APPLICANTS Bianca Fitzpatrick and Mark Fitzpatrick (Subject Land owners)

RESPONDENT Municipal building surveyor for the City of Whittlesea

BEFORE Members H Hodges (panel chair), G Avramopoulos

CITATION Fitzpatrick v Municipal Building Surveyor for the City of Whittlesea [2026] VBAB 2

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines that:

1. Pursuant to s 149(1)(b) of the Building Act 1993 (the Act), the decision of the Respondent to make a building order dated 10 June 2025 is quashed.
2. Pursuant to s 149(4) the building order dated 10 June 2025 is cancelled.
3. Pursuant to s 149(4) of the Act, the decision of the Respondent to serve a building notice dated 3 March 2025 is quashed.
4. Pursuant to s 149(4) of the Act, the building notice dated 3 March 2025 is cancelled.
5. Pursuant to s 149(4) of the Act the Applicants must provide a copy of this decision to the Respondent and seek to update the pool register with the correct applicable pool barrier standard.
6. Pursuant to s 149(4) to the Act and for the avoidance of doubt, the Applicants continue to be required to comply with pool barrier inspection requirements. However, any inspection carried out should apply the pool barrier standard identified in this decision which is AS1926.1-1993 for pools substantially designed and/or constructed between 1 July 2000 and 30 April 2010.
7. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of this determination.[1]

_______________________ ________________________

1. The Applicants are the owners of 9 Eliot Avenue, Doreen (Subject Land), which is located within the municipality of the City of Whittlesea.
2. The Respondent is the Municipal Building Surveyor for the Whittlesea City Council.
3. On or around 3 March 2025, the Respondent served on the Applicants a building notice (Building Notice).
4. On or around 10 June 2025, the Respondent made a building order with reference 2024/2119660 (Building Order). The reason for the making of the Building Order was stated to be as follows:

2.0. Building work was carried out in contravention of the Building Regulations 2018 (this includes building work carried out in contravention of the Building Code of Australia)

The following building work has been carried out on the building/land in contravention of the Building Regulations 2018:

2.1 The laundry door fitted with a child-resistant door set must not provide direct access to the outdoor swimming pool enclosure, to be in keeping with the Building Regulations 2018, with reference to the Building Code of Australia 2010, Vol.2, Clause 3.9.3.0(b), stating "A child-resistant door set must not be used in a barrier for an outdoor swimming pool".

1. On or around 23 June 2025, the Applicants commenced an appeal in the Building Appeals Board (BAB) pursuant to s 142(2)(a) of the Building Act 1993 (Act) against the making of the Building Order.
2. On 14 August 2025, the BAB heard the appeal.
3. The BAB has considered the written and oral submissions in making the determination set out below.

1. The following provision of the Act is relevant to a consideration of this matter:
   1. Application of new building regulations or binding determinations to building work

(1) A building regulation or an amendment to a building regulation or a binding determination that applies to a building regulation, does not apply to the carrying out of any building work in accordance with a building permit existing immediately before the building regulation or amendment commences or the binding determination comes into effect.

(2) A building regulation, or an amendment to a building regulation or a binding determination that applies to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced or the binding determination came into effect.

(3) Subject to any determination of the Building Appeals Board, building work referred to in subsection (1) or (2) must be carried out in accordance with the provisions of any regulations, by-laws, local laws or enactments in force at the material times as if the building regulation or amendment or binding determination had not come into operation.

(4) Despite subsections (1) to (3), the relevant building surveyor and the owner of the building or land concerned may agree that a building regulation, or an amendment to a building regulation, or a binding determination, is to apply to the carrying out of building work referred to in those subsections.

applicable barrier standard, in relation to a swimming pool or spa barrier, means -

(a) the requirements of the Act and these Regulations with which the barrier must comply (the barrier requirements) in force at the date of construction of the swimming pool or spa; or

(b) if after the date of construction of the swimming pool or spa, building work is carried out on the whole or part of the barrier resulting in the whole or part of the barrier having to comply with any subsequent barrier requirements -

(i) the subsequent barrier requirements in force at the date of the issue of any building permit for the building work; or

(ii) the subsequent barrier requirements in force at the date of the commencement of the building work if no building no permit was issued for the building work;

Reg. 5(1) def. of applicable barrier standard inserted by S.R. No. 116/2019 reg. 6.

The owner of the land on which a swimming pool or spa is located must ensure that one or more of the following barriers are in place to restrict access to the part of the land on which the swimming pool or spa is located -

(a) a wall of a building, but only if -

(i) any door or gate in the wall complies with regulation 147D; and

(ii) any openable part of any window in the wall complies with regulation 147E;

(b) a fence and gate complying with AS 1926.1 - 1993 Swimming pool safety Part 1: Fencing for swimming pools, published 26 July 1993 as in force or as issued from time to time;

(c) a paling or imperforate fence if -

(i) it is at least 1·5 m in height measured above the ground level on the approach side; and

(ii) any door or gate in the fence complies with regulation 147D.

147T Determination by the relevant council of the date of construction of a swimming pool or spa

(1) On an application for registration of a swimming pool or spa (other than a relocatable swimming pool or relocatable spa) under Division 4, the relevant council must determine the date of construction of the swimming pool or spa.

(2) In determining the date of construction under subregulation (1) the relevant council may have regard to -

(a) any information regarding the period of construction or the date of any building permit issued in relation to the construction of the swimming pool or spa provided in the application; or

(b) any information contained in the records of the relevant council; or

(c) any other relevant information obtained by the relevant council.

In subregulation (2)(a), a building permit includes a building approval or a building permit under the Building Control Act 1981 - see clause 8 of Schedule 4 to the Act.

1. Clause 3.9.3.0 of the Building Code of Australia 2010 - Volume Two (BCA) is also relevant:

(a) Subject to (b) and (c), Performance Requirement P2.5.3 is satisfied for a swimming pool associated with a Class 1 building, with a depth of water more than 300 mm if it has safety barriers installed in accordance with AS 1926 Parts 1 and 2.

(b) A child-resistant doorset must not be used in a barrier for an outdoor swimming pool.

(c) A side hung door forming part of the barrier for an indoor swimming pool must be hung so that, when opening, it only swings away from the pool area.

1. The Applicants provided the following submissions:

(a) Significant design was implemented prior to the 2010 edition of the BCA coming into force on May 2010. The design was based on the 2009 edition of the BCA and AS1926.1-1993.

(b) Under s 10(2) of the Act:

A building regulation, or an amendment to a building regulation or a binding determination that applies to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced or the binding determination came into effect.

The Applicants understand the relevant building surveyor (RBS) has not provided this written confirmation but note the RBS did not fulfill a number of requirements.

(c) The Building Notice references AS1926.1-2012 whereas the certificate of pool registration dated 9 August 2022 provided to the Applicants by council references AS1926.1-2007 [Amd 1]. Council documentation issued 28 November 2024 in part references AS1926.1-2007 (and does not include Amd 1).

(d) The Victorian Building Authority (Authority) issued a Certificate of Final Inspection (CFI) on or around 28 June 2022 after the RBS was found to have neglected to issue the CFI and were satisfied with the compliance of the pool and associated pool barrier at the time of their inspection.

(e) The property had also been deemed compliant on 20 February 2019 by the Authority's registered inspector Wayne Hosking after he made a building order for minor work dated 8 February 2019 (to ensure that the pool gate hinges had poles placed between them and that the window to bedroom 4 be restricted to open no more than 100mm). This order was cancelled on 20 February 2019.

(f) The Applicants have addressed matters raised by other inspections and received confirmation the pool barrier was satisfactory.

(g) The Applicants are concerned that the safe egress from the building via the laundry could be removed because the RBS failed to perform their statutory duties.

(h) The Applicants submit, the building order requiring the installation of an additional pool fence to take the laundry door out from forming part of the pool barrier would not be safe or functional. The Applicants enter or exit their home via the laundry door and one of the Applicants uses the pool for physical therapy. The barrier standard states all pool gates must open away from the pool, which would bring the fence far too close to the pool edge as there is only 3000mm from the house brickwork to the edge of the pool. It would put the Applicants as well as their family and friends, including young children and older visitors at a greater risk of falling into the pool as the walkway would be far too narrow for a safe thoroughfare.

(i) The door has self-closing mechanisms on both the laundry security door and the laundry doors, both doors are locked with keys kept out of reach of children. The internal laundry door also has a child proof door gate to keep children out of the laundry. The Applicants have always ensured that their property meets all the safety standards that they were advised of by the pool builder and home builders at the time of the build,

(j) The Applicants seek that the pool registration show the applicable Australian Standard is 1926.1-1993.

1. The Respondent relies on the following submissions:

(a) The Respondent notes the following details in relation to the pool:

(b) The Respondent supports a condition on the Building Permit that no doorway from dwelling or associated building is to open directly into the pool area.

(c) The Respondent further notes that Part 3.9.3.0(b) of the Building Code of Australia states:

A child resistant doorset must not be used in a barrier for an outdoor swimming pool.

(d) The laundry door in question provides direct access from the dwelling into the pool area and currently forms part of the safety barrier does not comply with this provision of the Building Code of Australia.

(e) The Authority may consider using and applying section of s 10 of the Act to determine whether there is an acceptable level of compliance. Furthermore, the Respondent notes the BPC could agree to use sub-s 10(4) to achieve compliance. Should such an agreement be formalised under section 10(4) of the Act between the RBS and the owner, Council would consider withdrawing the Building Notice and Building Order.

1. The Respondent has filed the following documents in the proceeding in support of their submissions:

(a) Notification of acceptance of appointment by the original RBS Jim Misopoulos dated 5 September 2010

(b) Swimming pool consent from Covenant Manager dated 26 July 2010.

(c) Certificate of Insurance for Domestic Building Contract dated 29 July 2010

(d) Application for Building Permit dated 29 July 2010

(e) The approved documentation on the site plan (page 49 of 59) states the following in relation to fencing:

Fencing - pool fencing by others, and to comply with AS1926.1-1993. Boundary fences where used as pool safety barrier to comply with AS1926.1-1996. Gates to have a self-latching device and to be child resistant. Operable portion of windows shall be as per As1926.1-1993. Gates to open away from pool area.

(f) Building Permit for the swimming pool dated 5 September 2010 states the following:

SAFETY FENE FOR SWIMMING POOLS IS TO COMPLY WITH AS 1926.1 PLEASE REFER ATTACHED POOL FENCE REQUIREMENTS.

(g) NO DOORWAY FROM DWELLING OR ASSOCIATED BUILDING IS TO OPEN DIRECTLY INTO POOL AREA The VBA issued a certificate of final inspection dated 28 June 2022. The document states the Certificate of final inspection is not evidence that the building work complied with each aspect of the Act and the Building Regulations 2018 (Regulations). The Certificate of Final inspection stated the BCA version that was applied was BCA 2010 (Volume 2).

(h) The VBA issued a certificate of final inspection dated 28 June 2022. The document states the Certificate of final inspection is not evidence that the building work complied with each aspect of the Act and the Building Regulations 2018 (Regulations). The Certificate of Final inspection stated the BCA version that was applied was BCA 2010 (Volume 2).

APPLICANTS' REPLY TO THE RESPONDENT'S SUBMISSIONS

1. The Applicants contacted the Authority and provided the following summary of their interaction:

...we have reached out to the BPC with regard to the possibility of utilising any part of section 10 of the act in order to amend the standard under which our property is being assessed due to the evidence we have proving the pool was planned at the same time as the house plans, engineering, plumbing and storm water was designed for our property this evidence is dated Metricon build contract 2/11/2009 and build variation that references the laundry door requiring that both door handle to be installed higher up the door to comply with pool access codes of practice. However as the BPC officer stated this is not a request that can be actioned over night by them but with the evidence we have that council have the authority to assess the property under section 10 of the act and amend their records to reflect the date of planning rather than the date of the permit. The reasons that they can not action our request as quickly as they normally might have been able to is due to the fact that our property was one of the countless properties effected by Mr Jim Mitsopolpous and his failure to finalise the permits.

The fact that the respondent states it would be willing to consider withdrawing the building notice and building order should the BPC issue an amendment under section 10 of the act, we feel it would be appropriate to ask that council enact this amendment autonomously themselves in order to expedite this end result. Therefore finally bringing this issue to an outcome that fits with the evidence of the pool and house planning that was in line with the pool barrier standards at that time.

1. It is clear that the Applicants and Respondent disagree on the applicable pool barrier standard for the swimming pool barrier on the Subject Land.
2. The pool barrier standard is directly relevant to whether the Building Order should have been made. If the Building Order (and the Building Notice) on which it was based, applied the wrong pool barrier standard then in our view the decision to make the Building Order ought to be quashed. This is because the older pool barrier standard would permit the laundry door to open onto the pool area subject to certain requirements whereas the newer standard being applied in the Building Order does not.
3. We out below the relevant law before applying it to the evidence provided by the parties to determine the applicable pool barrier standard. This will inform us whether there was a proper basis to make the Building Order.

Relevant Law for the determination of applicable pool barrier standards

1. Regulation 5 of the Regulations (extracted above) defines applicable barrier standard. It confirms the barrier must comply with the barrier requirements in force at the date of construction.
2. Regulation 147T(2) of the Regulations notes the date of construction may be considered:

with regard to any information regarding the period of construction or the date of the building permit issued in relation to the construction of the swimming pool.

1. We also note the application of s 10 of the Act (extracted above) which states that:

a building regulation or an amendment to same does not apply to carrying out building work in accordance with a building permit existing immediately before the building regulations or amendment commences.

a building regulation, or an amendment to a building regulation does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced.

1. Under section 10(3) of the Act, subject to any determination of the Board;

building work referred to in subsection (1) or (2) must be carried out in accordance with the provision of any regulations, by-laws, local laws or enactments in force at the material times as if the building regulation or amendment had not come into operation.

1. In our view, this means that if the design or building permit references building regulations or standards which existed prior to the commencement of a new building regulation or amendment to it, then it will still be compliant under the Act and its Regulations.
2. We further note that the two applicable standards referenced by the parties have applicable barrier standards as follows:

1. The Deemed-to-Satisfy requirement of the BCA Volume One or Two including AS 1926.1-1993 Amendment 1; or
2. An Alternative Solution, applied at the time of approval or date of construction, BCA Volume One or Two as issued, published or remade from time to time; or
3. 3. A combination of 1 and 2.

1. The Deemed-to-Satisfy requirement of the BCA Volume One or Two including AS 1926.1-2007 (Swimming Pool Safety - Safety Barriers for Swimming Pools) Amendment 1; or
2. An Alternative Solution, applied at the time of approval or date of construction, BCA Volume One or Two as issued, published or remade from time to time; or
3. A combination of 1 and 2

1. Section 10(2) of the Act has also been extracted above at paragraph 8 of these reasons. Based on this provision we will have regard to when the design of the pool and its fence were completed. In the case of individual "one off" designs, the date of the relevant plans is normally taken to be evidence of substantial progress in relation to the design. (see Hasan v Moreland CC[2] which referred to the Minister's Guideline MG-12: Siting and Design of Singe Dwellings, issued June 2005)
2. The decision in Anne Black v Owners Corporation OC1-POS539033E (Human Rights)[3] confirmed that:
   1. These provisions are accepted as indicating that the building regulations apply to the period of construction of a building, so that when new regulations are made the building is not required to be updated to comply with the new regulations.
3. The decision in Lewis v Threadwell[4] provided further insight into the application of s 10 of the Act:

58 Section 10 of the Building Act reads as follows :

10. Application of new building regulations to building work

(1) A building regulation or an amendment to a building regulation, does not apply to the carrying out of the building work in accordance with a building permit existing immediately before the building regulation or amendment commences.

(2) A building regulation, or an amendment to a building regulation, does not apply to the carrying out of building work if the relevant building surveyor is satisfied, and certifies in writing, that substantial progress was made on the design of the building before the building regulation or amendment commenced. (emphasis supplied).

1. Mr Newey, the third respondent, gave evidence that he was satisfied that substantial progress had been made in the design of the building before the 1996 Building Code came into being. However, the only writing he made as to such a matter was on his check list where he stated, assessed under BCA 1990.
2. Mr Aghion submitted that I should find that the writing made by Mr Newey on the check list, coupled with his evidence, is sufficient to find that the 1990 BCA is the applicable building code. However, s 10(2) makes it clear that there should be a certificate in writing stating that substantial progress was made on the design of the building before the building regulation commenced. While I do not believe it is necessary for the word certify to be used, the Act makes it very clear that there needs to be a writing that the building surveyor was of the view that substantial progress had been made. There is no written record of that view in this case. Under those circumstances, even though Mr Newey held the view that a substantial progress had been made, the Act had not been complied with and thus it is the 1996 Code that is applicable rather than the 1990 code.
3. We consider the above interpretation of s 10 of the Act is in accordance with the Explanatory Memorandum of the Building Bill 1993 which stated:

Clause 10 provides that regulations or amendments to regulations do not apply to the carrying out of building work for which a building permit was in force or substantial design progress made before the regulation or amendment commences. That is unless the relevant building surveyor and the owner of the building agree that it does.

1. Given this, we find that s 10 of the Act may apply to permit the use of an older pool barrier standard, if substantial progress had already been made on the design of the pool barrier and the pool prior to the enaction of the new standards. Accordingly, we will now review the relevant documentation for the pool barrier and pool design.

1. The original quotation for the construction of the swimming pool was dated 13 September 2009.
2. The date of the Building Contract signature is 2 November 2009.
3. A Preview Estimate provided by the builder is dated 19 November 2009. This included at item 6 of the document the following notation:

Extra Description Location(s): LAUNDRY DOOR NOTE: BOTH DOOR HANDLES TO BE INSTALLED HIGHER UP THE DOOR TO COMPLY WITH POOL ACCESS CODES OF PRACTICE

1. The building contract and quotation for the swimming pool construction all occur in September and November 2009. We note this predates the changes to the pool barrier standard. Interestingly, the Preview Estimate notes the need to install door handles in the laundry to a greater height. In our view, this is intended for there to be compliance with the older standards which required handle heights of dwelling doors which opened onto a pool area to be of approximately 1.5 metres. We conclude therefore that the laundry door formed part of the pool barrier design.
2. The Application for Building Permit for the swimming pool is dated 29 July 2010. A document stamped by JJM Consultants Pty Ltd as 'Approved Document' states the pool fencing:

Fencing - Pool fencing by others, and to comply with AS1926-1-1993. Boundary fences where used as pool safety barrier to comply with AS1926-1-1996. Gates to have self-latching device and to be child resistant. Operable portion of windows shall be as per AS1926-1-1993. Gates to open away from pool area.

1. The Building Permit number 10100738 for the construction of the swimming pool issued 5 September 2010 states the building permit conditions as including:

SAFETY FENCE FOR SWIMMING POOLS IS TO COMPLY WITH AS 1926.1 PLEASE REFER ATTACHED POOL FENCE REQUIREMENTS.

NO DOORWAY FROM DWELLING OR ASSOCIATED BUILDING IS TO OPEN DIRECTLY INTO POOL AREA.

1. We note that the Building Permit is therefore internally inconsistent. The approved site drawings clearly specify the older 1993 and 1996 pool barrier standards within the approved building permit documentation. However, the relevant building surveyor then places a condition stating the doorway from the dwelling cannot open directly into the pool area. This would be a requirement of the newer pool barrier standard as the older pool barrier standards permitted this to occur. This condition is therefore contrary to the approved site drawings outlining the pool barrier.
2. In addition, we note the Building Permit did not specifically state a different pool barrier standard to the site drawings. It simply stated AS1926.1 and no year was provided for the applicable pool barrier standard for compliance.
3. A Certificate of Pool and Spa Barrier Non-compliance found the barrier non-compliant. The Certificate indicates that the date of construction of the swimming pool or spa was 5 September 2010. Further, that the applicable barrier standard was assessed under the relevant deemed to satisfy provisions of the BCA.
4. The certificate of registration suggests the construction of the pool is dated 5 September 2010. Further, that the compliance with the pool barrier is the standard dated 1 May 2010 to 30 April 2013 AS1926.1-2007 Amendment 1.
5. A Certificate of Final Inspection dated 28 June 2022 was issued by the VBA after cancellation of a Building Order for Minor Work. The certificate was subject to the condition of maintaining the swimming pool and barrier in accordance with Division 3 of the Building Regulations 2018. The certificate also contained a note that the certificate is not evidence that the building, part of the building or building work listed above complies with the Building Act 1993 or the Regulations.
6. A document entitled 'Pool Barrier Inspection Victoria' dated 20 June 2024 assessed the pool barrier as 1 May 2010 to 30 April 2013 AS1926.1-2007. This inspection preceded the Certificate of Pool and Spa Barrier Non-compliance.

Conclusion Regarding Applicable Barrier Standard

1. Based on the contractual documentation from September and November 2009, we find that substantial progress had been made on the pool barrier design prior to the commencement of the new pool barrier standard which commenced on 1 May 2010.
2. We note that the drawings and designs are required to be completed prior to the application for a Building Permit. Accordingly, we do not place much weight on the date of the Building Permit or the construction date in this instance. We further note the clear errors in the Building Permit suggests we cannot rely on the conditions contained in that Building Permit.
3. We do not consider that material weight can be placed on the Certificate of Final Inspection (CFI) undertaken by the Victorian Building Authority or pool registration documentation as these simply used the date of construction. We note that s 10 of the Act contemplates that the date of the applicable standard can be determined by reference to the date when substantial progress with the design had been undertaken. There was no regard to the design documentation in the completion of either the CFI or pool registration.
4. Based on the available material we conclude that the applicable pool barrier standard that applied was AS1926.1-1993 for pools designed/constructed between 1 July 2000 to 30 April 2010 as substantial progress had been made with the pool barrier design.

1. The Building Order (and Building Notice on which it was based) was premised on a finding that the laundry door opening onto the pool area was non-compliant. As noted above, the older pool barrier standard which applies does permit this to occur subject to relevant requirements and conditions.
2. Given our findings above, the Building Order was premised on the incorrect pool barrier standard. The conditions contained in the Building Order relating to the laundry door therefore cannot be maintained.
3. It follows that we find that the Building Order ought to be quashed pursuant to our appeal powers under the Act.
4. To give effect to our findings, it is also appropriate to quash the decision to serve the Building Notice on which the Building Order was based. As the Building Notice has also applied the incorrect pool barrier standard. [5]
5. We consider that the Applicants should provide a copy of this Determination to the Whittlesea City Council and seek the correction of the pool barrier standard contained on the pool register. It may also be appropriate to provide a copy to the VBA (now the Building and Plumbing Commission) which completed the Certificate of Final Inspection.
6. We confirm that our findings do not alter the requirements for the Applicants to comply with the applicable pool barrier inspections or maintenance of the pool barrier in accordance with the applicable standard.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[2] [2005] VCAT 1931 [8].

[3] [2018] VCAT 185.

[4] [2004] VCAT 547.

[5] See Borghesi & Anor v Municipal Building Surveyor for the Sire of Mornington Peninsula [2025] VBA 60 [16]-[29].