Alliance applies levy to fight anti-infinity measures
The Swimming Pool & Spa Alliance is taking a legal fight to the NSW Office of Local Government (OLG) in the ongoing dispute over Out of Ground Pool Walls.
In the latest move, the Alliance is levying relevant members $150 each to pay for legal advice on changes to the Swimming Pool Act.
As well as the issues surrounding out of ground pool walls, the Alliance also has ongoing concerns about structures within the barrier (gazebos, shade structures, etc); hedges, shrubs, plants, filter boxes, etc within the non-climbable zone (NCZ); and retrospectivity to new Australian Standard (upgrading/renovating/maintenance).
Spiros Dassakis says they have been lobbying the NSW Government on these issues for more than 12 months, but as yet are unsatisfied with the response.
The Alliance says their chief overriding concern is that the government is unable to provide a definitive position on some important references within the Swimming Pools Act, and instead allow council inspectors and private certifiers to interpret clauses as they see fit with the only recourse being the Land and Environment Court.
New Minister
SPLASH! spoke with the new Minister of Local Government Paul Toole in early July over these and other issues, and there will be more on this in the August printed issue of the magazine. Most of the lobbying carried out by the Alliance and other members of the industry such as Peter Glass occurred during the tenure of the previous Minister, Don Page.
Following considerable lobbying by the industry, the OLG released Practice Note 17 which provides advice to councils to consider granting an exemption via Section 22 of the Swimming Pools Act for “out of ground pool walls” that act as an effective child-resistant barrier.
However, there has been much anecdotal evidence that councils are ignoring the practice note.
When SPLASH! asked the Minister about this he said if councils were ignoring the practice note, then affected builders should in the first instance try to work through the issues with the council, but if that failed they could seek recourse through the OLG.
He said that council officers are suitably qualified and experienced building professionals but that the OLG is keen that they have an understanding of Practice Note 17.
“The first thing is to make sure they understand exactly what that means,” he said. “And if [the practice note] isn’t working effectively I have to be honest, we’re not going to just sit here and have something sitting on a shelf that doesn’t work. We’ll have a look at it and work out ways we can tweak it or make it more user-friendly to the industry.
“Pressure needs to be put onto the councils that they understand what the code is actually saying, and to make sure they have an understanding of the responsibilities they have been given regarding assessments.
“It is important they actually follow this up. There’ll be circulars and we’ll remind councils as well, and we’ll be doing our part from the Office of Local Government to let the councils know what their responsibilities are.”
The Minister said that if a builder had an issue in getting something through the council because they weren’t properly considering the practice note, he would expect in the first instance they’d try to work with the council.
“But if there are outstanding issues the option is there [to go back to the OLG]. We have an investigations team with the OLG. But in the first instance it would be up to the pool builder or provider to work with the council on any outstanding matters.”
As he had only recently taken over the reins at the time, SPLASH! agreed to get back in contact with him in the next few months to see how things were progressing.
Clarification and consistency
However, the Alliance wants urgent legal clarification on this and other issues relating to the Swimming Pools Act, as well as absolute consistency of interpretation between differing councils.
In particular, they have lobbied for the removal of any reference to “Out of Ground Pools” in the Building Code of Australia contained under Part 3.9.3 Swimming Pool Access.
The OLG has legal opinion from the Crown Solicitor stating that an “Out of Ground Pool Wall” could not “ordinarily” be considered a child resistant barrier.
However the Alliance says that while the OLG remains steadfast in their position, they have suggested that they would be happy to consider an alternative legal opinion if provided.
In light of this, the Alliance is engaging senior legal counsel to consider the Crown Solicitor's advice.
The barrister’s brief will focus on the following:
- Advice on state legislation regarding “Out of Ground Pools Walls” acting as barriers
- Advice on already approved and constructed “Out of Ground Pool Walls”
- Structures within the barrier (gazebos, shade structures, etc)
- Hedges, shrubs, plants, filter boxes, etc within the non-climbable zone (NCZ)
- Retrospectivity to new Australian Standard (upgrading/renovating/maintenance)
Initial costs are estimated to be between $15,000 and $20,000.
Following the news that the Alliance is seeking independent legal opinion, the Minister said they were within their rights to do so, that he looked forward to receiving it and when he did he would give it due consideration.
The board of Landscape NSW & ACT (LNA) formerly known as the Landscape Contractors Association, has voiced its support for the Alliance’s levy and encouraged its own members to consider supporting the cause by also paying the levy.
Meanwhile, Peter Glass has also engaged a barrister, Bret Walker SC, together with a junior barrister to help provide legal back-up in the fight against the out-of-ground pool restrictions.
Without wanting to pre-empt any advice, Glass expects the opinions may well be complementary and as such believes a two-pronged approach would have a greater influence on the NSW Government.
He says he appreciates the contributions so far to his “fighting fund” and is requesting general industry members support his move, especially those not members of the Alliance and therefore not contributing through the levy, by contributing funds. Interested people can contact him at pglass@peterglass.com.au.
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