Stuart Palmer v Ku-ring-gai Council [2017] NSWLEC 1399

Land and Environment Court New South Wales

Medium Neutral Citation: Stuart Palmer v Ku-ring-gai Council [2017] NSWLEC 1399 Hearing dates: 21 July 2017 Date of orders: 28 July 2017 Decision date: 28 July 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:

(1) The appeal is dismissed. Catchwords: SWIMMING POOLS: Appeal against a Direction; Application for an exemption. Legislation Cited: Land and Environment Court Act 1979 Swimming Pools Act 1992 Swimming Pool Regulation 2008 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Stuart Palmer (Applicant) Ku-ring-gai Council (Respondent) Representation: Mr S. Palmer (In person) Ms L. Finn (Respondent)

Solicitors Hones Lawyers (Respondent) File Number(s): 2017/82822 Publication restriction: Nil

Judgment

Background 1. COMMISSIONER: Mr Stuart Palmer (the Applicant) has appealed a decision by Ku-ring-gai Council (the Respondent) to issue a Direction to Comply under s23(1) of the Swimming Pools Act 1992 (the SP Act). The appeal is made pursuant to section 26(1) of the SP Act. 2. The Direction to Comply was issued in relation to the Applicant's premises at 37 Bayswater Road, Lindfield (the Subject Site) and an application made to Ku-ring-gai Council by Mr Palmer for a Swimming Pool Compliance Certificate under s22 of the SP Act. 3. The Subject Site includes a two-storey residential building, constructed in 2004, and an outdoor swimming pool constructed prior to August 1990. These dates were agreed between the Parties. 4. The swimming pool is bounded by: 1. the neighbouring property to the south-west; 2. a pool fence and gate to the north-west; 3. a wooden fence adjoining the front carport to south-east; and 4. the residential building to the north-east. 1. In reviewing the application for a Swimming Pool Compliance Certificate, the Respondent undertook an inspection of the Subject Site on 13 January 2017 and identified certain non-compliances with respect to the requirements of Part 2 (Division 1) of the SP Act, which concerns access to outdoor swimming pools for dwelling houses etc. The Respondent issued a Direction to Comply (SPA0015/17) on 20 January 2017 requiring that the Applicant rectify the identified non-compliances. 2. Following an exchange of communication between the Parties, the Respondent undertook a further inspection, with the Applicant's consent, to review the basis for issuing the Direction. During that inspection the Respondent noted that certain matters identified in the Direction to Comply had been satisfactorily addressed. However, the Respondent also noted certain additional non-compliances in relation to the provisions of the SP Act and the Swimming Pools Regulation 2008 (the Regulation). 3. Subsequently, the Respondent advised the Applicant that its original Direction to Comply, issued on 20 January 2017, had been revoked, and that a new Direction to Comply (SPA0035/17) would be issued. This was issued on 17 February 2017, and it is this most recent Direction to Comply that is the subject of this appeal. 4. The appeal was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) on 21 July 2017. An inspection of the Subject Site was undertaken as part of the conciliation conference. 5. During the inspection the Respondent's expert, Ms Kate Stoner, a contract senior building surveyor, noted that certain works undertaken by the Applicant had satisfactorily resolved all but one of the matters identified as requiring rectification in the Direction to Comply. 6. The unresolved matter concerned the non-compliance, in the Respondent's opinion, of a door, located on the ground floor south west wall of the residential building, that provided direct access to the swimming pool from the internal laundry of the residential building on the premises. 7. The Applicant said that he had installed treatments at the door to restrict access to the swimming pool from the residential building through the laundry. These treatments included a series of locks, a self-closing mechanism for the door, and a safety latch mechanism located at the height of more than1500mm above the floor level that could be operated from either side of the door. 8. Having reviewed these treatments, the Respondent remained of the view that the laundry door was non-compliant with the requirements of the SP Act and the Regulation. 9. According to the Respondent's expert, Ms Stoner, the door formed part of the barrier between the residential building and the pool area, and, as a consequence, was subject to the requirements of s7 of the SP Act. Given this, Ms Stoner said that the door should comply with the current Australian Standard for Safety Barriers for Swimming Pools, AS1926.1-2012, as the relevant standard under the Regulation, which required that no access should be possible to the swimming pool through the door. 10. The Applicant said that, because the pool was constructed prior to August 1990, the pool and its compliance requirements were subject to the provisions s8 of the SP Act, which provided an exemption to requirements of s7, owing to its date of construction before August 1990, and that the relevant standard for the door was the earlier version of the standard, AS1926.1-2007. It was agreed by the Parties that the treatments applied to the door by the Applicant would comply with that earlier standard. 11. The Respondent's expert, Ms Stoner, said that, in her opinion, the Applicant was not able to rely on s8 of the SP Act to claim an exemption from the requirements of s7, because: 1. the current residential building, erected in 2004, had introduced a new barrier to the swimming pool that had replaced the previous barrier restricting access to the swimming pool; 2. the laundry door formed part of the barrier to the swimming pool; 3. these facts were consistent with the provisions of s8(4) of the SP Act under which the exemptions provided by s8 ceased to apply. 1. In support of this opinion, the Respondent noted that the definition of a barrier in the SP Act included any door set in a wall that formed part of a barrier restricting access to a swimming pool. 2. In response, the Applicant said that s8(4) did not apply because, in his opinion, the door formed part of the residential building, and so could not be considered part of a barrier between the residential building and the swimming pool. 3. In his Class 2 Application initiating this appeal, the Applicant submitted that the Respondent had advised that the requirements cl23 of the Regulation, which provides a basis for exemptions for existing complying swimming pools, did not apply to the swimming pool on the Subject Site. During the conciliation conference, the Applicant said that he did not seek to rely on cl23 of the Regulation as a basis for seeking an exemption to the requirements of s7 of the SP Act. 4. The Parties were unable to agree during the s.34 conciliation as to the compliance or otherwise of the laundry door, and so the conciliation process was terminated. 5. The parties consented to me disposing of the proceedings under s34(4)(b)(ii) of the LEC Act on the basis of what occurred at the conciliation conference.