MRS SHIRLEY BRIXTON In Person v CITY OF HOLDFAST BAY In Person [2025] SASC 204

On Appeal from ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA (COMMISSIONER RYAN AND COMMISSIONER KIRKHAM) ERD-24-000030 Appellant: MRS SHIRLEY BRIXTON In Person Counsel: MR E GUTHRIE - Solicitor: JOHNSTON WITHERS Respondent: CITY OF HOLDFAST BAY In Person Counsel: MR D BILLINGTON SC WITH MS M CONDUIT - Solicitor: KELLEDY JONES Hearing Date/s: 13/06/2025 File No/s: CIV-25-003189 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BRIXTON v CITY OF HOLDFAST BAY [2025] SASC 204 Judgment of the Honourable Justice Gray 12 December 2025 ENVIRONMENT AND PLANNING - PLANNING - DEVELOPMENT ASSESSMENT AND CONTROL - NOTICES AND ORDERS - ENFORCEMENT ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS The appellant appeals against a judgment of two Commissioners of the Environment, Resources and Development Court (‘ERD Court’) dismissing an appeal to that court to set aside an enforcement notice (‘Notice’) issued by the Respondent, pursuant to s 213 of the Planning, Development and Infrastructure Act 2016 (SA) (‘the Act’). The Notice asserted that the appellant breached s 156(4) of the Act by ‘fail[ing] to install and maintain the required swimming pool safety barrier between the pool house and the pool and spa area’ The appellant challenges the decision of the ERD Court on two grounds, contending that the Commissioners erred: (1) in their interpretation s 156 of the Act and associated regulatory provisions: (2) in determining that the Notice was “clear and unambiguous in its terms” such that the Appellant would have understood the nature of the breach alleged and what she was required to do to rectify the breach. The appellant submitted there was no requirement for a barrier between the pool house and the pool and spa in the circumstances of this case. Held, dismissing the appeal: 1. Properly construed, in this case, AS 1926.2-2007 requires a safety barrier to be installed at a location which separates the Class 1 building from the area in which the pool and spa are situated, and its immediate surrounds: [54] -- 1 of 20 -- 2. The pool does not have a safety barrier which complies with AS 1926.1 and AS 1926.2 and it does not meet the provisions in Part 3.10.1.0 of the Building Code. The Commissioners were correct in finding that the appellant did not comply with regulation 6(1)(b) of the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (SA) and that the appellant breached s 156(4) of the Act: [69] 3. The Commissioners did not err in determining that the enforcement notice was “clear and unambiguous” in its terms. The Notice was able to be readily understood by a reasonable person in the appellant’s position: [63] – [68] Planning, Development and Infrastructure Act 2016 (SA) s 156, s 156(4) and s 213; Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (SA) regulation 6(1) and 6(1)(b), referred to. Brixton v City of Holdfast Bay [2025] SAERDC 4, applied. Sullivan v District Council of Riverton (1997) 69 SASR 234, considered. -- 2 of 20 -- BRIXTON v CITY OF HOLDFAST BAY [2025] SASC 204 Civil: Single Judge Appeal GRAY J: Introduction 1 This matter concerns whether or not the appellant is required to maintain and install a safety barrier between a pool house and a pool and spa. 2 The appeal to this Court is against a judgment of two Commissioners of the Environment, Resources and Development Court (‘ERD Court’) dismissing an appeal by the appellant to that court to set aside an enforcement notice dated 17 April 2024 (‘Notice’) issued by the respondent pursuant to s 213 of the Planning, Development and Infrastructure Act 2016 (SA) (‘the Act’). 3 The Notice asserted that the appellant breached s 156(4) of the Act by ‘fail[ing] to install and maintain the required swimming pool safety barrier between the pool house and the pool and spa area’.1 4 The appellant challenges the decision of the ERD Court on two particularised grounds:2 Ground 1 1. In determining that the Enforcement Notice was valid, the Commissioners erred in their interpretation s 156 of the Planning, Development and Infrastructure Act 2016 (SA) (the PDI Act) (and associated regulations), such that they erred in determining that the appellant had breached s 156 (Reasons, [151]). Ground 2 2. In further determining that the Enforcement Notice was valid, the Commissioners erred in determining that the Enforcement Notice was “clear and unambiguous in its terms” such that the Appellant would have understood the nature of the breach alleged and what she was required to do to rectify the breach (Reasons, [189]). 5 Broadly, ground 1 concerns the statutory construction of s 156 of the Act and the requirements it prescribes, whereas ground 2 raises whether the Notice was clear and unambiguous in its terms.3 These grounds were further particularised in 1 Section 156(3)(a) of the Planning, Development and Infrastructure Act 2016 (SA) provides that the regulations may require a designated owner of a swimming pool to ‘ensure that designated safety features are installed and maintained in accordance with prescribed requirements’: see reg 6(1)(b) of the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (SA), which prescribes the requirements for the purpose of s 156(2). 2 Shirely Brixton, ‘Notice of Appeal FDN 1’, Submission in Brixton v City of Holdfast Bay, CIV-25- 003189, 20 March 2025 (‘Notice of Appeal’). A third ground of appeal was ultimately abandoned: see Shirely Brixton, ‘Written Submissions of the Appellant FDN 3’, Submission in Brixton v City of Holdfast Bay, CIV-25-003189, 02 June 2025, 1 [4] (‘AWS’). 3 AWS (n 2) 1 [2]-[3]. -- 3 of 20 -- [2025] SASC 204 Gray J 2 the Notice of Appeal.4 Whilst I have set out in these reasons the central submission of the parties and addressed the matters necessary to explain the reasons for dismissing this appeal, I have considered all of the detailed written and oral submissions of the parties, including with the matters referred to in the particulars of the grounds of appeal. 6 The appellant contends with respect to ground 1 that the learned Commissioners erred in their construction of the Act and the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (SA) (‘SPS Regulations’) by importing additional requirements5 and, with respect to ground 2, that the Notice ought to have been deemed invalid as it was not of sufficient particularity to disclose the alleged breach and the corrective course of action required to remedy that breach.6 7 The respondent contends that there are three substantive issues raised in respect of the appellant’s Notice of Appeal:7 Ground 1 a. whether Australian Standard 1926.2-2007 (amendment 2, Dec 2011) (the Standard), properly construed and understood, permits habitable buildings to be sited within the area enclosed by a pool safety barrier; b. if so, whether Acceptable Construction Manual (ACM) 3.10.1.0 of the Building Code of Australia (BCA) excludes that arrangement, when construed in light of performance requirement P2.7.1; and Ground 2 c. whether the written direction given pursuant to section 213(1)(b) of the Planning Development & Infrastructure Act 2016 (SA) (PDI Act) by the Respondent to the appellant in the enforcement notice dated 17 April 2024 (Direction), was “clear and unambiguous”. 8 With respect to the first issue identified above, the respondent contends that the pool house is a Class 1 building that is a habitable building and that the Commissioners were correct in making that finding.8 In relation to the second issue, the respondent states that the relevant Australian standard, properly construed and understood, does not permit habitable buildings to be sited within the area enclosed by a pool safety barrier, and such an arrangement is excluded by the relevant Building code.9 The respondent submits the appellant’s first ground of appeal should be dismissed. The respondent contends that the direction given was 4 Notice of Appeal (n 2) 3-5. 5 AWS (n 2) 11 [63]. 6 AWS (n 2) 12 [65]-[73]. 7 City of Holdfast Bay, ‘Written Submissions of the Respondent FDN 6’, Submission in Brixton v City of Holdfast Bay, CIV-25-003189, 06 June 2025, 1 (‘RWS’). 8 Brixton v City of Holdfast Bay [2025] SAERDC 4, 43–44 [136]: see also RWS (n 7) 4-5, [18]-[19]. 9 RWS (n 7) 2-5 [4]-[29]. -- 4 of 20 -- [2025] SASC 204 Gray J 3 clear and unambiguous,10 and accordingly the appellant’s second ground of appeal should be dismissed. Relevant factual background 9 The appellant is the registered proprietor of the land located at 30 Partridge Street, Glenelg being the land comprised within Certificate of Title Register Book Volume 5667 Folio 694 (‘the Land’). The appellant became the owner of the Land in 2016. The Land has a frontage to Partridge Street and shares its boundaries with other adjoining residential properties. 10 Located on the Land is a two-storey detached dwelling (‘the dwelling’), an outdoor swimming pool (‘the pool’), a spa (‘the spa’) and a pool house (‘the pool house’). The pool, the spa and the pool house are sited behind the dwelling towards the rear of the Land. A glass pool fence containing a child resistant gate (‘the gate’) separates the pool house, pool and spa from the dwelling. On the appellant’s case, there is no other way in which the pool house, pool and spa can be accessed, other than through the gate. 11 The area comprising the pool house, pool and spa (collectively the ‘Pool Area’) was constructed pursuant to a development approval granted on 3 March 2023 (‘2023 Development’).11 The diagram below shows the Pool Area as extracted from the Council approved site plan in relation to the 2023 Development and attached to the ERD Court’s judgment.12 10 RWS (n 7) 6 [30]-[38]. 11 Brixton v City of Holdfast Bay [2025] SAERDC 4, 4-5 [15]–[18]. An earlier approval was granted in 2014 in relation to the development described as ‘construction of a two-storey detached dwelling with integrated garage with a wall height of 3 metres and wall length of 6.5 metres sited on the southern side boundary, swimming pool and spa in yard and re-roof existing outbuilding’. 12 Brixton v City of Holdfast Bay [2025] SAERDC 4, 19-20 [62]. -- 5 of 20 -- [2025] SASC 204 Gray J 4 12 The diagram depicts the barrier in a solid blue line, incorporating a child resistant safety gate shown in red.13 The appellant contends that it is the solid blue line which forms the barrier to what the appellant defines as the Pool Area.14 As shown in the approved site plan, the only way in which access can be obtained to the Pool Area from the dwelling is through the child resistant safety gate.15 13 In the approved site plan, the barrier is comprised of the north, west and east walls of the pool house (i.e. the three internal walls) together with the fence extending from the southeast corner of the pool house around the pool paving to the southwest corner of the pool house.16 14 Following the construction of the Pool Area, the respondent issued the Notice on 17 April 2024, asserting that the appellant ‘breached section 156(4) of the Act’ by failing ‘to install and maintain the required swimming pool safety barrier between the [p]ool [h]ouse and [p]ool and [s]pa’.17 Relevant statutory and regulatory provisions 15 Section 156 of the Act, as observed by the Commissioners, sets out the legislative framework with respect to swimming pool safety in South Australia. Section 156 of the Act, in part, provides: 156—Designated safety requirements (1) In this section— designated owner means— (a) in relation to a swimming pool— (i) if the swimming pool is a fixture to, or forms part of, land—the owner of the land; (ii) in any other case—the owner of the structure that constitutes the swimming pool; and (b) in relation to a building—the owner of the building; prescribed event means an event or circumstance prescribed by the regulations as constituting a prescribed event for the purposes of this section. (2) Without limiting any provision of the Building Code or a Ministerial building standard, the regulations may specify requirements that are to apply in relation to designated safety features for swimming pools or buildings. 13 Brixton v City of Holdfast Bay [2025] SAERDC 4, 4-5 [16]. 14 Transcript of Proceeding, Brixton v City of Holdfast Bay (Supreme Court of South Australia, CIV-25- 003189, Gray J, 13 June 2025) 11.17-30. 15 AWS (n 2) 3 [8]. 16 AWS (n 2) 3 [9]. 17 AWS (n 2) 3 [10]. -- 6 of 20 -- [2025] SASC 204 Gray J 5 (3) In particular, the regulations may— (a) require a designated owner of a swimming pool or building to ensure that designated safety features are installed and maintained in accordance with prescribed requirements; and (b) require the owner of an existing swimming pool or building— (i) to ensure that designated safety features are installed, replaced or upgraded before, or on the occurrence of, a prescribed event; or (ii) to install, replace or upgrade designated safety features within a prescribed period. (4) A person who contravenes, or fails to comply with, a requirement under this section (including a requirement prescribed by the regulations) is guilty of an offence. Maximum penalty: $15,000. 16 This section is to be read in conjunction with the SPS Regulations, which set out the prescribed designated safety features for swimming pools for the purposes of s 156(2).18 17 As the pool and spa were both approved, constructed or installed after 1 July 1993, the designated safety features required to be installed and maintained are those identified in regulation 6(1)(b) of the SPS Regulations, namely, the requirements relating to the construction and safety of swimming pools under the Building Code.19 18 The Building Code is comprised in volumes 1 and 2 of the National Construction Code (‘the NCC’).20 The NCC is a performance-based code which sets out the technical requirements for the construction of buildings in Australia.21 Compliance with the NCC is achieved by adhering to both the governing requirements and performance requirements of the NCC.22 The latter is in issue in this appeal. 19 A building will comply with the provisions of the NCC if it satisfies the performance requirements. As correctly observed by the Commissioners, a performance requirement can be met using either a performance solution, a 18 Brixton v City of Holdfast Bay [2025] SAERDC 4, 8 [27]-[28]. 19 Brixton v City of Holdfast Bay [2025] SAERDC 4, 8-9 [29]. 20 Brixton v City of Holdfast Bay [2025] SAERDC 4, 9 [30]. 21 Brixton v City of Holdfast Bay [2025] SAERDC 4, 9 [31]. NCC 2019 Volume One, Amendment 1, Section 1 Governing Requirements, Part A2 Compliance with the NCC, A2.0 Compliance, 18. 22 Brixton v City of Holdfast Bay [2025] SAERDC 4, 9-10 [34]: see also NCC 2019 Volume Two, Amendment 1, Section 1 Governing Requirements, Part A2 Compliance with the NCC, A2.0 Compliance, [16]. -- 7 of 20 -- [2025] SASC 204 Gray J 6 deemed-to-satisfy solution or a combination of both.23 As set out in the NCC, Part A2.1 provides:24 A2.1 Compliance with the Performance Requirements Performance Requirements are satisfied by one of the following, as shown in Figure 1: (1) A Performance Solution. (2) A Deemed-to-Satisfy Solution. (3) A combination of (1) and (2). Figure 1: NCC compliance option structure 20 Pursuant to Part A2.2, a performance solution is achieved by demonstrating:25 (a) compliance with all relevant performance requirements; or (b) the solution is at least equivalent to the deemed-to-satisfy provisions. 21 Pursuant to Part A2.3, a solution that complies with the deemed-to-satisfy provisions is deemed to have met the performance requirements.26 22 The relevant performance requirements in relation to swimming pool access is set out in Part 2.7.1 of the Building Code as follows:27 23 Brixton v City of Holdfast Bay [2025] SAERDC 4, 10 [35]. 24 NCC 2019 Volume One, Amendment 1, Section 1 Governing Requirements, Part A2 Compliance with the NCC, A2.1 Compliance with the Performance Requirements, 18. 25 NCC 2019 Volume One, Amendment 1, Section 1 Governing Requirements, Part A2 Compliance with the NCC, A2.2 Performance Solution, 18-19. 26 Brixton v City of Holdfast Bay [2025] SAERDC 4, 10 [35]. NCC 2019 Volume Two, Amendment 1, Section 1 Governing Requirements, Part A2 Compliance with the NCC, A2.3, Deemed-to-Satisfy Solution, 19; Schedule 3 Definitions, Performance Solution, [512]. 27 Brixton v City of Holdfast Bay [2025] SAERDC 4, 12 [40]; NCC 2019 Volume Two, Amendment 1, Section 2 Performance Provisions, Part 2.7 Ancillary provisions and additional construction requirements, P2.7.1 Swimming pool access, 71-72. -- 8 of 20 -- [2025] SASC 204 Gray J 7 Performance Requirements P2.7.1 Swimming pool access A barrier must be provided to a swimming pool and must – (a) be continuous for the full extent of the hazard; and (b) be of a strength and rigidity to withstand the foreseeable impact of people; and (c) restrict access of young children to the pool and the immediate pool surrounds; and (d) have any gates and doors fitted with latching devices not readily operated by young children and constructed to automatically close and latch. 23 The Building Code does not define ‘immediate pool surrounds’. 24 The relevant deemed-to-satisfy provision is Part 3.10.1.0 of the Building Code, which lists the ‘acceptable construction manuals’28 with respect to the performance requirements in P2.7.1. Part 3.10.1.0 of the Building Code provides:29 Acceptable Construction Manuals 3.10.1.0 (a) Performance Requirement 2.7.1 is satisfied for a swimming pool with a depth of water more than 300mm and which is associated with a Class 1 building, if it has safety barriers installed in accordance with AS 1926.1 and AS 1926.2. … 25 As set out above, a solution that complies with a deemed-to-satisfy provision meets the relevant performance requirements of the Building Code which are those listed in P2.7.1. Provided a swimming pool that is associated with a Class 1 building has a safety barrier which complies with AS 1926.1 and AS 1926.2, it will be deemed to have met the performance requirements in P2.7.1 of the Building Code.30 28 In Section 3 of Volume Two of the NCC the deemed-to-satisfy provisions are divided into two compliance pathways: "acceptable construction practices" and "acceptable construction manuals". "Acceptable construction practices" are some of the most common forms of national construction practice and are written into Section 3. "Acceptable construction manuals" are the deemed-to-satisfy referenced documents (NCC 2019 Volume Two, Amendment 1, Section 3 Acceptable Construction, how to use Section 3). 29 Brixton v City of Holdfast Bay [2025] SAERDC 4, 12-13 [42]; NCC 2019 Volume Two, Amendment 1, Part 3.10.1 Ancillary Provisions and Additional Construction Requirements, Acceptable Construction Manuals, 3.10.1.0, 334. 30 Brixton v City of Holdfast Bay [2025] SAERDC 4, 13 [44]. -- 9 of 20 -- [2025] SASC 204 Gray J 8 26 AS 1926.1-2012 Swimming pool safety—Part 1: Safety barriers for swimming pools specifies physical requirements for the design, construction and performance of barriers that will restrict access of young children to swimming pools.31 27 AS 1926.2-2007 Swimming pool safety—Part 2: Location of safety barriers for swimming pools (‘the Standard’) sets out options for the location of safety barriers intended to restrict access of young children to swimming pools.32 28 The objective of AS 1926 (including parts 1, 2 and 3) is found in the Preface to each part. The relevant objective, inter alia, concerns the location of pool barriers to avoid pool-related drowning. 29 The Standard explains how it is to be interpreted in the Preface to each part:33 The terms ‘normative’ and ‘informative’ have been used in this Standard to define the application of the appendix to which they apply. A ‘normative’ appendix is an integral part of the Standard, whereas in an 'informative' appendix is only for information and guidance. Notes to the text contain information and guidance…They are not an integral part of the Standard. Statements expressed in mandatory terms in notes to tables and figures are deemed to be requirements of this Standard. 30 The Standard defines the following terms:34 Clause Defined Term Meaning 3.1 Barrier The assembly of components, natural or otherwise, that restricts access to the pool, including items such as fences, posts and panels, gate units, gates and doorsets, constructed or natural walls (retaining or otherwise), sides of buildings, and balustrades on a balcony, where they form part of the intended barrier. 3.2 Child-resistant doorset A doorset that comprises a door, door frame, self-closing device and self-latching device, that is designed to provide an access way from the building to an indoor pool. 3.5 Gate Any portion of the barrier, other than a child-resistant doorset, that is designed to provide an access way through the barrier. 3.8 Indoor pool A pool that is fully enclosed within a residential building or a separate building 31 Standards Australia, AS 1926.1-2012 Swimming pool safety—Part 1: Safety barriers for swimming pools, cl 1.1 (‘AS 1926.1’). 32 Standards Australia, AS 1926.2-2007 Swimming pool safety—Part 2: Location of safety barriers for swimming pools (2007, Incorporating Amendment Nos 1 and 2), cl 1 (‘AS 1926.2’). 33 AS 1926.2 (n 32) 2. 34 AS 1926.2 (n 32) 4-5. -- 10 of 20 -- [2025] SASC 204 Gray J 9 3.10 Outdoor pool A pool that is neither fully nor partly enclosed by a building. 3.11 Indoor/outdoor pool A pool that is partly enclosed by a building and partly an outdoor pool. 3.14 Young chid A child under the age of five years. 3.15 Non-climbable zone (NCZ) A zone on a barrier and in the space adjacent to a barrier, running the full length of a barrier including a gate, that is intended to restrict climbing of the barrier by a young child. 31 Clause 4.1 of the Standard provides that the location of barriers shall comply with clauses 4.2, 4.3, or 4.4 as applicable. Clause 4.2 is titled “Outdoor pools” and provides: A child resistant doorset shall not be installed in a barrier for an outdoor pool. The openable portion of any window in a barrier shall comply with AS 1926.1. A balustrade on a balcony projecting into any NCZ shall comply with AS 1926.1. Typical examples of barrier locations are given in Figure 2.1. 32 Figure 2.1 is shown below: Ground 1 33 The appellant contends that the Commissioners construed the Building Code for the purposes of considering whether regulation 6(1)(b) of the SPS Regulations has been complied with in respect of a deemed-to-satisfy solution under Part 3.10.1.0, as requiring consideration to be given to the performance requirements -- 11 of 20 -- [2025] SASC 204 Gray J 10 in Part 2.7.1 of the NCC prior, and separately, to determining whether there had been satisfaction of the prescribed requirements in AS 1926.1 and AS 1926.2.35 34 As a consequence of that construction of the Building Code by the Commissioners, and in particular the Commissioners construction and application of the specific provisions in Part 2.7.1, the appellant contends that the Commissioners imposed an additional requirement beyond the text of the standards. This is said by the appellant to be a condition that it was necessary to have a barrier installed between the pool house and pool and spa.36 35 The appellant contends that the approach taken by the Commissioners was erroneous and the misconstruction of Part A2.1 of the NCC allows for compliance with the performance requirements in the Building Code by three alternate pathways: a. Satisfying a performance solution (Part 2.1(1)), which requires compliance with the performance requirements in Part 2.1 (Part A2.(2)); or b. Satisfying a deemed-to-satisfy solution (Part A2.1(2)); or c. A combination of both (Part A2.2(3)). 36 The appellant contends:37 a. Provided that a barrier complies with the Australian standards (without additionally considering and applying the specific provisions in Part 2.7.1); b. Then it is deemed to satisfy the performance requirements in Part 2.7.1 in the Building Code relating to swimming pool access by virtue of the deemed-to-satisfy solution in Part 3.10.1.0; and c. The relevant requirements of regulation 6 of the SPS Regulations and s 156 of the Act are met. 37 Both the appellant and the respondent accepted that on the question of whether a barrier complies with AS 1926.2, the starting point is the objective in the Standard. 38 The parties differed in how that objective could be met. The objective in the Standard provides: The objective of this Standard is to assist pool users/owners to avoid pool-related drownings by providing options for the location of pool barriers, which are designed to den, delay or detect unsupervised entry to the swimming pool area by young children. 38 The appellant submits that on a fair reading of the whole of AS 1926.2, the application of the standard depends largely on the creation of an “intended barrier”, 35 This error is said to be contained in Brixton v City of Holdfast Bay [2025] SAERDC 4, 36 [108], [139]. 36 This error is said to be contained in Brixton v City of Holdfast Bay [2025] SAERDC 4 , 36 [108]. 37 AWS (n 2) 7 [36]. 38 AWS (n 2) 8 [37]; RWS (n 7) 4 [16]. -- 12 of 20 -- [2025] SASC 204 Gray J 11 by which a “pool area” is enclosed for the purposes of restricting access by young children to that Pool Area. Both of those terms, the appellant notes, are defined in clause 3 of AS 1926.2.39 39 The appellant contends that it is apparent from the definitions of “intended barrier” and “Pool Area” and the scope of these definitions that an owner may choose the area within the property that will constitute the Pool Area by choosing the location of the barrier.40 The appellant contrasts this interpretation with paragraph 142 of the ERD Court’s decision. As to the question of compliance with clause 4.2 of AS 1926.2, the appellant contends that clause 4.2 has three requirements, each of which were met. 40 The first requirement identified by the appellant is that a “child resistant doorset shall not be installed in a barrier for an outdoor pool”. Clause 3.2 defines a “child resistant doorset” as a “doorset that comprises a door, door frame, self-closing device and self-latching device, that is designed to provide an access way from the building to an indoor Pool Area”. The appellant contends that the construction of the barrier in this case does not involve any “child resistant doorset installed” in the barrier, such that the requirement is not contravened. 41 As to the second requirement, namely that the “openable portion of any window in a barrier shall comply with AS 1926.1”, the appellant contends that the barrier in this situation has no windows such that the requirement is not contravened. 42 As to the third requirement, namely that there be a “balustrade on a balcony projecting into any NCZ shall comply with AS 1926.1”, the appellant contends as there is no balustrade that requirement is not contravened. 43 The primary position and conclusion advanced by the appellant is that in construing the Act and associated regulations there is not a requirement for there to be a barrier between the pool house and the pool and spa in the circumstances of this case.41 As a consequence, the appellants contend that they did not breach s 156 of the Act, such that the appeal should be allowed on ground 1 and the Notice should be set aside.42 44 The respondent conceded that there was an error in paragraph 140 of the reasons of the ERD Court. The respondent stated that it was an immaterial error. The error was said to be immaterial because the ultimate conclusions reached by the ERD Court were correct, and that the proper analysis was undertaken by the Court in paragraphs 141 to 151. 39 AWS (n 2) 8 [40]. 40 AWS (n 2) 8 [41]: The appellant contrasts this interpretation with that of the Commissioners judgment under appeal at paragraph [142] of Brixton v City of Holdfast Bay [2025] SAERDC 4. 41 AWS (n 2) 11 [63]. 42 Ibid [64]. -- 13 of 20 -- [2025] SASC 204 Gray J 12 45 The respondent contends that the applicant is incorrect to assert that the appellant could satisfy the performance requirements in P2.7.1 relating to swimming pool access by satisfying the prescribed requirements of the Australian Standards alone, without consideration of the application of P2.7.1.43 The respondent contends that the compliance with the performance requirements can be met by a performance solution, a deemed-to-satisfy or a combination of both, a performance solution and a deemed-to-satisfy solution. The respondent contends that the relevant Australian Standards when properly construed do not permit habitable buildings to be sited within an area enclosed by pool safety barriers. The respondent contends that a proper construction of the Acceptable Construction Manual (‘ACM’), in particular ACM 3.10.1.0, excludes such an arrangement. 46 As indicated above at ACM 3.10.1.0 provides: Performance Requirement P2.7.1 is satisfied for a swimming pool with a depth of water more than 300mm and which is associated with a Class 1 building, if it has safety barriers installed in accordance with AS 1926.1 and AS 1926.2 47 The respondent contends that the ACM properly construed requires that the pool in question has safety barriers which accord with the standard. The respondent further contends that a “safety barrier” physically separates any associated Class 1 building from the swimming pool. The respondent states that anything that does not separate a Class 1 building from a swimming pool is not a barrier.44 48 There is some complexity to the relevant legislative and regulatory requirements and there was some complexity in the manner in which the parties framed their submissions. In my view, a key distinction between the submissions is that the appellant drew a distinction between the dwelling house and the pool house. The appellant maintained that there was compliance with the relevant regulatory provisions because the barrier to the pool and spa could be formed by the walls of the pool house to the north, east and west, with the remaining barriers being formed by a pool fence built in accordance with AS 1926.1 as depicted above.45 That is, the fence extending from the southeast corner of the pool house around the pool paving to the southwest corner of the pool house. In contrast the respondent submitted that the Commissioners were correct in considering it was necessary that there be a barrier between the pool house and the pool and spa. Fundamental to this conclusion was the finding by the Commissioners that the pool house was a Class 1 building. 49 I find that the reasoning of the Commissioners as to why the pool house was a Class 1 building was correct. The ERD Court at paragraphs [136]-[137] held as follows:46 43 RWS (n 7) 5 [21]. 44 RWS (n 7) 6 [22], [25]. 45 See paragraph [32] above. 46 Brixton v City of Holdfast Bay [2025] SAERDC 4, 44 [136]-[137]. -- 14 of 20 -- [2025] SASC 204 Gray J 13 The Pool House is also a Class 1 building (in particular, a Class 1a building). It also contains habitable rooms. The same kinds of ‘normal domestic activities’ described above can also take place within the habitable rooms of the Pool House. These rooms can also be occupied frequently and/or for extended periods of time. Given that is so, there is no logical or rational basis to accept that on the one hand a barrier is required between the Dwelling and the Pool and Spa, but on the other hand, a barrier is not required between the Pool House and the Pool and Spa. The building classification for each building is the same under the NCC. There is no reason why the two buildings should be considered differently in this regard given they are both Class 1 buildings. Each of the buildings exist on land where a swimming pool is located. The risk of a young child drowning will exist whenever a young child is located within any Class 1 habitable building when there is no barrier in place, or where a non-compliant barrier is in place between that Class 1 building and the hazard. To illustrate, if one of the two main habitable rooms in the Pool House was being used as a bedroom (and there is no reason why such a room could not exist in the Pool House given its building classification) it is conceivable that the occupant of that bedroom may fall asleep. Notwithstanding the fact that a child may have had to first pass through the existing child resistant barrier on the Land to gain access to the Pool Area, if the young child happens to exit the Pool House through the glass sliding doors, the person asleep in the bedroom is no longer able to supervise the child within the Pool or Spa or within the immediate pool surrounds, because, obviously, they are asleep. Similarly, if one of the two main habitable rooms in the Pool House was being used as a television room or a home theatre (quite possibly with curtains drawn eliminating entirely any visibility of the Pool and the Spa and the immediate pool surrounds) it is also possible that those in occupation may have their attention diverted away from a young child who, unbeknownst to those watching the television or similar, may have left the Pool House through the glass sliding doors, and entered the Pool or the Spa and the immediate pool surrounds. 50 The findings made and the reasoning of the Commissioners in relation to the pool house being a Class 1 building was supported by the evidence that was before the Commissioners. The plans are clearly illustrated, and relevant photographic material shows both the dwelling and the pool house.47 Clause 4.1 of AS 1926 provides that the location of barriers must comply with clauses 4.2, 4.3 or 4.4 as applicable.48 The appellant in submissions before this Court sought to analyse the three requirements within clause 4.2 to show they were inapplicable. I consider that such a construction fails to read the relevant requirements in context and does not have proper regard to the requirements of the standard read as a whole. 51 Importantly, clause 3.1 of AS 1926.2, which concerns the location of safety barriers for swimming pools identifies in clause 3 intended barriers as being those that restrict access to the pool and provides that a Pool Area, being an area that contains the pool, must be enclosed by a barrier.49 Reading the standard as a whole, having regard to the requirement that a pool be enclosed by a barrier and to the requirement for the location of safety barriers to restrict access of young children to swimming pools, and giving proper consideration to the examples provided in clause 4.2, strongly supports the correctness of the Commissioners reasoning and 47 City of Holdfast Bay, Exhibits RN-1 and RN-4 to the Affidavit of Richard Mark Nealyon, received as Exhibit A3 on this appeal. 48 Clause 4.2 is set out in [31] above. 49 AS 1926.2 (n 32), cl 3.12. -- 15 of 20 -- [2025] SASC 204 Gray J 14 the conclusion that there was a requirement for a barrier between the pool house and the pool and spa. 52 Looking at the examples in clause 4.2,50 it is clear that the examples in Figure 2.1 provide that a Class 1 building should either be: 1. Completely detached from the Pool Area (see examples 1 and 2); or 2. If the building forms a part of the barrier, it should either: a. not have any form of opening to the pool and surrounding area (example 3); or b. only have a child-resistant openable portion of a window complying with AS 1926.1 (example 4). 53 The examples make clear that a safety barrier must physically separate any Class 1 building from the swimming pool. This is consistent with ACM 3.10.1.0 which requires a swimming pool with a depth of water more than 300 millilitres which is associated with a Class 1 building to have a safety barrier installed in accordance with AS 1926.1 and AS 1926.2. 54 For the reasons I have identified above, AS 1926.2 requires a safety barrier in the circumstances of this case to be installed at a location which separates the Class 1 building from the area in which the pool and spa are situated, and its immediate surrounds. All but one of the examples, provided for in Figure 2.1 identified above do not provide any form of access from a Class 1 building to the pool. They are completely contrary to what the appellant seeks to establish. The only opening, which is demonstrated in the examples in Figure 2.1, between a pool and a Class 1 building is an example where a child resistance openable portion of window complying with AS 1926.1 is demonstrated. 55 The examples provided for in Figure 2.1 and referred to in clause 4.2, as typical examples, do not contemplate what is proposed by the appellant. I reject the reasoning of the appellant to the extent that it suggests that because none of the first three sentences of clause 4.2 are contravened the proposed barrier meets the requirements of the Standards, including clause 4.2,51 That form of reasoning does not address the barrier to access to an outdoor pool shown in each of the examples in Figure 2.1.52 56 The typical examples of intended barriers given in Figure 2.1 of clause 4.2 show, for an outdoor pool, that the intended barrier should be one which provides a physical barrier from any entry and exit point of a building to an outdoor pool. What is contemplated by the 2023 Development does not provide a physical barrier 50 Clause 4.2 is set out in [31] above. 51 See appellant’s reasoning set out in paragraphs [51] to [59] of appellant’s written submissions: AWS (n 2). 52 Compare clause 4.4 of AS 1926.2 as to indoor and indoor/outdoor pools. -- 16 of 20 -- [2025] SASC 204 Gray J 15 between a Class 1 building and the outdoor pool. As such, the proposed plan of the appellant is inconsistent with what is contemplated by the typical examples. It is also inconsistent with clause 3.1 which refers to an intended barrier that “restricts access to the pool”. 57 In addition, what is contemplated by the appellants does not follow the guidance on the factors to be considered in selecting the locations of barriers.53 The guidance that the Standard provides as to the location of barriers, inter alia, indicates that:54 “…Where possible, tool sheds, garages, barbeques and clotheslines should be located outside the pool areas to reduce the likelihood of self-closing gates being propped open in order to gain access….. … …[t]he location of a barrier should be related to the need for protection and should take into account all the circumstances of the particular site. Most drowning victims in private pools are under the age of five years and are residents or invited visitors.” 58 The Commissioners at paragraph [149] held: We agree that Appendix B contemplates that there may be situations where certain buildings or structures are located within a pool area, but it clearly discourages it for the reasons provided. It does not follow that any buildings are therefore permitted to be located within a “pool area” (i.e., within the area which contains the pool that is enclosed by a barrier). The buildings referred to in Appendix B are Class 10 non-habitable buildings. A Class 1 habitable building is not referred to at all in the relevant passage relied upon by the appellant. This matter involves a Class 1a building and not a Class 10 building. It is not necessary for the Court to rule on what the position is with respect to Class 10 buildings within a “pool area”. We have already identified however that a small shed housing the infrastructure associated with a swimming pool could quite possibly be located within the immediate pool surrounds given it is directly associated with the use of the swimming pool, and because it would be accessed infrequently and not for extended periods of time. A non- habitable building would generally not create distractions or become an impediment to the provision of adequate supervision to young children that may be within the pool or the immediate pool surrounds given the frequency and duration of use. Appendix B does not support the submission that a Class 1 building may be located within a “pool area”. 59 In my view the reasoning of the Commissioners is sound. There are as the respondent identified on this appeal a number of distractions that could prevent supervision of a young child in an outdoor pool, if a habitable room could be located within a Pool Area. These distractions include that the habitable room could be used for sleeping. 60 The Commissioners went on, inter alia, to hold:55 53 AS 1926.2 (n 32): See notes to clause 1, and Appendix B – Factors to be considered in barrier location. 54 AS 1926.2 (n 32) 9: see Appendix B – Factors to be considered in Barrier Location. 55 Brixton v City of Holdfast Bay [2025] SAERDC 4, 48 [151]. -- 17 of 20 -- [2025] SASC 204 Gray J 16 We find that in order for the deemed to satisfy provision to be met (Part 3.10.1.0 (a)), that the Pool and the Spa on the Land must have a barrier installed between “it” and any Class 1 building that is located on the Land. We find that while there is a safety barrier installed in accordance with AS 1926.1 and 1926.2 between the Dwelling and the Pool and the Spa, there is no compliant safety barrier between the Pool House and the Pool and the Spa as required under the Building Code. Accordingly, the owner has not ensured that the designated safety features have been installed and maintained in accordance with the prescribed requirements, namely, the requirements relating to the construction and safety of swimming pools under the Building Code, as it applied at the time the application for either the 2014 Development or the 2023 Development was made. Her failure to comply with her legislative obligations constitutes a breach of s 156 of the Act. 61 The conclusion of the Commissioner’s set out above is correct. In my view, the interpretation of the relevant standard as put forward by the appellant was properly rejected by the Commissioners. 62 I dismiss ground 1 of the appeal. Ground 2 63 The appellant contends that the Commissioners erred in determining the enforcement notice was “clear and unambiguous in its terms”.56 The appellant contends that the Commissioners erred in permitting the respondent to rely upon an earlier enforcement notice issued to the appellant on 7 November 2023, and subsequently withdrawn by the respondent on 16 November 2023 (‘the earlier notice’) and “communication leading up to the issue of the notice between November 2023 and April 2024” (‘pre-notice communications’).57 The appellant contends that the Commissioners erred in determining that in the context of the earlier notice and pre-notice communications being received by the appellant she would have been clear as to the breach alleged and what the enforcement notice was directing her to do.58 64 The appellant further contends that the Commissioners erred in determining that it was adequate for the enforcement notice to refer to AS 1926.1 and AS 1926.2 in their entirety without specifying what parts of the standards had not been complied with nor specifying which parts of P2.7.1 had not been complied with.59 The appellant also seeks to identify error in the Commissioners reasoning that the pool house together with the glass fencing which surrounded the Pool Area could constitute the “immediate pool surrounds” which could not have formed part of the respondent’s ground for forming the requisite belief as to the breach pursuant to s 213(1) of the Act.60 65 The respondent contends that the direction accurately required the appellant to make good a statutory breach in a manner and within a period specified in the 56 Brixton v City of Holdfast Bay [2025] SAERDC 4, 62 [189]. 57 Brixton v City of Holdfast Bay [2025] SAERDC 4, 50 [158]-[159]; FDN 1, Ground 2a. 58 See FDN 1, Ground 2b. 59 Brixton v City of Holdfast Bay [2025] SAERDC 4, 50-51 [160]; FDN 1, Ground 2c. 60 FDN 1, Ground 2d. -- 18 of 20 -- [2025] SASC 204 Gray J 17 direction.61 The respondent contends that the direction left the appellant to implement installation of a compliant safety barrier in any way she chose. The respondent contends that it was not necessary for the ERD Court to rely upon pre- notice communications to reach the conclusion that there was nothing unclear and ambiguous about the Notice. However, the respondent contends that the ERD Court did not err in having regard to the references made in the Notice to pre-notice communications between the parties. 66 The Notice is set out in full in the decision of the ERD Court at paragraph [70] and it is unnecessary that I set the Notice out in full. It is relevant to note, however, that the notice inter alia provided as follows: A pool house adjacent to a large outdoor swimming pool and spa is located on the land (the Pool House and Pool and spa respectively). The Pool House is a Class 1a building as that term is defined in the Building Rules under the Planning, Development and Infrastructure Act 2016 (the Act). The Pool House and Pool were constructed pursuant to the development approval in DA 110/480/14 (the 2014 approval). Building rules consent for the 2014 approval was granted by a private certifier. The 2014 approval included a swimming pool safety barrier between the Pool House and the Pool which complied with the building rules in force at the time, particularly, in compliance with AS 1926.1–2012 and AS 1926.2–2007. 67 The notice set out in some detail the reasons that the council believed that there had been a breach of s 156(4) of the Act. These reasons included inter alia: 14.6 You have breached section 156(4) of the Act in that you have failed to install and maintain the required swimming pool safety barrier between the Pool House and the Pool and Spa area. In particular: the Pool and Spa area is accessible on the northern side by sliding glass doors located in the southern section of the Pool House; the sliding doors within the Pool House do not comply with the Building Code as it applies to both the 2014 approval and the 2023 approval as a person can access the Pool and spa area without being required to pass through a child resistant gate and barrier as required by AS 1926.1-2012 and AS 1926.2-2007. NOW TAKE NOTICE that you are directed to: 1. Install a compliant safety barrier required between the Pool House and the Pool and Spa area which complies with AS 1926.1--2012 and AS 1926.2--2007 within two (2) months from the date of this notice. Dated 17 April 2024 68 In my view, the matters outlined above together with the other matters referred to in the Notice clearly identify both the nature of the breach and the remedy required by the direction.62 There is sufficient particularity in the Notice to identify 61 Planning, Development and Infrastructure Act 2016 (SA) s 213(1)(b). 62 See Sullivan v District Council of Riverton (1997) 69 SASR 234. -- 19 of 20 -- [2025] SASC 204 Gray J 18 the nature of the breach. The Notice specified the need for a barrier between the pool house and the pool and spa area. The Notice directed the instillation of a compliant safety barrier between the pool house and pool and spa area. The Notice also identified the relevant Australian Standards to be complied with. In my view, the Notice was able to be readily understood by a reasonable person in the appellant’s position, and the ERD Court was correct in making such a finding.63 69 I dismiss ground 2 of the appeal. Conclusion 70 As set out above, I find that the pool does not have a safety barrier which complies with AS 1926.1 and AS 1926.2 and it does not meet the provisions in Part 3.10.1.0 of the Building Code, which provides for the acceptable construction manuals with respect to the performance requirements in P2.7.1. I find the construction depicted in the 2023 Development diagram does not meet the performance requirements in Part 2.7.1 of the Building Code.64 The Commissioners were correct in finding that the appellant did not comply with regulation 6(1)(b) of the SPS Regulations and that the appellant breached s 156(4) of the Act. 71 For the reasons identified above, I dismiss both grounds 1 and 2 of the appeal. 72 There was a dispute between the appellant and the respondent as to whether ground 2 of the appeal raised only a question of law or whether it also raised a question of fact such that permission to appeal was required. I would for the reasons identified above, in any event dismiss the appeal. To the extent that permission to appeal is required, I would refuse permission as there would be no utility in the grant of permission 73 The appeal is dismissed. I will hear the parties as to any other orders. 63 Brixton v City of Holdfast Bay [2025] SAERDC 4, 50 [159]. 64 See paragraph [11] above. -- 20 of 20 --