Lismore City Council v Hamshaw

EX TEMPORE Judgment 1Lismore City Council (the Council) seeks orders against the respondents that, in effect, will require the provision of fencing, consistent with the requirements of the Swimming Pools Act 1992, around an existing swimming pool on premises known as 9 Taylor Road, Chilcotts Grass being Lot 102 in DP 563084 (the Property). 2The Property is owned by Kay Hamshaw, the first respondent. Mrs Hamshaw does not reside on the Property. It is said to be leased to her son, Hayden Hamshaw, the second respondent. Should the ground or grounds for making any order sought by the Council be established, work on the Property will be required. Thus, the need to join Hayden Hamshaw in the proceedings in his capacity as lessee or occupier of the Property. 3Prior to the commencement of the hearing today, the respondents had been represented by Mr J Thompson, solicitor, of SP Lawyers, a firm of solicitors practising both in Lismore and Byron Bay. On behalf of the respondents, Mr Thompson had filed a Notice of Appearance, prepared pleadings and, through his city agent, attended three directions hearings before judges of this Court, including the directions hearing on 25 October last when the proceedings were fixed for hearing today. 4At the commencement of today's hearing, Mr Busby, the city agent of Mr Thompson, appeared. He indicated that he appeared at the request of Mr Thompson as a courtesy to the Court with a view to seeking leave for Mr Thompson to withdraw from the proceedings as Mr Thompson was no longer retained by the respondents. Mr Busby tendered a copy of a Notice of Intention to File a Notice Ceasing to Act dated 22 November 2013 together with a copy of a letter dated that same day from Mr Thompson to the first respondent. Mr Busby also tendered a copy of a letter that had been sent by Mr Thompson to the Court electronically last Thursday, foreshadowing an application by him to withdraw from the proceedings. 5Both letters to which I have referred indicated that Mr Hamshaw, who instructed Mr Thompson on behalf of both respondents, had not responded to requests made over a number of weeks seeking instructions for the further conduct of the proceedings. According to that correspondence, Mr Hamshaw had failed both to accept advice provided by Mr Thompson in relation to the proceedings and also had failed "to properly retain us". The letter sent to the Registrar on Thursday last stated that in a telephone conversation between Mr Thompson and Mr Hamshaw earlier that day, the latter had "declined to give us further instructions." 6Although the procedures required by the Uniform Civil Procedure Rules 2005 (UCPR) for a solicitor ceasing to act had not been followed by Mr Thompson, at least as to the times by which particular steps are required to be taken, I am satisfied in the circumstances that leave should be given to Mr Thompson to cease acting for the respondents. Mr Hamshaw's refusal to provide Mr Thompson with any instructions as recently as Thursday last rendered futile Mr Thompson's continued appearance in the matter. Further, I was informed by Mr Busby that, by reason of information given to him by Mr Thompson, the respondents were aware that the proceedings were listed for hearing today. Neither of them appeared, with the consequence that the hearing proceeded in their absence. 7In support of its case, the Council read three affidavits affirmed by Graeme Bailey on 24 May 2013, 28 August 2013 and 1 October 2013 respectively. Documents exhibited to each of the first two affidavits sworn by Mr Bailey were tendered as exhibits. Mr Bailey is a development compliance officer employed by the Council who carried out a number of inspections of the Property and also collated documents from the Council's records that became the exhibits to which I referred. An affidavit of Michael Young sworn 25 November 2013 was also read. Mr Young is the Council's solicitor and his affidavit essentially annexes correspondence passing between his firm and the respondents or their solicitors. My determination of these proceedings is founded upon the material contained in these affidavits together with the tendered documents. 8The Property is a rural residential homesite on which a dwelling was erected in about 1981 or 1982. On 24 January 1985 a building application was submitted by the then owner of the Property, seeking approval under the Local Government Act 1919 (now repealed) to construct a "reinforced concrete pool." Plans accompanying that application showed the pool to be located to the west of the existing dwelling. 9Conditional building approval for construction of a swimming pool was granted on 21 February 1985. Condition 2 of that approval needs to be noticed. It provided: "The swimming pool is to be completely enclosed with an approved child proof fence having a minimum height of 1.2m measured on the outside with a maximum clearance under the fence of 75mm in accordance with the BCA Code 1926-1979. The fence is to be fitted with a child proof self closing and locking gate. Details of fencing are to be submitted and approved before any work is commenced. The pool is not to be filled until the fencing has been completed to the satisfaction of Council." 10According to the evidence of Mr Bailey, the Council does not have any record of the fencing detail referred to in Condition 2 having been provided to the Council. For the purpose of the present proceedings, the Council takes no point as to the absence of that detail. It suffices for present purposes to notice that the Condition is clear in requiring that the pool be completely enclosed with an approved child-resistant fence. 11Although the records which the Council has tendered in evidence do not indicate the precise date of pool construction, such records as were tendered indicate that construction was completed on the Property at some time between 1985 and 1987. During that same period one further addition to the dwelling on the Property was approved and constructed. That addition comprised an awning or patio cover extending from the western elevation of the dwelling as then constructed. 12However, when the Property was inspected by Mr Bailey in November 2012, the area shown as intended to be covered by the approved awning or patio cover had been enclosed such that it provided an additional room to the existing dwelling, with windows and doors along the western façade facing the swimming pool. No fence was constructed that separated the western facade of the dwelling from the eastern edge of the swimming pool. 13In commencing the present proceedings, the Council seeks to engage the jurisdiction of this Court given by s 30 of the Swimming Pools Act which provides: "30 Land and Environment Court may order compliance (1) A local authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. (2) If satisfied that a breach of this Act has been committed or will, unless restrained by order of the court, be committed, the Land and Environment Court may make such order as it considers appropriate to remedy or restrain the breach. (3) Such an order may require the erection or installation of such structures (such as fencing, doors, gates or locks, latches or other safety devices) in compliance with the requirements of this Act, or may require the taking of such other action, as is specified in the order." In alleging that the Swimming Pools Act has been breached, the Council makes reference to ss 7 and 8, coupled with the regulation that those provisions engage. 14Section 7 relevantly provides: "7 General requirements for outdoor swimming pools (1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier: (a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Maximum penalty: 50 penalty units." 15Section 8 relevantly provides: "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." 16The Swimming Pools Regulation 2008 (the Regulation) is the applicable regulation for the purpose of ss 7 and 8 of the Act. Clause 5 of the Regulation provides that for the purpose of s 7(1)(b) of the Act the relevant standard is that set out in the Building Code of Australia. Clause 6 of the Regulation relevantly provides: "6 Standards required for certain swimming pools to be exempt from requirement to separate swimming pool from residential building (1) For the purposes of section 8(2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are that: (a) each doorway, and each opening portion of a window, that gives access to the swimming pool is to be designed, constructed, installed and maintained in accordance with the standards set out in AS 1926.1-2007, and (b) in relation to each opening portion of a window giving access to the swimming pool - there must not be any footholds wider than 10mm between the bottom of the lowest opening panel of the window and any point within 1.1metres below the bottom of that panel." 17It will be seen that the general requirement for the fencing of a swimming pool is that imposed by s 7 which, by operation of cl 5 of the Regulation requires a fence or barrier meeting the standards set out in the Building Code of Australia. That Code, in turn, requires compliance with AS 1926.1-2012 (the 2012 Standard). Fundamentally, compliance with that Standard requires a separate fence or other barrier such that there is no direct access from the dwelling on the Property to the existing swimming pool. Clearly, that requirement is not met on the Property. Other provisions of the 2012 Standard that are presently relevant require that gates in a pool fence close automatically from any open position and be swung such that they open out from the pool rather than into the pool area. That Standard also stipulated a maximum distance of 100mm between the bottom of a pool fence and the ground immediately beneath that fence. 18If the provisions of s 8 of the Swimming Pools Act and cl 6 of the Regulation are to be applied, the provisions of AS 1926.1-2007 (the 2007 Standard) need to be considered. Compliance with that Standard, in turn, necessitates compliance with a number of controls where direct access to a pool is available from a dwelling. The internal latch on any door through which access is gained from a dwelling to a pool must be fixed at a minimum height of 1500mm from the floor level beneath; any door through which access is gained from a dwelling to the pool must be self-closing and the maximum distance that a window may open on a wall that separates a dwelling from a pool is 100mm, in the absence of a fixed security screen. Otherwise, specifications for the pool fence itself are similar to those that I have earlier identified as are applied by the 2012 Standard. 19It is with these provisions in mind that the evidence adduced on behalf of the Council needs to be considered. 20Conformably with the injunction contained in s 22B of the Swimming Pools Act for a local authority to inspect swimming pools within its area, the Property was inspected by Mr Bailey on 26 November 2012. At the time of his inspection Mr Hamshaw was present. 21Upon external inspection, Mr Bailey observed that one of the gates giving access to the pool through the pool fence closed inwards towards the pool rather than outwards. He also observed gaps beneath the pool fence, to the extent to which it had been constructed around the pool, that exceeded 100mm and through which access by a child was possible. A suggestion as to how that gap might be reduced was made to Mr Hamshaw at that time. 22Mr Bailey also observed that there was no fence separating the western wall of the dwelling from the pool area. Upon inspection of that wall, he noted that the door latch that operated the doors leading to the pool area were less than 1500mm from the floor level. He also noted: (i) that a door leading from the dwelling to the pool area was not self-closing; (ii) that windows along the western wall had not been fixed so that all were able to be opened, providing access through the window at a width which exceeded 100mm; and (iii) a tree stump was located close to the pool fence that would have provided a foothold for access to the pool area, thereby reducing the effective height of the pool fence approximate to the stump. 23As a result of the observations then made by Mr Bailey at the Property, a draft direction was given to Mrs Hamshaw, as owner of the Property, requiring the undertaking of remedial measures to address non-compliance with the 2007 Standard and 2012 Standard, as the case may be. That draft notice was given in accordance with s 23 of the Swimming Pools Act, enabling the Council, as a local authority, by order in writing to give a direction of that kind. Notice of intention to give such an order was required by subsection (5) and thus the draft that the Council gave in this instance. The draft invited submissions from Mrs Hamshaw by way of response. When no response was received from her or from Mr Hamshaw, on her behalf, a direction pursuant to s 23 was given to Mrs Hamshaw on 14 January 2013. That direction required the undertaking of work identified in the notice within 30 days. 24The Property was again inspected by Mr Bailey on 8 March 2013. He then observed that an automatic closing device fixed to a sliding door that lead from the dwelling to the pool area had been disconnected, with the result that the door did not self-close. Furthermore, the door latch or handle by which the door was opened or closed remained below 1500mm when measured from the floor. He also observed that window openings along the western wall of the dwelling had not been fixed so that the maximum opening distance was limited to 100mm. He measured opening distances of approximately 120mm. On that occasion Mr Bailey left his business card in the screen door of the dwelling requesting that Mr Hamshaw contact him in relation to the swimming pool and its fencing. 25Mr Bailey again attended the Property on 20 March 2013 when Mr Hamshaw was present. Upon his arrival in the vicinity of the swimming pool area, he observed that two pool gates giving access to the pool area were propped open so that they were prevented from closing. Upon questioning Mr Hamshaw for an explanation, the latter responded by stating, "The dog has to be able to get in and out". 26Mr Bailey also observed that the sliding door providing access from the dwelling to the pool area remained disconnected from the automatic closing device so that the door no longer self-closed. Likewise, there had been no adjustment to the door handle or latch height so that it remained lower than 1500mm from the floor level. Windows along the western wall had not been adjusted so that their opening distance was greater than 100mm. 27Following that inspection, a further direction was given under s 23 of the Swimming Pools Act requiring nominated work to be undertaken that would have the effect of bringing the swimming pool enclosure into compliance with the 2007 and 2012 Standards. That direction was given to Mrs Hamshaw and a copy was also sent to Mr Hamshaw at the Property. Compliance was required within 14 days. 28Subsection (3) of s 23 provided that a person on whom a direction is served "must not fail to comply with the requirements of the direction". The subsection imposes a penalty for non-compliance. 29The Property was further inspected by Mr Bailey on 5 April 2013. Mr Hamshaw was again present at the time of that inspection. At that time the automatic closing device on the sliding door located on the western wall of the dwelling remained disconnected; the handle or latch on that door had not been adjusted so as to be located at or above 1500 from the floor level and window opening distances had not been adjusted so as to meet the maximum opening width of 100mm. In short, the position remained the same as that observed by Mr Bailey on 20 March. 30Following the inspection and while at the Property, Mr Hamshaw acknowledged to Mr Bailey that he had received documents sent by the Council to him "but (he) had not read them". When asked why he had not completed the works that had been the subject of earlier notices and discussion with Mr Bailey, Mr Hamshaw replied "I have not had time". 31Mr Bailey carried out a further inspection of the Property on 20 June 2013. Mr Hamshaw was present at the time of that inspection. While windows on the western façade of the dwelling opening into the pool area had been fixed so that the maximum opening width did not exceed 100mm, the following matters had not been addressed: (i) the height of the latch or handle to one of the doors providing access from the dwelling to the pool had not been adjusted so that it was 1500mm or more above the floor level of the dwelling; (ii) the doors of the dwelling through which access was gained to the pool area were not self-closing from the resting or opening position; (iii) gaps greater than 100mm remained beneath the pool fence that had been constructed around other parts of the pool area; and (iv) one of the gates in the existing pool fence continued to be swung so that it opened inwards to the pool area rather than outwards. No fence was constructed so that the western façade of the building was separated from the eastern edge of the swimming pool. 32The recitation of these facts satisfy me that a number of breaches of the Swimming Pools Act have occurred. First, it is clear that the requirements of the directions given to Mrs Hamshaw under s 23 of the Swimming Pools Act have not been observed. As I have earlier indicated, failure to comply with a notice given under that section is, by dint of subsection (3), a breach of the Act. Further, the failure to observe the requirements of ss 7 and 8 of the Act, obliging the owner of the premises upon which a swimming pool is situated to provide child-resistant barriers conforming to the Regulation and the 2007 Standard and 2012 Standard, as the case may be, constitutes a breach of the Act, independently of the failure to comply with the direction given pursuant to s 23. 33Having regard to these matters, I am satisfied, conformably with the provisions of s 30 of the Swimming Pools Act, that it is appropriate to make orders requiring that the identified breaches of the Act be remedied or restrained. A number of proposed orders have been advanced by the Council. 34First, it seeks a number of declarations to the effect that Mrs Hamshaw is the owner of the Property and that the swimming pool in question is an outdoor swimming pool to which the provisions of the Swimming Pools Act applies. I do not regard it as appropriate or necessary to make a declaration as to those matters. My findings are sufficient for the purpose of grounding remedial orders. While I do not suggest that the making of a declaration or declarations may not be appropriate in a given case, the essential purpose of s 30 is achieved in circumstances, such as the present, if the orders framed are remedial in their operation. 35There can be little doubt that once breach is established, the Court has a broad discretion as to the terms in which restraining or remedial orders are to be framed. That power may extend beyond the scope of an order available to the Council giving directions under s 23. Section 30(2) finds an equivalent, in terms of expression, in s 124(1) of the Environmental Planning and Assessment Act 1979. The broad scope for orders to be made under the latter section has been identified in a number of cases (see, for example, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335). By parity of reasoning, the scope of that power should be applied to s 30(2) of the Swimming Pools Act. 36In the draft orders provided to me on behalf of the Council, it is requested that I make an order, in terms, requiring the swimming pool on the Property to be fenced "in accordance with the requirements of s 7 of the Swimming Pools Act so that it is designed, constructed, installed and maintained" conformably with the requirements of the Building Code of Australia. I am not prepared to make an order in those terms. An order so broadly expressed may give rise to debate as to the precise nature of the work that is required to be undertaken. 37Rather, any order that I do make must identify with specificity the work that is to be carried out to provide a fence or child-resistant barrier protecting the swimming pool on the Property. By framing an order that reflects the precise requirements imposed upon Mrs Hamshaw, no doubt is created as to what is required of her. That precision is required for two reasons. First, it is necessary that an order of the Court be capable of observance by the party upon whom an obligation is imposed without the necessity to apply for any further direction. Second, precision is required so that in the event of non-compliance and contempt proceedings are brought to secure compliance with the order, the extent of contempt, if any, can readily be determined. 38Having raised the need for particularity with Mr Young, who appeared for the Council, he correctly identified the need for a decision to be made as to whether the respondents were required to comply with the s 7 and the terms of the Regulation that it engages, or whether compliance with s 8, engaging the provisions of the 2007 Standard was sufficient. In a practical sense this required a determination as to whether a separate fence is required in order to provide a barrier between the western wall or façade of the dwelling and the swimming pool (s 7) or whether rectification of windows and doors would be sufficient so as to comply with the 2007 Standard (s 8). In both cases rectification of the shortcomings in the existing pool fence that I have earlier identified will be required. 39Mr Young has submitted that s 8 no longer has application to the present case because of the long history of non-compliance with the requirements of s 8(2) and the 2007 Standard. Emphasis is placed upon the exemption provided by subsection (2) for a separation of pool and dwelling, so long as the access to the pool from the dwelling is at "all times restricted in accordance with the standards prescribed by the regulations." 40My Young submits that at no time during the course of inspections over the past 12 months has there been demonstrated compliance with those restrictions that apply to access from the dwelling to the pool. The height of the door latch and the absence of a self-closing door with a self-closing mechanism disabled, demonstrates non-compliance. Because these means of access from the dwelling to the swimming pool have not been restricted in accordance with the relevant Standards "at all times", it is submitted that the obligation imposed by s 7 for an appropriate child-resistant barrier, "designed, constructed, installed and maintained" in accordance with the 2012 Standard is required. 41There is substance in this argument. I accept that s 8(2) appears to require continuity in maintaining restricted access between dwelling and swimming pool. Each inspection carried out by Mr Bailey since November 2012 demonstrates that at no time have the requirements of the 2007 Standard been observed in important respects. 42However, even if I am wrong in supporting that interpretation of s 8(2), it seems to me that the broad power of the Court to frame remedial orders in accordance with s 30(2) of the Swimming Pools Act is such that the Court can impose an order obliging the respondents to take measures that effectively achieve compliance with the 2012 Standard. So much the more is that the case when issues of child safety arise. The facts of this case demonstrate that the breaches involved are far from technical. 43The evidence that I have earlier recited demonstrates what can only be described as a great reluctance on the part of either Mrs Hamshaw or Mr Hamshaw to comply with the requirements of the Swimming Pools Act and either the 2007 Standard or the 2012 Standard. Clearly, the condition imposed for a surrounding fence when construction of the pool was approved has been breached. If an order is made requiring no more than compliance with the 2007 Standard, so far as it relates to the doors in the western wall of the dwelling, I am not confident that it would be observed. 44For these reasons it is appropriate that any order I make is one that, by its detail, compels compliance with the provisions of s 7 of the Act and the standards for fencing called up by s 7(1)(b). 45I therefore direct that the Council bring in short minutes of orders consistent with these reasons for judgment to reflect the work to be undertaken by Mrs Hamshaw as owner of the Property. A draft of those short minutes should be provided to my Associate by 29 November. In the event that there is any need for argument about the matter it will be necessary for the matter to be relisted, but otherwise those orders will be made in Chambers. 46Finally, there are two further matters that should be noticed. First, both in the draft orders submitted at the hearing for my consideration and in the orders contained in the amended summons filed on behalf of the Council, it was proposed that in default of work being carried out by the respondents, the Council be permitted to enter the Property to carry out that work at the cost of Mrs Hamshaw. I have not been able to identify any power of the Court to make an order in those terms. The question of power having been raised with Mr Young, he candidly acknowledged that he was not able to identify the source of any such power, acknowledging that the Swimming Pools Act did not contain provisions of the kind found, for example, in the Local Government Act 1993 permitting the Court to order work to be carried out in default on the part of a respondent. Accordingly, I am not prepared to make any "self-help" order. 47Second, the Council seeks an order that the respondents pay its costs of these proceedings. There is no basis upon which to deny that application. The Council has been successful, with the consequence that it would, in accordance with s 98 of the Civil Procedure Act 2005 and r 42.1 of the UCPR be entitled to its costs. I add that on the evidence before me, several opportunities have been afforded, both before and during the course of these proceedings, to Mrs Hamshaw and Mr Hamshaw to reach what would seem to have been a sensible resolution of the Council's concerns. Regrettably, the invitations afforded to them were not taken up. 48I therefore propose to order that the respondents pay the Council's costs. Provision for the making of that order should be included in the draft short minutes to be provided by the Council's solicitor. 49The only formal order that I presently make is: (1)Direct that by 29 November 2013 the applicant provide to my Associate draft short minutes of orders consistent with the reasons for judgment