City's pond raises safety queries

By ANGELA GREGORY and GREGG WYCHERLEY

A security lapse and insecure fencing around a flooded section of Aotea Square have raised safety questions about the makeshift pond.

An independent building engineer and a local government law expert have questioned whether the Auckland City Council should have approved the creation of the large water body.

An 800 sq m area of the central city square was flooded on Sunday to create a knee-deep pool where actors and dancers will perform, at times in the water, for the Auckland Festival.

The council gave a building consent to festival organisers, who promised to provide 24 hour security.

But a Herald reporter who spent 15 minutes beside the pool around 9 pm on Sunday saw no sign of security guards, and spotted gaps in sections of the surrounding fence.

Independent building engineer Kelvin Walls said yesterday that the safety breaches were a concern.

Invited by the Herald to inspect the site, Mr Walls said the fence did not meet standards set out under the Fencing of Swimming Pools Act 1987.

The water is about 60cm at its deepest.

All pools more than 40cm deep must be fenced in accordance with the act unless they qualify for strict exemptions.

The legislation requires gaps under the fence or between vertical bars to be no more than 10cm.

Mr Walls measured 13cm gaps between many of the fence rails and found the distance from the ground to the bottom rail was 23cm - big enough for a small child to crawl under.

The rails also had horizontal footholds, and Mr Walls was not impressed that each fence section could be easily separated.

The council has argued the pond is exempt from the fencing requirements because it is not intended to be used for swimming, wading, paddling or bathing.

But Mr Walls said that as performers would be wading and dancing in the pond, the exemption did not apply.

"The council has obviously taken a pragmatic approach ... but taking the strict letter of the law it is a non-complying structure."

He said there was "certainly cause for concern" given reports the pond had not been supervised at all times.

A local government law expert, Matthew Casey, said he could not categorically say if the pool fencing had breached the law.

But he said the council had waded into a grey area and he would have thought it would have taken a more careful approach.

"As the public body with responsibility for ensuring compliance with the act, I would expect it to apply a higher standard than it has. It should be setting an example."

Mr Casey, a lawyer, said the exemption could be interpreted in light of its purpose to protect the public, as opposed to the restricted use for limited performances by adults.

Given the inadequate fencing and the lapse in supervision, safety issues were posed by the water, he said, to which people would obviously gravitate.

Council team leader, building, Bob de Leur said he had been assured there would be two security guards keeping watch on the pond 24 hours a day.

Mr de Leur was confident the surveillance, combined with fencing, would safeguard the public.

The Auckland Festival's project manager, Margi Mellsop, confirmed that only one security guard was working on Sunday night.

The security firm had told her he was absent for perhaps only five minutes during a toilet break.

Margi Mellsop said there had been some confusion as the security firm had thought the pool would be filled yesterday.

She said that it was always intended that two security guards would patrol the area and that was now being done.

Margi Mellsop said the public was barred from the pool. A 10-year-old boy was banned after he was photographed by the Herald floating on his back on Sunday.