COMMISSIONER: This is a Class 2 Miscellaneous Appeal pursuant to s 18 of the Land and Environment Court Act 1979 (LEC Act) to the Court under s 26 of the Swimming Pools Act 1992 (the Act) against the refusal of Kiama Municipal Council on 26 July 2019 to grant an exemption of the identified swimming pool barrier from the requirements of s 7 of the Act in relation to NSW Swimming Pool Register Number 1abae392 (the Pool) at 579 Jamberoo Road, Jamberoo, legally described as Lot 1 DP 198196 (the Site).
The parties and the Court inspected the Site in the morning prior to commencing the hearing at Wollongong Local Court. The Pool was inspected and there is no child resistant barrier separating the swimming pool from the residential building. There were multiple string lines located around the swimming pool of various colours however no schedule or legend was provided to the court to indicate what these coloured lines represented. The Applicant's agent advised orally that they were placed to show the location of a number of options or proposals discussed or put by the Respondent during the s 34 conciliation conference and some represented options or suggestions contained in the Expert Report of Matthew Allard, Development Officer for the Respondent filed 8 May 2020. There was also a wire mesh fence set up diagonally from the corner of the dwelling to the shrubbery and a 'mock up' of a gate made of what appeared to be bamboo or similar situated at the bottom of the stairs that lead to the door to the family or living room.
The Applicant, the owner of the Site, is over 90 years old and lives independently on her own and is represented in these proceedings by her daughter who appeared as agent and who is not legally qualified.
The Applicant seeks an exemption pursuant to s 22 of the Act from compliance with the requirements of s 7 of the Act. The Applicant disputes that the swimming pool must comply with the current Act and current Swimming Pools Regulation 2018 (the Regulation) and seeks to rely on an exemption provided by the Respondent in 1994 (the 1994 Exemption).
The Respondent's case relies on the expert opinion of Matthew Allard, Development Officer for the Respondent Council, expressed orally during the hearing and as contained in the Expert Report filed 8 May 2020 (Exhibit 1). The Respondent submits that the 1994 Exemption has only ever applied to the main section of the residence and that in any event for the Applicant to be able to rely on the 1994 Exemption the measures had to be in place "at all times". The Respondent's case is that as the 1994 Exemption does not apply, that the appeal must be refused as the preconditions for the exercise of the power under s 22 of the Act have not been satisfied, namely the preconditions that that it is impractical or unreasonable for the Pool to comply with the requirements of s 7 and no alternative provision no less effective than the requirements of s 7 of the Act exists.
In written submissions, the Respondent refers to the Court to the decision of Autore v Waverley Council [2015] NSWLEC 1350 which was a decision of Commissioner Fakes where an application for an exemption for a child resistant swimming pool barrier was refused and at [24] Commissioner Fakes states as follows in relation to the intent of the Act:
"The intent is to make it very difficult for a child to gain access to a pool on private land from anywhere, be it from a dwelling on the land, other parts of the same land, an adjoining private property, public reserve or any other area."
The Applicant seeks an unconditional exemption pursuant to s 22 of the Act (Tcpt, 28 October 2020, p 30(15)). The Applicant was hoping to continue the 1994 Exemption but acknowledges "I think now we realise that it's become quite onerous" (Tcpt, 28 October 2020, p 30(1)). The Applicant does not claim that there is an effective alternative (Tcpt, 28 October 2020, p 29(36)), instead the Applicant submits that she finds it unreasonable and impracticable for the reasons stated in the Objections to a Report (Exhibit B) and that they understood there were special circumstances and relies on cl 14 of the Regulation. In essence, the Applicant does not want to install a compliant child resistant pool barrier because she wants to continue to enjoy the garden and states the following:
1. The pot plants and other vegetation cannot be relocated because they provide wind protection or would not survive the relocation or are too heavy to move ([10.7] Objections to a Report);
2. The barrier and gate(s) will pose risk and danger including to the Applicant;
3. There is no actual risk assessment of children on or near the property accessing the Pool on the Site. I note that the Respondent submits that there is no requirement to undertake a risk assessment of the Pool before Council can issue a direction under s 23 of the Act, which is not the subject of this appeal, and further, that the Court is not required to take into account the actual risk that exists of a child or adult accessing the Pool when considering the criteria for granting an exemption under s 22;
4. The Applicant has lived alone at the Site for over 30 years and has not had any complaints about the pool and "no longer has family or friends with young children who visit" (SOFAC in Reply at [1.8]). The Respondent refers the Court to the decision of Handley v Pittwater Council [2010] NSWLEC 1335 at [57] where Commissioner Pearson was not persuaded that the actual experience of the occupants of the dwelling is relevant in assessing whether alternative provisions exists for restricting access to the Pool that is "less effective" than the requirements of Part 2 of the Act. In the context of the legislation it is appropriate to make the assessment required by s 22(1)(b) by reference to the provisions of the regulations and the relevant standard, and not by reference to the experience of the occupants of the dwelling where the Pool is located.
The Court does not have any expert evidence filed or tendered on behalf of the Applicant. The Applicant, through her agent, has provided information and other documents which she relies on to satisfy the criteria for an exemption under s 22 of the Act. I have read and considered the following documents tendered by the Applicant:
1. Statement of Facts and Contentions in Reply (SOFAC in Reply) filed 7 November 2019 (Exhibit A);
2. Objection to a Report - By Applicant (Objection to a Report) filed 6 October 2020 (Exhibit B);
3. Draft Conditions - By Applicant filed 6 October 2020 (Exhibit C);
4. Document extract Pages 3 and 4 titled "1992 - No. 419" (Exhibit D);
5. Black and white photocopy of 4 photographs of doors (Exhibit E);
6. Dwelling Floor plan Sheet 3 of 3 (Exhibit F);
7. Gradient Calculations (Exhibit G).
There are various issues and questions to be considered in order to determine this appeal and I will deal with them in the following order:
1. Status and relevance of the 1994 Exemption;
2. The current status of the Pool and the s 23 Direction;
3. The criteria the court is to consider for granting an exemption under s 22 of the Act being as follows:
1. Is it impracticable or unreasonable because of the physical nature of the premises or the design or construction of the Pool (s 22(1)(a) of the Act);
2. Is it impracticable or unreasonable because of special circumstances of a kind recognised in the regulations (s 22(1)(a) of the Act and s 14 of the Regulation);
3. Does the Applicant propose an alternative provision which is no less effective than those requirements for restricting access to the pool? (s 22(1)(b) of the Act).
[2]
Status and relevance of the 1994 Exemption
A copy of the 1994 Exemption itself is not available to the Court. The Applicant advised at the close of the hearing that she did not include the 1994 Exemption "because it was so confusing… The problem was council's interpretation of that letter." (Tcpt, 28 October 2020, p 41(16)). The Applicant has filed a document on 6 October 2020 titled Draft Conditions which provides a narrative summary of the Site and the Pool and annexes a number of documents including the November 1993 Order and other correspondence with the Respondent Council relevant to the 1994 Exemption and the Pool generally.
The letter from Kiama Council to the Applicant dated 19 November 1993 advises, among other things, that the Act came into force on 1 August 1992 and attaches an Order of the same date directing work to be done to ensure the Pool complies with the provisions of the Act (the November 1993 Order) as follows:
"Work To Be Done
1 Both screen/security doors leading from rear part of the premises to be made "child safe" by provision of self-closing and self-latching devices so that they comply with the following:
(i) Child resistant doorsets shall comply with the following requirements:-
(a) Door shall be fitted with a self latching device that will automatically operate on the closing of the door and will prevent the door from being re-opened without manually releasing the device;
(b) Doors shall be fitted with a self closing device that will return the door to be closed position and operate the latching device from any position with a stationary start without the application of manual force;
The self closing device shall be capable of complying with these requirements with the door at any position from resting on the latching mechanism to fully open.
(c) The release for the latching device on the internal (building) side of the door shall be located not less than 1.5m above the floor;
(d) There shall be no footholds wider than 10 mm on the door or its frame in the area from the release for the latching device down to 100 mm above the floor.
2 Due to the fact that you live alone and keep the front part of the residence permanently locked and bolted for security reasons, Council will consider an exemption for the windows and doors at the front of the premises to comply with the self closing/self latching requirements of the Regulations on your undertaking that they shall at all times remain locked and bolted as was the case when inspected. Further, that is, for any reason you discontinue to be the sole occupant of the premises, you shall inform Council and have the premises reinspected.
[…]"
On 16 March 1994 the Applicant wrote a letter to Kiama Council advising that the works in paragraph 1 quoted above has been completed and that in relation to paragraph 2 applied for an exemption. No response letter from the Council is available to the Court however, it is not disputed by the Respondent that there was an exemption granted in 1994 in the terms foreshadowed in the November 1993 Order.
As the Pool was constructed prior to 1990, the Respondent concedes that s 8 (2) of the Act is relevant. Section 7 of the Act requires the owner of premises on which a swimming pool is situated to ensure that the swimming pool is at all times surrounded by a child-resistant barrier. This section is read in conjunction with s 8 of the Act which provides an exemption for a child resistant barrier for swimming pools constructed before 1990 provided "the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations." Those standards are specified in s 6 of the Regulation setting out how means of access to a swimming pool from the residential dwelling are to be restricted from doorways and windows. The relevant s 8 provisions are set out below as follows:
8 Exemption for swimming pools constructed before August 1990 and existing swimming pools on small properties
(1) This section applies to the following swimming pools -
(a) swimming pools the construction or installation of which commenced before 1 August 1990,
(b) …
(2) The child-resistant barrier surrounding the swimming pool is not required to separate the swimming pool from any residential building situated on the premises so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations.
The Respondent at [19] of written submissions, submits that the Applicant:
"cannot rely on the exemption under s 8(2) of the Act because the Applicant has not "at all times" restricted access to the Pool from the residence in accordance with the standards prescribed by the regulations, which were the standards prescribed by cl 6 of the Swimming Pools Regulation 1998 (cll 6 and 23 of the Swimming Pools Regulation 2008, see also Medway v Pittwater Council [2014] NSWLEC 1006 at [73] and [76]".
I agree with the Respondent's submission and find that the exemption under s 8(2) of the Act cannot be relied on by the Applicant because of the evidence of Mr Allard where he summarises his observations during a site inspection on 25 March 2019. In Mr Allard's Expert Report (Exhibit 1) at page 14 he addresses s 8(2) of the Act and particularises the prescribed standards pursuant to cl 6 of the Swimming Pool Regulation 1998 for the purpose of s 8(2) of the Act to be as follows:
"(2) In relation to each doorway giving access to the swimming pool:
(a) the door (or, if there is a security door in addition to another door, either of those doors) must be a child-safe door and must be kept child-safe by means of a lock, latch, bolt, chain or other child-resistant device located at least 1.5 metres above finished floor level, and
(b) there must not, on the door or on the door frame, be any footholds wider than 10 millimetres between the release mechanism of the door and any point 100 millimetres above finished floor level.
(3) A lock, latch, bolt, chain or other child-resistant device located less than 1.5 metres above finished floor level is taken not to be a foothold for the purposes of subclause (2)(b)."
Mr Allard then goes on to confirm that his inspection on 25 March 2019 revealed that the Site was not compliant with these prescribed standards at that date and photographs are included in Annexure C to the Expert Report. The Respondent's written submissions list Mr Allard's observations of 25 March 2019 to include the follow non-compliant aspects:
1. The security screen doors from the family room and laundry (northern entry) to the Pool provides footholds wider than 10mm between the release mechanism of the door and 100mm above the finished floor level (photographs 1 and 4 on pages 27 and 28 of the Expert Report);
2. The door latch to the family room (northern entry) was faulty because the security screen door failed to remain secured in a fully closed position (photograph 2 on page 27 of the Expert Report)
1. I also note the evidence provided by the Applicant herself during the hearing in response to a question in cross examination regarding how she accesses the house once she is outside and her answer was:
"Well I make sure that it doesn't close on me properly. I have to be able to get back in, so I don't close the gauze door. […] Outside the gauze is a grill and I can put my hand in that and pull it open." (Tcpt, 28 October 2020, p 28(5))
1. The door latch to the laundry (northern entry) was not child-safe because the previous latching device located at 1.5m above the finished floor level had been removed (photographs 3 and 10 on page 28 and 31 of the Expert Report); and
2. The window locks on the timber double hung windows did not prevent the window from being opened more than 100 mm (photograph 8 on page 30 of the Expert Report.)
The Applicant did not cross examine Mr Allard and relies on the document filed 6 October 2020 titled "Objections to a Report". This document is a reply to the contents of the Expert Report signed by Applicant and by her agent. Neither the Applicant nor her agent are experts and there is no expert evidence relied on by the Applicant. I will treat this document as submissions by the Applicant. I note that the Applicant confirms that there are eight external doors at [6].
The Applicant disputes that the door latch to the family room norther screen door facing on the Pool area had been repaired or adjusted and a self-closing device had been refitted to the top of the screen door and says that the door worked as it did previously. Again, I note the Applicant's oral evidence that she deliberately does not allow the door to close when she is outdoors. The Applicant does not dispute the changes made to the timber double hung windows ([42] of the Expert Report).
I accept that there is evidence that there were non-compliant elements of the prescribed standards at the 25 March 2019 inspection by Mr Allard, and that some of those breaches remain ongoing such as the height of door latches, and the result is that the exemption pursuant to s 8(2) of the Act is not available to the Applicant. Similarly, and for the same reason as for a s 8(2) exemption as well as the limitation of the 1994 Exemption applying to the 'front part of the premises', the 1994 Exemption does not assist the Applicant in these proceedings.
[3]
The current status of the Pool
On 15 May 2019, the Respondent Council issued a direction to the Applicant under s 23 of the Act to provide a child-resistant barrier to the Pool in accordance with s 7 (the s 23 Direction). On 12 June 2019 the Applicant applied for an exemption under s 22 of the Act from the requirements of providing a child-resistant barrier under s 7 of the Act.
A copy of the Applicant's s 22 Exemption Application is not available to the Court however the Respondent's refusal dated 26 July 2019 (the s22 Refusal) is attached to the Applicant's Class 1 Application filed 22 August 2019 which commenced these proceedings. The reason given by the Respondent for refusal is that the Council is:
"not satisfied that it meets the criteria for exemption as noted below:
(a) that it is impracticable or unreasonable:
Because of the physical nature of the premises, or
Because of the design or construction of the swimming pool, or
Because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption
For the swimming pool to comply with those requirements.
(b) That an alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool."
I acknowledge that the s 23 Direction has not been appealed. If these proceedings, being the appeal of the s 22 Refusal is not upheld, the s 23 Direction will apply.
[4]
What are the criteria the Court can consider for granting an exemption under s 22 of the Act?
The power of the Court to grant an exemption from the requirements of providing a child-resistant barrier under s 7 of the Act is prescribed in s 22 of the Act. I extract the relevant criteria from s 22 of the Act as follows:
22 Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases
(1) The local authority may, on application made by the owner of any premises in or on which a swimming pool is situated, or proposed to be constructed or installed, exempt the swimming pool from all or any of the requirements of this Part if it is satisfied, in the particular circumstances of the case -
(a) that it is impracticable or unreasonable (because of the physical nature of the premises, because of the design or construction of the swimming pool or because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption) for the swimming pool to comply with those requirements, or
(b) that alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.
(2) An exemption may be granted unconditionally or subject to such conditions as the local authority considers appropriate to ensure that effective provision is made for restricting access to the swimming pool concerned or the water contained in it.
(3) […]
(4) […]
There are 3 components to s 22(1)(a) being firstly the physical nature of the premises, secondly the design or construction of the Pool and thirdly whether there are special circumstances of a kind recognised by the regulations as justifying the granting of an exemption for the swimming pool to comply with the requirements of Part 2 of the Act relating to access to swimming pools. I will deal firstly with the first 2 components together and then will consider the special circumstances component.
However, firstly I must consider what does "unreasonable" and "impracticable" mean in s 22 of the Act? These terms are not defined in the Act. The Respondent refers the court to the decision in Reemst v Woollahra Municipal Council [2012] NSWLEC 1141 (Reemst) at [40] where Commissioner Fakes adopted the following Macquarie Dictionary definitions for those terms:
1. "impracticable" is defined as: "cannot be put into practice with the available means; unsuitable for practical use or purposes, as a device, material etc" and
2. "unreasonable" is defined as: "not reasonable; not endowed with reason; not guided by reason or good sense; not based on or in accordance with reason or sound judgment; exceeding the bounds of reason; immoderate; exorbitant."
The Respondent also assists the Court by providing the Macquarie Dictionary definition of "physical" and "nature" as follows:
1. "physical" is defined as: "of or relating to material nature; material" and
2. "nature" is defined as: "1. The particular combination of qualities belonging to a person or thing by birth or constitution; native or inherent character…"
I accept the Respondent's submission that the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. "The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLE 355; [1998] HCA 28 per McHugh, Gummow, Kirby and Hayne JJ, see also s33 of the Interpretation Act 1987). I also accept that the grammatical meaning of the terms 'impracticable' and 'unreasonable' is consistent with the language and purpose of s 22 of the Act, and I will follow the approach taken in Reemst and adopt the grammatical meaning of the above terms.
[5]
Is it impracticable or unreasonable because of the physical nature of the premises or the design or construction of the Pool (s 22(1)(a) of the Act)
The Pool is described as having been constructed in or about 1973 or 1974 and is a standard fibreglass pool. The dimensions of the Pool are 9.1m x 3.6m and surrounding the Pool is a concrete pool coping as shown in photograph 26 on page 13 in Annexure C of the Expert Report. I accept that the existing ground levels on southern and eastern sides of the Pool are relatively level and consist of lawn. I also accept that on the northern and western sides of the Pool there are at least one and in some parts up to 3 low or "dwarf" retaining walls running more or less parallel to the northern and western sides of the Pool resulting in a tiered garden. These "dwarf" retaining walls are depicted in photographs 43 to 49 on pages 61 to 64 in Annexure D of the Expert Report.
On the western side of the Pool there is a large stone wall of variable height which the Applicant explains was constructed of basalt in mortar and was built to protect from the winds. The Pool is located to the right hand side when standing and facing the front of the house and access to the Pool is not restricted.
The Applicant responds to the various 'options' (of which she counts 10) and submits at [10.2] of the Objection to a Report that "[b]arrier fencing around the concrete beam of the pool is dangerous because it does not allow enough space for the pool to be cleaned with the long handled brush and scoop." The Respondent, notes, in written submissions at [41], and I accept as follows:
"the Applicant currently has pot plants and vegetation located in very close proximity to western and southern sides of the Pool. This does not appear to create a safety concern for the Applicant, and undermines the Applicant's submissions on this point."
I note that there are also other options or scenarios available to the Applicant detailed by Mr Allard in Exhibit 1 which allow more than enough room to clean and maintain the Pool.
Mr Allard at [30] of the Expert Report states as follows:
"I have created six (6) scenarios (with the intention to provide a high degree of flexibility to the owner in the choice of barrier, desirable aesthetics and cost) which show locations of barriers which could be installed around the Pool, and are capable of meeting the requirements of AS 1926 Parts 1 and 2. These include stand-alone barriers, and barriers that use the existing stone wall that runs alongside the western perimeter of the Property and the external wall of the residential building located on the Property."
I have considered the six barrier options or scenarios which are illustrated and annexed to the Expert Report marked as Annexure G. In oral evidence during the hearing Mr Allard added the following:
"When I was asked to do the barrier options I gave scenarios of where I believed that they could install it. […] There is a degree of flexibility of where it can be positioned. The dimensions of the locations from the pool edge were only a guide, they weren't affixed and it's something than can be installed with a degree of flexibility, depending on the nature of whether they'd like to retain some of the vegetation, the cost involved and how much they'd like to spend as to how big the barrier or how far out from the pool area they want to install the barrier […] they have the option to move the barrier further away from the pool if they chose to or keep it in close to the pool if they believe that they didn't need as much room around the pool area." (Tcpt, 28 October 2020, p 21(30))
The Applicant makes detailed submissions in the Objection to a Report as to errors, inconsistencies or mistakes made by Mr Allard in the Expert Report however she acknowledges that Mr Allard has been to the Site "at least four times. He has come inside the house on three occasions" (at [4] in Objection to a Report). I am satisfied that Mr Allard is sufficiently familiar with the Site and otherwise well placed to make the six suggestions he details in the Expert Report.
The Applicant, refers to 10 "practical solutions"/"scenarios"/"options" and states that none of them are practical or reasonable on the site (at [10.1] in Objection to a Report.) There is no expert evidence provided by the Applicant to support any of the reasons or submissions made by the Applicant.
I do not accept that any of the reasons provided in the Objection to a Report regarding the design or construction of the Pool satisfy the requirement of s 22(1)(a) of the Act.
[6]
Does the physical nature of the premises render a child resistant pool barrier impracticable or unreasonable?
I will deal next with the physical nature of the premises. There are numerous photographs tendered by both parties and the hearing commenced with an on-site inspection. The parties also separately describe the Site. The Applicant provides a detailed description in the SOFAC in Reply at [1.4] as follows:
"The house was built in 1904 and sits on land subdivided from the farm on the eastern and southern boundaries (a dam two paddock to the east). A second farm property borders along the west. Architecturally the house was weatherboard with sheet metal roofing, verandahs on three sides and laundry. At later times room have been connected and in-filled in different ways to make an enclosed wing from the kitchen with bathroom/toilet/laundry/spare room, and then a toilet inside (ensuite), and general purpose room/living room. The house is a single unit dwelling."
The location of the pool is further described in the SOFAC in Reply at [1.3] as follows:
"The pool is not visible from the roadway nor from adjoining/surrounding properties. To see the pool you have to drive or walk up a steep curved driveway for about 80 metres, then walk around the garage and up steps to the front lawn for another 30 metres or so, then look to the western side of the house through the shrubbery."
At the on-site inspection it was observed that there is a path or access way directly to the pool from the western side of the house between the house and the shrubbery described by the Applicant.
At [10.7] in the Objection to a Report the Applicant states that at a conservative count there are over 160 pots in the vicinity of the Pool and submits that "most can not be relocated because they are adapted to the aspect and wind protection of the stone wall and larger trees (microclimate), shrubs which would not survive the disturbance, large pots too heavy to move and/or rooted through, and many will not grow elsewhere on the Property." I accept the Respondent's submission at [50] of the written submissions that the Applicant has not provided evidence to support this submission that 160 pot plants would have to be moved, and this conflicts with Mr Allard's evidence that for at least three (3) of the options only between 15 to 40 pot plants will need to be removed. I place little weight on the Applicant's submission.
In any event, I note that s 22(1)(a) of the Act requires the Court to be satisfied, in the particular circumstances of the case, that it is impracticable or unreasonable because of the physical nature of the premises. I have considered the definition of 'physical' and 'nature' above in this judgment and I accept the Respondent's submission that the pot plants are not part of the physical nature of the premises "as they have been placed on the land by the Applicant, and they can be easily removed. They are not qualities that relate to the land, nor are they native or inherent to the land." (at [51] of the Respondent's written submission).
The Applicant claims that it is impractical to install any of the barrier options because most of the impact on the pot plants and vegetation. I accept that this will, to some extent. pose some difficulty or inconvenience to the Applicant. However, I am not satisfied that difficulty or inconvenience of removal or relocation of pot plants or that the difficulty or inconvenience of pruning or removing limited vegetation are factors that can be considered under s 22(1)(a).
The Applicant makes some submissions regarding steps that they have taken to 'assess practicality and to costs Council's options at [11.1] to [12.1] in the Objection to a Report. I place little weight on these submissions for the reason that no quotes have been tendered or other expert evidence provided. The Applicant has not specified how much any of the options would cost. The Applicant makes reference to a budget at [13] but does not disclose what the budget is.
I accept that the cost of installing a barrier in itself is not relevant to the determination under s 22(1)(a) of the Act unless if by reason of the physical nature of the premises or the design the construction of the Pool, the costs of installing the barrier are prohibitively expensive that it would make installation impracticable or unreasonable.
I do not have any evidence that the cost of installing any of the options suggested by Mr Allard is prohibitive.
[7]
Are there special circumstances which justify an exemption from constructing a child resistant pool barrier?
The next criteria to consider is whether installing a complying child resistant pool barrier is impracticable or unreasonable because of special circumstances of a kind recognised in the regulations. Section 14 of the Regulation provides "Circumstances that justify an exemption" as follows:
For the purposes of section 22(1)(a) of the Act, the fact that an adult occupier of the premises in or on which a swimming pool is situated would (because of a physical disability or impairment of the occupier) be significantly impeded in gaining access to the swimming pool if the requirements of Part 2 of the Act were complied with is a special circumstance that justifies the granting of an exemption from those requirements.
The Court has been provided a letter from Dr Natalia Bakhilova of Terralong Street Surgery dated 28 October 2019 which is attachment 5 to the SOFAC in Reply filed 7 November 2019. That letter is addressed "To whom it may concern" and states in part as follows:
"She is using her pool everyday in the warmer months to maintain her mobility as she has osteoporosis and osteoarthritis. […] she is not in a position to learn the new skills required to operate the lock mechanism on the pool gate. […] elderly lady who is set up in her own way and any disruption of her routine can cause irreparable consequences."
There is a second letter from Dr Natalia Bakhilova of Terralong Street Surgery dated 17 February 2020 addressed to Dr Fernando (annexure 7 to Draft Conditions - By Applicant filed 6 October 2020) seeking geriatric assessment and states:
"She is very capable and bright 92 yo who has ongoing battle with local Council about her swimming pool standards. Point is that if it is up to standard she will not able to get in to it as there will be security lock and she will need to lift her arms above shoulder and she can't."
I note that the Applicant advised the Court, during the hearing and through her Agent from the bar table, that she chose not to see the specialist geriatrician, Dr Fernando. As a result, the Court does not have any expert evidence or other reliable evidence regarding the Applicant's physical disability or impairment.
The Respondent submits that the Court should give the letters from Dr Bakhilova little or no weight for the reason that it does not comply with the expert code of conduct and does not otherwise meet any of the requirements for expert evidence as set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. The Applicant draws the Court's attention to the fact that it is not clear what Dr Bakhilova's
"field of knowledge is and that a reason of specified training, study or experience she has become an expert in that field. It is not clear that her opinion is wholly or substantially based on her expert knowledge. It is not clear what facts she has based her opinion on, including what pool standards she was referring to. The letter does not set out any methodology of the assessment that was applied, particularly the physical test that were undertaken and it does not set out reasoning that has led to her opinions." (Tcpt, 28 October 2020, p 35(40))
I accept that Dr Bakhilova's opinion as expressed in her letters dated 28 October 2019 and 17 February 2020 are no more than submissions and I give them little weight.
During the onsite inspection the Applicant demonstrated the height she said she could raise her arm however I am not at all satisfied with the quality and veracity of this evidence. I note that Dr Bakhilova describes the Applicant as a "capable and bright person" and I note that the Applicant lives alone at this property which has multiple doors, multiple windows, an upstairs area, a fernery and that she maintains the garden and the multitude of pot plants located in the surrounds of the swimming pool area.
I am not satisfied that the Applicant has established that there are special circumstances as prescribed by cl 14 of the Regulation.
I accept the Respondent's submission that notwithstanding that the applicant has not established that special circumstances under the provisions of s 22 of the Act apply, Mr Allard's evidence is that a gate latch can be installed so that it is at a height of not less than 1200 mm and this may be more suitable for the applicant.
[8]
Does the Applicant propose an alternative provision which is no less effective than those requirements for restricting access to the pool? (s 22(1)(b) of the Act)
The Applicant proposed an alternative proposal of installing a fence diagonally from the corner of the house to the existing shrubbery at the north-eastern side of the Pool demonstrated with some wire mesh. This proposal was made by the Applicant for the first time during the on-site inspection.
The Respondent sought, and was granted leave, for Mr Allard to provide supplementary evidence during the hearing to respond to the Applicant's proposal. Mr Allard was asked to provide his opinion on whether that measure would satisfy s 22(1)(b), namely whether it is a provision that is no less effective than the requirement for providing a barrier or whether it could be imposed as a condition which would ensure that effective provision is made for restricting access to the Pool. Mr Allard's opinion is that the alternative proposal would not comply for a number of reasons including the gaps in and reliance on the vegetation to form part of the barrier, specifically, the gaps are too large under s 2 of the Swimming Pool Safety Australian Standard 1926.1-2012 and the vegetation would "act as a climbable aid for children to gain access over the top of the barrier because the limbs on the existing vegetation would allow footholds for children to gain access over the barrier and then the loading requirements, the branches and vegetation would be able to be snapped or removed and it's not strong enough to meet the requirements of the Australian Standard for loadings." (Tcpt, 28 October 2020, p 20(5))
I accept Mr Allard's opinion that there is no condition that could be imposed that would ensure that effective provision is made for restricting access to the Pool or the water contained within it as he states at [53] of the Expert Report and again confirmed in oral evidence.
The Applicant does not rely on an alternative provision and in closing submissions accepts that the proposed diagonal fence as demonstrated by the wire mesh is not an effective alternative (Tcpt, 28 October 2020, p 29(36)).
Accordingly, I find that there is no alternative proposal before the Court which is no less effective that the requirements of s 7 of the Act for restricting access to the Pool and that I am not required to determine the matter pursuant to s 22(1)(b) of the Act.
[9]
Findings
Having considered all the evidence and for the reasons set out in this judgment I find as follows:
1. The Applicant in unable to rely on the 1994 Exemption and is unable to rely on an exemption pursuant to s 8(2) of the Act for the Pool being one that has been constructed prior to 1990.
2. A child resistant barrier can be installed to comply with s 7 of the Act on the Site and I am not satisfied that the criteria of s 22 for an exemption have been made out, including, that there is no alternate proposal which is no less effective than those requirements for restricting access. There are more than sufficient options and scenarios provided by Mr Allard available to the Applicant which allow a degree of flexibility and can be implemented.
I acknowledge that there might be some costs involved and that there might be some inconvenience experienced by the Applicant as adjustments to location and volume of pot plants and vegetation are made. I also accept that there are adequate appropriate options available to the Applicant which will sufficiently accommodate her personal desires such as location of the barrier itself and such as the location and specification of compliant access gates (such as soft-closing and lower and more accessible latches on compliant pool barrier gates) to allow the Applicant to continue to enjoy the garden and pool area, and accommodate for her personal requirements.
[10]
Orders
The Court orders that the appeal is dismissed.
[11]
Amendments
21 January 2021 - Jurisdiction "Class" corrected on the cover sheet.
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Decision last updated: 21 January 2021