Judge to rule on pool fencing law

By WAYNE THOMPSON

A High Court judge was asked yesterday to clear up confusion among local bodies over rules for swimming pool fencing.

The ruling, which will apply to councils nationally, was sought by the Waitakere City Council after 200 pool owners resisted the council's demands for safety fencing in the immediate area of the pools.

Some pool owners said the council disallowed deck furniture near the pool and the use of the house as part of the fencing.

Lawyers and council inspectors say there are two different laws affecting pool fencing - the 17-year-old Fencing of Swimming Pools Act and the Building Act.

Two recent Building Industry Authority determinations meant lockable spa covers were no longer an acceptable alternative to compliant pool fencing and that it was no longer acceptable to have doors from the house entering the pool area unless it was a confined area.

The authority decisions were not a useful guide to interpreting the law, said David Carden, lawyer for two couples who face prosecution by the Waitakere City Council.

He said the pool fencing act required fencing or other barriers to prevent unsupervised children under six years from going into the pool. It required fencing of some or all of the immediate area including all of the pool.

The act defined the immediate pool area as part of the pool or surrounding area used for activities or purposes carried on in conjunction with the use of the pool.

Mr Carden said that expression was broad and could include the enjoyment of a summer barbecue, use of an enclosed backyard play area and even just sitting near a swimming pool.

The Building Code required a pool deeper than 400mm to have a barrier which restricted access by children under six to the pool or immediate pool area.

But the immediate pool area was not defined in the Building Act, which gave the code its authority, but should have the same meaning as the Pool Fencing Act.

The couples had fences or barriers that complied with the Building Code and were anxious to do what they needed to do to comply with the law, said Mr Carden, but they objected to the council's interpretation of the immediate pool area.

The couples, John and Stephanie Hickman and Robert and Carol Spargo, had pool fencing that included utility or recreational areas that were not used exclusively in conjunction with a swimming pool.

They also had direct access doors from the house which were not self-closing and self-latching as the council was now demanding.

It should be open to a pool owner, within reason, to determine where their pool fence was located, and to decide the size of the pool area.

Waitakere City Council's lawyer Robert Enright said the law gave little discretion for the pool owner as the fence must be located either at the pool's edge or within the immediate pool area.

A council could consider an exemption if it did not affect the goal of protecting young children from drowning.

Justice Tony Randerson was asked to give a general declaration to the definition of "immediate pool area" that supported the council's interpretation of what was not "immediate pool area" and where a complying fence was needed.

Justice Randerson reserved his decision.

At last week's Local Government New Zealand Conference, delegates from 86 councils supported a North Shore remit calling for review of the Fencing of Swimming Pools Act.

North Shore City Council said a large proportion of 5200 pool owners would no longer meet the new requirement as they may not meet the interpretation of the immediate pool area in the Building Industry Authority determination.