Reemst v Woollahra Municipal Council

The parties' contentions 10Council refused the exemption on the basis that it is neither 'impracticable nor unreasonable' for the applicant to install a child resistant barrier in accordance with the Swimming Pools Regulation 2008 (the Regulations) and Australian Standards AS1296.1-2007. Specifically, it found nothing about the physical nature of the site, the design or construction of the pool, or any special circumstances of the kind recognised by the Regulations that would prevent compliance. Similarly, it is council's view that there is no alternative provision of a system to restrict access to the pool that is any less effective than the requirements of the Regulations and the relevant Australian Standard. In particular, the council maintains that a "child resistant doorset" by itself does not constitute a 'child-resistant barrier'. 11In the applicant's Statement of Facts and Contentions, the applicant considers the current door between the dwelling and the pool to be a "child-resistant doorset' as described by the Building Code of Australia (BCA) and AS 1926.1. The applicant maintains that a young child could not practically gain access to the pool via this door. The applicant's position is that the particular circumstances of the situation make it not sensible (impractical [sic]) or unfair (unreasonable) to install a compliant child-resistant barrier. Further, the applicant contends that given the pool's design and construction, a fence and gate will: fail to provide improved safety for a young child, restrict access to the pool, and be visually unappealing. 12The applicant maintains that in order to obtain a final occupation certificate for the completed building works, an exemption pursuant to s 22 of the Act must be granted, or a compliant child-resistant barrier be constructed, or the pool deemed to be an indoor/outdoor pool.

The Act 13The following sections of the Swimming Pools Act 1992 are relevant. 7General 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 the 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 and 22. 22Local 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. 26What appeals may be made against the decisions of a local authority? (1)An appeal lies to the Land and Environment Court against the following decisions of a local authority: (a)a decision to refuse to grant an exemption under section 22 in accordance with the terms of the relevant application, 14Section 3 of the Act defines the following terms: 3(1)Barriermeans a fence or wall, and includes: (a)any gate or door set in the fence or wall, and (b)any other structure or thing declared by the regulations to be a barrier for the purposes of this Act. 3(3)Notes included in this Act do not form any part of this Act.

The Regulations 15For reasons that will be explained elsewhere in this judgement, two versions of the Swimming Pools Regulation 2008 are considered. The version in force when the Construction Certificate was issued is referred to in this judgment as the Historical Regulation [in force between 9 April 2010 and 30 April 2011]; the version in force when the exemption application was made to council and the appeal was made to the Court is the current Regulation, referred to as 'the Regulation' [in force from 1 May 2011 to present]. The current version was amended by the Swimming Pools Amendment Regulation 2011. 16The following clauses in the Historical Regulation are considered relevant [NB cl 3(2) states: Notes included in this Regulation do not form part of this Regulation.] Division 1 Restriction of access to outdoor swimming pools 5General requirements for outdoor swimming pools For the purposes of sections 7(1)(b) and 12(d) of the Act, the prescribed standards in accordance to 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 explanatory note on the cover page of the Swimming Pools Amendment Regulation 2011 states the following: The object of this Regulation is to amend the Swimming Pools Regulation 2008 so as to require [relevantly]: (a)child-resistant barriers surrounding new outdoor swimming pools to be designed, constructed, installed and maintained in accordance with the standards set out in the Building Code of Australia, from 1 May 2011, and This Regulation also provides that child-resistant barriers and means of access that are required to comply with standards prescribed under this Act that are amended can comply with those standards by continuing to comply with the standards that previously applied to those barriers or means of access. 18The following clauses in the (current) Regulations are relevant: 4References to compliance with AS 1926.1 - 2007 or Building Code of Australia For the purpose of this regulation, a child-resistant barrier, window or doorway is taken to comply with the standards set out in a clause in AS 1962.1-2007 or the Building Code of Australia so long as it complies with the minimum requirements for that clause. Division 1 Restriction of access to outdoor swimming pools 5General 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 the Building Code of Australia. [The footnote to cl 5 in the Historical Regulation has been deleted from the current version of the Regulation]. 22AEffect of changes to prescribed standards for existing complying swimming pool barriers and means of access (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 the time and the barrier continues to comply with that standard, or (3)If a 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 the time and the means of access continue to comply with that standard, or

Building Code of Australia 19The relevant part of the BCA referred to in cl 5 of the Regulations is: PART 3.9.3SWIMMING POOL ACCESS 3.9.3.0 (a)Subject to (b) and (c), Performance Requirement P2.5.3 is satisfied for a swimming pool associated with a Class 1 building, with a depth of water more than 300 mm if it has safety barriers installed in accordance with AS 1926 parts 1 and 2. (b)A child-resistant doorset must not be used in a barrier for an outdoor swimming pool, (c)[refers to indoor swimming pools] Explanatory information: 1.AS 1962.2 defines - (a) a child-resistant doorset, as a doorset that comprises a door, door frame, self-closing device and self-latching device, that is designed to provide an access way from the building to the swimming pool; and (b) an outdoor pool, as a pool not fully enclosed by a building. 2.A door must not be installed between a Class 1 or Class 10a building and an outdoor swimming pool enclosure if the door forms part of the swimming pool safety barrier, because the use of a child resistant doorset described in the Standard is prevented under 3.9.3.0(b).

Australian Standard 20Cross-referenced in both the Regulations and the BCA is AS 1926. AS 1926.1 - 2007 Swimming pool safety Part 1: Safety barriers for swimming pools and AS 1962.2 - 2007 Part 2:Location of safety barriers for swimming pools, incorporating Amendment No 1. were the relevant editions when the CC was issued. At the time of the exemption application and subsequent appeal to the Court, the standard had been reissued in December 2011 and incorporated Amendment 2. The different editions of AS 1926 are noted as A1 or A2. 21The applicant drew the Court's attention to the Preface in Part 1. Relevant paragraphs are: The objective of this Standard is to assist pool owners/ users in avoiding pool-related drowning by providing design, construction and performance of various barrier options, which are designed to deny, delay or detect unsupervised entry to the swimming pool area by young children Statistical evidence shows that the majority of drowning deaths in private swimming pools involve children under five years of age. For this reason, the requirements established by this Standard are directed at obtaining a barrier that will make it difficult for a young child to gain access to a pool area, whether under, over, or through the barrier. It should be noted that the provisions of this Standard relate to barriers that are intended to be child resistant but not childproof, as effectiveness of the barrier is very much dependent on its location, installation and maintenance. The requirements are established with the intention of leaving a high degree of flexibility to the consumer in the choice of barrier, desirable aesthetics and cost. 22Clause 2.8 of AS 1926.1(A1) specifies the requirements of a child-resistant doorset. Guidance note 1 after cl 2.8(g) states: NOTES: 1.In most circumstances allowing direct access to the pool area from a building, even via child-resistant doorsets, compromises safety as the doorset may be treated as a normal door and not maintained as a purpose-built safety device to form a barrier that will consistently restrict the access of young child ren to the swimming pool. Accordingly, this option should only be used with caution where physical circumstances preclude any other acceptable solution. 23Clause 4.2 of AS 1926.2 (A1) includes diagrams showing typical locations of barriers for outdoor pool. Examples 3 and 4 are examples where one wall of the dwelling forms part of the barrier. No child-resistant doorsets are shown in the dwelling wall. However, cl 4.3 refers to nominative Appendix A (i.e. an appendix integral to the Standard) in version A1 indicates that "where the wall of a building forms part of the barrier, child-resistant doorsets and child-resistant openable portions of windows complying with AS 1926.1 are permitted". The accompanying figures give examples. While these appear to be at odds with the diagrams in cl 4, cl 4.3 states that this may be permitted in some jurisdictions. 24Version 2 of AS 1926.2 (A2) clause 4.2 Outdoor pools [options for location of barriers] as amended reads in part: A child-resistant doorset shall not be installed in a barrier for an outdoor pool. The openable portion of any window in a barrier shall comply with AS 1926.1. 25The illustrations that accompany this clause are as for the A1 version. Further, Appendix A (as quoted in [24] above) had been deleted.

The hearing and the evidence 26The hearing commenced on site with an inspection of the pool and the door from the lower-ground floor of the dwelling to the pool deck and garden. A temporary wire-mesh barrier and gate were in place on the pool deck between the door and the eastern end of the pool. The effect was an alcove beyond the door formed by two panels of fencing supported by the glass wall of the downstairs room and the stone feature wall at the eastern end of the pool. 27The experts engaged by the parties attended the view. Mr Scott Kitching, council's Building and Compliance Officer was present as was Mr Roderick Lemon, Chartered Quantity Surveyor for the applicant. The experts prepared a joint report. It was confirmed that the two gates into the garden were not subject to the exemption application. Mr Kitching stated that notwithstanding some problems with spacings of the parts of the temporary fencing, the temporary setup would comply with the requirements for a child-resistant barrier. 28The experts also agreed, that in their opinion, the lever on the door handle should be replaced with a handle or inoperable lever in order for it to be a fully compliant child-resistant doorset. 29I note that the applicant's original contentions considered that the pool should be characterised as an 'indoor/outdoor' pool as it is partly enclosed at the eastern end. However, during the course of the proceedings, and after hearing from the experts, the applicant agreed that the pool is best described as an 'outdoor' pool. 30With the agreement of the respondent, the Mr George for the applicant provided written submissions on the role of 'notes' contained in Acts or Regulations in regards to statutory interpretation. The applicant submits that s 35(2) of the Interpretation Act 1987 expressly states that a footnote does not form part of any Act or instrument. In Mr George's opinion, the corollary to this is that a footnote cannot be used to ascertain the meaning of a provision. This submission is made in relation to Mr George's assertion that Mr Campbell is relying on the footnote to cl 5 of the Regulations to make good a contention that child-resistant doorsets have been impermissible for some time. 31Mr Campbell does not dispute the fact that 'notes' do not ordinarily form part of an Act or Regulation [indeed this is specifically stated in the definitions of both the Act and Regulations relevant to this matter]. However, Mr Campbell cites s 34(1)(a) of the Interpretation Act 1987 which provides that: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1)In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or...

Findings on the exemption 32This matter before the Court is not an appeal against a condition of consent or an appeal against a compliance order. It is an appeal against an application for an exemption under s 22 of the Pools Act made in 2012. Therefore, in my view the relevant legislation and Standards are those relevant at the time of the exemption application to the council - 2012 and subsequently appealed to the Court. However, if I am wrong, I will also consider the relevant legislation and standards in force at the time the Construction Certificate was issued. 33Of fundamental importance is s 7 of the Act. This requires the owner of an outdoor swimming pool to ensure that the pool is at all times surrounded by a child-resistant barrier that separates the pool from any dwelling on the premises and from any adjoining land (s 7(1)(a). The barrier must be designed, constructed, installed and maintained in accordance with the standards prescribed in the Regulations (s 7(1)(b). 34The current Regulations were in force when the application for an exemption was lodged with the council. Clause 5 of the Regulations applies to sections 7(1)(a) and 7(1)(b) of the Act. This clause state that the prescribed standards for which a child-resistant barrier is to be designed, constructed, installed and maintained are the standards set out in the BCA. 35Clause 3.9.3.0(b) of the BCA expressly states that a child-resistant doorset must not be used in a barrier for an outdoor swimming pool. Clause 3.9.3.0(a) in turn refers to the controls in AS 1926 Parts 1 and 2. 36When the applicant lodged the exemption application with the council, AS 1926 included Amendments 1 and 2. Relevantly, clause 4.2 in AS 1926-2 states that a child-resistant doorset shall not be installed in a barrier for an outdoor pool. 37Therefore, the expected compliant child-resistant barrier for an outdoor pool prohibits the use of a child-resistant doorset in the barrier. 38Notwithstanding those statutory provisions, s 22 of the Act enables an exemption to those provisions under certain circumstances. 39In regards to the submissions on 'notes', in my view, the intent of any 'note' in an Act/ Regulation/ Australian Standard/ or similar Code, is indeed to clarify or confirm the meaning of a provision; very often, 'notes' are 'plain English' explanations of more binding sections or clauses where without a more detailed explanation, there may be some confusion. It would seem to me that the footnote to clause 5 of the Historical Regulations is simply clarifying the relationship between s 7 of the Act and the relevant provisions of AS 1926.1 - 2007 in the jurisdiction of NSW. That footnote has been deleted from the current version of the Regulations and therefore has no relevance to my consideration of the current requirements for compliance.

Is compliance impracticable or unreasonable in the circumstances? 40The Macquarie dictionary defines 'impracticable' as: cannot be put into practice with the available means; unsuitable for practical use or purposes, as a device, material etc. 'Impractical' - the term used by the applicant is defined as not practical. 'Practical' relevantly defined as consisting of, involving, or resulting from practice or action; adapted for actual use. 'Unreasonable' is defined as: not reasonable; not endowed with reason; not guided by reason or good sense; not based on or in accordance with reason or sound judgment; exceeding the bounds of reason; immoderate; exorbitant. 41Of relevance to this matter, s 22 considers whether compliance is impracticable or unreasonable because of the physical nature of the premises or the design/ construction of the pool. The applicant's position is partly that the pool has been constructed and is too late to retrofit a child-resistant barrier and that any additional barrier would not provide a safer situation. Arguments were also made that a barrier would unreasonably, and perhaps dangerously, limit access to and from the pool. 42It was clear from the site inspection and the evidence of the temporary barrier, that a similarly dimensioned and permanent child-resistant barrier is clearly practicable - that is, can be put into practice. There is adequate space at the eastern end of the pool deck to accommodate a gate. The Act, Regulations, BSC and AS 1926 enable an owner to choose the materials from which such a barrier is to be constructed. 43It is self-evident that the overall intent of the Act, Regulations, relevant sections of the BCA and the Australian Standard is to make it very difficult for a young child to gain access from a dwelling to a pool. It is also clear to me that the 2011 amendment to the Regulations with its reference to cl 3.9.3.0(b) of the BCA and the second amendments to the Australian Standard are to tighten up the requirements for child-resistant barriers by prohibiting child-resistant doorsets as a component of a child-resistant barrier around outdoor pools. The second amendment of the Standard removes the apparent anomaly between cl 4 and Appendix A in the 2008 edition. It would therefore seem that these requirements are 'guided by good sense' and compliance with them in this situation does not 'exceed the bounds of reason'. Indeed, the paragraphs in the preface drawn to my attention by the applicant [21] explain the reasoning behind the Standard. 44In my view, there is nothing in the design or construction of the pool or in the physical natures of the premises that make it either impracticable or unreasonable to install a compliant child-resistant barrier as required by the current Regulations, BCA and Australian Standard AS 1926. Further, I note that the doorway from the dwelling to the pool is deck is remote from the main the living area and is down a flight of stairs and behind the lift, that is, the door is unlikely to be subject to regular internal surveillance. In addition, the floor of the living room is cantilevered over the eastern end of the pool, so similarly, there is no opportunity for surveillance of that part of the pool from the main part of the dwelling. Therefore it would seem to me that a child-resistant barrier is entirely reasonable in the circumstances. 45The applicant contends that the alternative provision of a modified handle or key pad on the door from the dwelling would satisfy s 22(1)(b) and be no less effective than an additional child-resistant barrier. The applicant maintains that this could be conditioned by was of s 22(2) of the Act. 46For the reasons given above, I am satisfied that the circumstances are such that a child-resistant barrier is practicable and reasonable and that a child-resistant doorset by itself is inadequate and unjustifiable. Therefore, on the basis of the current requirements, the application for an exemption is dismissed.

The historical Regulations and Standards 47As stated earlier, if I am wrong as to what Regulations and Standards should apply, I make the following findings in regards to the Act, Regulations and Standards that applied when the Construction Certificate was issued. 48Firstly, nothing has been brought to my attention that suggests there has been any amendment to the Act within the timeframe in question. Therefore at CC stage, s 7 applied, as did s 22; that is, the owner was obliged to ensure that the outdoor swimming pool was separated from the dwelling by a child-resistant barrier unless it was unreasonable or impracticable to do so. 49While I accept that the footnote to cl 5 of the Historical Regulations is not part of the legislation, it was clearly inserted to draw attention to the inapplicability of provisions in AS 1926.1-2007 regarding doorsets in child-resistant barriers as required by s 7 of the Act. Section 34(1)(a) of the Interpretation Act 1987 enables the Court to take such notes into consideration in order to confirm the meaning conveyed in the provision to which the note applies. 50There is no definition of 'child-resistant barrier' in edition A1 of AS 1926.1; the definition of 'barrier' includes 'doorset' and 'child-resistant windows' but there is no inclusion of 'child-resistant doorset' in the definition. 'Child-resistant doorset' is separately defined and specified in cl 2.8. Relevantly, cl 2.8 contains what could be described as a cautionary note about the use of 'child-resistant doorsets'. 1.In most circumstances allowing direct access to the pool area from a building, even via child-resistant doorsets, compromises safety as the doorset may be treated as a normal door and not maintained as a purpose-built safety device to form a barrier that will consistently restrict the access of young children to the swimming pool. Accordingly, this option should only be used with caution where physical circumstances preclude any other acceptable solution. 51While 'notes' in Standards are not an integral part of the Standard they are there for information and guidance. As already found, the physical circumstances of the premises do not preclude any other acceptable solution, or alternatively, justify the use of only a child-resistant doorset. 52While the Historical Regulations do not refer specifically to AS 1926.2 -2007, in my view, it is entirely reasonable to consider that section be included in any reference to AS 1926.1. As already noted, there are a number of anomalies in Amendment 1 of AS 1926.2 - 2007 where the wall of a building forms part of a barrier. Clause 4 diagrams do not include a child-resistant doorset and cl 4.2 states that: 4.2Barriers for outside pools shall not permit access to the pool area from the building or adjoining properties. Where the wall of a building forms part of the barrier, a child-resistant window that complies with AS 1926.1, is permitted. 53Clause 4.3 states 4.3In jurisdictions where barriers with child-resistant doorsets are permitted, the barrier shall comply with Appendix A. 54Returning to the footnote in cl 5 of the Historical Regulations, 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. It seems reasonable to assume that the note implies that the NSW jurisdiction does not permit the use of child-resistant doorsets in child-resistant barriers. 55Notwithstanding the confusion regarding the permissibility or otherwise of child-resistant doorsets as part of a child-resistant barrier in the Historical Regulations and earlier version of the Standard, these proceedings were initiated because the Principal Certifying Authority found the barriers around the applicant's pool to be non-compliant with the requirements of the time. The parties' experts have found the door handle to be unsatisfactory. Nothing has changed in the physical nature of the premises or in the design or construction of the pool from the CC stage to now. Therefore at the CC stage it was also practicable to have installed a compliant child-resistant barrier. 56On the basis of the requirements of the Act at the time of the issue of the CC, I also find that the application for an exemption should be dismissed. 57In regards to the possible savings provisions in cl 22(2)(a) of the Regulations (as flagged in the 2011 Amendment), they do not apply as immediately before the amendment took effect, the Principal Certifying Authority deemed the child-resistant barrier to be non-compliant. On this basis, I consider that the current requirements must apply.

Orders 58As a consequence of the foregoing, the Orders of the Court are: (1)The appeal is dismissed. (2)The application for an exemption under s 22 of the Swimming Pools Act 1992 from the child-resistant barrier requirements for an outdoor swimming pool given in s 7(1) of the Act is refused. (3)Exhibits A, 2 and 3 are retained, all other exhibits are returned.

J Fakes 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: 31 May 2012