Editorial: Get humbug out of pool fencing rules

At last some common sense has arrived on the rules for fencing private swimming pools. Justice Tony Randerson has ruled that the fenced enclosure may include a barbecue area and other such poolside entertainment furniture. It is not the end of the oddities of pool fencing regulations but the decision will be cheered by many more householders than the 200 who have been resisting the Waitakere City Council's strict interpretation of the law to preclude any activities inside a fenced area that might distract attention from children's safety.

The Waitakere council was more stringent than most in its reading of the regulations but its application for High Court endorsement was supported by the Auckland City and Rodney District councils. And Waitakere's strict definition of the area to be fenced was not the last rule the courts may have to correct. The Building Industry Authority has decided that spa pools with a lockable hard cover also require a fence. All around the country, but particularly in the north, pool fencing requirements have caused no end of consternation and confusion. Property owners resented, or quietly resisted, regulations that varied in their enforcement and were, strictly interpreted, quite unreasonable.

It is 17 years since the Fencing of Swimming Pools Act was passed in the name of preventing child drownings and the experience should be salutary for all concerned. The widespread defiance is a lesson above all for those who hold that no law can be too harsh if it succeeds in saving a human life. That is an easy and superficially satisfying slogan to recite. Some find it particularly satisfying when it can be invoked to justify restrictions on a lifestyle they do not share and perhaps envy. This is an age of extreme risk aversion, especially where children are concerned. But to insist that safety is always the only proper consideration is self-righteous humbug.

Life cannot be devoid of risk, unless it is also devoid of liberty. The most stringent fencing of swimming pools will not save toddlers from all potential water hazards. In many places private swimming pools lie not far from beaches, creeks, lakes and public jetties, few of which can practically be barricaded in the way that private pools are supposed to be. And water is not the only, or main, hazard of modern life.

A letter published on this page not long ago noted that the Auckland City Council says nothing can be done retrospectively about the railings of apartment balconies which, at 105cm, are lower than safety recommends. "Compare this," wrote Grace Haden, "with the rules and regulations surrounding swimming pool fences, which have pages of minute detail and need to be 120cm high. [Yet] anyone falling into a swimming pool stands a good chance of survival. If you navigate your way to the front door of a highrise apartment and fall, what would your survival chances be?"

None of this is an argument against the compulsory fencing of private pools but it is a reason not to impose on them a standard of safety that cannot be imposed on comparable risks. Few, if any, pool owners would object to fencing their property in a way that prevents small children coming upon the pool unaccompanied. But they quite rightly object, and in many cases refuse, to fence the pool off from decks and outdoor living areas that are designed around the water. They say the safety of children permitted in those areas is the responsibility of adults present. That expectation is more reasonable than a regulation requiring a permanent barrier that severely reduces the residents' enjoyment of their amenity.

The suspicion remains that home pools were subjected to more rigorous rules than comparable hazards simply because safety campaigners believed the pools presented an easier target. The resistance of householders over a long period now has proved them wrong. Practicality is not the only consideration in making regulations. Fairness matters, too.