The ERD Court definitively rules on pool safety barrier requirements

Hot off the press! 

 In short: councils are correct!

 The ERD Court definitively rules on pool safety barrier requirements under AS1926.1-2012 and AS1926.2-2007 and the operation of section 156 of the PDI Act. 

In a judgment delivered on Friday 28 February 2025 in the matter of Brixton v City of Holdfast Bay [2025] SAERDC 4, the ERD Court ruled that:

• a compliant swimming pool safety barrier is required between ALL Class 1a buildings and an outdoor swimming pool and/or spa pool such that entrance from a pool building cannot occur from within a pool barrier; and
• section 156 of the PDI Act applies over and above any development authorisations for swimming pools.  That is, if a building consent is granted which does not require a compliant swimming pool safety barrier between a Class 1a building and a swimming pool, the pool owner is still required to install the same by section 156 of the PDI Act.

The background and the decision are explained below.

On 17 April 2024, the City of Holdfast Bay, represented by Kelledy Jones Lawyers, issued an enforcement notice to the owner of 30 Partridge Street, Glenelg. The notice asserted that the owner, Brixton (the Appellant), had breached section 156 of the PDI Act by not installing and maintaining designated safety features as required by the relevant Building Rules.

The swimming pool in question comprised of an outdoor swimming pool and associated in-ground spa pool, located adjacent to a Class 1a building, a ‘pool house’ comprising of 2 main rooms and a bathroom and pool equipment room.

The pool and pool house were approved in 2014.  The relevant development approval included a swimming pool safety barrier which surrounded the pool so that access could only occur through a compliant pool gate.  The detached dwelling on the land, as well as the pool house, were located outside the barrier.  The pool, pool house and barrier were all constructed by the previous owner of the land, in accordance with the relevant development approval.

In 2023, the Appellant applied for development approval for the in-ground spa and pool barrier.  Relevantly, the building consent documentation included the re-configuration of the swimming pool safety barrier so that the glass, bi-fold doors to the pool house were located INSIDE the barrier.  The building consent was granted by a building certifier and the location of the barrier was not identified prior to the grant of the development approval.

When the spa was constructed, it was inspected by a building officer of the Council who alerted the owner and the building certifier of his opinion that the new barrier did not comply with the Building Rules because its location was not consistent with AS 1926.1-2012 and AS 1926.2-2007.  The Appellant did not agree.  Consequently, the Council issued its enforcement notice which was appealed.

In finding that the barrier did not comply with the Building Rules, the ERD Court undertook a thorough examination of the Building Rules (specifically NCC19, volume 2) and the Australian Standards and found that:

• the performance requirements under the Building Code which apply, namely P 2.7.1, outline the minimum necessary standards with respect to the barrier that must be satisfied in this case;
• when properly considered, P 2.7.1 prohibits all habitable rooms and buildings from being within the immediate surrounds of a pool.  This is especially so given that O2.7 seeks to safeguard young children from drowning; and
• when considered in light of P 2.7.1, the barrier clearly did not comply with AS 1926.1-2012 and AS 1926.2-2007.

The Court also confirmed that the prior decision in Thorpe v City of Unley [2006] SAERDC 81 was no longer relevant given that it was premised upon superseded versions of the NCC and Australian Standards.

The Court found that section 156 of the PDI Act applies regardless of and not limited by, any development approvals granted for a swimming pool or spa.  The Court affirmed that section 156 requires a council to assess whether designated safety features have been installed and maintained in accordance with the requirements of the applicable Building Rules.  In circumstances where a council position differs from that of the relevant authority that granted the building consent for a swimming pool, the council is nevertheless able to take action under section 156 of the PDI Act.

The Court also found that councils are not obligated to identify any potential disagreements between its assessment of the compliance of a swimming pool with section 156 of the PDI Act prior to granting development approval.

This clear and comprehensive decision ‘puts to bed’ the longstanding debate as to where swimming pool safety barriers are required to be located in respect to Class 1a buildings, including pool houses and other forms of ‘habitable’ adjacent buildings.  For owners of swimming pools subject to AS1926.1-2012 and AS1926.2-2007, they are required by section 156 of the PDI Act to ensure that a compliant pool safety barrier is located between each and every Class 1a building and outdoor pool and/or spa.  This means that many owners must install these barriers to ensure that they are not in breach of section 156 of the PDI Act.

For any questions please contact Victoria Shute on 8113 7104 or vshute@kelledyjones.com.au