Background
Fairfield City Council brought Class 4 enforcement proceedings against Yianni Brent Lomo, the owner of land at Edensor Park containing an inground swimming pool. The Council alleged that the pool barrier did not meet the requirements of the Swimming Pools Act 1992 (NSW), despite directions issued in November 2023 and December 2023 requiring compliance.
Council inspections identified barrier defects including excessive openings, inadequate non-climbable zones, a gate that did not self-close and self-latch, nearby objects or level changes reducing barrier height, and insufficient boundary-fence height. The Council was repeatedly unable to obtain access after its initial inspection, but further observations from a neighbouring property indicated that most defects remained. Mr Lomo did not appear at either hearing despite substituted service and further notice.
The Court’s Holding
Duggan J ordered that the matter proceed in the respondent’s absence. The Court found that he had been given adequate notice, had failed without explanation to attend two hearings, and that the alleged breaches raised potentially serious pool-safety consequences.
The pool had been constructed before September 2008, but the Court held it could not rely on earlier applicable standards. Its gate was not capable of self-closing and self-latching from any stationary position, as required under both the earlier standards. The applicable standard was therefore Australian Standard AS 1926.1-2012. The Court found breaches of s 7(1) of the Act and non-compliance with the Council’s second direction under s 23(3).
Under s 30, the Court ordered Mr Lomo within 60 days to construct a compliant barrier addressing the specified defects. It also ordered him to pay the Council’s costs as agreed or assessed.
Key Takeaways
- An older pool barrier may lose the benefit of earlier standards if it did not continue to comply with them.
- A gate that does not self-close and self-latch can require assessment against the current prescribed pool-barrier standard.
- The Land and Environment Court may make pool-safety compliance orders in an owner’s absence where proper notice has been given.
Why It Matters
The decision illustrates the enforcement route available to NSW councils when pool-barrier directions are ignored. It also confirms that historical construction dates do not alone preserve grandfathered compliance: continuing compliance with the earlier standard is essential.
For property owners, the case underscores the practical importance of maintaining gates, non-climbable zones and boundary barriers, as well as responding to statutory directions and court proceedings.