Land and Environment Court New South Wales Medium Neutral Citation: Palmer v Ku-ring-gai Council [2018] NSWLEC 16 Hearing dates: 16 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Class 2 Before: Moore J Decision: At [19] Catchwords: ORDER APPEAL - appeal against decision of Commissioner - order concerning access to swimming pool - pool constructed prior to 1990 - whether excemption in s 8 of Swimming Pools Act 1992 continues when new dwelling constructed in 2004 - whether door in wall of new dwelling permissible - effect of Council order confirmed by Commissioner - no error in outcome of proceedings before Commissioner - appeal upheld for the sole purpose of extending time for compliance with order Legislation Cited: Swimming Pools Act 1992, ss 3, 8 Land and Environment Court Act 1979, s 56A Cases Cited: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Category: Principal judgment Parties: Stuart Palmer (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Applicant in person Dr J Smith, barrister (Respondent) Solicitors: Hones Lawyers (Respondent) File Number(s): 277440 of 2017 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: Mr Palmer has appealed against a decision given by Chilcott C in an appeal by Mr Palmer against an element of a direction given to him by Ku-ring-gai Council (the Council) concerning a door in a wall of his residence, where that door, the laundry door, provides direct access to the swimming pool that is located on his premises. The Commissioner's decision was given on 28 July 2017, promptly after a hearing on 21 July 2017. 2. The question that arises for my consideration in these proceedings is, critically, whether the conclusion expressed by the Commissioner in [40] of his decision that s 8(4) of the Swimming Pools Act 1992 (the Swimming Pools Act) acts to remove the exemption which might otherwise be expected to have applied to the swimming pool on Mr Palmer's premises is correct. 3. It is for the purposes of understanding that which is in contention to have some small regard to the timing of matters relating to his property. The first is that the swimming pool was constructed prior to August 1990 and that, as a consequence of that, the exemptions provided for in s 8 of the Swimming Pools Act, prima facie, apply to it unless the cessation provision in s 8(4) of the Act intervenes to remove the exemption. The residential dwelling, of which the laundry door forms part, was constructed in 2004, that is some considerable time after the swimming pool was constructed. 4. The argument that here arises is how one interprets the exclusionary provision contained in s 8(4) of the Swimming Pools Act, a provision that reads: This section ceases to apply in respect of a swimming pool if a barrier was erected on the premises between the swimming pool and a residential building was a barrier to direct access to the swimming pool from any residential building situated on the premises. 1. There is no dispute, and it is as depicted in the photographs in Mr Palmer's written submissions, that the laundry door provides direct access to the swimming pool from the residential building. The question is, therefore, whether the erection of the wall that contains the laundry door is to be regarded as a barrier for the purposes of being between the swimming pool and a residential building. 2. There are a number of definitions contained in s 3 of the Swimming Pools Act that are relevant. The first is the definition of "barrier", which is an inclusionary one and not one which purports to be an all-encompassing one, but it includes a wall for the purposes of this discussion. 3. "Residential building" is defined so that it clearly encompasses the dwelling that is on the site. 4. The question is whether the wall, that is the wall that includes the laundry door, is for the purposes of the exclusionary provision in s 8(4), between the pool and the house. A strict approach, as advocated by Mr Palmer, is that the wall is not between the house and the pool but is part of the residential building and is therefore not encompassed within the exclusionary action of s 8(4). 5. There are two matters, it seems to me, that militate against that conclusion. The first is that what is required is for it to be a barrier to direct access. On Mr Palmer's construction, the only barrier that could act in the fashion that he says would flow from his interpretation of s 8(4) would be a barrier that was erected outside the wall of the dwelling, even if only a matter of millimetres beyond it. 6. The clear purpose of the legislature is that there be a barrier to direct access erected after the relevant date in 1990. As Dr Smith submitted to me, the High Court made it clear, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at [26], that where there is a choice between competing interpretations of a statute, the fairer and more convenient operation should be preferred, as long as it conforms to the legislative intention. 7. It seems to me that in these circumstances, provided s 8(4) operates with respect to this residential dwelling, a proper and convenient interpretation of its terms would bring the laundry door within its operation and therefore remove the exemption for the swimming pool on a time basis. 8. Mr Palmer also submits that there is no clear legislative intention that s 8(4) should operate in the retrospective fashion that the Council says it should operate, that is, it having been inserted as a result of amendments in 2012 and the dwelling having been erected in 2004. In his submission, absent any clear intention that the provision should operate retrospectively, it should not be so regarded as operating. 9. The Swimming Pools Act contains, in Sch 3, a range of savings, transitional and other provisions, provisions which include in them, in Pt 3, provisions consequent upon the 2009 amendments and, in Pt 4, provisions consequent on the 2012 amendments. The provisions in each relevant instance provide for transitional arrangements. 10. They do not provide for any transitional arrangements with respect to s 8(4) and, having provided for other transitional arrangements, it is clearly to be inferred that the legislature intended that s 8(4) would have retrospective effect. 11. It may well be that the legislature did not contemplate what might be the position arising if a new dwelling were erected in proximity to a swimming pool constructed prior to August 1990, but it is, nonetheless, the consequence of the enactment of s 8(4) that that position is legislatively accommodated by the removal of the exemption in circumstances such as these. 12. At the commencement of the hearing I indicated to Mr Palmer and Dr Smith that if I were minded to reach the conclusion that the Commissioner was correct that the exemption in s 8(4) did not apply, even if I were to conclude that he had reached that conclusion by an inappropriate path, then the appropriate course for me to adopt was not to dismiss the appeal, because that would mean that the period for compliance (which had been 90 days from the date of the giving of the Council's order) would stand. There would be no further opportunity for Mr Palmer to comply in light of my findings. That would be a clearly inappropriate outcome of the proceedings. 13. I indicated that if I were to conclude, as I have concluded, that s 8(4) of the Swimming Pools Act has acted to remove the exemption with respect to the laundry door, the appropriate course for me to deal with the matter is to uphold the appeal, but to do so solely for the limited purpose of me making an order pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979 (the Court Act) to enable Mr Palmer to have sufficient time to comply with the Council's requirements or, if he wished to do so, to seek a discretionary exemption from the Council. As a consequence, the orders of the Court that I will shortly pronounce deal with that. 14. The general position with respect to appeals pursuant to s 56A of the Court Act is that costs follow the event and there is no reason why I should depart from that approach in these proceedings. 15. The orders of the Court therefore are: 1. The appeal is upheld; and 2. Pursuant to s 56A(2)(b) of the Land and Environment Court Act 1979, the time for compliance with the orders issued by Ku-ring-gai Council to the Applicant is amended to require compliance within 120 days of the date of these orders; and 3. The costs of the proceedings are to be paid by the Applicant. ********** 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: 20 February 2018