Pool Fencing

I could have entitled this Bob’s emails 5 but the main topic is Pool Fencing.

 

“Dear Mr X, clearly Mr Battersby will say anything to anybody to get a vote. We have not met nor have I ever told people in 2 million dollar mansions to move… so please don’t quote me. The next kid that dies in a pool may very well wipe the smug look off your face. Be my guest Bob Harvey.”

 

This email was sent to Mr X with copies to the full Council and myself on 5 October 2004. It followed Mr X expressing his delight in the Randerson decision re pool fencing.

 

In 1987 retrospective legislation re swimming pool fencing was introduced to New Zealand. In 1999 the Department of Internal Affairs provided new interpretations on the Act for Councils and issued new guidelines. In a pamphlet for Pool Owners it said “A private swimming pool is a significant asset for the home. It becomes the centre of activities in summer; the place for the family to sit around in the evenings or when friends come over for a barbie. A place to relax, or even to talk business in relaxed surroundings.” Many Councils, especially Waitakere City Council had pool officers who overreacted to the new guidelines and starting insisting on conditions way beyond those suggested in the guidelines.

 

Much more detail is given in a book I put out in 2005 entitled “Sitting on the Fence”.

A copy of this can be obtained for $20 by phoning Gary Osborne on 834 4513.

Also there is detail on the POAG (Pool Owners Action Group) website www.poag.org.nz of the POAG organization.

 

On 16/7/02 Dai Bindoff for WCC said “Council will reinspect pools every 3 years. Legislation changes may lead to previously compliant pools becoming non-compliant. That is bad luck for the pool owner but they do have to comply at their own expense, nevertheless.”

Pool officers began making claims ultra vires and pool owners started getting hacked off.

9/10/02  Jason Sheehan, WCC Pool Officer “There is enough room to have a table by the pool and that is not allowed.”

Jason Sheehan was later removed to Liquor Licensing and I understand has since been removed from the Council altogether.

18/10/02 Dean Nuralli, WCC Pool Officer “The immediate pool area is to be exclude from becoming an entertainment area.”

Pool owners became upset at the arrogance of Council Officers. For instance on being asked to make an appointment to inspect my pool, John Koolen, Prosecuting Officer for WCC, told me on 18 March 2003 “We don’t need to make a definite time. We’ll come whenever we like.” Such attitudes are hardly likely to engender goodwill.

Indeed, under Section 11 of the Act it states a Council officer who has reasonable grounds to believe a pool is non-compliant may enter on the land to carry out an inspection at any reasonable time. The officer is required to provide a warrant on request stating his name and office held. Koolen’s attitude hardly fits in with that.

Although Kensington Swan (WCC’s lawyers) had sought a separate legal opinion through Keith Berman (barrister) they chose to pursue prosecutions vigorously.

On 29/5/03 Berman had advised “In my view it is totally unrealistic to say that there cannot be comfortable seating, tables and sun umbrellas in a nice setting within the swimming pool enclosure.”

 

As the concerns grew, a number of pool owners grouped together with the idea of taking a class action against WCC. This led to the formation of POAG. The Council had been flooding the Waitakere District Court with Prosecution Notices and the Court itself was in a state of confusion and overload. So confident was the Council of its heavy-handed stance that it sought a Declaratory judgment in 2003. In the interim it withdrew all pending prosecutions. Every aspect of the Declaratory judgment sought by WCC was rejected and POAG was awarded $20,000 costs.

At the hearing on 2 August 2004 Judge Randerson had remarked, after comments about the distraction of a parent checking a BBQ by Caldwell, the barrister representing Auckland City Council, “But you may grant exemptions?” then “It’s almost regarded as a matter of routine that a BBQ goes with the pool area. There’s scope for a middle course. It might avoid a plethora of exemption applications.”

Nevertheless the Council pursued a relentless prosecution path, even after the judgment. A new exemption regime was set up and Councillors were told it involved a “handful” of pool owners. It’s turned out to be a bloody big hand!

 

In less than 3 years WCC issued in excess of 644 Prosecution Notices against pool owners.

On 8 Feb 2000 there were 4,280 registered pools in Waitakere City.

On 17 August 2010 that had dropped by more than 400 to 3,869.

Since the exemption regime was introduced in 2004, 339 exemptions have been applied for.

Since the exemption regime was introduced in 2004, 339 exemptions have been granted.

 

For many years Watersafe Auckland has been agitating for more stringent conditions to be introduced for pool owners, with further changes to the law.

Watersafe Auckland is part funded by Waitakere City ratepayers.

 

Don’t forget “The safety of children in Waitakere City is paramount.”

We’re still waiting to hear the outcome of the enquiry into the case of Aisling Symes, who drowned in a Council stormwater drain in October 2009.

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