Norman Waterhouse recently had the privilege of acting for the prosecuting authority in a pool safety matter in City of Norwood, Payneham and St Peters v Banham.

The pool’s owner pleaded guilty to a single offence under Section 71AA(6) of the Development Act 1993, for failing to ensure that a swimming pool safety feature, specifically a pool safety fence and gate, was installed in accordance with the requirements prescribed under that section. The maximum penalty for that offence is a fine of $15,000.

The Environment, Resources and Development Court convicted and fined the owner of the swimming pool $8,000 for failing to have in place adequate pool safety fencing in accordance with the requirements of the Act. That penalty was reduced by 25% on account of the defendant’s cooperation, prompt installation of compliant pool safety fencing and early guilty plea.

The Court accepted that the defendant did not commit the offence intentionally, but rather relied on incorrect advice from the pool installation contractor regarding the adequacy of existing fencing. The Court noted that the development approval for the swimming pool comprised both the pool itself and pool safety fencing, of which the defendant was aware.

The Court commented that “pool safety is a matter of vital concern to the whole community” and that “the rules exist for a reason ... it is not for any particular individual to substitute their own beliefs about what should be required”.

The decision comes soon after the findings delivered in the coronial inquest into the tragic drowning death of 1 year old Bryce Ashton Eddleston.

The penalty imposed by the Court reflects the seriousness of compliance with the pool safety requirements.