Gross v Ku-ring-gai Council [2017] NSWLEC 1457

Land and Environment Court New South Wales

Medium Neutral Citation: Gross v Ku-ring-gai Council [2017] NSWLEC 1457 Hearing dates: 18 August 2017 Date of orders: 24 August 2017 Decision date: 24 August 2017 Jurisdiction: Class 1 Before: Martin SC Decision: (1) The appeal is upheld. (2) Notice number SPA0210/16 issued by the Council under section 23 of the Swimming Pools Act 1992 is modified as set out in the updated notice shown as Attachment "A" to this judgment. (3) The Exhibits, save for Exhibits 1, 3, A and B, are returned. Catchwords: Swimming pool – appeal against direction – adequacy of child restraint barrier Legislation Cited: Australian Standard 1926.1-2012 Swimming Pools Act 1992 Swimming Pools Regulations 2008 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Dr Ernestine Gross (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Self-represented (Applicant) Mr C Drury, Solicitor (Respondent)

Solicitors: Sparke Helmore (Respondent) File Number(s): 2017/40758 Publication restriction: No

Judgment 1. This appeal has been brought by the Applicant against the issue of a notice (SPA0210/16) issued by the Ku-ring-gai Council (the Council) under section 23 of the Swimming Pools Act 1992 (the Notice) in respect of a swimming pool located at 11 Hesperus Street, Pymble, and dated 13 January 2017. 2. The question at the heart of this appeal is a simple one: should the Applicant be required to comply with the terms of the Notice issued by this Council to ensure the child resistant barrier is compliant with the relevant legislative regime? I find the answer to that question to be "yes". 3. The relevant regulatory regime as it relates to pool fences, for the purposes of this appeal, is the Swimming Pools Act 1992, the Swimming Pool Regulations 2008 and the Australian Standard 1926.1 – 2012 ( the regulatory regime). 4. Without reciting the lengthy chronology and series of exchanges between the parties, for present purposes it is convenient to state that the boundary fence between the two properties located at number 11, and its immediate neighbour located at 15 Hesperus Street, was observed by Council officers to have collapsed in June 2016: Statement of evidence of Mr Warwick Bailey, Environmental Health and Building Surveyor and Fire Safety Co-ordinator with the Council, at [8] and [10]: Ex 2. This led to a situation where there was no longer a swimming pool boundary barrier to prevent access to the swimming pools located on each property. 5. As a result of the collapse of the fence, an Emergency Direction under s 23 (6) of the Swimming Pools Act was issued by Mr Bailey on 28 June 2016. The order was issued to each of the Applicant and the owner of number 15, requiring amongst other things the construction of a complying 1.8 m high boundary barrier fence to isolate the swimming pools of each premises: Ex 2 at [11]. 6. Following the making of that order, the old fence was removed, and a new fence constructed. The new fence, constructed of timber palings and approximately 1.8 m in height, sits above a retaining wall. That retaining wall had not been visible until the old fence had been removed. The retaining wall is constructed of what might be described as "builder's rubble". 7. In the course of attending to the collapsed boundary fence, a number of non-compliances with the regulatory regime with respect to the pool located on the Applicant's property was observed by Mr Bailey. It is these non-compliances which were the subject of the Notice, and the subject of this appeal. 8. The issue of the Notice followed the issue of a draft direction from the Council to Dr Gross in December 2016, inviting Dr Gross to make representation as to why the direction should not be served. Dr Gross duly made representations. Having considered those, Council nonetheless proceeded to issue the Notice. 9. Section 23 of the Swimming Pools Act is set out below: