Laws on pool fencing leave everyone unhappy

Gary Osborne has had a running row with the Waitakere City Council about the fencing round his pool. Picture / Brett Phibbs

Flawed laws governing the fencing of swimming pools are heading for another airing in court.

Frustrated pool-owner Gary Osborne, a founder of the Pool Owners Action Group, is being prosecuted by the Waitakere City Council, which alleges the fencing of his pool breaks the law.

Mr Osborne, who accuses the council of being petty and "a law unto themselves", said they had dropped a previous case against him but he wanted this one to go ahead.

He has been battling the council since 2002.

Policing of pool laws is undermined by the vagueness of the law and conflict between the Fencing of Swimming Pools Act and Building Code fencing regulations.

Nothing has been done to clarify the law since High Court judge Tony Randerson said a year ago that it required Parliament's urgent attention.

Everyone is unhappy. Pool-owners complain of inconsistent requirements, councils complain of inadequate law, and the Master Pool Builders Guild has told the Weekend Herald it is so incensed at delays in gaining permits for new pools that it may take councils to court.

The Waitakere council acknowledges it is taking a conservative approach, but says it is doing its best with the law as it stands.

"It's an impenetrable mess," said council legal services manager Denis Peard. He termed it a travesty that 12 months after the Randerson decision, "nothing has been done".

Justice Randerson said legislation was vaguely worded, inconsistent and could not give precise guidelines for councils and an estimated 50,000 pool-owners. Parliament should give it "early attention".

Waitakere - supported by Auckland City and Rodney District Councils - had asked for the declaratory judgment after 200 pool-owners resisted its demands for safety fencing in the immediate pool area.

The pool-owners viewed it as a victory because the judge ruled that they did not have to fence off barbecue and entertainment areas from the pool.

Mr Peard said Waitakere's conservative approach was prompted by a case in which a young child slipped away from his parents, got through a fence on to private property and drowned.

The owners pleaded guilty to having an insecure pool and Auckland City, as the regulatory body, paid the child's parents an undisclosed amount as settlement.

"Harry O'Rourke [Waitakere chief executive] looked at it and said: 'I don't want to be in a position where this council has to write a cheque ... because we haven't done our job properly'."

Water Safety NZ spokesman Matthew Claridge said the state of the regulations made for confusion and inconsistent application.

"Some councils are very stringent and some are lax."

The act had not been amended since becoming law in 1987, yet architecture and living styles had altered, he said.

Water Safety was involved in a research project aimed at identifying problems and coming up with standards that all parties agreed to. A report was not expected until next September and amendment to the law might be years away, said Mr Claridge.

"It's not for me to comment on each council's interpretation [but] the Fencing and Swimming Pools Act has been very effective because the average toddler drownings per annum prior to the act was 12."

Four people died in pools and spas in the year to September 30.

The Department of Building and Housing is responsible for the Building Code and takes over responsibility from the Internal Affairs Department for the pool fencing act. A spokesman said the department was working with Water Safety and others to produce a new set of standards taking account of overseas measures.

Waitakere City wants Mr Osborne to cover a block wall and a gate that the council says could be climbed by a child under 6, and to make gates to the pool area self-latching and self-closing.

Mr Osborne said he had already spent $2000 on improvements, including self-closing gates. "That was accepted two years ago but now it's not enough."