming pool, and that an adjournment of the proceedings would be sought to enable a child-resistant barrier to be installed and a compliance certificate to be issued.
On 2 August 2021, the respondents informed Council's solicitors by email that the works to install a compliant barrier surrounding the swimming pool would commence "in around seven weeks", and that it would "only take three days".
At a directions hearing before the Court on 6 August 2021, having been informed of the background to the proceedings, the Court asked Council's legal representative whether there was a continuing safety issue caused by the respondents' failure to fence the swimming pool and in those circumstances, the matter was adjourned for seven days with a request that at least one of the respondents appear on the next occasion.
On 13 August 2021, Mr Leadbeatter appeared at a directions hearing before the Court, at which time the Court's concern in relation to taking temporary safety measures was raised. The transcript records that the Court also expressed concern in relation to the likely costs consequences of the continuing failure to complete a compliant child-resistant barrier surrounding the swimming pool and that Mr Leadbeatter informed the Court that the final construction was "soon to be completed". On that basis, the matter was adjourned to 29 October 2021.
By letter dated 19 August 2021 (sent by email), Council's solicitors requested that the respondents provide for a temporary safety barrier until such time as a permanent child-resistant barrier could be constructed. On 19 August 2021, the respondents replied and indicated that the works will be carried out "as soon as a fencing contractor is able", and that "to install a temporary fence would take just as long as waiting for correct (sic) barrier". The respondents' letter also noted "I remind you also that the pool has a barrier as advised by Council at time of installation, so it is not barrier free" and that because the swimming pool had "been here for 16 years, to continually tell me it is a high safety risk is simply ridiculous, if it was we would have had issues wouldn't we?"
On 27 August 2021, Council's solicitors received instructions to prepare a notice of motion for orders compelling the respondents to install a temporary safety barrier to resolve the ongoing safety issues. That application was prepared (although not proceeded with).
On 3 September 2021, Council officers inspected the area and observed that a temporary barrier ('temporary barrier') had been erected by the respondents, and on 15 October 2021, Council's solicitors requested confirmation from the respondents that a permanent and compliant child-resistant barrier had been constructed surrounding the swimming pool.
On 21 October 2021, Council officers observed that a permanent child-resistant barrier surrounding the swimming pool had not been constructed.
On 22 October 2021, the respondents informed Council's solicitors that the permanent child-resistant barrier surrounding the swimming pool had not been commenced by the fencing contractor retained to install it. By further email on 25 October 2021, the respondents informed Council's solicitors that the construction of a child-resistant barrier was to commence "within two days", however, on 28 October 2021, Council officers observed that it had not been constructed.
On 29 October 2021, the matter was again before the Court for directions and was adjourned to 12 November 2021. On 9 November 2021, Council officers observed that the temporary barrier remained, however construction of the permanent child-resistant barrier surrounding the swimming pool had not commenced.
On 12 November 2021, at a further directions hearing, Duggan J gave directions for the parties to file their evidence. The Court was informed that the compliant child-resistant barrier surrounding the swimming pool had not been completed. Council's evidence was subsequently prepared and served upon the respondents on 17 December 2021.
On 14 December 2021, Council officers observed that the permanent child-resistant barrier surrounding the swimming pool had not been completed.
On 17 December 2021, Mr Leadbeatter informed Council's solicitors that the permanent child-resistant barrier had been completed.
On 21 December 2021, following an inspection of the site, a Compliance Certificate in respect of the swimming pool was issued (pursuant to s 22D of the SP Act) confirming that the respondents had satisfied the statutory requirements in relation to the installation of a child-resistant barrier.

Evidence

Council read two affidavits of Jon Rushforth, a Council officer, affirmed 16 December 2021 and 20 May 2022, and two affidavits of Kelly Maree Waring, Council's solicitor, affirmed 7 February 2022 and 20 May 2022.
The respondents (who appeared through Mr Leadbeatter without legal representation) tendered two sets of documents, each titled "written submissions", dated 17 March 2022 and 14 April 2022. Each adopts a narrative form and contains a detailed history of the issues and makes a number of allegations in relation to Council's conduct. At the hearing on 1 November 2022, each of Council's witnesses was cross-examined by Mr Leadbeatter.
In his affidavit affirmed 16 December 2021, Mr Rushforth sets out in some detail the history of the conduct on the site, commencing with a description of the land and property, by reference to Council's records and his attendances over a period of time, and the correspondence that has passed between Council (and Council's solicitors) and the respondents.
In his affidavit affirmed 20 May 2022, Mr Rushforth responds to a number of matters raised in the respondents' written submissions.
In her affidavit affirmed 7 February 2022, Ms Waring, by reference to detailed documentation exhibited to her affidavit, deposes to the history of Council's dealings with the site and matters giving rise to the present proceedings. She refers to the directives referred to above, details the conduct of these proceedings including the various directions hearings on 6 August 2021, 13 August 2021, 29 October 2021, 12 November 2021, and refers to correspondence passing between Council, their solicitors and the respondents.
In her affidavit affirmed 20 May 2022, Ms Waring provides a response to the submissions filed by the respondents on 17 March 2022 and 14 April 2022 and gives details of the service of the summons on 19 July 2021, and details of a conversation with Mr Leadbeatter on 7 July 2021, wherein Mr Leadbeatter indicated that he had received a quote to "do the fence".
The Court also received the transcripts of the various directions hearings before the Court and a selection of extracts from Council's files, including correspondence passing between the parties. As the respondents' "evidence" primarily comprised their submissions which were in a detailed narrative format, I will record the relevant matters in my summary of the parties' submissions below.

Council's position

Council's primary position is that the respondents' late compliance with the directives issued on 14 April 2020 and 21 April 2021 (in December 2021) has effectively resolved the single issue upon which the summons was based. In simple terms, the installation of a child-resistant barrier surrounding the swimming pool in compliance with the SP Act (in December 2021) effects a practical result that Council has succeeded in obtaining the outcome it had sought in the primary proceedings. In those circumstances, Council submits that costs ought to be paid by the respondents in accordance with the usual principles.
Council replies to the respondents' suggestion (in their submissions dated 17 March 2022 and 14 April 2022) that the commencement of the proceedings was unreasonable and unnecessary in circumstances where the respondents had previously complied with the (then) current safety requirements and that the proceedings were improperly initiated, as follows.
First, Council submits that the circumstances in which Council issued the directives (as set out in the evidence of Mr Rushforth) are particularly relevant, and that the respondents' various responses to each of the directives are the relevant circumstances that led to the commencement of the proceedings. In particular, the respondents objected (on 25 February 2020) to Council's correspondence of 17 February 2020 regarding the failure of the respondents to comply with the (then) current safety requirements on the basis that the site was a waterfront property and therefore exempt from the statutory requirement to install child-resistant barriers. Further, when Council issued its First Notice (on 28 February 2020), the respondents objected again on the basis of the site being a waterfront property.
Second, Council submits that after the First Directive (issued on 14 April 2020), the respondents continued to reject Council's position, and that, having reviewed its First Directive (at the respondents' request) Council confirmed the requirement for the respondents to comply with the SP Act. Notwithstanding, after Council issued the Second Notice on 30 November 2020, the respondents continued (through their then solicitors) to take issue with the requirements set out in the First Directive.
In the above circumstances, and in particular where an inspection undertaken at the site by Council on 16 June 2021 confirmed non-compliance with the requirement to install a child-resistant barrier surrounding the swimming pool, Council submits that the commencement of proceedings was a necessary step to ensure compliance with the requirements of the SP Act following failed attempts to reach a resolution. Moreover, Council submits that up until the filing of the summons on 1 July 2021 the respondents provided no assurance to Council that the works would be undertaken.
In relation to the respondents' assertion that Council engaged in conduct which would disentitle it to an order for costs, including alleged advice from a Council officer in early 2005; alleged erroneous advice from a Council officer in October 2020 to the effect that modifications to the respondents' window and door on the residential dwelling were all that were required; Council's failure to provide communication or reasons for a requirement to surround the swimming pool with a child-resistant barrier; and previous correspondence from Council, which would appear to agree with the respondents' assertion that the site was a "waterfront" property - Council submits that it did not engage in any disentitling conduct. This is because, first, Council had clearly set out the respondents' failure to comply with the statutory scheme (and detailed the works required) in Council's two directives (on 14 April 2020 and 21 April 2021); and second, the failure to comply with the directives triggered the commencement of the proceedings, and from at least the time of the First Directive on 14 April 2020, the respondents were on notice of the current safety standards that applied to the swimming pool and despite this, did not at any earlier time attempt to address the matters raised in Council's two directives but instead sought to shift the focus of the proceedings to historical allegations that were unsupported.
Council further submits that, while it accepted the respondents' position that the site may have been a waterfront property, it never adopted the implication that the respondents were therefore exempt from the requirement to construct a compliant barrier around the swimming pool.
Council further submits that its conduct after the commencement of these proceedings was not disentitling because it consented to the respondents' requests for further time to comply at various of the directions hearings on 6 August 2021, 13 August 2021, 29 October 2021, and 12 November 2021, where on each occasion the respondents were given time to carry out the works the subject of the directives.
Council also submits that the initial refusal to delay the installation of the temporary safety barrier necessitated Council preparing an interlocutory application which was ultimately not filed after the respondents installed a temporary fence on 31 August 2021, and in those circumstances, the preparation of a notice of motion by way of an interlocutory application was reasonable conduct.
Council finally submits that the Court should take into account the history of the respondents' various delays in carrying out the swimming pool safety compliance works following the commencement of proceedings, as detailed in the affidavit of Ms Waring affirmed 7 February 2022. In this regard, Council submits that the first notice given to Council that the respondents intended to carry out the swimming pool safety compliance works in accordance with the directives was in a letter to Council on 21 July 2021, and that the Court should not accept the reliance by the respondents on "COVID lockdowns" to justify the various delays in carrying out the required works. Council points to the precise comments of Mr Leadbeatter at the directions hearings on 13 August 2021, 29 October 2021, 12 November 2021, and 4 February 2022 (reflected in the transcript at Tcpt, 12 November 2021, p 2(2-17)), which it submits demonstrates Mr Leadbeatter's "unequivocal" position that the respondents were (in his view) never required by law to install a child-resistant barrier surrounding the swimming pool, and that he would not be paying Council's costs of the proceedings.

Respondents' position

The respondents provided detailed written submissions. In summary, the respondents submit, first, that they are in the present position because Council gave them incorrect advice in relation to the requirement for a swimming pool barrier; second, Council changed its earlier advice; third, they had told Council (in particular, the General Manager and Council's solicitors) before these proceedings commenced, of their intention to comply with the directives; fourth, the time taken to complete the required works was out of the respondents' control; and fifth, the child-resistant barrier surrounding the swimming pool has now been erected to the latest standard. They also point to significant anxiety they have experienced that was brought about by what they submit is Council's incompetence.
The respondents point to the fact that the swimming pool was installed in January 2005, and that for over two years (despite the respondents' requests) Council never explained why the swimming pool barrier installed at that time was not compliant; that on a much earlier occasion, a Council officer attended the site, and the Building Certificate was subsequently obtained by the swimming pool installer and that they were told (presumably in 2005) by a fencing contractor, that they did not need a fence surrounding the swimming pool as they were on waterfront property; they also refer to various attendances by Council officers (including one at which the respondents were allegedly told by Mr Rushforth to add a security screen to one side window having "extended the rear of the house" in September 2005, which the respondents assumed was an acceptable response to any concern of Council); that Council's solicitors stated in correspondence dated 30 September 2020, that "it was not disputed the property was waterfront property"; and that there had been no contact with Council until 17 February 2020, when Council officers attended pursuant to a complaint about the unfenced swimming pool. The respondents also submit that Council issued each of the directives without providing a reason as to why the required works were needed.
The respondents also state that they had, at an early point in time, obtained legal advice (and contacted the NSW Ombudsman), and acting on that advice, had arranged to meet with Council's General Manager on 5 July 2021, which was the first time the respondents became aware of these proceedings. Moreover, the respondents submit that Council's solicitors had been advised that Mr Leadbeatter would be fencing the swimming pool prior to his receipt of the summons on 21 July 2021; and that although Council's solicitors stated that these proceedings had been commenced before Council was informed of the respondents' intention to fence the swimming pool (to the current standard), the respondents submit that the proceedings had already been commenced (unbeknownst to them) at the time of the meeting with the General Manager and that the respondents had advised Council officers (Paul Hickey and Matthew Wood) at the conclusion of the meeting on 5 July 2021, that they intended to fence the swimming pool to the current standard. In these circumstances, the respondents submit that it was "unprofessional" for Council to start these proceedings before the meeting with the General Manager was undertaken.
The respondents maintain that although the First Directive and the Second Directive were received, their concerns remained as to why the swimming pool safety barriers installed (as advised by Council in 2005) no longer complied with the relevant statutory requirements, and that despite seeking "reasons" from the General Manager, none were received; and that on a number of occasions they had been provided with "unsound advice" and "misdirection" by Council, and that their questions in relation to the required works were never answered.
In relation to Council's submission that there had been further delay after the proceedings had commenced, the respondents point to difficulties with obtaining a fencing contractor and submit that they kept Council informed of the anticipated timing for the completion of the works - (and that the timeframe (seven weeks) which had been communicated to Council and the Court was the timeframe suggested by the fencing contractor that the works would commence).
In response to Council's concern that the swimming pool had no child-resistant safety barrier, thereby presenting a public safety issue, the respondents repeat that the swimming pool had some form of safety barrier installed (as advised by Council in 2005) and suggested that it had posed "no more a safety risk than the unfenced canal some 5m away".
In relation to Council's attempt to seek an order (by way of a notice of motion) for a temporary barrier to be installed in circumstances where the respondents submit that this was not needed, the respondents further submit that they had not refused to install a temporary barrier, and that Council failed to communicate that there was any concern in relation to the installation of a temporary barrier.
In their written submissions, the respondents reject the suggestion that they had failed to comply with previous orders, and submit that Council's evidence or submission to this effect was "totally untrue", and that any delay that eventuated was "in the hands of fencing contractors" such that to say that the respondents were failing to comply with the directives was "ridiculous".
Further, in response to Council's evidence and submissions, the respondents submit that they had not heard from Council in relation to complaints issued between March 2005 and February 2020, and that they had never received any explanation from Council as to why there were compliance issues and why Council's advice as to the swimming pool barrier (which was installed by the respondents in 2005) became unacceptable (particularly where there are other examples in Ballina of similar non-compliant swimming pools).
In relation to Council's evidence regarding the dates Council conducted inspections, the respondents submit that Council "needlessly" conducted inspections and on a number of occasions, Council officers attended the site without their knowledge.
The respondents reject Council's submissions that further legal costs were incurred by the delay in the respondents bringing the swimming pool into compliance, and submit that any delay could not have been caused by the respondents in circumstances where they did not request, or had any control over, the fencing contractors' delay in undertaking the works.
The respondents submit that Council advised them on 27 July 2021 that the proceedings would be adjourned to allow the respondents to install a compliant child-resistant barrier surrounding the swimming pool and obtain a compliance certificate and that in circumstances where Council allowed the proceedings to be so adjourned, any costs incurred by Council were incurred because Council did not allow the respondents sufficient time for the works to be completed.
The respondents also submit that there was an amount of "false and incorrect statements" put forward by Council to justify their claim of costs.

Consideration

The principles in relation to the Court's power to award costs are well-established. The Court has a broad discretion as to costs pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') to determine by whom, to whom, and to what extent costs are to be paid. This discretion is to be liberally construed and its exercise restricted only by limitations and conditions that are clearly expressed: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [21]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543.
Ordinarily, costs follow the event and on the ordinary basis, unless it appears to the Court that some other orders should be made: UCPR, rr 42.1, 42.2. The "event" usually refers to the event of the claim and may be understood as referring to the practical result of a particular claim: Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].
The power to award costs is exercised after a hearing on the merits and, as a general rule, the successful party is entitled to a costs order. However, when there has been no hearing on the merits, as in the present circumstance, the Court is necessarily deprived of the factor that usually determines whether or how it will make an order for costs.
In summary, the absence of a hearing on the merits of the proceedings will usually mean that the Court will make no order as to costs, subject to a qualification that even where parties have acted reasonably, costs may be awarded if the Court is satisfied that one party "was almost certain to have succeeded if the matter had been fully tried", adopting the well-known comments of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625; [1997] HCA 6 ('Ex parte Lai Qin').
Further, the circumstances leading to the discontinuance of the proceedings and the conduct of the parties are relevant in the exercise of the Court's discretion: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424 at [20]-[34]. The position may be different where a respondent simply capitulates: Nadilo v Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89 ('Nadilo') at [12], [89], [94].
In Kiama Council v Grant [2006] NSWLEC 96; (2006) 143 LGERA 441 at [80], Preston CJ of LEC made the following comments, which I respectfully adopt: "The principles that emerge from these cases are that in a civil enforcement or judicial review case where there has been no hearing on the merits: (a) where one party effectively surrenders to the other party by: (i) discontinuing without the consent of the other party; or (ii) giving undertakings to the Court or submitting to the Court making orders against the party substantially in the terms or to the effect claimed by the other party; the proper exercise of the costs discretion will ordinarily be to make the usual order as to costs, unless there is disentitling conduct on the part of the other party; and (b) where some supervening event or settlement so removes or modifies the subject of the dispute that no issue remains except that of costs, the proper exercise of the costs discretion will ordinarily be to make no order as to costs unless: (i) one of the parties has acted so unreasonably that the other party should obtain the costs of the action; or (ii) even if both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried so that the party should obtain the costs of the action."
In considering the detailed evidence and submissions received from the parties and in the application of the above principles, I have closely considered Council's conduct prior to and during the proceedings. To the extent that the respondents submit that Council has been unreasonable in the commencement of the proceedings and/or the continuation thereof, I am not satisfied that this is the case. My reasons follow.
Although of understandable significance to the respondents, I do not consider that the fact that the swimming pool (which, although constructed without development consent, had the benefit (for seven years at least) of the Building Certificate issued on 4 July 2005) may have been, at an earlier time, compliant with the relevant safety regulations, is a matter that is determinative in all the circumstances of the question presently before the Court.
Even accepting to the extent necessary that, as submitted by the respondents, a Council building surveyor attended and inspected the site at some time shortly after 2005, and that certain building works to the dwelling house were undertaken after September 2005; and while the respondents place significant weight (and appear to be motivated in their adopted position) on the fact that there had been little contact with Council, in the sense that no concern had been expressed in relation to the swimming pool until 17 February 2020, I do not consider that this properly addresses the respondents' failure to comply with the two directives issued by Council pursuant to s 23(1) of the SP Act on 14 April 2020 and 21 April 2021, prior to the commencement of these proceedings.
Each directive was preceded by a notice of intention to serve a directive, and each such notice, and each directive, contained detailed reasons why the directives were intended and subsequently given. I note in passing that Mr Rushforth was extensively cross-examined by Mr Leadbeatter, and I consider that his evidence and responses properly explained Council's position.
More particularly, when Council wrote to the respondents to bring to their attention the (then) current statutory safety requirements in relation to the swimming pool, the respondents maintained a concern on the basis that the site was a waterfront property and therefore exempt from the requirement to install a child-resistant barrier. They maintained this objection to the notice of intention to serve a directive of 28 February 2020 in their letter of 19 March 2020. Council thereafter conducted a review of the First Directive dated 14 April 2020 and thereafter, confirmed the requirement for the respondents to comply with the requirements of the SP Act (as set out in the 14 April 2020 directive).
Although the respondents at one stage took legal advice as to their position, it is clear that Council in the provision of the notices of intention to serve a directive and the directives, and in correspondence from Council's solicitors (for example, their letter of 30 September 2020 to the respondents and their letter of 21 April 2021 to the respondents' (then) solicitors), properly responded to the respondents' objections and clarified (to the extent that may have been necessary), that even if it was accepted that at one stage the site was considered waterfront property, the works that had been undertaken in relation to the swimming pool barrier did not comply with, at least, Australian Standard AS 1926.1-2007. Further, Council's solicitors made it clear to the respondents that if Council did not receive notification of compliance with Australian Standard AS 1926.1-2007, or that if a barrier was not compliant with the 2018 SP Regulation, Council would commence legal proceedings (which may include criminal proceedings) to remedy a breach of the SP Act.
The respondents had also been put on notice, in relation to each directive, that there was a right of appeal against each directive to the Land and Environment Court.
I also consider that the respondents' reliance upon the fact that the swimming pool was 17 years old with a "perfect safety record" is not persuasive. Further, even though the respondents submit that they are in the present position because of "Council misdirection" and that "to pay for (Council's) mistakes is unreasonable", I do not find this submission persuasive. Council made it abundantly clear to the respondents that the swimming pool (albeit that it may have been compliant in 2005), was not compliant with the 2018 SP Regulation, and informed the respondents (at least in the First Directive of 14 April 2020, if not the First Notice of 28 February 2020) that Council was required pursuant to the SP Act to ensure that the swimming pool be surrounded by a child-resistant barrier that complies with the current Australian Standard AS 1926.1-2012. Further, at the time of the issuing of the First Directive of 14 April 2020, Council had received (and responded to) a detailed submission made by the respondents, which again referred to information given by a Council inspector (in 2005) and the fact that the swimming pool barrier that was in place was "seen as compliant when development approval was sought for an addition to the house in September 2005…".
Despite the respondents' continued opposition to the installation of a child-resistant barrier surrounding the swimming pool in compliance with the SP Act (based upon the matters I have summarised above), and their concern that there had been a delay of many years before they were directed to install appropriate barriers (and maintained that they had, in any event, installed lawful and appropriate barriers in 2005), for the reasons above, I find that there was no unreasonableness in Council's conduct leading up to the commencement of these proceedings.
To the extent that Mr Leadbeatter relies on the fact that he had arranged a meeting with Council's General Manager (following an advice from the NSW Ombudsman to have further discussions with Council) and that Council commenced these proceedings before the meeting had occurred, to maintain that Council acted improperly, I do not accept this submission. In the circumstances of the background of the matter, and Council's attempts to seek that the swimming pool be fenced in accordance with the 2018 SP Regulation, the fact that proceedings were commenced when there were ongoing discussions between the parties, is not indicative, and certainly not decisive of, inappropriate or disentitling conduct in relation to an application for costs.
Further, although there appears to be some dispute as to whether or not, at the meeting attended in July 2021 with Council officers, Mr Leadbeatter proffered to attend to the construction of a compliant swimming pool barrier, the fact is that no child-resistant barrier was installed until December 2021. Although the respondents submit that any delay (presumably from July to December 2021) cannot be shifted onto them - referring to difficulties in obtaining a fencing contractor and the estimate for time provided to complete the construction and the like - whilst there may be an explanation for the delay, it is not a matter that is attributable to the conduct of Council.
In summary, I am of the view that Council's commencement of the proceedings was a reasonable step to ensure statutory compliance with the requirements of the SP Act. I accept that up until the time of the filing of the summons on 1 July 2021, the respondents had not provided or undertaken to do the required works despite the intercourse that took place between the parties and the correspondence exchanged over a number of years. While there was a factual dispute as to whether, at the time of the meeting with the General Manager on 5 July 2021, some suggestion was proffered that there may be compliance, the fact of the matter is that there was no compliance for some period of time.
Suffice it to say, I accept the evidence of Council's solicitor, Ms Waring, wherein she provided details of the correspondence between the parties; the meeting with the General Manager and Council officers with the respondents on 5 July 2021; the service of the summons on 19 July 2021; and of the respondents' conduct following the commencement of the proceedings. Ms Waring was cross-examined by Mr Leadbeatter, and I accept her evidence. More particularly, I note that the evidence is that the meeting on 5 July 2021 was arranged following an inspection of the swimming pool at the site by a Council officer on 16 June 2021. I accept the evidence of Mr Rushforth and Ms Waring that, at the time of that inspection, the respondents disputed their obligation to construct a barrier surrounding the swimming pool and as such, I accept the evidence of Ms Waring that this position was a "catalyst" to Council's commencement of the proceedings.
I also accept that although the summons was filed on 1 July 2021, Ms Waring was not aware that a meeting with Council's General Manager had been arranged for 5 July 2021 and that on 7 July 2021, Ms Waring had a conversation with Mr Leadbeatter during which he indicated that he had received a quote "to do the fence around the pool instead of using the house [as] a barrier". Ms Waring deposed that she was unaware at the time of that conversation whether Mr Leadbeatter had been served with the summons.
In regard to the conduct of the proceedings after commencement, and the various directions hearings before the Court, I have read the transcript of each of the directions hearings. It is clear that at least on two occasions, judges of this Court (noting the nature of the dispute as to the adequacy of swimming pool barriers) expressed concerns in relation to whether there was an ongoing safety risk in relation to the swimming pool. While both parties made submissions in relation to these concerns, I do not consider that the utterances of the parties and/or the Court at these times are determinative of the present issue.
The transcripts of the directions hearings indicate that Council was concerned that despite earlier assurances, the barrier surrounding the swimming pool was not being constructed, and as considered above, Council prepared a notice of motion seeking an order for the construction of a temporary fence. That notice of motion was not proceeded with.
The evidence in relation to the temporary barrier is somewhat unclear. I accept that Council had a concern that the construction of a permanent child-resistant barrier was not progressing, and that a request for a temporary barrier had been denied by Mr Leadbeatter such that Council thereafter contemplated seeking relief by way of a notice of motion. I also accept Mr Leadbeatter's position that he communicated with Council that, in light of the delay, the time required to construct a temporary barrier would be equivalent to that necessary for the provision of a permanent child-resistant barrier. I accept the fact that some further delay was not solely the respondents' fault.
The evidence makes it clear that, from on or about 10 July 2021, Mr Leadbeatter had indicated an intention to construct a compliant child-resistant barrier surrounding the swimming pool. On 21 July 2021, Mr Leadbeatter provided a plan to Ms Waring, and asked whether that plan was acceptable. Ms Waring gave evidence that the email from Mr Leadbeatter of 21 July 2021 was the first occasion on which the respondents had unequivocally communicated an intention to surround the whole of the swimming pool with a barrier compliant with the current standards. Ms Waring indicated that this position of the respondents was dealt with at the first directions hearing on 27 July 2021, and Ms Waring was subsequently informed by Mr Leadbeatter on 2 August 2021 that the fencing works would commence in "around seven weeks". As noted above, Council's inspection on 21 October 2021 indicated that the child-resistant barrier had not been constructed. On Friday, 17 December 2021, the respondents informed Council's solicitors that the child-resistant barrier had been completed on that day. I note that in cross-examination of Ms Waring, Mr Leadbeatter suggested that any concern Council had in relation to the delay in the construction of the barrier could have been addressed by Council's solicitors contacting the fencing contractor (whose contact number had been given to Ms Waring by Mr Leadbeatter). I do not consider that this is relevant. While accepting the respondents' submissions that the delay was not "caused" by them, the fact is that there were delays in the construction of a child-resistant barrier surrounding the swimming pool.
By way of summary, I accept that Council's conduct in the commencement and progression of these proceedings was appropriate in the circumstances. I accept that the respondents were put on notice over a significant period of time of Council's concerns, and I find that Council's concerns properly related to matters of safety regarding the swimming pool. Indeed, the concerns in relation to the construction and provision of a compliant swimming pool barrier (that is, one that complies with the current safety standards) is a matter of significant importance both to private and public facilities. I do not consider the respondents' reliance upon what may have been appropriate or otherwise in 2005 (or for some period thereafter) to be determinative, and I do not accept that their opposition to the installation of an appropriately certified safety barrier was appropriate or reasonable in the circumstances. I also do not accept that utterances that may have been made by Council officers stemming from in or around 2005 could reasonably be relied upon by the respondents in opposing the construction of a child-resistant barrier that was not ultimately installed until December 2021.
I am of the view that should the matter have proceeded to a final hearing, Council would have been entitled to relief not dissimilar to that which it sought in the summons filed 1 July 2021, and to the extent that costs properly follow the event, I consider that Council has achieved the practical result which it otherwise sought in the proceedings.
The power to award costs is an important aspect of rendering justice between parties, and underlying the general rule that costs should follow the event is the idea that costs should be borne in a way that is fair: Nadilo at [6].
In the above circumstances, I consider that Council is prima facie entitled to its costs of these proceedings. Having looked closely at the intercourse between Council, its legal representatives, and the respondents, I do not consider that Council's costs should include any costs related to the notice of motion referred to above. While I do not accept the detailed criticism of Council's conduct made by Mr Leadbeatter, I accept that for some period of time, Mr Leadbeatter had apparently received legal advice which may have galvanised his position and that it is likely that some delay was caused by circumstances beyond the control of the respondents.
Accepting that costs are primarily compensatory, I consider that, in the unusual circumstances of this matter, the dictates of justice require some change to the usual order, and taking into account all of the circumstances considered earlier in this judgment, I find that there should be some reduction in the costs awarded. I find that Council is entitled to 75% of its costs of the proceedings including the costs of this application for costs - however those costs are not to include the costs associated with the preparation of the notice of motion referred to in [33], [57] and [93] above.

Orders

The orders of the Court are: 1. Matthew Lando Leadbeatter and Michelle Dianne Leadbeatter are to pay 75% of Ballina Shire Council's costs of the proceedings (excluding any costs related to the preparation of a notice of motion in August 2021).

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: 23 February 2023

(2006) 143 LGERA 441

(2014) 199 LGERA 424

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