CIVIL ENFORCEMENT — s 7 of the Swimming Pools Act 1992 (NSW) — absence of safety barrier — orders for construction of safety barrier — s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) — development carried out otherwise than in accordance with development consent — orders for compliance — Respondent to pay Applicant’s costs
Quick Take
1An owner of premises with a swimming pool installed after 1 July 2010 cannot rely on the exemptions in ss 8-10 of the Swimming Pools Act 1992 or cl 31 of the Swimming Pools Regulation 2018, and breaches s 7(1) if no child-resistant barrier separates the pool from the residential building and adjoining places; the prescribed standard, via cl 5 of the Regulation and Part G1 of the Building Code of Australia, is AS 1926.1-2012.
2Where a pool is constructed under a development consent whose conditions require a compliant safety barrier in an approved location, failure to construct the barrier is development not carried out in accordance with the consent, in breach of s 4.2(1)(b) of the EP&A Act, independently of the Pools Act breach.
3Although both breaches arise from the same facts, the Court considered it appropriate to make declarations and orders under both the Pools Act (s 30) and the EP&A Act (s 9.46) because each regime has different objects and compliance with both is required. The Court tempered self-help works orders with safeguards: time running from service, supervision by an authorised officer, and seven days' prior written notice.
