Connell v Pittwater Council

Evidence 9The Council relies on a Statement of Evidence of Ms Kristy Wyres, Development Compliance Officer (exhibit 3). Ms Wyres inspected the swimming pool on 23 April 2013, and formed the view that bolts at the bottom of three swinging doors, a door handle and latching mechanism associated with the front door, and the laundry door handle, were footholds within the meaning of cl 6(2) of the 1998 Regulation (paragraph [11]). On 1 May 2013 the Council issued Notice of Proposed Swimming Pool Direction NOT0096/13), and on 24 May 2013 the Council issued a Direction to Comply NOT0096/13. On 24 June 2013 Ms Wyres inspected the property again. On that occasion she agreed that the bolts at the bottom of the three swinging doors and the door handle unit associated with the front door would be excluded from the definition of foothold under cl 6(3) of the 1998 Regulation because they were a child-resistant device (paragraph [21]); and she sent a letter advising that the Direction issued on 24 May 2013 would be revoked. On 11 July 2013 Ms Wyres and Ms Kate Stoner (a Development Compliance Officer) carried out an inspection in response to an application for a Swimming Pool Compliance Certificate for the premises. Ms Wyres noted that there had been no changes to the doors or windows since the inspection of 24 June 2013 (paragraph [25]). On 16 July 2013 a Notice of Proposed Swimming Pool Direction NOT0192/13 was issued; and the Directions NOT0192/13 were issued on 12 September 2013. 10In her Statement of Evidence Ms Wyres sets out the process she used in considering whether the property complied with the Act and the regulations. At paragraphs [55]-[59] Ms Wyres outlines her reasons for concluding that the laundry door handle is a "foothold". Ms Wyres states that she has inspected approximately 250 child-resistant barriers, and that in identifying whether something is a foothold, she considers whether the object is wider than 10mm or has a surface area greater than 10mm; the stability of the object; the surface of the object; whether it could be gripped by a hand or foot; whether it is fixed to a surface and how it is fixed; the steepness of the object; the definition of foothold in the 2012 Standard and whether the object can be used as an aid to climbing a barrier; and whether there are any other objects that may assist in gaining access to the foothold. At [57] Ms Wyres states that in identifying the laundry door handle as a foothold she relied on the following: a. the top surface is wider than 10mm; b. it is securely fixed to the door fame with screws; c. it is a solid object; and d. given that it is a handle to open the door, it can be gripped. 11At [58] she concludes that in her opinion the laundry door handle "is a foothold which can be used by a young child as an aid to climbing or gaining advancement on the barrier". 12The applicants rely on an affidavit sworn on 14 March 2014 by Mr John Connell (exhibit A). Mr Connell states that Mr Thomas Bowden, a Council inspector, inspected the property on or about 14 November 1994, and advised that the laundry door handle did not comply and that it would have to be cut back; that as a result of the advice he cut the internal laundry door handle back, by removing the door handle and reattaching it; that after he undertook the cut to the handle Mr Bowden attended the property again and inspected the door handle and other changes he had made to the property; and that following that inspection he received a building certificate dated 16 March 1995. 13Photographs of the dwelling and various doors and windows taken by Ms Wyres on her inspections on 24 June 2013 and 11 July 2013, including photographs of the laundry door, are included in Annexures H and K to her Statement of Evidence. Photographs 1-4 (Annexure K) show that the door has a latch, located just above 1.5m above the floor level of the laundry. The parties agreed that the top of the handle is approximately 1100mm above floor level, and the bottom is approximately 920 mm above floor level. There is a bench on the wall on the right hand side of the laundry door, with three drawers underneath the bench. The parties agreed that the bottom part of the handle is approximately 300mm from the top of the bench; that the top of the bench is approximately 760mm from the floor level; that the second drawer is slightly above 600mm above the floor level; and that the third drawer is under 500mm from the floor level. Photo 5 (Annexure H) shows the inside and outside handles on the laundry door: 14Annexure F to Ms Wyles' Statement of Evidence contains copies of documents from the Council files, including the following documents: (1) "Check List for Building Certificates - Domestic Dwellings" signed on 5 February 1993, recording the matters inspected on 4 February 1993. The items included in the "External" section of the check list include Swimming pool- water quality/structure, Swimming pool fencing, and Swimming pool - filter motors (noise). The check list includes the hand written notation: Unauthorised dual occ. Pool fencing not in accordance with approval NB S.C and S.L devices provided to doorways leading into pool area (2) a letter dated 16 February 1993 to a firm of solicitors in which the Council's Senior Building Approvals Officer referred to an application for a Building Certificate under s 317AE of the Local Government Act 1919, and an inspection of the property, and advised that fixtures and services from a second kitchen were to be removed and permanently disconnected, and that "pool safety fencing to be erected in accordance with Building Approval No 2063/84 to Council's satisfaction". (3) a file note dated 15 March 1995, which states: Items as listed in council's memo dated 16th Feb 1993, have now been rectified, namely; ... 2. Existing windows & doors opening on to the swimming pool area of this waterfront property have now been modified to comply with the requirements of the Swimming Pools Act. Rec. building certificate now be issued. (4) Building Certificate No 41/95 issued under the Local Government Act 1993 (LG Act), dated 16 March 1995. 15The Agreed Bundle of Documents (exhibit 2) includes a letter dated 21 November 1994 from Mr Connell to Mr Tom Bowden, Health & Building Department, advising proposed action relating to pool safety requirements, including provision of locks to doors at least 1.5m above ground level, and restriction of opening of windows (tab 14), and a reply dated 19 January 1995 which confirms that the proposed modifications to the windows "will satisfy the intent of the requirements of the Swimming Pool Act 1992 and the Australian Standard AS 1926." (tab 15). 16Neither Ms Wyres nor Mr Connell was required for cross-examination.

Legislation 17The general requirement for outdoor swimming pools constructed on premises on which a residential building is located is provided in s 7 of the Act: 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. (2) The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section. Note. Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18, 19 and 22. 18Section 10 provides an exemption from the general requirement in s 7 for waterfront properties, so that instead of requiring that the swimming pool be surrounded by a child resistant barrier, an alternative approach of restricting the means of access to the swimming pool from the dwelling is available: 10 Exemption for swimming pools on waterfront properties (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (2) A swimming pool that is situated on premises having frontage to any large body of water (such as a permanently flowing creek, a river, a canal, a pond, a lake, a reservoir, an estuary, the sea or any other body of water, whether natural or artificial) is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagram in Part 4 of Schedule 1 illustrates the provisions of this section. (4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes. (5) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises. 19The prescribed standards for the purposes of s10(2) of the Act (and the similarly worded exemptions applying in s8 for swimming pools on small properties, and in s9 for large properties) are provided in cl 6 of the 1998 Regulation: 6 Exemptions: secs 8, 9, 10 (1) For the purposes of sections 8 (2), 9 (2) and 10 (2) of the Act, the prescribed standards in accordance with which access to a swimming pool from a residential building is to be restricted are as provided by this clause. (2) In relation to each doorway giving access to the swimming pool: (a) the door (or, if there is a security door in addition to another door, either of those doors) must be a child-safe door and must be kept child-safe by means of a lock, latch, bolt, chain or other child-resistant device located at least 1.5 metres above finished floor level, and (b) there must not, on the door or on the door frame, be any footholds wider than 10 millimetres between the release mechanism of the door and any point 100 millimetres above finished floor level. (3) A lock, latch, bolt, chain or other child-resistant device located less than 1.5 metres above finished floor level is taken not to be a foothold for the purposes of subclause (2) (b). (4) In relation to each window giving access to the swimming pool: (a) the bottom of the lowest opening panel of the window must (when measured in the closed position) be at least 1.2 metres above finished floor level, and (b) there must not be any footholds wider than 10 millimetres between the bottom of the lowest opening panel of the window and any point within 1.1 metres below the bottom of that panel. (5) Subclause (4) does not apply to a child-safe window or to a window that is totally enclosed by a child-safe grille or by a fixed child-safe flyscreen. 20The 2008 Regulation came into force on 1 September 2008, and repealed the 1998 Regulation. Clause 7 of the 2008 Regulation changed the standards prescribed for the purposes of s 10(2) of the Act: 7 Standards required for swimming pools on large or waterfront properties to be exempt from requirement to surround swimming pool For the purposes of sections 9 (2) and 10 (2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are the standards set out in AS 1926.1-2007. 21The 2008 Regulation contains a savings provision: 23 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. (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). (3) However, this clause does not apply: (a) in relation to an outdoor swimming pool-if the child-resistant barrier by which access to the swimming pool is restricted is substantially altered or rebuilt, and (b) in relation to an indoor swimming pool-if the premises in which the swimming pool is situated are substantially altered or rebuilt in a way that affects the means of access to the swimming pool. 22In addition to standards prescribed in the regulations themselves (cl 6 of the 1998 Regulation), standards contained in different versions of specified parts of Australian Standard 1926 Swimming Pool Safety have applied over time. Australian Standard AS 1926-1986 Fences and Gates for Private Swimming Pools (the 1986 Standard) superseded earlier versions published in 1976 and 1979 and applied until revised and redesignated in 1993. AS 1926.1-2007 Swimming Pool Safety Part 1: Safety Barriers for swimming pools (the 2007 Standard) applied by operation of cl 7 of the 2008 Regulation until it was superseded by AS 1926.1-2012 Swimming Pool Safety Part 1: Safety barriers for swimming pools (the 2012 Standard) which revised, amalgamated and redesignated the earlier versions. Clause 5 of the 2008 Regulation now requires compliance with the standards set out in the Building Code of Australia (BCA) for a child-resistant barrier required by s7 of the Act; and the BCA provides that the applicable performance requirement is satisfied if safety barriers are installed in accordance with the 2012 Standard (cl 3.9.3.0). 23All versions of the Australian Standard note that the requirements are directed to obtaining "a barrier that will make it difficult for a young child to gain access to a pool area, whether under, over, or through the barrier". All are focussed on children under five, noting that statistical evidence shows that the majority of drowning deaths in private swimming pools involve children under five years of age. As the title suggests, the 1986 Standard deals with fences and gates. The 2007 Standard and the 2012 Standard refer to a "non-climbable zone (NCZ)", defined in different but similar terms, to mean a zone intended to restrict climbing of the barrier by young children. 24Neither the 1986 Standard nor the 2007 Standard define "foothold". The 2012 Standard defines the term: 1.3.8 Foothold A component of, or feature in, an NCZ that can be used by a young child as an aid to climbing a barrier. 25The 2012 Standard also defines "handhold": 1.3.11 Handhold A component of, or feature in, an NCZ that can be used by a young child as an aid to climbing a barrier. 26The 2012 Standard includes in 2.2 Non-Climbable Zone (NCZ): 2.2.1 General The height and radius of the arc of all NCZs (other than NCZ 4) shall be not less than 900mm. Within and NCZ there shall be no handholds or footholds, objects or plants that will facilitate climbing.

Applicants' submissions 27The applicants do not dispute the importance of ensuring pool safety, and rely on their endeavours to comply and belief that they did comply with the regulatory regime at the relevant time. The applicants acknowledge that over the years knowledge about pool safety and the detail of the regulatory regime has increased, however the issue is not whether the present requirements are better than those imposed under the 1998 Regulation, but whether the handle was a "foothold" under the regulatory regime at the relevant time. The applicants submit that in the absence of a definition of "foothold" in the Act or the 1998 Regulation, the meaning is to be determined from the ordinary meaning of the word; the purpose of the provision; and by reference to the contemporaneous interpretation given to it. In determining the ordinary meaning, a commonsense interpretation would take into account that the handle is curved, and is so close to the door that a child could not fit their foot inside it or stay on top of it. The dictionary definitions share a common theme, namely that a foothold is somewhere where a person puts their foot; and that the structure has security. It would not be possible to rest one's foot on the handle for a moment, but even if that were possible, a child could not stand on it or be supported securely. The purpose of the provision is clear from the context of ensuring pool safety and the need to avoid young children climbing. Assistance can be obtained for the contemporaneous understanding of the term from the 1986 version of AS1926 with its reference in section 2.5 to a "substantially horizontal surface"; the reference to a "horizontal surface" is continued in the 2012 Standard at 2.3.4. That understanding is also apparent from the issue of the building certificate in 1995, which assists in understanding what a "foothold" was considered to be in 1995.

Council's submissions 28The Council submits that the context for the interpretation of cl 6 of the 1998 Regulation is swimming pool safety. The Council agrees that the ordinary meaning of "foothold" is relevant, and submits that the purpose of the provision must be considered in its context. The Council submits that the factors relied upon by the applicants for an understanding of the contemporaneous interpretation of "foothold" are not relevant: reliance on a "commonsense" understanding of the term is dangerous because minds may differ; and the various dictionary definitions of the word are of limited assistance, and in any event, the broader meaning provided in the Oxford and Webster dictionaries supports the Council's interpretation. The proposition that the purpose of cl 6(2)(b) is to avoid climbing is a fairly good approximation, however there are four factors that are relevant to the context of cl 6(2)(b). First, the reference in cl 6(2)(b) to a foothold wider than 10mm is because the provision is aimed at small children; secondly, the reference to any point above 100mm, and below 1.5m, could encompass anything that can be gripped or used to allow progress; thirdly, the list in cl 6(3) of the types of things that needed to be excluded is a good indication of the degree of purchase required to constitute a "foothold"; and fourthly, by including "any footholds", there need only be one. The 1986 Standard is of little relevance because it was made well before the 1998 Regulation and in a different context, namely requirements for external fencing. Clause 6 of the 1998 Regulation must be interpreted in its context in its ordinary meaning as assisted by the dictionaries; the definition now provided in the 2012 Standard is consistent with that understanding, and is a reflection of what safety requires. The issue of a building certificate in 1995 is irrelevant, because it was issued under the LG Act and only related to compliance with that Act. While it can be assumed that the Council officer who issued the building certificate in 1995 undertook that task diligently, the Court should give greater weight to the evidence of Ms Wyres on the basis of her qualifications and experience and her reasoning process. 29The Council concedes that on the evidence it is open to find that the laundry door handle was in the same physical state on 1 September 2008 as it presently is, however whether it then complied with the 1998 Regulation is a separate issue. The 1998 Regulation is specific as to what compliance requires and the whole point is to ensure that a young child is not aided to get access to the pool area. The Council submits that if a "foothold" assumes that there is a foot as opposed to another part of the body, a child would be small and agile enough to gain purchase. If a "foothold" needs to be safe and secure, that is met in these circumstances because the handle is firmly fixed, and a child is lighter and more agile and more likely to obtain a secure position.

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:

1. The appeal is upheld.
2. 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.
3. The exhibits are returned except for exhibit 1. Linda Pearson Commissioner of the Court 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: 15 April 2014