Russell Kennedy Lawyers in 2023 were engaged by various Councils to prosecute hundreds of swimming pool and spa related offences under the Building Regulations 2018 (Vic) (Regulations).
We have also been engaged to provide advice, templates, review infringement notices and procedures as well draft manuals.
Primarily the matters we have been engaged in related to failure to apply to register a swimming pool or spa and more recently and heading into 2024, failure to lodge the relevant certificate of pool and spa barrier compliance (Form 23).
Prior to prosecution we have also resolved many matters by sending a solicitor’s letter. These letters on many occasions resulted in compliance before more formal proceedings were commenced. It also benefits Councils as less matters are referred to prosecution whist achieving the ultimate outcome, compliance.
Where prosecution was the preferred option the vast majority of matters were resolved prior to Court with negotiated settlements after a charge-sheet and summons had been served. Our experience is many owners want to avoid Court and are willing to comply (apply to register or lodge Form 23) once a discussion is had with them.
The matters proceeding to Court have overwhelmingly been finalised at the first or further mention by either a guilty plea or proceeding ex parte on the basis of a preliminary brief served.
Due to the number of matters we have prosecuted we are able to efficiently provide this service to Councils.
Injunctions
In our view, where a matter reaches Court and an application to register, or a Form 23 has not been lodged, the most important part of these prosecutions is obtaining an injunction under section 234E of the Building Act 1993 (Vic) (Act) compelling an owner to comply or remove/decommission their pool or spa.
Generally the sole purpose of each prosecution is to obtain compliance. The best way of doing this is to obtain an injunction.
It is important to note that ordinarily these types of offences are heard by a Judicial Registrar as opposed to a Magistrate. Section 234I of the Act provides that an injunction may be granted during proceedings for an offence under the Act or the Regulations and may be granted instead of or in addition to any penalty imposed in those or any other proceedings.
Regulation 10 of the Magistrates' Court (Judicial Registrars) Rules 2015 (Vic) provides that 'A judicial registrar cannot deal with and exercise any powers of the Court in any proceeding for a claim for equitable relief'. A Judicial Registrar therefore cannot order an injunction as it is a claim for equitable relief.
Notable Court Outcomes
- Failure to apply to register a pre 1 November 2020 pool and comply with a regulation 147O notice – aggregate fine of $700.00 without conviction, plus legal costs and an injunction.
- Failure to apply to register a pre 1 November 2020 pool - $1,000.00 fine with conviction, plus legal costs and an injunction.
- Co-owners - failure to apply to register a pre 1 November 2020 pool - $1,000.00 fine each without conviction, plus indemnity legal costs and an injunction.
However, the most common penalty we have found with a failure to apply to register a pre 1 November 2020 pool has been a $500.00 fine without conviction, plus legal costs and an injunction (where an application to register remains outstanding).
We look forward to continuing to assist councils in 2024 in resolving these matters.