Connell v Pittwater Council [2014] NSWLEC 1067

Connell v Pittwater Council [2014] NSWLEC 1067

Applying the ordinary meaning of "foothold" in its swimming pool safety context, the internal laundry door handle was not a foothold for the purposes of cl 6(2)(b) of the Swimming Pools Regulation 1998. Although the handle was solid, securely fixed, wider than 10mm, and positioned between 100mm and 1.5m above floor level, its alteration in 1994 left it close to the door frame and curved in a way that made it unlikely to support a young child's foot, or to be securely grasped by hand, so as to assist climbing to reach the latch. Because the handle was in the same physical state on 1 September 2008 and the property otherwise complied, cl 23 of the Swimming Pools Regulation 2008 applied and...

Jurisdiction
Australia
Judgment Date
15 April 2014
Procedural Posture
Class 2 Appeal Under S 26 of the Swimming Pools Act 1992 Against Directions Issued Under S 23 of the Swimming Pools Act 1992 / Final Determination After Termination of Conciliation Conference Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Directions NOT0192/13 revoked.
Legal Topics
['appeal Against Swimming Pool Direction' 'waterfront Property Exemption' 'savings Provision for Existing Complying Swimming Pools' 'meaning of Foothold' 'child Resistant Barriers']
['swimming Pool Safety Regulation' 'local Government' 'environmental Planning and Land Law' 'statutory Interpretation'] ['appeal Against Swimming Pool Direction' 'waterfront Property Exemption' 'savings Provision for Existing Complying Swimming Pools' 'meaning of Foothold' 'child Resistant Barriers']

Case Brief

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Procedural Posture

Class 2 Appeal Under S 26 of the Swimming Pools Act 1992 Against Directions Issued Under S 23 of the Swimming Pools Act 1992 / Final Determination After Termination of Conciliation Conference Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the internal handle on the sliding laundry door was a "foothold" for the purposes of cl 6(2)(b) of the Swimming Pools Regulation 1998.' 'Whether the property complied with cl 6 of the Swimming Pools Regulation 1998 on 1 September 2008 so that cl 23 of the Swimming Pools Regulation 2008 applied.' 'Whether Directions NOT0192/13 issued under s 23 of the Swimming Pools Act 1992 should be revoked.']

Ratio Decidendi

Applying the ordinary meaning of "foothold" in its swimming pool safety context, the internal laundry door handle was not a foothold for the purposes of cl 6(2)(b) of the Swimming Pools Regulation 1998. Although the handle was solid, securely fixed, wider than 10mm, and positioned between 100mm and 1.5m above floor level, its alteration in 1994 left it close to the door frame and curved in a way that made it unlikely to support a young child's foot, or to be securely grasped by hand, so as to assist climbing to reach the latch. Because the handle was in the same physical state on 1 September 2008 and the property otherwise complied, cl 23 of the Swimming Pools Regulation 2008 applied and...

Court Disposition

Appeal upheld; Directions NOT0192/13 revoked.

Orders

  • ['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.']