Mr Saha the Respondent has a swimming pool in his backyard in Polding Street Bossley Park. Fairfield City Council (the Council) as the Applicant alleges that he does not have pool fencing which complies with the Swimming Pools Act 1992 (the Act) and the relevant Australian standard AS 1926.1-2012 in various respects.
The Council has commenced Class 4 proceedings to enforce the Swimming Pools Act as provided by s 30 of that Act. The Court has power to make orders where satisfied that a breach of the Act has been committed to remedy or restrain a breach of the Act. The matter was referred to mediation but has not settled.
Prayer 1 of the Summons seeks an order that the work identified in Annexure A to the Summons be carried out pursuant to ss 7 and 15 of the Act. Prayer 2 in the Summons is not pressed as Mr Saha has drained the pool already.
Section 7 of the Act specifies the general requirement of outdoor swimming pool owners to ensure that the swimming pool is at all times surrounded by a child-resistant barrier. Section 15 requires that a child resistant barrier be in a good state of repair as an effective and safe child-resistant barrier.
The Council relies on the affidavit of Mr Gittany council building surveyor sworn 12 December 2017 which identifies that development consent was granted for the pool in 1984, correspondence with Mr Saha regarding the pool fencing, correspondence from Mr Saha attributing difficulties due to a dispute with a neighbour with whom he shares a relevant boundary fence and the issuing of an order for failing to comply with the Swimming Pools Act requiring work to be carried out on 27 July 2017. A swimming pool checklist applying AS 1926.1-2012 conducted for Mr Saha's premises on 23 November 2017 was annexed and identified a large number of outstanding matters which are required to be addressed before the standard is complied with.
Mr Gittany was cross-examined by Mr Saha and identified that the NSW Swimming Pools and Spa Association pool safety barrier guidelines (Exhibit 1) referring to non-climbable zones were unclear in that they did not specify which Australian standard they referred to. Two Australian standards are particularly relevant being 2007 and 2012. He was also questioned about what tests for rigidity of pool fencing he had undertaken and what measurements he taken in relation to paling distances.
The Council's tender bundle (Exhibit A) included a number of documents which related to the draining of the swimming pool. As Mr Saha has complied with the order to drain the swimming pool I have only listed those documents relating to the fencing issue being:
1. the Summons filed 5 September 2017;
2. the Council's Points of Claim filed 5 September 2017;
3. a letter dated 8 July 2011 from the Council to Mr Saha responding to Mr Saha's concerns regarding the construction of a granny flat on a neighbouring property. The Council stated in the letter that the granny flat had been assessed and determined in accordance with the Council's Development Control Plan, that there was no requirement to notify of the construction of single storey dwellings and that it did not have unlimited powers to refuse development consents; and
4. a letter dated 17 August 2017 from the Council to Mr Saha attaching a direction pursuant to s 23 of the Swimming Pools Act and an order dated 27 July 2017 requiring Mr Saha to take certain actions in relation to the fencing around the swimming pool.
At the request of the Court a summary of the work required in order to satisfy the Australian standard was provided to assist Mr Saha and the Court understand exactly what was required. The Council tendered the hand-drawn plan of the pool and surrounds and a list of work required at specified locations prepared at the Court's request (Exhibit B). This provided a useful summary of Mr Gittany's swimming pool checklist of work required.
Mr Saha read an affidavit sworn 29 March 2018. Mr Saha is an information technology professional but is currently unemployed. He stated that the Summons filed 5 September 2017 required him to do work which he had already completed, being to install a child-resistant barrier lock and to drain the swimming pool of water.
Mr Saha appeared before the Court on 6 October 2017 requesting that the proceedings be stayed. The problems he had experienced were caused by a granny flat constructed on a neighbouring property overlooking his swimming pool. Mr Saha obtained a copy of the AS 1926.1-2012 relating to swimming pools and attended a seminar for the NSW Swimming Pools and Spa Association.
Mr Saha stated that a Council officer Ms Cunniffe had inspected his property and had ceased doing so when she became aware of his neighbour's motives in making complaints to the Council. Annexed to his affidavit was a handwritten note from Ms Cunniffe recording an instance when she had attended Mr Saha's property.
Mr Saha tendered an extract from the NSW Swimming Pools and Spa Association pool safety barrier guidelines in relation to a non-climbable zone around pool fences. Mr Saha tendered three photographs showing the dilapidated paling boundary fence in relation to which he says he had a dispute with his neighbour resulting in the fence being damaged (Exhibit 2). Mr Saha also tendered a Centrelink statement for his receipt of Newstart allowance (Exhibit 3) and submitted this was his only income which may prevent him being able to undertake the necessary work.
[3]
Council's chronology
The Council usefully provided the following chronology:
Date Event
07/09/1984 Building permit issued for swimming pool at 629 Polding Street Bossley Park.
07/07/2007 Notice of sale / transfer to Mr Saha for property at 629 Polding Street Bossley Park NSW 2176.
17/01/2013 Photographs of overgrown swimming pool at 629 Polding Street Bossley Park taken by Council Officer Ms M Cunniffe.
18/01/2013 Notice of proposed order served on Mr Saha. Order 21 required to place premises in a healthy condition by filtering and chlorinating the swimming pool water so as to eliminate the likely breeding place for mosquitoes within 30 days.
04/02/2013 Note to file by Ms Cunniffe attaching photographs of swimming pool at 629 Polding Street Bossley Park showing the swimming pool water being in a dirty condition, being a green colour. Also, the swimming pool water was below the required level to enter the skimmer box and subsequent pool filtration equipment. Photographs taken on 17 January 2013 at approximately 2pm.
04/02/2013 Email from council officer Mr Rodham to Mr Saha advising it is appropriate to issue him an Order under s 124 of the Local Government Act 1993.
05/02/2013 Order issued against Mr Saha to filter and chlorinate the swimming pool water so as to eliminate the likely breeding place for mosquitoes. Issued by Martina Cunniffe.
22/03/2013 Note to file by Ms Cunniffe. Inspection on Tuesday, 19 March 2013 at approximately 10am. Photographs attached showing swimming pool in a dirty condition.
27/03/2013 Letter to Mr Saha from Ms Cunniffe requesting him to show cause in writing within seven days as to why Council should not instigate legal proceedings against him.
04/04/2013 Email from Mr Saha to Ms Cunniffe stating no mosquitoes in the swimming pool, chlorine had been added regularly to the swimming pool water and hydrochloric acid had been added to the water. A sample of water for testing was "fine".
05/04/2013 Email from Ms Cunniffe to Mr Saha. Following telephone conversation: "this morning, she would like to arrange a suitable time to inspect the condition of the pool. Suggested Wednesday 10 April 2013 at 2pm for inspection."
11/04/2013 Note to file by Ms Cunniffe. Pool had been inspected on 10 April 2013 with photographs. Pool water still dirty.
18/04/2013 Report to manager environment and health from Ms Cunniffe. She had visited the property with council officer Mirko Simic and took photographs. The pool water was in the same condition as previously noted on 17 January 2013. The level of the water within the swimming pool was below that required to enter the skimmer box and pool filtration equipment. The swimming pool water was also stagnant.
26/04/2013 Letter from Ms Cunniffe to Mr Saha advising the order had not been complied with and also giving notice of intent to serve an additional order to place the premises in a healthy condition.
26/04/2013 Notice of proposed order given to Mr Saha to place the premises in a healthy condition by filtering and chlorinating the swimming pool water so as to eliminate the likely breeding place for mosquitoes within 30 days.
10/05/2013 Order served on Mr Saha.
12/06/2013 Visit to site by Ms Cunniffe. Swimming pool water still in a dirty condition.
12/07/2017 Letter to Mr Saha from Pankit Shah EHO, FCC, about unclean water in the swimming pool. Council requests him to take all reasonable steps to ensure that the swimming pool is kept in a healthy condition.
14/07/2017 Email from council officer Cesar Da Rosa to council officer Ms Daniele that the swimming pool located 629 Polding Street Prairiewood does not comply with the fencing requirements as there is no automatic self-latching device.
17/07/2017 Notice of entry served on Mr Saha that access is required to the pool on Thursday, 27 July 2017 at approximately 10am.
27/07/2017 Mr Gittany refused entry by Mr Saha.
27/07/2017 Photographs taken showed broken fence panels and dirty swimming pool water below effective level for filtering.
17/08/2017 Direction pursuant to s 23 of the Swimming Pools Act served on the owner.
05/09/2017 Class 4 Summons and Points of Claim filed.
06/10/2017 Directions for filing evidence by Moore J. Matter listed for mediation on 19 October 2017. Stood over to 1 December 2017.
19/10/2017 Mediation at 629 Polding Street Bossley Park before Commissioner Gray terminated as owner would not allow access to the property.
20/10/2017 Notice of motion for access and amended directions filed, returnable on 26 October 2017.
26/10/2017 Hearing of motion before Registrar Froh. Access granted on three days' notice. Direction for filing evidence varied to 17/11/2017.
16/11/2017 Email to Mr Saha requesting access on Thursday 23 November 2017.
19/11/2017 Email from Mr Saha granted access.
23/11/2017 Inspection and report by Mr Gittany. Pool emptied. Fencing did not comply.
01/12/2017 Directions hearing before Moore J. Mediation fixed for 25 January 2018.
25/01/2018 Mediation held and agreement reached for Respondent to provide quotes for the agreed work by 25 February 2018 and complete the work by 25 March 2018.
16/02/2018 Mention before Molesworth AJ Adjourned to 6 April 2018 to extend time for compliance with agreed work.
02/03/2018 Matter relisted for failure of Respondent to provide quotation by 25/02/2018.
09/03/2018 Matter relisted before Robson J. Directions given to Respondent. Adjourned to 06/04/2018.
06/04/2018 Mention before Sheahan J. Fixed for hearing on 27 June 2018.
[4]
Council's submissions
The Council submitted that the necessary work remained undone and must be ordered to be done as provided by s 30 of the Act given the importance of safe pool fencing. The problem with Mr Saha's pool became apparent when a council officer undertook a mandatory inspection in 2017.
[5]
Mr Saha's submissions
Mr Saha's neighbours have caused him many problems since 2011 and the issue of one key boundary fence arises from that dispute. The Council has not helped him to resolve those issues. He has drained the pool and put a child-resistant lock on a pool gate. He has endeavoured since proceedings were commenced to reach an agreement with the Council about what needed to be done.
[6]
Finding
The importance of complying with the pool safety requirements of the Act and AS 1926.1-2012 is a matter of fundamental public safety as highlighted at the time of the amendment of the Act in 2012. Amendments at that time included the introduction of the requirement on councils to undertake mandatory inspections of backyard pools. Mr Saha's pool came to Council's attention when such an inspection was undertaken.
The Council bears the onus of proof on the balance of probabilities that a breach of the Act has occurred. The affidavit and checklist of Mr Gittany establishes that there are outstanding matters at Mr Saha's property concerning his swimming pool fencing not complying with AS 1926.1-2012. In cross-examination Mr Gittany impressed as a witness who was competent in his area of expertise and fully understood the legislative requirements of the Act and AS 1926.1-2012. His evidence establishes that a breach of the Act has and is occurring in relation to Mr Saha's pool.
Mr Saha's complaints about his neighbour and the Council's approach to this have no bearing on the issues before me which concern his failure to comply with the Act.
There is no evidence before me to suggest that the work still outstanding in the direction issued under s 23 of the Act sent to Mr Saha in August 2017 and attached to the Summons in relation to prayer 1 has been done. It is appropriate that I exercise my judicial discretion to make the order sought in prayer 1 of the Council's Summons with some amendment to ensure clarity.
[7]
Costs
The Council seeks its costs as the successful party, the usual order in Class 4 civil enforcement proceedings. It relies on an affidavit of Mr Thompson solicitor sworn 26 June 2018. It presses for the Court to make a specific costs order to save further expense and time being incurred in cost assessment. The costs of the matter are unfortunately large due to the large number of attendances both in and out of court which occurred in the course of these proceedings inter alia as can be seen from the lengthy chronology set out above at [13]. The Council is seeking $22,000 which is approximately 65 percent of its total costs in the proceedings. Mr Saha submits he cannot pay this amount. If a costs order is made he would prefer that a specific amount not be ordered but that costs be as agreed or assessed.
Impecuniosity is not an exceptional circumstance to be considered in determining whether to award costs: Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd [2016] NSWLEC 130 at [17] citing Save Little Beach Manly Foreshore Incorporated v Manly Council (2013) 198 LGERA 304; [2013] NSWLEC 155 at [9] and [12].
The Council has been successful in these civil enforcement proceedings and there is no disentitling conduct to prevent an award of costs in its favour.
The Respondent Mr Saha is to pay the Council's costs as agreed or assessed.
[8]
Order
The Court orders:
1. The Respondent take all necessary action to ensure that the swimming pool located at 629 Polding Street, Bossley Park NSW 2176 is at all times surrounded by a child-restraint barrier complying with the requirements of ss 7 and 15 of the Swimming Pools Act 1992 and AS 1926.1-2012 as detailed in the schedule annexed and marked "A" within three months of these orders.
2. The Respondent is to pay the Council's costs as agreed or assessed.
[9]
ANNEXURE A - Annexure (491 KB, pdf)
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: 10 July 2018