ADDRESS TO Henderson Massey Local Board 3rd March 2011
Madam Chair, Ladies and Gentlemen.
I wish to draw this Board’s attention to recent emerging concerns re the fencing of swimming pools in the Auckland region.
There is no doubt that following Department of Internal Affairs Guidelines issued in 1999 re interpretation of the Fencing of Swimming Pools Act 1987, Waitakere City Council, through its pool officers, overreacted, so much so, that a group of 24 pool owners chipped in $800 each to take a class action against the Council. The Council was making such ridiculous claims as “It’s illegal to have BBQ’s and tables and chairs in the immediate pool area.” Some pool owners appeared on the Holmes Show but the Council was so confident of its stance that it said it would seek a declaratory judgment to settle matters for once and for all.
The Randerson judgment came out on 1 October 2004 and rejected every aspect of the judgment sought by WCC. $20,000 costs was awarded to POAG, the group of pool owners who had initially sought to take a class action against the Council.
The number of cases lodged by WCC against pool owners caused chaos and confusion in the Court system and many mistakes occurred. In my own case the Council withdrew its case against me in late December 2003, then within a matter of weeks sent me a notice saying they wished to reinspect my pool because they had reason to believe it did not comply. They also wanted to charge me for inspection visits. I have a security gate and when the council refused to give a reason for non-compliance, I refused to grant them entry. Council’s barrister then sent a threatening letter to POAG’s barrister threatening to withdraw their application for a declaratory judgment unless they could gain access to the Osborne pool. POAG’s barrister sent an appropriate reply drawing attention to certain sections of the Legal Practioners’ Act.
At a Council meeting on 24th November 2004 Denis Sheard, Legal Services Manager, WCC announced the introduction of an exemption regime. Exemption applications cost $250 but if applicants asked for the fee to be waived, it was. Word soon got out and those in the know had their fees waived but those who did not ask for a waiver were seldom told of the possibility.
When I addressed the Henderson Community Board on the pool issue in November 2009, it was shortly after the drowning of Aisling Symes in a Council stormwater drain in August. In October 2009 WCC had spent $1,680 sending out notices to pool owners re pool fencing requirements yet some of the recipients of those notices had only just received letters of compliance within the last two months. I suggested that money would have been better spent moving tree roots from a drain at 5 Longburn Rd prior to the Symes drowning rather than arguing about who was going to pay for it. WCC’s overbearing actions against its pool owners were not matched with the same enthusiasm when it came to righting faults with its own drainage. To this date I have not heard the result of the enquiry into that incident even though it occurred some 18 months ago.
The statistics re pool fencing prosecutions probably say more about the litigious domineering bureaucratic stance of WCC than they do about the law-breaking attitudes of West Aucklanders.
In six years, since the Randerson judgment WCC prosecuted 814 pool owners, all of which were “successful” according to Denis Sheard. That represents more than 20% of pool owners in the entire Waitakere City and 96% of prosecutions in the entire Auckland region. The next highest Council for prosecutions was ACC (38 prosecutions successful out of 106). PDC and NSCC had 1 prosecution each and RDC, MCC and FDC had none. Over a period of 9 years the number of registered pools in Waitakere declined by 400.
Perhaps the attitude of WCC bureaucrats is best summed up by submissions Max Wilde, Field Services Manager, to the Department of Building and Housing in 2008:
“It is my view and now the Council’s view that the legislation needs to be strengthened in the following ways:
(a) An infringement regime should be introduced and discretion should be given to Councils to issue $500 infringement notices where there is a non-complying fence or an unregistered pool.
(b) The fine for prosecutions for the above should be lifted from $500(maximum) to $200,000.
(c) The police should be given powers to prosecute in the event of a death and exercise their police powers when they investigate a pool and find that the non-compliant fences have caused a drowning.
(d) The exemption regime should be removed, so that no person can apply to be exempt from having the immediate pool area fenced.
(e) The fencing requirements should remove flexibility as to what constitutes the immediate pool area.
(f) The fencing is subject to a consent under the Building Act, but should also have a pool fence compliance certificate that is subject to review and revocation like liquor licences and licences for food premises.
(g) 6 monthly checks should be required by legislation.”
I was absolutely stunned recently when a former WCC Councillor commented to me there’s going to be a bombshell dropped soon on Auckland City pool owners. He claimed ACC and NSCC had never accepted Randerson’s decision and carried on about exemptions not being valid. I replied “Neither did WCC.” It seems the bureaucratic mentality has flowed through from Council officers to ex WCC Councillors.
Pool owners need and deserve an assurance that their property rights will be respected and they won’t be harassed for the rest of their lives with ever-changing interpretations of the 1987 Act, often by the same officer who has previously inspected a pool and given it a clearance.