Medway v Pittwater Council

Background 2The property is one of five residential properties accessed on a private road from Lane Cove Road, and has an area greater than 2ha. The applicant purchased the property in 2002, and the Council granted development consent for the construction of the dwelling, swimming pool and tennis court on 27 January 2004. A Construction Certificate for the swimming pool and gazebo was issued by an accredited certifier on 23 March 2005. The final Occupation Certificate for the swimming pool and gazebo was issued on 9 March 2006. 3Ms Kate Stoner, a Council Development Compliance Officer, inspected the swimming pool on 9 April 2013. The Council sent a letter dated 27 May 2013 which stated that the swimming pool did not comply with the Act, enclosing a draft Direction to Comply. The applicant's solicitor made representations on her behalf in a letter dated 25 June 2013. The Council issued the Direction to Comply on 15 August 2013. 4The Direction included the statement that the swimming pool did not comply with the requirements of the Act and the Swimming Pools Regulation 2008 (the 2008 Regulation) in respect of the matters specified in Schedule 1 of the Direction, and stated: The Council has determined that Australian Standard 1926.1-2012 'Part 1: Safety barriers for swimming pools' must be applied as the existing swimming pool barrier does not comply with the pre-existing Standard. This determination has been made in accordance with Clause 23 of the Swimming Pools Regulation 2008. EXEMPTIONS FOR SWIMMING POOLS ON LARGE PROPERTIES As the existing swimming pool barrier was found to be non-compliant at the time of Council's inspection, the large property exemption now ceases to apply in accordance with Section 9(5) of the Act. A swimming pool barrier is now required to be provided around the perimeter of the swimming pool. 5The Direction directed the applicant, within 30 days of the date of the Direction, to carry out and complete the works or take the measures specified in Schedule 2 of the Direction: 1. A warning notice must be provided in a prominent position within the immediate vicinity of the swimming pool area. The warning notice must comply with the Swimming Pools Regulation 2008. A warning notice was present at the time of the inspection however, it was facing away from the swimming pool area. 2.There are windows that open directly into the pool area, and the height from the sill of the lowest opening panel of the windows to the finished ground level in the pool area is less than 1800mm. The openable portion of windows must comply with either of the following: (a) Be totally covered by bars or a metal screen, that are fixed to the building with fasteners that can only be removed by the use of a tool. The opening between bars and the horizontal dimension of openings in a metal screen shall not be greater than 100mm. (b) Be fixed to the building with fasteners that can only be removed by the use of a tool so that it will remain closed or will open to a maximum of 100mm. The works to the window are to be carried out in accordance with Section 2.6 of the Australian Standard. 3.Section 7 of the Swimming Pools Act 1992 (the Act) has been breached as the swimming pool has not been separated from a Gazebo, which is defined as a residential building under the Act. A swimming pool barrier is required to be constructed between the Gazebo and the swimming pool so that they are separated in accordance with the Act. 4.Clause 2.5.3 'out of ground pool walls' of the Australian Standard has been excluded by the Building Code of Australia. This means that you can not rely on the pool wall as part of the barrier, and will need to provide a separate barrier between the residential building situated on the premises and from any place (whether public or private) adjoining the premises and the swimming pool. Please provide a separate barrier in accordance with the Australian Standard. 5.The existing doors that open from the residential building act as a means of access into the swimming pool area. These doors are not permissible and must be made either permanently unopenable or no longer used as part of the barrier. 6.The spa pool must be covered and secured by a lockable child-safe structure (such as a door, lid, grille or mesh) in accordance with the Swimming Pools Regulation 2008, or provided with a swimming pool barrier in accordance with the Australian Standard. 7.Provide a swimming pool barrier around the perimeter of the swimming pool, that excludes the doorsets, Gazebo and out of ground pool wall from forming part of the barrier in accordance with the Australian Standard. 8.All works carried out to the swimming pool barrier must be carried out in accordance with the Australian Standard 12926.1-2012 'Part 1: Safety barriers for swimming pools'. 6On 6 September 2013 the applicant applied to the Council for an exemption under s 22 of the Act, noting that this application was without prejudice to her appeal rights in relation to the Direction. Ms Stoner inspected the swimming pool on 18 September 2013. The application for an exemption was refused on 16 October 2013.

Issues 7The issues in both appeals relate primarily to the application of the Act and the regulations, relevantly being the Swimming Pools Regulation 1998 (the 1998 Regulation) and the 2008 Regulation, to the swimming pool, spa and gazebo. In the Direction Appeal the issues are whether the requirements of the 1998 Regulation, which applied at the time of construction of the swimming pool, continue to apply for restriction of access to the swimming pool from the dwelling. The applicant's position is that the requirements of the 1998 Regulation continue to apply to the property because s 9 of the Act has not ceased to apply, and cl 23 of the 2008 Regulation applies; the property now complies with those requirements, and accordingly the Direction has no work left to do. In relation to the gazebo, the issue is whether it requires separate fencing: the applicant's position is that it does not because it is not of itself a "residential building" as defined in s 3 of the Act. 8In the Exemption Appeal, the applicant's position is that an exemption under s 22 of the Act is not required because of the continuing application of s 9 of the Act; if that is not the case, the applicant needs an exemption and seeks one so as to be able to comply with the requirements of the 1998 Regulation. The issues are whether an exemption should be granted on the basis that it is impracticable or unreasonable for the swimming pool and spa to comply with the requirements of Part 2 of the Act, or alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.

Legislation 9The long title of the Act is that it is an Act "to require access to private swimming pools to be effectively restricted...". Part 2 of the Act contains provisions relating to access to swimming pools, including in Div 5 inspections and compliance. Div 1 of Part 2 of the Act applies to outdoor swimming pools constructed or installed on premises on which a residential building is located. Section 7 provides the general requirement: 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. (2) The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section. Note. Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18, 19 and 22. 10At the time of the construction of the swimming pool, s 9 provided: 9 Exemption for swimming pools on large properties (1) This section applies to both new and existing swimming pools. (2) A swimming pool that is situated on premises having an area of 2 hectares or more is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagram in Part 3 of Schedule 1 illustrates the provisions of this section. (4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes. 11Section 9(1) was amended in 2009, and s 9(5) was inserted with effect from 29 October 2012 by the Swimming Pools Amendment Act 2012. Section 9 now provides: 9 Exemption for swimming pools on large properties (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (2) A swimming pool that is situated on premises having an area of 2 hectares or more is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagram in Part 3 of Schedule 1 illustrates the provisions of this section. (4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes. (5) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises. 12Section 22 of the Act provides for exemptions from barrier requirements: 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) A person is not guilty of an offence under this Part: (a) if the swimming pool concerned is the subject of an exemption under this section, and (b) if the conditions (if any) to which the exemption is subject are being complied with. (4) For the purposes only of any appeal proceedings arising in connection with an application under this section, the local authority is taken to have refused the application if it has not finally determined the application within 6 weeks after the application was made. 13Section 23 confers power to issue a Direction to Comply: 23 Local authority may order compliance with Part (1) The local authority may, by order in writing served on the owner of any premises in or on which a swimming pool is situated, direct the owner to take, within such reasonable time as is specified in the direction, such measures as are so specified to ensure that the swimming pool or premises comply with the requirements of this Part or of a condition of an exemption granted under section 22. (2) Such a direction is of no effect to the extent to which it purports to impose requirements more onerous than the requirements of this Part or of a condition of an exemption granted under section 22. (3) A person on whom a direction is served must not fail to comply with the requirements of the direction. Maximum penalty: 50 penalty units. (4) A direction does not cease to have effect merely because there is a change in the ownership of the premises to which the direction relates, but applies to the new owner in the same way as it applied to the old. (5) A direction may not be served under this section unless the local authority has, at least 14 days before, served on the owner of the premises a notice of intention to serve the direction. (6) A local authority may serve a direction under this section without serving a notice under subsection (5) if it considers that the safety of a person would be at risk if the requirements of the direction were not carried out as soon as possible. 14For the purposes of Part 2 of the Act, the swimming pool and the spa, being situated on the same premises and in close proximity to each other, are taken to be one swimming pool: s 21. 15At the time of the construction of the swimming pool, the applicable regulations were the 1998 Regulation. Clause 6 provided the standards referred to in s 9(2) of the Act: 6 Exemptions: secs 8, 9, 10 (1) For the purposes of sections 8 (2), 9 (2) and 10 (2) of the Act, the prescribed standards in accordance with which access to a swimming pool from a residential building is to be restricted are as provided by this clause. (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). (4) In relation to each window giving access to the swimming pool: (a) the bottom of the lowest opening panel of the window must (when measured in the closed position) be at least 1.2 metres above finished floor level, and (b) there must not be any footholds wider than 10 millimetres between the bottom of the lowest opening panel of the window and any point within 1.1 metres below the bottom of that panel. (5) Subclause (4) does not apply to a child-safe window or to a window that is totally enclosed by a child-safe grille or by a fixed child-safe flyscreen. 16The 2008 Regulation replaced the 1998 Regulation, and commenced on 1 September 2008. Clause 5 of the 2008 Regulation originally provided: 5 General requirements for outdoor swimming pools For the purposes of sections 7 (1) (b) and 12 (d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the standards set out in AS 1926.1-2007 (excluding Clause 2.8). Note. The provisions of AS 1926.1-2007 about doorsets are inapplicable to child-resistant barriers required by section 7, since that section requires the owner of the premises on which the swimming pool is situated to ensure that the swimming pool is at all times surrounded by a child-resistant barrier that separates the swimming pool from any residential building situated on the premises and from any place adjoining the premises. 17The Swimming Pools Amendment Regulation 2011 amended cl 5, with effect from 1 May 2011, by deleting the reference to the Australian Standard and inserting "the standards set out in the Building Code of Australia", and deleting the Note. 18Clause 7 of the 2008 Regulation provides: 7 Standards required for swimming pools on large or waterfront properties to be exempt from requirement to surround swimming pool For the purposes of sections 9 (2) and 10 (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 the standards set out in AS 1926.1-2007. 19Clause 22A was inserted with effect from 1 May 2011: 22A Effect of changes to prescribed standards for existing complying swimming pool barriers and means of access (1) In this clause, relevant amendment means: (a) an amendment to this Regulation that amends or substitutes a standard prescribed for the purposes of a provision of Part 2 of the Act, or (b) an amendment to a standard that is prescribed, as in force from time to time, for the purposes of a provision of Part 2 of the Act. (2) If a child-resistant barrier for a swimming pool is required to comply with a standard prescribed under a provision of Part 2 of the Act and the standard is amended or substituted by a relevant amendment, the barrier is taken to comply with the amended or substituted standard so long as: (a) immediately before the relevant amendment took effect, the barrier complied with the standard that applied to the barrier at that time and the barrier continues to comply with that standard, or (b) if the barrier has been substantially altered or rebuilt, the barrier complied with the standard that applied to the barrier when it was so altered or rebuilt and the barrier continues to comply with that standard. (3) If the means of access to a swimming pool are required to comply with a standard prescribed under a provision of Part 2 of the Act and the standard is amended or substituted by a relevant amendment, the means of access are taken to comply with the amended or substituted standard so long as: (a) immediately before the relevant amendment took effect, the means of access complied with the standard that applied to the means of access at that time and the means of access continue to comply with that standard, or (b) if the means of access have been substantially altered or rebuilt, the means of access complied with the standard that applied to the means of access when they were so altered or rebuilt and they continue to comply with that standard. Note. Subclause (3) applies to standards prescribed under provisions of Part 2 of the Act that relate to indoor swimming pools, outdoor swimming pools or both. 20Clause 23 of the 2008 Regulation provides: 23 Existing complying swimming pools may continue to comply with earlier standards (1) This clause applies to a swimming pool the construction or installation of which was completed before 1 September 2008. (2) It is sufficient compliance with Part 2 of the Act for a swimming pool to comply with that Part on the basis of the requirements of Part 2 of the Swimming Pools Regulation 1998 (as an alternative to compliance on the basis of the requirements of Part 2 of this Regulation). (3) However, this clause does not apply: (a) in relation to an outdoor swimming pool-if the child-resistant barrier by which access to the swimming pool is restricted is substantially altered or rebuilt, and (b) in relation to an indoor swimming pool-if the premises in which the swimming pool is situated are substantially altered or rebuilt in a way that affects the means of access to the swimming pool. 21The relevant standards applicable under this legislative scheme include standards prescribed in the regulations themselves (cl 6 of the 1998 Regulation); standards contained in different versions of specified parts of Australian Standard 1926 Swimming Pool Safety, relevantly for these appeals being AS 1926.1-2007 Swimming pool safety Part 1: Safety barriers for swimming pools (the 2007 Standard), and AS 1926.1-2012 Swimming pool safety Part 1: Safety barriers for swimming pools (the 2012 Standard), published on 6 November 2012; and the Building Code of Australia (BCA) (cl 5 of the 2008 Regulation). Part 3.9.3 of the BCA: Swimming Pool Access applies in NSW to the technical construction requirements for barriers to restrict access to swimming pools, and by cl 3.9.3.0 the applicable performance requirement is satisfied for a swimming pool associated with a Class 1 building with a depth of more than 300mm if it has safety barriers installed in accordance with the 2012 Standard.

Evidence 22The hearing commenced on site with a view. 23The dwelling is designed with a central foyer linking the front entry through to a covered verandah and the pool area. At the rear of the dwelling, on the ground floor from west to east, are a lounge, billiards room, dining area, kitchen and living area. Openings from those rooms on to the verandah are a combination of sliding and bi-fold doors, with windows. At the front of the dwelling is a gym which opens on to the verandah at the western side of the dwelling, and on the eastern side of the dwelling is a garage, storage, and laundry. 24The swimming pool is located at the rear of the dwelling. Next to the swimming pool is a spa pool and a gazebo. The gazebo covers the spa pool and part of the paved area adjacent to the swimming pool. The land drops down at the northern edge of the pool, which is designed as a wet edge. The following photographs (included in exhibit 3) show the relationship between the swimming pool and the dwelling, and the spa and gazebo: 25Ms Stoner provided a Statement of Evidence dated 22 November 2013, noting that she had inspected the property three times, on 9 April 2013, 18 September 2013, and 8 November 2013. In her description of the property, Ms Stoner noted (at [10]) that the property is publicly accessible from Lane Cove Road via a pedestrian and vehicle gate, and is privately accessible from the five adjoining properties on the north, south, west and east, which all contain residential buildings; and that the fences that separate the adjoining properties are not swimming pool fences. While not noted in Ms Stoner's Statement of Evidence, it was apparent on the view that there are dams on the adjoining properties. 26At [13]-[19] Ms Stoner outlined her approach to inspection and assessment of compliance, leading to her conclusion at [31] that it was necessary to issue the Direction to require compliance with s 7 of the Act, cl 5 of the 2008 Regulation, and the 2012 Standard. In summary, when initially assessing a swimming pool barrier she applies the standard applicable at the time of the pool's construction, applying cl 23 of the 2008 Regulation. For this property, the standard in cl 6 of the 1998 Regulation applied because the property enjoyed a large property exemption under s 9 of the Act at the time of construction. Ms Stoner concluded that at the time of her initial inspection the property did not comply with cl 6, and applying cl 23 of the 2008 Regulation, she then considered whether the property complied with Part 2 of the Act. Section 9(2) allows large properties with pools which commenced construction prior to 1 July 2010 the option of using residential buildings on the property as the means of restricting access provided that access is "at all times restricted in accordance with the standards prescribed by the regulations". Clause 7 of the 2008 Regulation provides that for the purposes of s 9(2) of the Act, the prescribed standards are those set out in the 2007 Standard. Ms Stoner concluded based on her first inspection on 9 April 2013 that the property did not comply with sections 2.7 and 2.8 of the 2007 Standard. She considered that the property could no longer have the benefit of the s 9 exemption provisions, and so the applicable standard was that imposed by s 7 of the Act. That requires the swimming pool to be separated from any residential buildings on the premises, with a barrier provided in accordance with the standards prescribed by the 2008 Regulation. Clause 5 of the 2008 provides that the applicable standard is that prescribed under the Building Code of Australia; and the BCA 2013 references the 2012 Standard. 27At [23] of her Statement of Evidence Ms Stoner records her observations from her first inspection on 9 April 2013: 23. The following non-compliances with clause 6 of the 1998 Regulation were observed: (a) I saw no warning notice (resuscitation sign) provided within the immediate vicinity of the swimming pool area. A warning notice is required for all swimming pools and spas under s 17 of the Act. (b) I physically inspected one of the two windows in the 'Lounge' and observed two of the windows in the 'Living' which had sill heights less than 1200mm from the finished floor level within the residential building...I opened the window which faces North in the 'Lounge' and noted that it opened greater than 100mm. The window was not covered by any bars, flyscreen or grill and had no key lock. There were footholds wider than 10mm on both windows within 1100mm of the lowest opening panels. Another two windows, which faced the south in the 'Lounge', and north and south in the 'Living' looked identical in all aspects, though I did not open them. The above mentioned four windows were not considered child-safe within the meaning of the 1998 Regulations. (c) I then inspected the doors within the 'Billiards', 'Dining', 'Kitchen' and 'Living' rooms...The four doors that face the north in the 'Kitchen' and 'Living' rooms had no lock at a height greater than 1500mm from the finished floor level, and therefore did not comply with the standard within the 1998 Regulation. The bi-fold doors in the 'Lounge', and sliding doors in the 'Billiards' and 'Dining' rooms had large brass locking mechanisms at the tops of the doors, and did comply with the standard. (d) I then inspected another two doors. These were the front door, which is located in the 'Foyer' and the door that provides access to the 'Garage' from the hallway beside the 'Store'. Neither of these doors had a lock at a height greater than 1500mm from the finished floor and therefore did not comply with the standard within the 1998 Regulation. (e) The gazebo (residential building) had not been separated from the swimming pools (spa and swimming pool) in accordance with the Act. 28Ms Stoner concluded at [25] that she had established that 4 windows and 6 doors did not comply with the standard in the 1998 Regulation and the gazebo was not separated from the swimming pools. 29Ms Stoner also considered whether the property complied with the requirements of the 2007 Standard, applicable by virtue of cl 7 of the 2008 regulation for a swimming pool to which s 9 applies, or the 2012 Standard. 30At [27] Ms Stoner recorded that the openable windows on the ground floor of the property were capable of opening greater than 100mm and none were fitted with bars or mesh, and none of the doors were self closing or self latching, and thus the property did not comply with sections 2.7 and 2.8 of the 2007 Standard. 31At [29] Ms Stoner summarised the requirements of the 2012 Standard, which does not permit the use of doorsets to provide a barrier to access (with the exception of indoor pools under 2.7); permits the use of windows as a barrier for access but at 2.7 requires openable windows with sill heights less than 1800mm from the finished ground level within the pool area to be provided with either bars, grills or metal screen or only openable to a maximum of 100mm; and requires that the swimming pool now be separated from residential buildings on the property and from any adjoining place (whether public or private) adjoining the property. 32Ms Stoner provided a table (Annexure B to her Statement of Evidence) identifying the 11 doors and 4 windows inspected on her first inspection, and noting that those windows and doors did not comply with the 2007 Standard or the 2012 Standard. 33Ms Stoner's observations from her second inspection on 18 September 2013, undertaken after the issuing of the Direction and after receiving the application for an exemption, were as follows: [32]...I observed a number of doorsets and windows had been modified in an attempt to comply with cl 6 of the 1998 Regulation. I was given the opportunity to inspect other windows and doors that were not viewed at the inspection on 9 April 2013. [33] The following changes were identified: (a) The four windows viewed at my first inspection had had the window handle removed, therefore making them unopenable. (b) The internal door to the 'Garage' beside the 'Store' had had a brass lock added at a height exceeding 1.5m above finished floor level. (c) The four doors to the 'Kitchen' and 'Living' that face north all had bolt locks added at the top of the doors at a height exceeding 1.5m above finished floor level. (d) The front door had had a brass lock added at a height exceeding 1.5m above finished floor level. 34Annexure B to Ms Stoner's Statement of Evidence incudes observations from the second inspection on 18 September 2013, and records her opinion as to compliance of the total of 18 doors and 19 windows on the ground floor with the 1998 Regulations, the 2007 Standard, and the 2012 Standard. For the sake of completeness, it should to be noted that at [35] Ms Stoner stated that she had observed an additional non-compliance with the 1998 Regulation, relating to the door from the 'Shower' located on the western side of the building adjacent to the gym, and this was also included in Annexure B. At the hearing it was common ground that this door in fact complies. 35Ms Stoner records in her Statement of Evidence and Annexure B that as at the date of her second inspection, the property complied with cl 6 of the 1998 Regulation; the property did not comply with the 2007 Regulation because none of the doors were self closing and the windows in the 'Gym', 'Study' and 'Garage' did not comply (at [36]); and (at [38]-[39]) the doors in the 'Lounge', 'Billiards', 'Dining', 'Kitchen', 'Living', 'Gym', 'Study', 'Entry', and 'Garage', and the windows in the 'Gym', 'Study', and 'Garage' did not comply with the 2012 Standard, and the gazebo remained within the swimming pool area as it had not been separated from the swimming pools. 36Ms Stoner concluded (at [44]) that the options to be considered to comply with Part 2 of the Act include relocation, reduction in size, or demolition of the gazebo; and provision of a child resistant barrier around the perimeter of the spa and swimming pool that separates the pools from any residential buildings and any place adjoining the premises. Ms Stoner noted that there is sufficient space to construct a compliant barrier without having to use house doors, and that the swimming pool area could incorporate a boundary barrier, although she would not encourage making the swimming pool area too big so as to minimise maintenance of the barrier and provide good visibility within the area when supervising children. 37At [48]-[57] Ms Stoner provided her reasons for concluding that neither s 22(1)(a) nor (b) of the Act is satisfied so that an exemption under Part 2 of the Act is warranted, being that neither the physical nature of the premises nor the design or construction would prevent full compliance with the 2012 Standard, and that the applicant has not demonstrated that alternative provisions no less effective than those requirements exists for restricting access to the swimming pool. 38In oral evidence Ms Stoner stated that she did not consider there to be any room for flexibility or the exercise of discretion in applying the prescribed standards, for example if a barrier height were just under 1500mm. In relation to the exemption application, her opinion was that it would be irresponsible to grant an exemption based on compliance with the 1998 Regulation given the changes in the legislation since then and the more stringent requirements. 39The applicant provided evidence in the form of an affidavit sworn on 14 November 2013, and in an affidavit sworn by her husband Mr Robert Medway on 14 November 2013. In her affidavit the applicant refers to Ms Stoner's first inspection, stating that she had said to Ms Stoner "We went to great lengths to ensure that the pool complied with the requirements. It has been properly certified." The applicant states (at [14]) that after the inspection she obtained the 'Pool self-assessment checklist' on the Local Government Department website, and 15. Having regard to the information in the Local Government Department checklist, my husband and I examined each and every door on the ground floor of the house. I saw that not every door latch was 1500mm above floor level. Most of the windows have barrel type locks and need a special tool to open them which is kept by me in a secure location. The other ground floor windows are sash type windows that had a winder mechanism. Since moving into the house, many of the windows on the ground floor have never been opened. 16. In order to ensure compliance with the requirements in the checklist, my husband and I: (a) installed latches and bolts on some doors so that each door had a latch or bolt at least 1500mm above the floor level; and (b) removed the winders to the sash windows so that they could not be opened. 40The applicant completed the registration form on-line on 4 May 2013 and obtained a Certificate of registration for the swimming pool, which is annexed to the affidavit. 41In his affidavit Mr Medway states: 5. In planning the design of the house, swimming pool and tennis court, I spent a considerable amount of time to ensure that the house, swimming pool and landscaping were designed so as to be an integrated whole. I worked closely with the draftsman, builder and landscaper that were engaged by my wife and I before the development application ("the DA") was lodged with the Council. As the Property has a general northerly aspect, the design of the house focused on the advantage of that aspect. The pool was placed in its location so that was close to the rear of the house and there was a flow from the house onto a paved area and then to the swimming pool. The pool has a wet edge design. That is, it has the appearance of integrating with the horizon and bushland to the north. 42At [12] Mr Medway states that when the house and swimming pool were nearing completion he had a number of conversations with the construction manager about the need for the swimming pool to comply with the requirements of the Act, and "I was aware that as there was no separate swimming pool fence proposed that the inside of the house would need special requirements in terms of the height of the door handles, locks and window openings". 43After receiving the draft Direction to Comply, Mr Medway engaged Mr Wesley Vos of Brentnall Technical Solutions Pty Ltd (private accredited certifiers) to carry out an audit of the access arrangements to the swimming pool. Mr Vos inspected the property on 20 June 2013. Mr Medway states: 19. ...Following that inspection, Mr Vos identified to me the following matters needed to be rectified: (a) Removal of any footholds in the front door, laundry door ad external door adjacent to the fire place greater than 10mm wide and less than 100mm above the finished floor level; (b) Removal or relocation of the laundry door stop; (c) The moving of hinges and latching devices of the bi-fold doors to a height greater than 1500mm above the finished floor level; (d) A child resistant device to be installed to the door separating the garage from the house; and (e) Disabling of the internal switch to the garage door. 44Mr Medway states that he arranged for tradesmen to undertake the work identified by Mr Vos on 21 June 2013. A report from Mr Vos dated 24 June 2013 following a further inspection carried out on that date is annexed to Mr Medway's affidavit. A copy of that report was provided to the Council by the applicant's representative in the representations made on 25 June 2013. 45Mr Medway further states: 22. In order to separately fence the swimming pool to a design that attempts to complement the original design philosophy of the pool and landscape design, a semi-frameless glass fence structure is required. I have obtained quotes for the installation of such a fence. Those quotes ranged from $54,780 to $65,890. 46The documents provided to the Council with the Construction Certificate issued on 23 March 2005 include an undated letter from Mr Ian Bellamy of Landscape 2000 (the firm identified in the Construction Certificate Application as the builder of the gazebo and swimming pool), showing a fax imprint dated 22 March 2005 (exhibit 4, p 307), which states: Details of method of Compliance with the Swimming Pools Act The property as such is above 5 acres, and therefore does not require pool fencing. This said, it will comply with the Swimming Pools Act 1992 with reference to the below means: The above mentioned property has no windows on the rear side of the house. It will have By-Fold Doors which will be secured with Chains and Hooks that are above 1.5 metres from floor level. The windows will be restricted from opening no greater than 105mm by a device operable by a tool only. 47In oral evidence, Mr Medway accepted that the statement in this letter that there would be no windows on the rear of the house was incorrect, and that the measures stated in the letter had not actually been put in place. Mr Medway stated that he could see that none of those requirements had been complied with. He could not recall having seen the letter, and he had not been involved at that level of detail with the construction of the house. 48Mr Medway explained that in obtaining three quotes for the construction of fencing, he had shown the contractors the draft Direction and asked what the options were if it was necessary to comply, in as aesthetically pleasing a way as possible. He and the applicant wanted any fencing to look as attractive as possible. He did not think any of the quotes included the cost of individual fencing of the gazebo.

Appeal No 20694 of 2013: Direction 49The applicant contends that the exemption in s 9 of the Act applies to the property as the swimming pool and spa were constructed before 1 July 2010 and the property is greater than 2ha in area, and that the swimming pool and spa are not required to have a child resistant barrier as the means of access to the swimming pool from the relevant residential building is at all times restricted in accordance with the standards prescribed. The exemption in s 9 has not ceased to apply, no barrier has been erected on the property and s 9(5) does not apply. Clause 23 of the 2008 Regulation applies as the swimming pool and spa were constructed before 1 September 2008 and it is therefore sufficient compliance with Part 2 of the Act for the swimming pool to comply on the basis of the requirements of Part 2 of the 1998 Regulation. Further, cl 23 of the 2008 Regulation continues to apply as the child resistant barrier by which access to the swimming pool is restricted has not been substantially altered or rebuilt. The swimming pool and spa comply with the standards contained in cl 6 of the 1998 Regulation, and the gazebo is not a "residential building". On that basis, the requirements of the 1998 Regulation continue to apply to the property, which now complies, and the Direction has no work left to do. 50The applicant submits that the scheme of the legislation is to impose operative provisions, to provide mechanisms to enforce compliance through the issuing of a direction, and to establish offence provisions. Subsection 9(1) of the Act is met. Subsection 9(5) is the relevant provision for determining when the exemption provided in s 9 no longer applies. The use of the words "at all times" in s 9(2) is not intended to change the operation of s 9(5), but to make it clear that there is a positive obligation imposed to ensure the property complies at all times. A non-compliance does not mean that s 9 ceases to apply, but triggers the balance of the legislative scheme. For example, if a warning sign required under cl 9 of the 1998 Regulation falls down that would not mean that s 9 ceases to apply to a large property, because that would leave no work for the directions provision to do. If the legislative intention were that any breach of a minor nature would require a change in design and fencing approach, there would be an express provision to that effect. 51The applicant submits that in the construction of cl 23 of the 2008 Regulation, cl 23(1) is an important starting point. The approach adopted in Handley v Pittwater Council [2010] NSWLEC1335 at [45] goes further than it needs to; on that approach cl 23(1) would be required to read as if the word "complying" were inserted. The reference in cl 23(2) to Part 2 of the Act should not be read as imposing an obligation to comply absolutely, but rather identifies that when Part 2 of the Act is applied it is sufficient for the property to comply with the 1998 Regulation. The insertion of cl 22A has provided a dual regime, with the continuing regime of cl 23 applying to pools constructed before 1 September 2008 while cl 22A applies to pools constructed after that date, and makes it clear that continuing compliance is required at and from the time of a change in the applicable standard. 52In reply, the applicant submits that while accepting that the property did not comply with the 1998 Regulation and now does comply, the evidence does not support a finding that it has never complied. 53The Council contends that the swimming pool does not comply with the requirements of Part 2 of the Act. The applicant has not ensured that the swimming pool is surrounded by a child-resistant barrier as required by s 7 of the Act; the exemption provided in s 9 does not apply; and cl 23 of the 2008 Regulation does not apply as a number of the windows and doors giving access from the residential building to the swimming pool did not comply with the requirements of Part 2 of the 1998 Regulation at the relevant time. The gazebo is a "residential building" as defined by s 3 of the Act, and the applicant has not ensured that the spa pool is at all times surrounded by a child-resistant barrier that separates the spa pool from the gazebo as required by s 7 of the Act. The spa pool fails to comply with the prescribed standards in cl 9 of the 2008 Regulation as it is not covered and secured by a lockable child-safe structure. 54The Council submits that for s 9 to continue to apply, the construction of the pool before 1 October 2010 had to be validly done, relying on Whelpton v Ku-ring-gai Council (1994) 85 LGERA 120. In this instance the requirements of the 1998 Regulation were not complied with. In interpreting s 9(2) of the Act, the words "so long as" should be read not as a temporal control but as introducing a precondition equivalent to "provided that" or "but only if": the benefit or privilege applied by s 9 relies upon there being compliance "at all times". The property has not been compliant at all times since the moment of construction, which is to be distinguished from circumstances where for example a latch breaks or a notice falls down. Those situations would be within the obligation imposed under s 15 to ensure ongoing maintenance. If the applicant's submission is correct, even if there had never been any compliance at all the large property exemption would still apply. Subsection 9(5) was inserted in 2012, so it is not correct to read it together with s 9(2), and it is aimed at a different mischief and applies where a fence is erected, so as to prevent confusion as to whether the fence must comply or the house continue to comply. 55The Council submits that the approach adopted in Handley to cl 23 of the 2008 Regulation should be followed, noting that there is a need for consistency in administrative decision making, and that the Court should be convinced the decision is clearly wrong before departing from it. Handley is correct, and cl 23 is ambiguous so that the heading can be relied upon. In this instance, implying the requirement of lawfulness, this property never satisfied cl 23(1) because it never met the 1998 Regulation requirements, and so cl 23 does not apply. In the alternative, the addition of locks and reprogramming of the garage door operation is a substantial change to the child resistant barrier (using that term to include all the doors in the house), and so cl 23(3) applies. The Court can rely on the fact that cl 23 was not amended when cl 22A was inserted; the heading to cl 22A also uses the term "existing complying". Clause 22A has a very specific operation and does not take away from the Handley interpretation of cl 23.

Appeal No 20802 of 2013: Exemption 56The applicant accepts that if the exemption in s 9 of the Act no longer applies and if cl 23 of the 2008 Regulation is interpreted as in Handley, the property does not comply with the 2008 Regulation requirements and an exemption is required. The applicant contends that it is impracticable or unreasonable for the swimming pool and spa to comply with Part 2 of the Act because compliance would require the installation of a separate fence around the whole of the perimeter of the swimming pool and spa in circumstances where the design was such that no fencing was required or contemplated at the time of construction, and that would be at a cost which is excessive having regard to the particular circumstances of the case. Alternative provisions currently exist on the property which are in accordance with the requirements of the Act and the regulation that applied at the time of construction, and that alternative provision should be regarded as a no less effective requirement and acceptable having regard to the circumstances of the case. In the alternative, conditions requiring compliance with the relevant requirements of the Act and the regulation that applied at the time of construction could be imposed, and that alternative provision should be deemed to be a no less effective requirement and acceptable having regard to the circumstances of the case. 57The applicant submits that there is no suggestion that the 2008 Regulation could not be complied with, however that is not the test. The applicant relies on s 22(1)(a), and submits that granting an exemption so that the property can continue to comply with the 1998 Regulation would mean that the underlying objective of the legislation to ensure pool safety would be complied with. The history and the steps taken by the Medways to ensure compliance are relevant. Mr Medway referred in his evidence to the design, feel and flow of the house and pool area; it would be impracticable to require compliance with the 2008 Regulation because that would require a change in the building openings, and unreasonable because of the design, feel and flow of the building. Cost is a relevant consideration. It would be appropriate in the balancing exercise required by s 22 to enable the applicant to continue to comply with the 1998 Regulation. 58The Council contends that the swimming pool should not be exempted from any of the requirements of Part 2 of the Act because it is not impracticable or unreasonable for the swimming pool to comply with Part 2, and no alternative provision, no less effective than the requirements of Part 2 of the Act, exists for restricting access to the swimming pool. 59The Council submits that if its approach to s 9 of the Act and cl 23 of the 2008 Regulation is correct, the applicant would require an exemption from the requirement in cl 5 of the 2008 Regulation to build a pool fence. If the Council is wrong about s 9 and correct about cl 23, the exemption would be required from the requirement in cl 7 of the 2008 Regulation. If the Council is wrong about both s 9 and cl 23, but right in its submissions about the gazebo, only an exemption relating to the gazebo would be required. In considering s 22(1)(a), the terms "impracticable or unreasonable" must be read against the words in parentheses. There is no suggestion that compliance would not be physically practicable, and the real issue is with design. The cost of compliance is contingently relevant, and would be a fraction of the cost of the house. Design is not a reason to grant an exemption, and the physical characteristics of the property would not warrant an exemption. If s 22(1)(b) is considered, the effectiveness of any alternative measures would need to be assessed against the requirements of the 2008 Regulations.

Consideration 60It was common ground that the swimming pool was constructed before 1 July 2010, and that the property is larger than 2ha. There is no dispute that the swimming pool now complies with the requirements of cl 6 of the 1998 Regulation, and that it did not at the date of Ms Stoner's first inspection on 9 April 2013. 61Subject to the qualification noted at [34] above, Ms Stoner's evidence as to her observations on her inspections of 9 April 2013 and 18 September 2013, and her assessment in Annexure B as to the non-compliances with the requirements of the 2007 Standard and the 2012 Standard, was not challenged. Based on that evidence, I find that the property did not at the time of either inspection, and would not presently, comply with either the 2007 Standard or the 2012 Standard. There is no child resistant barrier surrounding the swimming pool that separates it from the dwelling or from any place adjoining the premises as required by s 7(1)(a) of the Act. 62The evidence before me as to whether the restriction of the means of access from the dwelling to the swimming pool complied with the requirements of cl 6 of the 1998 Regulation as at the date of completion of construction of the swimming pool and spa is limited. Mr Medway's evidence was that the measures detailed in the letter written by the builder of the swimming pool and gazebo, namely that there would be bi-fold doors secured with chains and hooks above 1.5 metres from floor level, and that the windows would be restricted from opening no greater than 105mm by a device operable by a tool only, had not been complied with, and that he had not been involved at that level of detail with the construction of the house. The affidavits of the applicant and Mr Medway establish that apart from their concern at the time of construction that the swimming pool comply, they considered the issue of compliance in March 2013 on receiving notice of an inspection as part of the Council's pool inspection program, and that they took steps to bring the property into compliance after Ms Stoner's inspection in April 2013, by reference to the advice of Mr Vos and the information in the NSW Swimming Pool Register "Self-assessment" Checklist. The work required at that time to the doors and windows to bring the property into compliance with cl 6 of the 1998 Regulation is confirmed by the affidavits of the applicant and Mr Medway, Annexure B of Ms Stoner's Statement of Evidence, and the report provided by Mr Vos dated 24 June 2013 based on his inspection of that date. 63It is possible that the property initially complied at the time of completion of the swimming pool and spa. That is, in my view, unlikely, given the absence of any reference in the affidavits of the applicant or Mr Medway to any change between the completion of construction and June 2013, together with the acknowledgement of Mr Medway that the details in the letter from Mr Bellamy had not been complied with. The evidence before me does not establish positively that the property complied with the requirements of cl 6 of the 1998 Regulation at the time of completion, or at any time since then, until at the earliest late June 2013 when the work described in the affidavits of the applicant and Mr Medway was undertaken and Mr Vos provided his report of 24 June 2013. However, for the reasons provided below, it is not necessary in my view for the application of the legislation including s 9 of the Act and cl 23 of the 2008 Regulation that there be a finding that the property has at no stage complied with the requirements of the 1998 Regulation. 64The power conferred by s 23 of the Act to issue a direction to comply is to be exercised to ensure that a swimming pool complies with the requirements of Part 2 of the Act. Failure to comply with a direction is an offence: s 23(3). The enforcement powers of a local authority include the power for an authorised officer to carry out the work required under a direction (s 23A), and the initiation of proceedings under s 30 of the Act for an order to remedy or restrain a breach of the Act, which would include failure to comply with a direction. 65The starting point to determine the requirements of Part 2 of the Act for an outdoor pool is the general obligation imposed by s 7, which requires that there be a child resistant barrier that both separates the swimming pool from the residential building, and that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Sections 8, 9 and 10 provide exemptions from this general requirement, for swimming pools constructed before 1 August 1990 or those constructed before 1 July 2010 that are situated on small properties, that is less than 230 sqm (s 8); swimming pools constructed before 1 July 2010 on large properties, that is, 2 ha or more (s 9); and swimming pools constructed before 1 July 2010 on properties with frontage to any large body of water (s 10). 66The exemptions provisions in ss 8, 9 and 10 in their present form incorporate amendments made by the Swimming Pools Amendment Act 2009 (with effect from 14 December 2009) that limited the exemptions to those swimming pools on small or large or waterfront properties that were constructed before 1 July 2010, and for existing swimming pools to those constructed before 1 August 1990; and further amendments made by the Swimming Pools Amendment Act 2012 (with effect from 29 October 2012) that inserted ss 8(4), 9(5) and 10(5) to specify that the exemption "ceases to apply" to a pool if a barrier is erected on the premises between the pool and a residential building as a barrier to direct access to the swimming pool from any residential building situated on the premises. 67The relevant exemption applicable to the swimming pool the subject of these appeals is that provided in s 9. If s 9 applies, the swimming pool is not required to be surrounded by a child resistant barrier, and the alternative approach of restricting the means of access to the swimming pool from the residential building on the premises is available. The particular standards that would apply would be either those in cl 6 of the 1998 Regulation or those in cl 7 of the 2008 Regulation, depending on whether cl 23 of the 2008 Regulation applies.

Whether s 9 of the Act applies 68Subsection 9(1) is met. Subsection 9(2) provides (emphasis added): (2) A swimming pool that is situated on premises having an area of 2 hectares or more is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. 69The general principles of statutory interpretation require that regard is had to the words used in their legal and historical context, which is to be understood in its widest sense to include the existing state of the law and the mischief or object to which the legislation is directed: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198. Words and phrases should not be extracted from their statutory context, and a construction which promotes the apparent purpose of the legislation is to be preferred to one which does not: Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 per Basten JA at [17]. 70The Council submits that "so long as" and "are at all times" are to be read together, and that the phrase "so long as" in this context should be construed as meaning "provided that". The Council relies on a similar construction adopted by the Court of Appeal in Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361, which concerned the application of s 68B of the Trade Practices Act 1974 (Cth) to a contractual term which purported to exclude liability in relation to "...any claims or liability for death, personal injury or property damage...". Section 68B provided: 68B Limitation of liability in relation to supply of recreational services (1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of section 74 to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or (c) any liability of the corporation for a breach of warranty implied by section 74 in relation to the supply of recreational services under the contract; so long as: (d) the exclusion, restriction or modification is limited to liability for death or personal injury; and (e) the contract was entered into after the commencement of this section. 71At issue was whether the exclusion clause was void to the extent that it contravened s 68 of the Trade Practices Act by purporting to exclude liability for a breach of the implied contractual warranty in relation to the supply of services provided by s 74(1) of the Trade Practices Act. Basten JA (at [14]) construed the words "so long as" to introduce a precondition, or two preconditions, to the operation of subsection 68B(1), noting that it was not a temporal control, but equivalent to "provided that" or "but only if", and concluded that the exclusion clause was not "limited to" liability for death or personal injury. Meagher JA (at [41]) agreed that the words "so long as" are to be construed as meaning "provided that", holding that the "exclusion, restriction or modification" referred to in paragraph (d) was that which the relevant term in fact achieved or effected. Gleeson JA (at [116]) held that the words "so long as" were words of limitation that imposed a requirement "that the relevant term of the contract 'is limited to', that is, do no more than exclude, restrict or modify liability for death or personal injury". 72I agree with the Council that the exemption provision in s 9(2) is framed in a similar way to s 68B, as it provides the operation of the section (in this instance, that the swimming pool is not required to be surrounded by a child-resistant barrier), and the precondition to that operation (namely, restriction of the means of access). On that basis, the words "so long as" can be construed to mean "provided that", and as introducing a precondition to the application of the exemption from the requirement that the pool be surrounded by a child-resistant barrier, that precondition being that the means of access to the swimming pool "are at all times restricted" in accordance with the standards prescribed by the regulations. The critical issue is whether the words "are at all times" imposes a continuing obligation, or whether it is sufficient that the property now complies with the requirements of cl 6 of the 1998 Regulation. 73In my view, the natural meaning of the words used requires ongoing compliance for the exemption to apply. Had it been intended that it would be sufficient for there to be compliance at some date after an inspection has found a non compliance, the present tense would not have been used, and the words "at all times" would not have been included. Read as a whole, s 9(2) exempts the swimming pool from the requirement to be surrounded by a child resistant barrier only "so long as", or "provided that", the precondition that the means of access are restricted "at all times" in accordance with the applicable standards is satisfied. 74The applicant submits that this is not how s 9(2) should be construed, because s 9(5) provides the circumstances in which an exemption under s 9 ceases to apply, and thus indicates a legislative intention that failure to maintain compliance with the prescribed means of restriction of access does not result in the exemption ceasing to apply, relying on Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. I do not agree, for two reasons. Section 9(5) (and its counterparts in s 8(4) and 10(5)) was inserted in 2012. It does not in terms provide the only circumstance in which the s 9 exemption ceases to apply, and s 9(2) was not amended at the time to indicate that it was to be subject to, or read together with, the later provision in s 9(5). Secondly, in the context where the general requirement in s 7 adopts the approach of requiring separation between a dwelling and a swimming pool by a child resistant barrier, and ss 8, 9 and 10 adopt the alternative approach of allowing the dwelling itself in effect to be the barrier through restriction of means of access from that building, it is apparent that s 9(5) is directed at the situation where for a particular swimming pool, the approach changes, and a barrier is erected between the dwelling and the swimming pool. That could be the case even if at the time of that change in approach the means of access are otherwise restricted in a manner that complies with the prescribed standards for the alternative approach. In that context, s 9(5) and its equivalents avoids any potential ambiguity as to whether it is the barrier, or the dwelling, that restricts access to the swimming pool, and would require the swimming pool from that point on to comply with the general requirement in s 7. 75The applicant submits that the consequences of construing s 9(2) to require continuing compliance with the prescribed standards, so that the exemption ceases to apply if there is any non-compliance, however minor, are such that this could not have been the intended interpretation. The applicant gave as an example the situation where a warning sign falls off, or becomes illegible, or where a latch breaks. However, provision of the warning notice required by s 17 of the Act and compliance with the requirements in cll 10 and 11 of the 2008 Regulation, or cl 9 of the 1998 Regulation, as to its content and legibility, do not relate to restriction of the means of access to the swimming pool from any residential building; and so non-compliance with these requirements, and others not related to the restriction of access, would not appear to fall within the terms of s 9(2) so that the s 9 exemption ceases to apply. Other circumstances, such as a door giving access to a swimming pool ceasing to be child safe because of a temporary failure of a bolt or latch, would fall within the obligation imposed by s 15 to maintain a child-resistant barrier in a good state of repair as an effective and safe child-resistant barrier. 76In considering whether the legislature should be understood to have intended that the s 9 exemption would cease to apply as a consequence of what might be regarded as a minor, or temporary, non-compliance, it is relevant to have regard to the overall purpose of the legislative scheme. The purpose of the legislative scheme in restricting access, as reflected in the long title to the Act, is to avoid or minimise the risk of pool related drownings. As is already apparent, the legislative scheme incorporates technical developments through reference to relevant Australian Standards which are updated over time. It has also imposed more stringent requirements over time, for example, through the amendment of ss 8(1), 9(1), and 10(1) in 2009 to restrict the availability of the relevant exemptions to swimming pools constructed before a certain date, and the further amendments in 2012 to insert s 8(4), s 9(5) and s 10(5), to the position now that the only standard applicable to any swimming pool constructed after 1 July 2010 is that imposed under s 7 of the Act. Having regard to the context of the phasing out of exemptions and the updating of technical standards, it is consistent with the purpose of the legislative scheme.to construe s 9(2) according to the natural meaning of the words used, so as to limit the scope of the exemptions now phased out to those owners who have at all times complied with their obligations to ensure that their swimming pool meets the prescribed standards. As a consequence, the s 9 exemption would cease to apply if at any stage the means of access to the swimming pool from the building is not restricted in accordance with the standards prescribed by the regulations. 77However, it is not necessary to reach a concluded view on this issue in the circumstances of this appeal. In my view, the non-compliances observed in April 2013 were significant: they related to several of the doors and windows giving access from the ground level of the dwelling, and required considerable work to rectify. 78The nature and extent of non-compliances would be relevant in the exercise of the power conferred by s 30 of the Act. Lismore City Council v Hamshaw [2013] NSWLEC 204 was an application under s 30 of the Act by Lismore Council for orders to remedy or restrain breaches of the Act. The relevant exemption provision was that in s 8 of the Act, applying to swimming pools constructed before 1 August 1990, and expressed in s 8(2) as follows: (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. 79Craig J found (at [32]) that a number of breaches of the Act had occurred, being non observance of the requirements of two directions given under s 23 of the Act, and failures 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...". His Honour then considered what orders should be made to require that the identified breaches of the Act be remedied or restrained. At [35] Craig J noted that once a breach was established, the Court has a broad discretion as to the terms in which restraining or remedial orders were to be framed, and "[t]hat power may extend beyond the scope of an order available to the Council giving directions under s 23". In considering the need for precision in framing an order identifying with specificity the work that was to be carried out, Craig J noted the Council's submission that s 8 no longer had any application because of the history of non-compliance, and that because the means of access had not been restricted in accordance with the relevant standards "at all times", the obligation imposed under s 7 for an appropriate child-resistant barrier to be provided was required, and continued: 41 There 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. 42 However, 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. 80The applicant submits that Hamshaw does not stand for a binding proposition that the words "at all times" in s 8(2) have the consequence that a failure to comply, at any time, results in a loss of the s 8 exemption, and further, even if the decision could be said to be persuasive, the reasoning cannot be applied to the different regime in s 9 of the Act, because of the operation of s 9(5), by which the legislature has made it clear when the s 9 exemption ceases to apply. 81The Council submits that the words on which his Honour relied in s 8(2) are, in all relevant respects, identical to the terms of s 9(2), and accordingly the decision and reasoning leads to the necessary conclusion that the benefit of the exemption in s 9(2) is no longer available to the applicant, and further, there is not a meaningful difference between s 9 and s 8 of the Act, as s 8(4) is, in all relevant respects, in the same terms as s 9(5). 82Hamshaw was a Class 4 application for orders to remedy or restrain breaches of the Act, and the discussion of s 8(2) was in the context of consideration of the broad discretion available to the Court in framing remedial orders under s 30(2) of the Act. The context of the powers being exercised, and the nature of the issues arising from the particular facts in Hamshaw, are clearly distinguishable from those arising in the present appeals. While accepting that, I agree with the Council that the construction of s 8(2) at paragraph [41] lends supports to a construction of s 9(2) that the natural meaning of the words used is intended, namely that it imposes a continuing requirement. 83At the time of construction of the swimming pool, the prescribed standards for a swimming pool to which s 9 applied were those provided in cl 6 of the 1998 Regulation as set out in [15] above. Whether or not the property ever complied with those standards, it did not comply as at the date of Ms Stoner's first inspection in April 2013. Since 1 September 2008, the standards applicable to a swimming pool to which s 9 applies are those provided in the 2007 Standard; the swimming pool did not in April 2013, and does not now, comply with those standards. On the evidence before me, I cannot be satisfied that the means of access to the swimming pool have at all times been restricted in accordance with the prescribed standards. Accordingly, the s 9 exemption does not apply to the property, and s 7 applies.

Whether cl 23 of the 2008 Regulation applies 84Section 7 of the Act requires that the child resistant barrier separating the swimming pool from any residential building and from any place adjoining the premises be designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Clause 5 of the 2008 Regulation provides that the prescribed standards are those in the BCA, which at 3.9.3.0 specifies the 2012 Standard. If, contrary to the conclusion reached above, the s 9 exemption continued to apply to the swimming pool, the prescribed standards would be those specified in cl 7 of the 2008 Regulation, that is, the 2007 Standard. 85If cl 23 of the 2008 Regulation applies, however, it would be sufficient for the swimming pool to comply with the requirements of the 1998 Regulation. The swimming pool was constructed before 1 September 2008, and cl 23(1) of the 2008 Regulation is satisfied. 86One of the issues considered in Handley was whether cl 23 applies to a swimming pool constructed before 1 September 2008, or whether, as contended by the respondent in those proceedings, it applies only where a swimming pool constructed before 1 September 2008 complied with the standard prescribed by cl 5 of the 1998 Regulation (which relevantly referenced AS 1926-1986, or the 1986 Standard). At [45] in Handley, I concluded that for cl 23 to apply, so that it was sufficient for the swimming pool to comply with Part 2 of the Act on the basis of the requirements of the 1998 Regulation and the then applicable 1986 Standard rather than the 2008 Regulation, it was necessary to be satisfied that the swimming pool in fact complied with the requirements of the 1998 Regulation and 1986 Standard. 87My reasons for reaching this conclusion were as follows: 42 Part 2 of the Act imposes obligations on the owner of a swimming pool to which the Act applies. The relevant general obligation in these appeals is that imposed by s7, which requires that there be a child resistant barrier that both separates the swimming pool from the residential building, and that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. From 1 September 2008 the applicable standards were those set out in the 2007 Standard. 43 The function of cl23 of the 2008 Regulation is to address the potential retrospective application of the 2007 Standard to pools constructed before that date, which includes the swimming pool the subject of these proceedings. Clause 23 achieves that by providing, in subclause (2), that the obligations in Part 2 of the Act can be met by compliance with the requirements of Part 2 of the 1998 Regulation (including the standards set by the 1986 Standard). There are limits to non-retrospective application; one is expressly set by subclause (3), which requires that if the child resistant barrier is "substantially altered or rebuilt", it must then comply with the requirements of the 2008 Regulation and 2007 Standard. It is consistent with this limited non-retrospectivity to read cl 23(2) as requiring that the swimming pool to which it applies already complies with Part 2 of the Act on the basis of its compliance with Part 2 of the 1998 Regulation. To pose an extreme example, if the applicant's argument is correct, the owner of a swimming pool constructed before 1 September 2008 that had no child resistant barrier could argue that the 1986 Standard should apply and that the 2007 Standard should not at any stage apply to the swimming pool. That would defeat the purpose of the legislative scheme which operates through the prescription of technical requirements updated over time. 44 This construction constrains the effect of the general words in cl23(3) in accordance with the context in which they appear (Wilson v State Rail Authority at [12]), so that cl23 permits the owner of an existing swimming pool to rely on the child resistant barrier that in fact satisfied the requirements of the legislation as it stood before the introduction of new requirements on 1 September 2008, but only until such time as that barrier is substantially altered or rebuilt. Section 34(1)(a) of the Interpretation Act permits reference to both the heading and the Explanatory Note to the 2008 Regulation to confirm this as the ordinary meaning of the text. Both the heading, and the Explanatory Note, which states that "(b) existing swimming pools may continue to comply with the older Australian Standard...", confirm this interpretation. 88I am not persuaded that this reasoning was wrong, or that the circumstances of this case would warrant a different conclusion on the construction of cl 23. Clause 23(1) serves the function of identifying those swimming pools potentially able to retain the benefit of compliance with the earlier regulation, restricting that to swimming pools constructed before 1 September 2008, and that function does not require cl 23(1) to read as if the word "complying" were inserted. Clause 23(2) is (subject to cl 23(3)) the operative provision. I remain of the view expressed in Handley that a construction of cl 23 so as to provide in cl 23(2) only a limited non-retrospectivity, so that it is available for a swimming pool that already complies with Part 2 of the Act on the basis of its compliance with the 1998 Regulation, properly constrains the effect of the general words used in cl 23(3) in accordance with the context in which they appear. That context is, as outlined at [43] in Handley, in accord with the purpose of the legislative scheme established by the Act and regulations. In that context, it is proper to have regard to the heading and Explanatory Note to cl 23 to confirm the ordinary meaning of the words used. 89Further, this construction of cl 23 is supported by the subsequent amendment of the 2008 Regulation by the insertion of cl 22A, after the decision in Handley. Clause 22A addresses the consequences of amendments to the regulation to amend or substitute a standard, or an amendment to a standard itself, which while not defined would appear to include the BCA, specified Australian Standards, and specific provisions in the regulation itself. While not the subject of detailed argument, it would appear that the effect of cl 22A is to specify that an amendment included in cl 22A(1) does not apply retrospectively to a swimming pool that in fact complied with the previously applicable standard immediately before the relevant amendment and that continues to comply with that standard. In contrast, cl 23 applies only those swimming pools constructed before 1 September 2008, and operates at a different level in specifying whether the 1998 Regulation, or the 2008 Regulation, applies. On the interpretation adopted in Handley, cl 23 operates for swimming pools constructed before 1 September 2008 in a similar way to cl 22A, and would be consistent with it. Had it been intended that cl 23 have a different application to that outlined in Handley, it could have been amended at the time that cl 22A was inserted. 90The evidence before me establishes that at the time of construction of the dwelling and swimming pool the applicant and her husband considered what would be required to comply with the then applicable standards for restricting access to the swimming pool; that the means by which it would comply with the requirements of the Act as stated by the builder of the swimming pool at that time were not put in place; that the issue of compliance was next considered after receipt of the Council's notification in March 2013 of a proposed inspection; that the property did not comply with the 1998 Regulation in April 2013; and that it now complies. On the basis of the available evidence, I am unable to find that as at 1 September 2008 the property in fact complied with cl 6 of the 1998 Regulation, which would have applied had the s 9 exemption still applied at that time, or with the requirements for a child-resistant barrier surrounding the swimming pool specified in cl 5 of the 1998 Regulation if s 7 of the Act applied. Accordingly, cl 23 of the 2008 Regulation does not apply. This conclusion makes it unnecessary to consider the Council's alternative submission that the work undertaken in relation to the doors and windows would mean that the child-resistant barrier has been "substantially altered or rebuilt" so that cl 23(3) of the 2008 Regulation would apply. 91It follows that in order to comply with Part 2 of the Act, the swimming pool must comply with the requirements of Part 2 of the 2008 Regulation. If the s 9 exemption still applied, that would require compliance with the 2007 Standard. The s 9 exemption having ceased to apply, the relevant requirements are those in the 2012 Standard. 92On the basis that the swimming pool does not comply with either the 2007 Standard or the 2012 Standard, it was open to the Council to issue the Direction in August 2013, and the basis for the issuing of a direction remains. Subsection 23(2) limits the power to make a direction where it would impose requirements more onerous than a condition to an exemption granted under s 22 of the Act. Before considering the terms of the Direction, and whether in the exercise of the powers conferred by s 39(2) of the Land and Environment Court Act 1979 (the Court Act) it should be confirmed or varied, it is appropriate to determine whether an exemption under s 22 can or should be granted.

Whether an exemption should be granted 93Section 22 of the Act enables an exemption from any or all of the requirements of Part 2 of the Act to be granted where either s 22(1)(a) or (b) is satisfied. The application of s 22(1)(a) is limited to the three circumstances specified in parentheses: Handley at [56]; Reemst v Woollahra Municipal Council [2012] NSWLEC 1141. Clause 14 of the 2008 Regulation does not apply, and so the issue is whether there is anything about the physical nature of the premises or because of the design or construction of the swimming pool that would make it impracticable or unreasonable to comply. The applicant does not dispute that it would be possible to erect a barrier fence, and based on the site view, there is clearly adequate space between the dwelling and the swimming pool and around the swimming pool to install fencing, and a gate. The applicant's submission that it would be impracticable or unreasonable to do so is based on the design of the dwelling, and the cost. 94Section 18 of the Act provides that, subject to the other provisions of Part 2, the owner can determine where any child-resistant barrier is to be located. Subject to compliance with the relevant technical standards, it is also a matter for the owner to choose the style of fencing, cl 2.2 of the 2007 Standard and cl 2.1 of the 2012 Standard allowing a choice as to the material for construction of a barrier, subject to compliance with the Standard's requirements, and cl 2.3.3 of the 2012 Standard providing specifications for glass used in barriers. While I accept Mr Medway's evidence that the house, swimming pool and landscaping were designed so as to be an integrated whole, with a flow from the house onto the paved area and then to the swimming pool, I am not persuaded that maintaining this design intent, or the cost of erecting a semi-frameless glass fence structure so as to complement the original design philosophy of the pool and landscape design, if that increases the cost of providing a compliant child-resistant barrier, make it impracticable or unreasonable to comply with Part 2 of the Act. Given the flexibility as to location and material available in the Act and the 2012 Standard, construction of a barrier consistent with the original design intent would be a matter for the applicant. 95In considering whether s 22(1)(b) is satisfied, the applicant's position is based on the steps taken by the Medways to ensure compliance, and the fact that the property now complies with cl 6 of the 1998 Regulation, which was the requirement at the time of construction, and which is an alternative provision that should be regarded as no less effective than the requirements of the 2008 Regulation and acceptable having regard to the circumstances of the case. 96Had the property complied at all times since its construction with cl 6 of the 1998 Regulation, the applicant would have been entitled to rely on the exemption provided by s 9 of the Act. Clause 23 of the 2008 Regulation would also have applied, so that the applicant could continue to rely on compliance with the 1998 Regulation as an alternative to compliance with the 2008 Regulation. If s 9 had continued to apply, but cl 23 of the 2008 Regulation did not apply, cl 7 of the 2008 Regulation would require compliance with the 2007 Standard, in particular cll 2.7 and 2.8. 97I accept the evidence of the Medways that compliance with the swimming pool requirements was a matter of concern at the time of construction, and that on receiving the draft Direction they checked compliance by reference to the Pool self-assessment checklist, and engaged Mr Vos to advise and carry out work. This is not a situation such as that considered in Hamshaw where there had been no effort to comply. I accept that the swimming pool now complies with cl 6 of the 1998 Regulation. The issue is whether that is sufficient to satisfy s 22(1)(b). Section 22(1)(b) in terms requires a comparison of effectiveness with the requirements of Part 2 of the Act, which in the absence of a s9 exemption, are those specified in s 7 of the Act and then cl 8 of the 2008 regulation, the BCA, and the 2012 Standard. Those standards are fundamentally different to those applicable under cl 6 of the 1998 Regulation, primarily because it is no longer acceptable to rely on doorsets to restrict access, and fencing is now required to separate the swimming pool from the dwelling. I am not persuaded that having brought the property to the position where it now complies with cl 6 of the 1998 Regulation it can be said that alternative provision exists for restricting access that is no less effective than the requirements of the 2012 Standard. 98In the alternative to an exemption on the basis that meeting the requirements of the Act and regulations that applied at the time of construction is a no less effective requirement, the applicant contends that conditions requiring compliance with the relevant requirements of the Act and the Regulation that applied at the time of construction could be imposed. Section 22(2) enables the granting of an exemption subject to such conditions as are considered appropriate to ensure that effective provision is made for restricting access to the swimming pool. That conceivably could authorise the granting of an exemption subject to conditions requiring compliance with the 2007 Standard, for example through upgrading the doors so that they are self-closing. However, there are, based on Annexure B to Ms Stoner's Statement of Evidence, 15 doors that would require modification, and there is still the fundamental difference in approach between permitting restriction of access by means of appropriate doors and windows at the dwelling, and requiring fencing to separate the swimming pool from the house and from adjoining properties. In the context of the increasingly stringent provisions for pool safety, including the phasing out of exemptions, I am not persuaded that this would ensure that effective provision is made for restricting access to the swimming pool concerned. 99I am not satisfied that either of ss 22(1)(a) or (b) is met and accordingly I conclude that there is no basis for the granting of the exemption sought by the applicant. The appeal against the Council's refusal of that application should be dismissed.

Direction requiring compliance 100The next issue to determine is whether, in the absence of an exemption under s 22 of the Act, the Direction should be confirmed. It was common ground that term 1 is now satisfied. Terms 2, 4, 5, 6, 7 and 8 require compliance with the 2012 Standard which, in circumstances where the s 9 exemption has ceased to apply and where cl 23 of the 2008 Regulation does not apply, is the prescribed standard for the purposes of s 7 of the Act. 101Term 3 requires the construction of a swimming pool barrier between the gazebo and the swimming pool. Ms Stoner's evidence was that the gazebo is a "residential building" as defined in s 3 of the Act, and because of its size it could accommodate a range of uses such as a BBQ area or entertainment area, and that the swimming pool area could be used for purposes other than swimming, wading or paddling. In her opinion it should be relocated outside any proposed swimming pool area, significantly reduced in size so as to only directly cover the spa and therefore no longer be principally used for residential purposes, or demolished. 102The Council submits that the gazebo is a "residential building" as defined in s 3, as it is ancillary to both the house and the pool. The gazebo is not merely a shade structure, it has a concrete seat, and by reason of its size and seating is designed to be used for eating, congregating and playing, for family purposes. 103The applicant submits that the gazebo is not a "residential building" as defined in s 3 of the Act, and accordingly is not required to be separately fenced. In applying the definition of "residential building" to s 9(4), the nature of the use of the structure becomes relevant. The term "residential purposes" should be construed by analogy to the concept of a habitable space, and requires more than that it is an area where people can congregate. Having regard to the illustrative diagrams in the 1998 Regulations, the issue is restricted access from the building, not from outside spaces even though those spaces may provide significant amenity. The gazebo is similar to a verandah which may include a barbeque and seating, but is not used for residential purposes, and should be described as a "poolside structure" similar to those shown on the diagrams. 104If the gazebo is a "residential building", s 7(1)(a) of the Act would require that the child-resistant barrier separate the swimming pool (which would include both the swimming pool and the spa) from it. Section 3(1) defines a "residential building": residential building means a building (such as a dwelling-house, residential flat building or boarding-house) that is solely or principally used for residential purposes, and includes any structure (such as a garage or shed) that is ancillary to any such building, but does not include: (a) a building that merely forms part of a complex of buildings (such as a school or recreational centre) that is principally used for non-residential purposes, or (b) a moveable dwelling, or (b1) tourist and visitor accommodation, or (c) a shed that is ancillary to a swimming pool and the primary purpose of which is to store equipment that is used in connection with the swimming pool (but not a shed of a kind prescribed by the regulations), or (d) a building or structure of a kind prescribed by the regulations. 105The gazebo is not within the exclusions in (a)-(d) of the definition. The issue therefore is whether it is a building solely or principally used for residential purposes, or a structure ancillary to such a building. The applicant relied upon s 9(4), which directs attention to whether the ancillary structure is not itself used for residential purposes. This provision might be applicable for a large property to which the s 9 exemption applies, and where Diagram 6 in Part 3 of Sch 1 to the Act (referred to in s 9(3)) envisages location of structures outside the barrier provided by the dwelling itself; however, s 9 does not apply in this instance. 106The gazebo is an open-side structure comprising four pillars and a pitched roof. Based on the view and the photographs annexed to Ms Stoner's Statement of Evidence, approximately half the area underneath the gazebo roof is over the spa which adjoins the swimming pool. There is a single fixed concrete bench at seating height, and there are no other facilities or structures within the area under the gazebo that could be used for other purposes, such as food preparation or serving. The decision of the Queensland Court of Appeal in Pearson v Thuringowa City Council [2005] QCA 310, [2006] 1Qd.R. 416, on which the Council relies, provides some guidance as the term "residential purposes". In that decision, Keane JA held (at [12]) that a building is being used for "residential purposes" when "...the primary use of the building is as a venue for a function or functions normally undertaken in a dwelling, such as food preparation and consumption, washing or sleeping, in a manner that is not merely temporary or sporadic but is consistent with an intention to use the building for such functions on a permanent or long-term basis." While the dwelling itself is clearly used for "residential purposes", in my view the gazebo is not. Having regard to the construction and location of the gazebo and the absence of facilities other than its provision of shade and some seating, in my view the gazebo should be regarded as ancillary to the swimming pool and spa, and not to the dwelling. On that basis, the gazebo is not itself a "residential building" as defined in s 3 and would not require separate fencing. 107Terms 3 and 7 of the Direction would require amendment to reflect this conclusion.

Conclusion 108I am not satisfied that an exemption can or should be granted under s 22 of the Act, and I propose to dismiss the appeal in Appeal No 20802 of 2013. 109In Appeal No 20694 of 2013, in the absence of an exemption under s 22, and in circumstances where s 9 of the Act and cl 23 of the 2008 Regulation do not apply so that it would be sufficient for the property to comply with cl 6 of the 1998 Regulation, I am satisfied that the swimming pool does not comply with the requirements of Part 2 of the Act. Section 23 confers power on the Council, and, applying s 39(2) of the Court Act, the Court, to direct the owner to take specified measures to ensure that the swimming pool complies. I accept that compliance with the requirements of Part 2 of the Act, in particular the provision of fencing to separate the swimming pool and spa from the dwelling and the adjoining properties, would require the applicant to undertake additional work at some cost, and that would take some time. As foreshadowed at the hearing, it is appropriate that the parties have an opportunity to consider the terms of any amended direction. I will made directions in consultation with the parties to provide an opportunity to consider and agree on appropriate orders, following which orders disposing of both appeals will be made in chambers. Linda Pearson Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2014