Background

 

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Background Statutes Statistics Double Standards

At the inaugural meeting of the New Zealand Water Safety Council in 1974, the
Hon Henry May suggested that a standard territorial authority bylaw be made to
ensure that swimming pools be correctly installed with safety fences.

On 18 June 1975 a petition was presented to Parliament by Mrs J. Callagher and
800 others requesting mandatory "child-proof" fences for all private swimming
pools.

On 14 Dec 1979 a model bylaw "Restriction of Access to Private Swimming
Pools" was introduced with the stated purpose "To prevent access by pre-school
children, and particularly the under-two-year olds, on to properties which have
swimming pools. The intention is to reduce the enticement of children on to those
properties from either adjoining properties, or from the street."

In March 1982 the Water Safety Council convened a meeting to debate the
question of early childhood drowning prevention. They produced a document
entitled "Facts and Fallacies - The Case for the Fencing of Swimming Pools."

In 1983, Parliament's Local Bills Select Committee tabled its report on The Fencing
of Private Swimming Pools. It concluded from submissions and other evidence
presented to it "there is a growing problem of childhood drownings in private
swimming pools in New Zealand." In the Report Summary, it stated "Private
swimming pools are clearly identified as the single most significant water hazard for
pre-school children. In 1978-82 a total of 57 children under five years drowned in
private swimming pools in New Zealand." It also stated "All but one of these 57
drownings would have been prevented by a fence erected in accordance with the
model by-law." Further on it stated "in two cases the pools were fenced but the
gate was left open or the access was insecure. In one case the pool was partially
fenced and in the remaining two cases the pools were unfenced."

Coroners' Reports from the Department of Justice revealed:-
Drownings of children under 5 years in Private swimming pools 1973-82

1973 5 1975 12 1977 9 1979 8 1981 17
1974 8 1976 12 1978 8 1980 11 1982 13

The report stated "As far as it can be ascertained, no pre-schooler drowned in the
period under study in a private swimming pool fenced to the standard intended by
the model bylaw." Further on the committee concluded that the argument that
drownings will occur because children can climb fences is not a compelling one.

In 1984 the Standards Association of New Zealand introduced a model bylaw
entitled "Restriction of Access to Private Swimming Pools" replacing the 1979
model. The objective was to prevent unsupervised access to swimming pools by
children under 5 years of age and thus to reduce the risk of their drowning.

By 1987 only one third of all territorial authorities had made such a by-law and on
20 July 1987 the Fencing of Swimming Pools Act 1987 (FOSP) was passed - "An
Act to promote the safety of young children by requiring the fencing of certain
swimming pools." The legislation was retrospective. Now no two pools are the
same so there was provision for exemptions in certain cases. Whereas the 1984
model bylaw had referred to children under the age of 5, this law referred to
children under the age of 6.
Under Section 11 of the Act 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.

In 1989 the Fencing of Swimming Pools Amendment Act 1989 was passed.

In 1991 the Building Act 1991 affected new swimming pools but the legislation was
not retrospective.

In August 1999 the Department of Internal Affairs issued Guidelines for Territorial
Authorities relating to the FOSP. Notably, in that publication, a suggested pamphlet
for Pool Owners states "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."

Yet during 2002 some Councils, especially Waitakere City Council, started
adopting a very heavy-handed approach to enforcing "compliance" and have done
everything within their power and even beyond their power to diminish the value of
that asset. Many pool owners were shocked by displays of arrogance. The expense
of having to comply was described by Dai Bindoff as "bad luck." Many previously
compliant pool fences were now deemed unacceptable. Even new pool fences with
verbal approval before building as recently as 2001 within Waitakere City were
deemed non-compliant. Ratepayers were subjected to thousands of dollars of new
expense, only to be told at a later stage that new work was required over and
above that already done. Attitudes of the Council bureaucrats are best described by
a selection of quotes:-
16/7/02 Dai Bindoff "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."
9/10/02 Jason Sheehan "There is enough room to have a table by the pool and that
is not allowed."
18/10/02 Dean Nuralli "The immediate swimming pool area is to be excluded from
becoming an entertainment area."
18/3/03 John Koolen "We don't need to make a definite time. We'll come
whenever we like."
18/8/03 Janet Clews "There has been a new Internal Affairs definition of some
points."

In early 2003 WCC sought and obtained a legal opinion as to whether it could
require the erection of a fence between a swimming pool and entertainment area on
a property. In that legal opinion it was told "The fence should prevent young
children moving directly to the pool from the house, other buildings, garden paths,
or other areas of the property normally open to them." Furthermore they were
told that Grant Kamau at the Department of Internal Affairs advised that the
definition of the "immediate pool area" was deliberately left vague, to give Councils
a discretion on how strict the rules were to be. WCC decided to adopt a
"bloody-minded" approach as Bob Harvey described it and start prosecuting its
ratepayers left, right and centre. On 18/11/03 Brigid McDonald, contract solicitor
to WCC, informed me there were 275 cases "currently in the Court system".
By the end of 2003 numerous Waitakere City swimming pool owners were getting
fed up with the high-handed bullying tactics of the Council bureaucrats. A group of
us got together and decided to "pool" our resources, stand up against this bullying
where the Council appeared to be acting ultra vires and decided to take a class
action against it, working through New Lynn lawyer, John Steadman. This led to the
formation of the POAG and currently we are awaiting a High Court Declaratory
judgement.

We would certainly welcome new members!!

Contact Gary Osborne 834 4513
025 443 010