Fairfield City Council v Lomo [2026] NSWLEC 110

Catchwords: CIVIL ENFORCEMENT — Swimming Pools Act 1992 (NSW) — barrier non-compliance — orders for compliance — Respondent to pay Applicant’s costs Land and Environment Court New South Wales Medium Neutral Citation: Fairfield City Council v Lomo [2026] NSWLEC 110 Hearing dates: 23 and 30 June 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Class 4 Before: Duggan J Decision: See orders at [ 32 ] Catchwords: CIVIL ENFORCEMENT — Swimming Pools Act 1992 (NSW) — barrier non-compliance — orders for compliance — Respondent to pay Applicant’s costs Legislation Cited: Local Government Act 1993 (NSW), Ch 8 Pt 2 Swimming Pools Act 1992 (NSW) , Pt 2, ss 7, 23, 27B, 30, 34 Swimming Pools Regulation 1998 (NSW) (repealed), Pt 2 Swimming Pools Regulation 2018 (NSW), cll 5, 30, 31 Uniform Civil Procedure Rules 2005 (NSW), rr 29.7, 42.1 Texts Cited: Australian Standard AS 1926.1-2007 Australian Standard AS 1926.1-2012 Australian Standard AS 1926-1986 Building Code of Australia Category: Principal judgment Parties: Fairfield City Council (Applicant) Yianni Brent Lomo (Respondent) Representation: Counsel: H Woods (Solicitor) (Applicant) No appearance (Respondent) Solicitors: Houston Dearn O’Connor (Applicant) No appearance (Respondent) File Number(s): 2025/00454935 Publication restriction: Nil JUDGMENT Nature of proceedings By Summons filed 24 November 2025, Fairfield City Council ( Council ) sought orders from this Court to remedy or restrain a breach of the Swimming Pools Act 1992 (NSW) ( Pools Act ) in relation to a swimming pool barrier on premises owned by the Respondent at Edensor Park, NSW. The Council sought orders that: 1. Before the expiry of 28 days from the date of these Orders being made by the Court the Respondent must: (a) Construct at 6 Reynella Close Edensor Park NSW 2176 (“the land”) a barrier (“the barrier”) that complies with section 7 of the Swimming Pools Act 1992 (“the Act”) in that it separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and (b) The Respondent must ensure that the barrier is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations (being the Australian Standard 1926.1-2012), including but not limited to: A. Clause 2.3.6 – vertical components shall not exceed 100mm in a barrier at any point B. Clause 2.2.2 Non climbable zone is required on all barriers with vertical openings 10 mm to 100 mm in width and 900 mm high by 300 mm deep rectangular space on the inside of the barrier AND Clause 2.2.1 this area is to be free of handholds, footholds, objects or plants that will facilitate climbing C. Clause 2.4.1.2 – gates to be self closing and self latching from any position with a stationary start including resting on the latching device D. Clause 2.3.1 objects or level changes that would reduce the height of a barrier must not be located within 500mm of the barrier E. Clause 2.2.4 – any boundary fence that acts as a barrier to the pool shall have a height of no less than 1800 mm from finished ground level on the inside F. Clause 2.2.4 – the non climbable zone is a quadrant drawn from the top of the inside of the boundary fence … This area must be free from handholds, footholds, objects or plants that will facilitate climbing G. Clause 2.2.4 – where top rail or surface of an internal barrier is greater than 50 mm and is located within 900 mm from the top of a boundary fence the height of the lower barrier shall extend to a height not less than 1800 mm and extend not less than 900 mm from the intersection 2. Before the expiry of 7 days of the date of these Orders being made by the Court the Respondent must install a warning notice as required by section 17 of the Act, the contents of which contains the following: (a) the words – ● “Young children should be actively supervised when using this swimming pool” ● “Pool gates must be kept closed at all times” ● “Keep articles, objects and structures clear of the pool fence at all times” (b) a simple flow chart (which may be the flow chart depicted in the Cardiopulmonary Resuscitation Guideline) containing details of resuscitation techniques (c) a statement to the effect that formal instruction in resuscitation is essential, and the name of the teaching organisation or other body that published the sign and the date of its publication 3. The Respondent is to pay the Applicant’s costs as agreed or assessed. 4. Any other Order that this Honourable Court sees fit to make in the circumstances. At the hearing, the Council did not press prayers 1(b)(G) and 2 of the Summons. Whether the hearing should have been conducted ex parte There was no appearance by the Respondent. The Council sought to proceed in the absence of the Respondent pursuant to r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ( UCPR ). I determined that the hearing proceed in the absence of the Respondent. In making that determination I took into account : On 10 March 2026, the Respondent was served in accordance with the Court ’ s orders for substituted service on 6 March 2026; On 8 May 2026, the Court fixed the matter for hearing on 23 June 2026; On 23 June 2026, there was no appearance by the Respondent at the hearing; Due to the unexplained non-attendance by the Respondent, the matter was adjourned to 30 June 2026 for hearing. The Council was directed to advise the Respondent of the adjourned hearing date by substituted service in accordance with the Court ’ s orders of 6 March 2026. Additionally, the Registrar sent the Respondent a Notice of Listing of Hearing by registered post to the Subject Site; On 30 June 2026, there was no appearance by the Respondent at the hearing; The Respondent was given adequate notice of the hearing date; and The Respondent was the registered proprietor of the Subject Site. I was satisfied on the evidence that the documentary and evidentiary material relevant to these proceedings and the advice regarding the hearing dates were served on the Respondent in accordance with the Court ’ s orders on 6 March 2026 and 23 June 2026. Considering the provision of appropriate and adequate notice of the substance of the proceedings, the failure of the Respondent to attend on each occasion the matter has come before the Court, and the potential for serious consequences that arise from a breach of the Pools Act, I determined to hear the matter in the absence of the Respondent. Evidence of breach At the hearing, the Council adduced evidence of the following matters, and on that evidence, I am satisfied of proof of the subject matter of that evidence. The factual matters referred to in [ 8 ] were: The Subject Site comprised Lot 7 in Deposited Plan 808829 and was located within the local government area administered by the Council; In the rear yard of the Subject Site is an inground swimming pool surrounded by a four-sided barrier. The allotment boundary fences of the Subject Site formed three sides of the swimming pool barrier, and the remaining side was a black fence fitted with gates that separated the swimming pool from the residential dwelling on the Subject Site ; On 1 November 2023, Mr Sinai attended the Subject Site to conduct an inspection of the swimming pool area against the Australian Standard 1926.1-2012 ( Standards ) and the Pools Act . Mr Sinai was invited onto the Subject Site by the occupant, the Respondent’s mother . Mr Sinai conducted an inspection of the swimming pool area and observed 12 non-compliances with the Standards or the Pools Act ; On 10 November 2023, Mr Sinai issued the Respondent with a direction pursuant to s 23(1) of the Pools Act requiring the Respondent “ to ensure that the swimming pool or premises comply with the requirements of Part 2 of the Swimming Pools Act 1992 ” by 17 December 2023 ( First Direction ); On 21 December 2023, Mr Sinai attended the Subject Site to conduct a further inspection but was unable to gain access. Mr Sinai conducted an inspection from a neighbouring property, where he observed that the swimming pool remained non-compliant and the First Direction had not been complied with; Consequently, Mr Sinai issued the Respondent with: A Penalty Infringement Notice for failing to comply with the First Direction; and A direction pursuant to s 23(1) of the Pools Act requiring the Respondent to ensure the swimming pool on the Subject Site complied with Pt 2 of the Pools Act by 11 February 2024 ( Second Direction ). The Second Direction required the matters set out in prayers 1 and 2 of the Summons at [ 2 ] above to be addressed ; On five occasions between 20 February 2024 and 23 May 2025, the Council sent the Respondent Notices of Entry in accordance with s 27B of the Pools Act and Ch 8 Pt 2 of the Local Government Act 1993 (NSW) ( LG Act ) requiring that unobstructed access be provided to the Council on specified dates so that an inspection of the swimming pool area on the Subject Site could be undertaken. On each of the specified dates, Mr Sinai attended the Subject Site but was unable to gain access; On 24 September 2024, 9 December 2024, 6 June 2025 and 24 September 2025, Mr Sinai inspected the Subject Site from a neighbouring property and observed that the Second Direction had not been complied with, with the exception that the breaches relating to the placement of a barbecue and the provision of a resuscitation sign had been rectified ; Mr Sinai had been delegated authority to exercise the Council ’ s powers, functions, duties and authorities under the Pools Act and the LG Act for the purposes of inspections of the Subject Site and the giving of notices and directions to the Respondent: ss 23 and 27B of the Pools Act; Ch 8 Pt 2 of the LG Act; Inspections had been undertaken on the Subject Site and breaches of the Standards and the Pools Act, as identified in the Second Direction, remained outstanding; The matters identified in the Second Direction comprised breaches of the Pools Act in that they were non-compliances with the Standard s, as prescribed by s 7(1) of the Pools Act; The Second Direction was served upon the Respondent in accordance with s 34(1)(d) of the Pools Act ; and Mr Sinai formed the opinion that compliance with the Pools Act was urgent. Therefore, Notices of Intention to Give an Order were not served on the Respondent in accordance with s 23(6) of the Pools Act. Relevant legislative provisions Section 7(1) of the Pools Act provides: 7 General requirements for outdoor swimming pools (1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier— (a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Maximum penalty—50 penalty units. … Clause 5(1) of the Swimming Pools Regulation 2018 (NSW) ( Regulation ) prescribed the relevant standards for the purposes of s 7(1)(b) of the Pools Act: 5 General requirements for outdoor swimming pools (1) For the purposes of sections 7(1)(b) and 12(d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the requirements set out in the Building Code of Australia . ... Part G1 of the Building Code of Australia states that the relevant standards regarding barriers for swimming pools is the Australian Standard 1926.1. The version of the Australian Standard 1926.1 that was in force as at the date of the Council ’ s inspections of the Subject Site was the Standards. Section 23 of the Pools Act provides: 23 Local authority may order compliance with Part (1) The local authority may, by order in writing served on the owner of any premises in or on which a swimming pool is situated, direct the owner to take, within such reasonable time as is specified in the direction, such measures as are so specified to ensure that the swimming pool or premises comply with the requirements of this Part or of a condition of an exemption granted under section 22. (2) Such a direction is of no effect to the extent to which it purports to impose requirements more onerous than the requirements of this Part or of a condition of an exemption granted under section 22. (3) A person on whom a direction is served must not fail to comply with the requirements of the direction. Maximum penalty—50 penalty units. (4) A direction does not cease to have effect merely because there is a change in the ownership of the premises to which the direction relates, but applies to the new owner in the same way as it applied to the old. (5) A direction may not be served under this section unless the local authority has, at least 14 days before, served on the owner of the premises a notice of intention to serve the direction. (6) A local authority may serve a direction under this section without serving a notice under subsection (5) if it considers that the safety of a person would be at risk if the requirements of the direction were not carried out as soon as possible. Section 30 of the Pools Act provides: 30 Land and Environment Court may order compliance (1) A local authority may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. (2) If satisfied that a breach of this Act has been committed or will, unless restrained by order of the court, be committed, the Land and Environment Court may make such order as it considers appropriate to remedy or restrain the breach. (3) Such an order may require the erection or installation of such structures (such as fencing, doors, gates or locks, latches or other safety devices) in compliance with the requirements of this Act, or may require the taking of such other action, as is specified in the order. Which standards applied to the swimming pool on the Subject Site Clause 30(2)(a) of the Regulation provides that when the prescribed standards are amended or substituted, a child-resistant barrier remains compliant for the purposes of Pt 2 of the Pools Act if immediately before the amendment took effect the barrier complied with the standards in force at that time and the barrier continues to comply with those standards. Clause 31 of the Regulation provides: 31 Existing complying swimming pools may continue to comply with earlier standards (1) This clause applies to a swimming pool the construction or installation of which was completed before 1 September 2008 and that complied with Part 2 of the Swimming Pools Regulation 1998 as in force immediately before the repeal of that Regulation. (2) It is sufficient compliance with Part 2 of the Act for a swimming pool to comply with that Part on the basis of the requirements of Part 2 of the Swimming Pools Regulation 1998 (as an alternative to compliance on the basis of the requirements of Part 2 of this Regulation). ... The evidence established that the swimming pool on the Subject Site was constructed prior to 31 August 2008. As at the date of construction of the swimming pool, the Swimming Pools Regulation 1998 (NSW) ( 1998 Regulation ) was in force. Part 2 of the 1998 Regulation stated that the prescribed standards for the purposes of s 7 of the Pools Act was the Australian Standard 1926-1986 ( 1986 Standard s ). Clause 2.8.3 of the 1986 Standard s provided: 2.8.3 Automatic closing device. All gates shall be fitted with a device that will return the gate to the closed position and operate the latching device from any position with a stationary start, without the application of manual force. The closing device shall be capable of complying with these requirements with the gate at any position from resting on the latching mechanism to fully open. Immediately prior to the publication of the Standards, the Australian Standard 1926.1-2007 ( 2007 Standard s ) was in force. The 2007 Standards relevantly provided: 2.5.3 Self-closing device. All gates shall be fitted with a device that will return the gate to the closed position and operate the latching device from any position with a stationary start without the application of a manual force. The self-closing device shall be capable of complying with these requirements with the gate at any position from resting on the latching mechanism to fully open. The Council contended that as the swimming pool barrier on the Subject Site was not fitted with an automatic closing device at the time of their inspections, it could not be considered to have complied or continued to comply with cl 2.8.3 of the 1986 Standard s or cl 2.5.3 of the 2007 Standards. Consequently, cll 30(2)(a) and 31(2) of the Regulation did not apply to the swimming pool barrier on the Subject Site, and rather, it must be assessed against the prescribed standards that were in force at the time of the Council ’ s inspections – the Standards. I am satisfied that the swimming pool barrier on the Subject Site did not comply with cl 2.8.3 of the 1986 Standards or cl 2.5.3 of the 2007 Standards because, at the time of the Council ’ s inspections, the gate was not designed and constructed to be self-closing and self-latching from any position with a stationary start, including resting on the latching devi ce , as identified by Mr Sinai. Accordingly, I find that the prescribed standards with which the swimming pool on the Subject Site was required to comply, and against which any breach was to be assessed, were the Standards. Whether the Respondent breached the Pools Act The relief claimed in these proceedings related to the 12 non-compliances identified in the Second Direction and repeated in the Summons, excluding the matters not pressed by the Council at the hearing. I am satisfied on the evidence adduced that the breaches identified in prayer 1 of the Summons, as set out at [ 2 ] above (excluding prayer 1(b)(G)), comprised breaches of each of the corresponding clauses of the Standards. T herefore, I find that the Respondent is in breach of s 7(1) of the Pools Act. Furthermore, the Respondent failed to comply with the Second Direction in breach of s 23(3) of the Pools Act. Therefore, I am satisfied pursuant to s 30 of the Pools Act that breaches of the Pools Act have been committed and it is appropriate that orders are made to remedy or restrain those breaches. The orders proposed by the Council were generally acceptable, with the following amendments that were consented to: Rather than two separate timeframes applying to the orders, a single timeframe of 60 days applies; The general order requiring compliance with the Standards and the Pools Act as set out in prayer 1(a) at [ 2 ] above not be made. The particular breaches and what was necessary to ensure compliance are identified in the subsequent orders; and The reference in prayer 1(b) at [ 2 ] above to the orders being “ including but not limited ” to the matters identified be deleted to provide clarity. Costs The Council submitted that the Respondent should pay the Council ’ s costs of the proceedings because the Council was the successful party, in accordance with the usual costs order pursuant to r 42.1 of the UCPR. I am satisfied that the Council has been successful in these proceedings and there was no disentitling conduct to prevent an award of costs in the Council ’ s favour. Therefore, I will make an order that the Respondent pay the Council ’ s costs of the proceedings as agreed or assessed. Orders The Court orders: Before the expiry of 60 days from the date of these orders being made by the Court, Mr Yianni Brent Lomo ( Responden t ), by himself, his servants and/or agents, must: Construct at 6 Reynella Close, Edensor Park NSW 2176 a barrier that complies with s 7 of the Swimming Pools Act 1992 (NSW) in that it separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises and it is designed, constructed, installed and maintained in accordance with the standards prescribed by the Swimming Pools Regulation 2018 (NSW) (being the Australian Standard 1926.1-2012) set out below: Clause 2.3.6 — vertical components shall not exceed 100mm in a barrier at any point; Clause 2.2.2 — non climbable zone is required on all barriers with vertical openings 10mm to 100mm in width and is a 900mm high by 300mm deep rectangular space on the inside of the barrier and cl 2.2.1 – this area is to be free of handholds, footholds, objects or plants that will facilitate climbing; Clause 2.4.1.2 — gates to be self closing and self latching from any position with a stationary start including resting on the latching device; Clause 2.3.1 — objects or level changes that would reduce the height of a barrier must not be located within 500mm of the barrier; Clause 2.2.4 — any boundary fence that acts as a barrier to the pool shall have a height of no less than 1800mm from finished ground level on the inside; Clause 2.2.4 — the non climbable zone is a quadrant drawn from the top of the inside of the boundary fence … This area must be free from handholds, footholds, objects or plants that will facilitate climbing; and The Respondent is to pay the Applicant ’ s costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 28 August 2026