Fairfield City Council v Saha [2018] NSWLEC 104

Land and Environment Court New South Wales

Medium Neutral Citation: Fairfield City Council v Saha [2018] NSWLEC 104 Hearing dates: 27 June 2018 Date of orders: 27 June 2018 Decision date: 27 June 2018 Jurisdiction: Class 4 Before: Pain J Decision: See orders at [24] Catchwords: ENVIRONMENT AND PLANNING – Fences and boundaries – inadequate fencing for swimming pool-orders made requiring compliance with Swimming Pools Act Legislation Cited: Local Government Act 1993 s 124 Swimming Pools Act 1992 ss 7, 15, 23, 30 Cases Cited: Gosford Waterfront Alliance Inc v TO Gosford Pty Ltd [2016] NSWLEC 130

Save Little Beach Manly Foreshore Incorporated v Manly Council (2013) 198 LGERA 304; [2013] NSWLEC 155 Category: Principal judgment Parties: Fairfield City Council (Applicant) Dharmesh Kumar Saha (Respondent) Representation: COUNSEL: A J J Thompson solicitor (Applicant) Dharmesh Kumar Saha in person (Respondent)

SOLICITORS: Ritchie & Castellan (Applicant) N/A (Respondent) File Number(s): 2017/269196

EX TEMPORE JUDGMENT 1. Mr Saha the Respondent has a swimming pool in his backyard in Polding Street Bossley Park. Fairfield City Council (the Council) as the Applicant alleges that he does not have pool fencing which complies with the Swimming Pools Act 1992 (the Act) and the relevant Australian standard AS 1926.1-2012 in various respects. 2. The Council has commenced Class 4 proceedings to enforce the Swimming Pools Act as provided by s 30 of that Act. The Court has power to make orders where satisfied that a breach of the Act has been committed to remedy or restrain a breach of the Act. The matter was referred to mediation but has not settled. 3. Prayer 1 of the Summons seeks an order that the work identified in Annexure A to the Summons be carried out pursuant to ss 7 and 15 of the Act. Prayer 2 in the Summons is not pressed as Mr Saha has drained the pool already. 4. Section 7 of the Act specifies the general requirement of outdoor swimming pool owners to ensure that the swimming pool is at all times surrounded by a child-resistant barrier. Section 15 requires that a child resistant barrier be in a good state of repair as an effective and safe child-resistant barrier. 5. The Council relies on the affidavit of Mr Gittany council building surveyor sworn 12 December 2017 which identifies that development consent was granted for the pool in 1984, correspondence with Mr Saha regarding the pool fencing, correspondence from Mr Saha attributing difficulties due to a dispute with a neighbour with whom he shares a relevant boundary fence and the issuing of an order for failing to comply with the Swimming Pools Act requiring work to be carried out on 27 July 2017. A swimming pool checklist applying AS 1926.1-2012 conducted for Mr Saha's premises on 23 November 2017 was annexed and identified a large number of outstanding matters which are required to be addressed before the standard is complied with. 6. Mr Gittany was cross-examined by Mr Saha and identified that the NSW Swimming Pools and Spa Association pool safety barrier guidelines (Exhibit 1) referring to non-climbable zones were unclear in that they did not specify which Australian standard they referred to. Two Australian standards are particularly relevant being 2007 and 2012. He was also questioned about what tests for rigidity of pool fencing he had undertaken and what measurements he taken in relation to paling distances. 7. The Council's tender bundle (Exhibit A) included a number of documents which related to the draining of the swimming pool. As Mr Saha has complied with the order to drain the swimming pool I have only listed those documents relating to the fencing issue being: 1. the Summons filed 5 September 2017; 2. the Council's Points of Claim filed 5 September 2017; 3. a letter dated 8 July 2011 from the Council to Mr Saha responding to Mr Saha's concerns regarding the construction of a granny flat on a neighbouring property. The Council stated in the letter that the granny flat had been assessed and determined in accordance with the Council's Development Control Plan, that there was no requirement to notify of the construction of single storey dwellings and that it did not have unlimited powers to refuse development consents; and 4. a letter dated 17 August 2017 from the Council to Mr Saha attaching a direction pursuant to s 23 of the Swimming Pools Act and an order dated 27 July 2017 requiring Mr Saha to take certain actions in relation to the fencing around the swimming pool. 1. At the request of the Court a summary of the work required in order to satisfy the Australian standard was provided to assist Mr Saha and the Court understand exactly what was required. The Council tendered the hand-drawn plan of the pool and surrounds and a list of work required at specified locations prepared at the Court's request (Exhibit B). This provided a useful summary of Mr Gittany's swimming pool checklist of work required. 2. Mr Saha read an affidavit sworn 29 March 2018. Mr Saha is an information technology professional but is currently unemployed. He stated that the Summons filed 5 September 2017 required him to do work which he had already completed, being to install a child-resistant barrier lock and to drain the swimming pool of water. 3. Mr Saha appeared before the Court on 6 October 2017 requesting that the proceedings be stayed. The problems he had experienced were caused by a granny flat constructed on a neighbouring property overlooking his swimming pool. Mr Saha obtained a copy of the AS 1926.1-2012 relating to swimming pools and attended a seminar for the NSW Swimming Pools and Spa Association. 4. Mr Saha stated that a Council officer Ms Cunniffe had inspected his property and had ceased doing so when she became aware of his neighbour's motives in making complaints to the Council. Annexed to his affidavit was a handwritten note from Ms Cunniffe recording an instance when she had attended Mr Saha's property. 5. Mr Saha tendered an extract from the NSW Swimming Pools and Spa Association pool safety barrier guidelines in relation to a non-climbable zone around pool fences. Mr Saha tendered three photographs showing the dilapidated paling boundary fence in relation to which he says he had a dispute with his neighbour resulting in the fence being damaged (Exhibit 2). Mr Saha also tendered a Centrelink statement for his receipt of Newstart allowance (Exhibit 3) and submitted this was his only income which may prevent him being able to undertake the necessary work.