Findings
30It is not in dispute that the swimming pool was constructed before 2010, and that the property is a waterfront property as defined in s 10(2) of the Act. In Handley v Pittwater Council [2010] NSWLEC 1335 and Medway v Pittwater Council [2013] NSWLEC 1006 I considered the application of the savings provision in cl 23 of the 2008 Regulation, and in Medway the operation of the exemption provided in s 9 of the Act for large properties which is in similar terms to that provided in s 10 for waterfront properties. Neither decision was the subject of argument in these proceedings, however the approach adopted by the parties is consistent with the conclusions reached in those decisions. Based on that approach, the central issue is whether the property complied with the 1998 Regulation at the time the 2008 Regulation came into effect so that the applicants could rely on the savings provision in cl 23 of the 2008 Regulation. That depends on whether the laundry door handle was a "foothold". The applicants accept that if it was, the property did not comply with cl 6 of the 1998 Regulation, and as a consequence the present regulatory regime reflected in the Act, the 2008 Regulation, and the relevant Australian Standard, would apply.
31The laundry door handle is curved at top and bottom. Based on the agreed facts, it is approximately 180mm in length. It is not in dispute that it is located between 1.5m and 100mm above the floor level of the laundry and that the top surface is wider than 10mm. The view, and the photographs taken on the inspections of 24 June 2013 and 11 July 2013, confirm that there is minimal distance from the door frame to the widest part of the handle, and a comparison between the internal and external door handles in photograph 5 (exhibit 3, Annexure H) supports the evidence of Mr Connell that he cut back and reinstalled the internal handle, as advised by Mr Bowden.
32The laundry door gives access to the swimming pool. Clause 6(2)(a) requires that the door is kept child-safe by means of a lock, latch etc located at least 1.5m above the floor level. That requirement is satisfied. Clause 6(2)(b) prohibits "any footholds" wider than 10mm on the door or door frame between the release mechanism and any point above 100mm above the floor. Not every object located between 100mm and the lock or other child-resistant device will be a foothold. However, any object in that location that is a foothold will mean that cl 6(2)(b) is not satisfied, unless cl 6(3) applies to that object.
33The difficulty in determining whether a particular object, or intrusion into a barrier, is a "foothold", is demonstrated by the diversity of structures shown in the photographs provided in Annexures Q, R, S, T, U and V in Ms Wyres' Statement of Evidence which various Council Development Compliance Officers have concluded to be "footholds".
34There is no definition of "foothold" in the 1998 Regulation, the Act, or in any version of the Australian Standard until the 2012 Standard which came into effect in November 2012. The task is to determine the ordinary and grammatical meaning of the term, having regard to the context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198.
35While dictionaries can offer what Mason P described in House Of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44 as "a reasonably authoritative source for describing the range of meanings of a word", caution is required, and dictionaries can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose: House Of Peace at [28].
36The parties referred to the following definitions from the Macquarie Dictionary, Oxford Dictionary, and Webster's Dictionary:
Macquarie Dictionary
n. a place where one may stand or tread with safety in climbing, etc.
Oxford Dictionary
noun
a place where a person's foot can be lodged to support them securely, especially while climbing.
[usually in singular] a secure position from which further progress may be made.
Webster's Dictionary
1. A hold for the feet: a place to put the feet in standing and climbing. A secure position.
2. A position usable as a base for further advance.
37The dates of these extracts was not provided. The current on-line editions of the Macquarie Dictionary ("a hold or support for the feet; a place where one may stand or tread securely") and Oxford English Dictionary ("a hold or support for the feet: a surface (secure or otherwise) for standing or walking on; firm or stable position of the feet") are in similar terms to the definitions provided by the parties. They are substantially consistent, and based on these definitions, the term "foothold" would, in my view, encompass three elements: that it is a place to put a foot or feet; that that place is secure in the sense of supporting the person; and that the position is one from which a person might climb.
38To the extent that this reflects the ordinary meaning of the word "foothold", it must be understood in its context and having regard to the legislative purpose. The legislative context is that of restriction of access of young children to swimming pools so as to minimise the risk of pool related drownings (as reflected in the long title to the Act). The understanding of "foothold" as used in cl 6(2)(b) would reflect that focus on a young child, defined in the various versions of the Standard as a child under the age of five years, so that the "person" under consideration is a child under the age of five. The context also includes the continuation in ss 8, 9 and 10 of the Act of the alternative approach of having the dwelling itself rather than a child resistant barrier such as a fence forming the restriction of access to a swimming pool, as an exception to the general requirement in s 7. In that context, the use of a "foothold" in climbing is not to climb over a fence or gate, but for this door, to climb to reach the latch located above 1.5m above the floor and thus open the door. In that context, cl 6(3) of the 1998 Regulation resolves what might otherwise be an anomaly, by excluding certain objects that would otherwise be a "foothold" under the ordinary and grammatical meaning of the word from the operation of cl 6(2) because of their function as a child-resistant device, thus placing primacy on the importance of preventing young children from unlocking and opening any door or window that forms part of the restriction of access to the swimming pool.
39The legislative context also reflects the imposition of more stringent requirements for pool safety over time through amendments to the Act and regulations, for example in the restriction of the exemptions available under ss 8, 9, and 10 of the Act to swimming pools constructed before 2010, and the incorporation of technical developments through reference to relevant Australian Standards which are independently updated over time. However, the legislation has not adopted the approach of requiring all existing swimming pools to comply with updated requirements as they are brought into effect, instead including the savings provision in cl 23 of the 2008 Regulation, and more recently, cl 22A to address changes in prescribed standards.
40The particular provisions of the various versions of the Australian Standard are of limited assistance in the interpretive task. While the 1986 Standard, which was the standard current at the time the 1998 Regulation was in force, does refer to a "substantially horizontal surface", that is in the context of projections from or indentations into the outside surface of a fence or gate, and not to the internal configuration of a door forming part of the means by which access is restricted from a dwelling. The fact that the 2012 Standard now defines "handhold" and "foothold" as separate terms lends some support to the argument that the ordinary meaning of "foothold" is limited to a place where a foot or feet can go. However, the separation of the concepts is also consistent with the increasing specificity and detail of the technical standards and guidance provided by the Australian Standards over time.
41The issue of a building certificate under s 168 of the LG Act in 1995 is not determinative of the issue. The effect of a building certificate issued under that Act was restricted to potential orders made under the LG Act, for a limited period of time, and was not in terms directed to compliance with the Act. However, the Council officer who inspected the property in February 1993 as part of that process turned his or her attention to the swimming pool, including the devices on the doorways leading to the swimming pool area, as evidenced by the Check List and notes (exhibit 3, Annexure F). The correspondence between Mr Connell and Mr Bowden in November 1994 address the locks required at 1.5m for all the doors, however there is no express reference to the laundry door handle. I accept the evidence of Mr Connell, which was not challenged, that the Council officer who inspected the property in November 1994 also considered the applicable swimming pool safety requirements, and formed the opinion that once the internal door handle was cut back the property complied. While Ms Wyres, who is clearly qualified by her training and experience to assess compliance, formed a different opinion in 2013, her notes from the inspection on 24 June 2013 (exhibit 3, Annexure H) indicate the matter was not at the time of that inspection free from doubt. On that occasion she decided that the bolts on the two doors at the rear and the front door could be considered exempt under cl 6(3) of the 1998 Regulation, but noted that further consideration in relation to the laundry door handle was to take place, with discussion with Mr Greenow, the Council's Principal Development Compliance Officer.
42The Agreed Bundle of Documents (exhibit 2) includes (at tab 17) a letter to Mr Connell from Mr Damian O'Shannassy, an accredited certifier, dated 5 August 2013, referring to the Notice of Proposed Direction dated 16 July 2013, in which he states that in his opinion "the laundry handle ...is not a foothold". No basis for this opinion is provided, and I give it little weight.
43In applying the ordinary meaning of the word "foothold", informed by the dictionary definitions and having regard to the context and the legislative purpose, to the laundry door handle, I agree with Ms Wyres that it is securely fixed to the door and is sufficiently solid to support the weight of a child. The adoption of 10mm as the relevant width in cl 6(2)(b) would indicate legislative acceptance that a child's foot could be supported by an object of that width. However, in my view, the alteration of the handle in 1994 so as to position it close to the door frame is significant. Both its position close to the door and its curvature both out from the frame and around its sides, together with its height above floor level, would in my view make it unlikely that the handle could support a child's foot sufficiently securely to provide assistance in climbing to reach the latch. In that regard, it can be contrasted with the outside handle which has not been altered, and which would provide support both inside and outside of the handle. If, contrary to the view I have expressed, the term "foothold" does not depend on there being a place where a foot or feet may be placed, the positioning of the handle close to the door and its curvature would also make it unlikely that a child could use it to grasp by hand sufficiently securely to provide assistance in climbing to reach the latch. While the issue is finely balanced, I am satisfied that when regard is had to all these factors, in the particular circumstances of this case the internal laundry door handle is not a "foothold" for the purposes of cl 6(2)(b) of the 1998 Regulation.
44The only aspect on which the Council was not satisfied that the property complied with the requirements of cl 6 of the 1998 Regulation at the date of the inspections on 23 April 2013, 24 June 2013, and 11 July 2013, and the date of issue of the Directions, was in relation to the laundry door handle. The Council concedes that the handle was in the same physical state on 1 September 2008 as it presently is. I am satisfied that at the relevant date, that is, 1 September 2008, the property complied with cl 6 of the 1998 Regulation. That means that cl 23 of the 2008 Regulation applies, and that it is sufficient compliance with Part 2 of the Act for the property to comply with the requirements of Part 2 of the 1998 Regulation. Section 23 of the Act enables the Council to direct an 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 Part 2 of the Act. I am satisfied that as at the date the Directions were issued, the property did comply with Part 2 of the Act, on the basis of compliance with cl 6 of the 1998 Regulation. The appropriate course is to revoke the Directions.
45The orders of the Court are:
- The appeal is upheld.
- The Directions NOT0192/13 issued under s 23 of the Swimming Pools Act 1992 to Mr John Connell and Mrs Pamela Connell on 12 September 2013 are revoked.
- The exhibits are returned except for exhibit 1.
Linda Pearson
Commissioner of the Court
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Decision last updated: 15 April 2014