Repeal of FOSPA & Emotive Assertion

The Fencing of Swimming Pools Act 1987 had as its aim “An Act to promote the safety of young children by requiring the fencing of certain swimming pools.” In 1999 the Ministry of Internal Affairs issued guidelines as to its interpretation. The following year some councils such as Waitakere City Council (WCC) embarked upon a rigid enforcement regime which in many cases lacked common sense. The Building Act (2004) allowed entrance to pools through doors from the house but in many cases pool owners were told this was “illegal.” Some water safety groups praised the actions of WCC and also pushed for isolation fencing (fencing on all sides). Many pool owners in Waitakere were upset, especially in cases where they had compliant pools that were overnight deemed non-compliant. Some were told it was “illegal” to have tables and chairs and BBQ’s in the “immediate pool area”. As complaints grew this led to a group of pool owners in Waitakere joining together in the latter part of 2003, to take a class action against WCC. WCC, confident of its rigid stance, sought a declaratory judgment in the High Court. Every aspect of the judgment sought by WCC was rejected by Judge Randerson and $20,000 costs awarded to the pool owners.

Time and time again pool owners have heard the phrase “It’s a tragedy if even one child drowns.” I am sure there is not one pool owner in NZ who would disagree. However, in pushing for more and more restrictions on the type of pool fencing accepted, water safety groups have not been beyond using emotive assertion rather than cold hard facts.
As an example of emotive assertion, in June 2004 WCC ran an advert that claimed 6 pre-schoolers drown in private NZ pools every year. For the years 1994-2003 the official figures from Water Safety NZ revealed 40 pre-schoolers drowned in private NZ pools. I challenged WCC on the 50% exaggeration but they were unrepentant. I complained to the Advertising Standards Authority but my complaint was not upheld as it was deemed “The social good imparted by the message overrode the inaccuracy of the figures.”

On another occasion, immediately after the Randerson judgment I emailed all Councillors to say this was a victory for common sense. Only one Councillor replied. He told me to have a “wee wee.”
The following year a journalist from the Aucklander approached me and asked if I would be prepared to provide her with some written comment about the large number of prosecutions and perhaps provide her with some names of people she could contact. I gladly did so but was unimpressed when I read in her article “The judge upheld the council approach for the most part, but also allowed for shades of grey over most aspects of the immediate pool area.” I rang her editor pointing out that Court figures revealed that out of 155 call-overs since the Randerson decision, 75 had been withdrawn, 17 were set down for Status hearings throughout May and 63 were set down for defended hearings on 17 June. I emailed him saying I also objected to her statement “Out of 117 properties due to face prosecution only four are compliant according to Judge Randerson’s October ruling. Despite this the editor stood by the journalist’s report so I complained to the Press Council. Three months later the Press Council advised me “The complaint is not upheld.”

In the years from 2005-14 there have been 21 pre-schooler drownings in private NZ pools (Water Safety NZ) yet most submitters claimed at the oral hearings in Auckland on 22 February 2016, there are still 3 drownings per annum. Some went even further and claimed this bill will lead to an increase in the number of deaths. Those same people were calling for the bill to be “science-based”. Indeed one submitter quoted in the Herald on February called the bill “reckless.”
Let’s hope the committee displays common sense in its judgment and we end up with a piece of legislation that is understandable and workable.

To contact the Pool Owners Action Group (POAG) ph Gary Osborne 09 834 4513
Our website is http://www.poag.org.nz

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Auckland Council Rating Valuations

Have you ever wondered about the reliability of valuations upon which your rates are based? In 15 years as a Real Estate consultant I always accepted valuations in blind faith and without question.
At the age of 69 I have never objected to a valuation until now. However, I will be looking at every future valuation punctiliously and insisting on accurate responses to my concerns raised. My involvement in this particular matter stems from 20 September 2011 when I was advised a portion of my road frontage in Te Atatu Rd was required for road widening. The following timeline was outlined:
Sep-Nov 2011 Affected Landowners and Community consulted on preliminary design
Feb 2012 Detailed design finalised
Mar-Aug 2012 Consenting
2012-13 Land Acquisitions
2013/14 Construction
Well it’s now 2016 and I’m told hopefully construction will be completed by February 2017.
The negotiation process for purchase of our land was not simple and I outlined the experience of TPOG (Te Atatu Property Owners Group) in a booklet I put out in Dec 2013. I have had numerous enquiries for a copy of this booklet so if you email me you can request a download copy for free.
gary.osborne@vodafone.co.nz
In my case I received 4 offers from ACPL (Auckland Council Property Limited), the negotiators for AT (Auckland Transport), the road wideners, for purchase by AC (Auckland Council). The offers were $20,000,$28,000,$45,000 following 3 valuations by ACPL’s valuers then $47,000 following a valuation from my own valuer. On 12 July 2013 I was offered $47,000 that I accepted. Some months, later (end of November) $47,000 was lodged in my lawyer’s Trust A/C.
In 2014 I received a Valuation Notice dated 10/11/14.
LV $400,000 CV $690,000 Land area 809m2
Then in 2015, just before Christmas on 10/12/15 I received a Valuation Notice dated 7/12/15 saying this notice superseded the previous one.
LV $400,000 CV $690,000 Land area 763m2
Hang on! This Land Valuation is identical to the previous one but there’s a chunk of land missing. How can that be? Well, it turns out there’s been a chapter of errors and delays – so many in fact, that I’ve decided to put out a booklet giving details in the hope that it may be found useful by property owners wishing to object to a rating valuation in future. In that booklet I will outline my experiences in detail.
To briefly examine my own current case, I objected to the new valuation on 2 January 2016 and received automatic confirmation saying I would be contacted via mail within five working days to advise when my objection would be completed.
Then on 9/1/16 I received a letter from Auckland Council dated 5/1/16 saying “there may be a delay in undertaking this review due to the significant number of properties involved in the Revaluation.”
Then on 13/1/16 Auckland Council advised me by email “QV have confirmed that there will be no delay in reviewing these assessments. They have indicated to Council this will be completed by 29 January 2016.” “There have been a total of two objections.”
In my case I have argued for the LV to be dropped by $47,000, the price paid for the piece purchased by AC. Naturally the higher my residual land value the more rates AC can extract from me.

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Auckland Council Working Days

I was recently motivated to ponder just what constitutes a “working day” for Auckland Council.

1.
On 7/12/15 I raised some questions with Auckland Council regarding drownings of toddlers in private swimming pools in Auckland since 1/11/10 (the date of inception of Auckland Council).
On 9/12/15 I was told my request would be treated as a “LOIMA request”. (I believe they meant LGOIMA request (Local Government Official Information and Meetings Act, 1987)). I was told “I understand the requirement is for me to get back to you within 20 working days.”
Upon checking I found Section 2 of LGOIMA defines “working day” as “any day of the week other than-
(a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and
(ab) if Waitangi Day or Anzac Day falls on a Saturday or Sunday, the following Monday; and
(b) a day in the period commencing with 25 December in any year and ending with 15 January in the following year.”

2.
Then on 10/12/15 I received a letter from Council dated 7/12/15 on another matter – a supplementary valuation on my property. It gave me until 12 January 2016 to object. But a large part of that period is covered by non-working days I thought. – Silly me! The definition of a “working day” for the Rating Valuations Act 1988 is governed by Section 29 of the Interpretation Act 1999 and is defined as
“a day of the week other than-
(a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, and Labour Day; and
(b) a day in the period commencing with 25 December in a year and ending with 2 January in the following year; and
(c) if 1 January falls on a Friday, the following Monday; and
(d) if 1 January falls on a Saturday or a Sunday, the following Monday and Tuesday; and
(e) if Waitangi Day or Anzac Day falls on a Saturday or Sunday, the following Monday”

With these inconsistencies I wondered what was the point of the Interpretation Act –largely regarded as the Bible for statutory Legislation and definitions?
Under Section 2 it states
“the purposes of this Act are –
(a) to state principles and rules for the interpretation of legislation; and
(b) to shorten legislation; and
(c) to promote consistency in the language and form of legislation”
YEAH RIGHT!
3.
However my concerns didn’t end there.
On 24 December I rang 3010101 and asked to speak to a Council Officer.
“Oh, no” I was told “this is Christmas Eve, all Departments closed yesterday.”
I pointed out this was a working day and asked if Council staff were being paid for not working on a “working day.” I was told that was none of my business but I pointed out that, as a ratepayer, I regarded it very much as my business. Eventually I contacted the Deputy Mayor who contacted the Deputy CEO who has informed me “I will follow through and someone will be in touch in the new year.”

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Revaluations

Last week a number of property owners in the Te Atatu Rd corridor received Revaluation Notices superseding previous Valuation Notices.
We were given until 12 January 2016 to object.
At first glance there seems little change but the feedback I’ve had from affected ratepayers, to date, is that despite land being acquired by the Council for road widening, under the Public Works Act, the original valuation is the same as the new one with the value for the residual land being the same as the value for the total land before the loss of the portion acquired by Council.
To illustrate by way of example
Property X
LV 1/7/14 $400,000
IV 1/7/14 $300,000
CV 1/7/14 $700,000
Land Area 800 m2
New Valuation (backdated to be effective from 1/7/14)
LV $400,000
IV $300,000
CV $700,000
Lan d Area 750m2
With 50m2 of land now belonging to Council, the property owner has lost 6.25% of his/her land. One would expect a rates decrease, but by backdating the new valuations to be effective from 1/7/14 the Council will get the same rates revenue as it did before acquiring its portion, even though the property owner now has less usage. Effectively, Council’s back-dated land valuation of 50m2 is $0 as at 1/7/14. That’s a rort!
To add insult to injury ratepayers wishing to do so are required to object to the new valuation by 12 January 2016. Yet if a ratepayer requests information from Council they will be told 25 December 2015 until 15 January 2016 do not count as working days.
The double standards abound!

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New Swimming Pool Legislation

The Building (Pools) Amendment Bill has had its first reading in Parliament.
On Wednesday 30 September. I, as Chairman of POAG and 3 members of the Pool Industry had a meeting with Hon Dr Nick Smith to discuss our concerns.

Here are the points raised by me:

Sep 30 2015 Meeting with Hon Dr Nick Smith
Gary Osborne, Chairman (POAG Pool Owners Action Group)

1987 FOSPA working major problem supervision
1999 Ministry of Internal Affairs Guidelines. Led to nit-picking. WCC
2001 Table & chairs, BBQ’s “illegal”. Must have “isolation fencing”.
2003 Formation of POAG. 3 C’s-certainty, consistency, common-sense
2004 Randerson judgment. $20,000 costs to POAG.
2005-2010 WCC 814 prosecutions, 348 exemptions
2011 AC External Working Party. Code of Practice Aug 2011
Feb 2013 Submissions to Parliament.
Nov 2013 EGI certain assurances.
2015 AC decides to work on a new Code of Practice
Sep 2015 First reading of Building (Pool) Amendment Act

CURRENT PROBLEMS
The 3 C’s
Existing exemptions and compliances not being honoured.
Abuse of law. Section 11.
Arguments over “immediate pool area”
Arguments over “thoroughfares”
Arguments over “landscaping”
Pool officers turning up without appointments.
Councils acting “ultra vires”. End justifies the means.
Emotive assertion
Recent cases

CONCERNS OVER PROPOSED LAW
In Nov 2013 EGI promised to remove under 4.2.3 and 4.2.5
The term “immediate pool area”
The power of council to require upgrades due to changes of law
Unrestricted access to private property
Ability of Council officers to levy spot fines.

POAG REQUESTS
The 3 C’s
Honour existing compliances and exemptions
Restricted access to properties

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Put it in Writing

Address to HMLB on 6 August 2015 by Gary Osborne
Madam Chair, Board members, ladies and gentlemen.
On the Council web-site is stated “Local boards provide important input into region-wide strategies and plans including those of the council-controlled organisations.”
Ratepayers often rely on reports from CCO’s to their local board and expect them to be accurate. It is therefore vital that when “mistakes” occur they are corrected in writing in a timely manner.
On 2 July the report regarding the Te Atatu Rd corridor that was presented to this Board, stated “Affected residents and businesses have been contacted directly.” That was untrue. I was told the mistake was corrected verbally at the meeting but such a report becomes a matter of public record unless corrected in writing. Only one member from your entire board, your chair, remembers that correction.
At my insistence, Glenn Boyd, Relationship Manager sent me an email on 13 July advising me the minutes had been updated accordingly. However when the minutes were presented for confirmation as published on 16 July on the official council website, the secretarial note was missing. At 5.30 pm tonight we have the farcical situation of two different resolutions for approval the minutes of the meeting on 2 July. They are resolutions HM/2015/101 and HM/2015/108. The record on the official council website remains unchanged.
In future it should be incumbent on any person presenting a report to the Local Board, if they are aware of errors in that report, to produce a written statement of correction that can be tabled and presented to the Board chair at the time of presentation. Furthermore they should advise the Board secretary in writing as soon as they become aware of the errors prior to the meeting, especially in cases when reports are prepared weeks in advance of an actual meeting.
In theory we live in a democratic society. In practice, since the advent of the Super City I know many ratepayers dispute that. I look forward to action from my representatives on this board in future. Action is far better than excuses.
At least Lester Levy, AT Board Chairman, has called for an internal audit and he took the trouble to contact me on a Sunday night.
I urge this Board to insist on formal written corrections to inaccurate formal reports in future.

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Auckland Council CCO Communications

Abbreviations Used
AC Auckland Council
AT Auckland Transport
HMLB Henderson-Massey Local Board

Characters
Vanessa Neeson HMLB Chair
Shane Henderson HMLB Deputy Chair
Brenda Brady HMLB member
Peter Chan HMLB member
Tracy Kirkley HMLB member
Warren Flaunty HMLB member
Will Flavell HMLB member
Luke Wilson HMLB member
Penny Hulse Deputy Mayor, Waitakere Ward representative
Linda Cooper Waitakere Ward representative
Owena Schuster Elected Members Relationship Manager (West) AT
Jonathan Anyon Team Manager, AT
Sharlene Riley PA/Liaison Henderson-Massey Local Board
Kerry Harrington Councillor Support Advisor to the deputy Mayor
Dai Bindoff Senior Communications Advisor, Communications and Public Affairs, AT
Wally Thomas Untitled
Glenn Boyd Relationship Manager Henderson-Massey,Waitakere Ranges, Whau
Roger Wilson Council Engagement Manager, AT
Sharlene Grounds Stakeholder Relationship Manager, AT
Busola Martins Local Board Democracy Advisor (West) Governance Division, AC

What you are about to read is not make-believe. It’s a true story. The names of characters portrayed are real.

On Wednesday 8 July I was lying in bed reading the reports from the most recent HMLB meeting when I read the following statement regarding the Te Atatu Rd corridor, in the report from AT to the HMLB. “Affected residents and businesses have been contacted directly and another project newsletter will soon be distributed in the wider Te Atatu catchment area.” Now I certainly hadn’t been contacted so I decided to ring AT next day to find out why I had been missed.

On Thursday 9 July I rang Owena Schuster, AT. She was unavailable so I left messages for her to ring me. Having not heard back by 4 pm I sent the following email:
“On the agenda for last week’s Henderson-Massey Local Board meeting it was noted affected residents and businesses had been contacted directly and an information meeting is planned for the third week of July.
1. Why was I not contacted directly re 313 Te Atatu Rd?
2. Please forward future information to me as a key stakeholder.
3. Please ensure you have my email above on record.
4. As next week is the third week of July could you please provide me with location and time for next week’s meeting.”

Ten minutes later I once again endeavoured to contact Owena by phone. I spoke to Jonathan Anyon who told me Owena had not contacted me as she did not have my phone number. I said that was strange as I had left it on the phone message.
Despite not having my phone number, I received the following email from Owena at 8.45 pm
“thanks for your calls and this email. I did try several times this afternoon to call you back but your phone was engaged and was unable to leave a message.
You will be given notice of works like all other stakeholders within the next week this will also include the open day date and time (not a meeting) for effected parties and members of the public to come and see the works that will be undertaken plus and opportunity to ask any questions about the works the need answering.
I think that there may have been an error in the report… It probably should have read will be notified in the third week. I will check on that for you.”

In the interim I had contacted several other residents and found none had had direct communication from AT.

On Friday 10 July I endeavoured to contact Vanessa Neeson but she was on leave and I was advised to contact Sharlene Riley if the matter was urgent. I made several attempts throughout the day but Sharlene Riley was unavailable on each occasion. I left messages asking her to return my calls but this did not occur.
I rang the entire HMLB but none was available and none returned my calls.
I rang my two Ward representatives but my calls were not returned.
At 8.45 am Dai Bindoff, AT was unavailable. I left a message for him to ring me.
At 9am I was subjected to 15 minutes of canned music after John put me through to Sharlene … He told me he could not give me her last name “for privacy reasons.” When the voicemail message came up however she identified herself as Sharlene Grounds. I asked her to ring me.
At 9.35 am I learned Linda Cooper was away on leave until 18 July.
At 9.45 am I received an email from Dai Bindoff saying “the report to the local board was in error.” and there would be an “open day” on Sunday June 26.
I emailed pointing out that 26 June had been and gone and asked who had written the report. He avoided my question and said the report was written in “good faith” and had been corrected verbally to board members.
I repeated my question. His reply was “Who wrote it is irrelevant. The report was written from information I supplied, in good faith. If you’re looking to criticise the report writer, you must criticise me.” I went back to the original report on the Council website and found at the bottom:
Author: Owena Schuster
Authorisers: Glenn Boyd, Roger Wilson
I emailed the entire Local Board asking them to insist on the report being corrected in writing.
Later that day I spoke to Local Board members Flaunty and Chan and asked them to chase the matter up. They appeared unaware of the “verbal correction.”

On Saturday 11 July
I received an email from Owena Schuster saying she would be on leave from 13 to 20 July and to contact Jonathan Anyon for any urgent matters.

On Monday 13 July
At 8.45 am I sent an email to Dai Bindoff asking for a written correction of the report.
He replied “In respect of the correction, our processes are directed by internal protocols and we have dealt with that matter appropriately. The outcome will become public when the minutes are published.” I noted he had sent copies to Wally Thomas, Owena Schuster and Roger Wilson.
To me a verbal correction is totally unprofessional and I forwarded my concerns to Kerry Harrington, Penny Hulse’s PA. Penny Hulse rang me and sympathised with my concerns. Wally Thomas and Roger Wilson were unavailable. Neither returned calls. At 1.20 pm I received an email from Wally Thomas stating “I have a message to ring you. There is nothing more to add here.”
At 5.05 pm I received an email from Glenn Boyd confirming the relevant information had been updated in writing and forwarded to board members by Busola Martins.

QUESTIONS
1. Is the team of managers too large to manage the team?
2. Is a verbal correction of an inaccurate formal report satisfactory?
3. Do AT’s internal protocols need revision?
4. Is the name of the author of a report irrelevant?
5. Do you consider this matter was dealt with “appropriately”?
6. Is the use of canned music by the Customer Service Centre reasonable?
7. Had I not insisted on a written correction would the minutes due for presentation to the HMLB for confirmation tomorrow have been accurate?
8. Are Local Boards effective conduits for ratepayers?

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