Fencing of Swimming Pools Act - August Update
On the 2 August 2004 John Steadman, Thomas & Co, appeared with David Carden in the High Court on behalf of a group of pool owners who were opposing the Waitakere City Council's interpretation of the term "immediate pool area" contained in the Fencing of Swimming Pools Act 1987.
Below is an update from John Steadman on this important issue.
Fencing of Swimming Pools Act 1987
When I first became involved in this matter over 2 years ago, it was in respect to one pool owner. The pool owner approached me because they were being prosecuted for allegedly not complying with the Fencing of Swimming Pools Act 1987. The pool owner was distraught. They had documentation from the Council acknowledging that they had complied with the legislation previously. Yet they were being told to now put an additional fence between their pool and their home. The justification for this was that the Council now believed that the "immediate pool area" was not adequately fenced.
This, as I quickly found out, was not an isolated issue. In the end some twenty five pool owners were involved in a collective action against the Council, and dozens of others had been in contact with me.
However, and I think even a number of Council's would agree with me, the legislation is not clear when it comes to clearly defining the term "immediate pool area". As a consequence the matter ended up in the High Court for a decision.
What is the immediate pool area?
The Fencing of Swimming Pools Act 1987 puts an obligation on a pool owner to ensure that the pool, or some or all of the immediate pool area including all of the pool, is fenced.
The issue is what it the immediate pool area? The definition in the legislation states:
- immediate pool area means the land in or on which the pool is situated and so much of the surrounding area as is used for activities or purposes carried on in conjunction with the use of the pool
The problem with this definition however is that it does not define what an "activity or purpose carried out in conjunction with the use of a pool" is. There are many possible interpretations. It could be argued that an activity associated with a residential swimming pool is having a barbeque or entertaining guests by the pool. Or it could be argued that such activities must be completely restricted to swimming in the pool itself.
My understanding is that some Council's prefer the later interpretation to the former. This argument requires the term "exclusively" to be imported into the legislation. The legislation itself does not contain this term.
The Pool Owners Action Group Position (POAG)
The client's I represent do not agree that the definition is as stringent as the position advocated by some Council's. A residential swimming pool is different to a public swimming pool. The activities and purposes associated with a private pool include activities other than just swimming. Activities such as barbeques and places to eat and socialise while having a barbeque can be included in the area that is fenced. As long as a child under the age of six cannot get access to the area unsupervised, the area contained within the fence perimeter is not an issue.
Child safety
The legislation only applies to children under six years of age. This means that the Act does not apply to a seven year old. Nor does the legislation prevent a seven year old from supervising a three year old inside the pool area. This has been the position since 1987 when the Act was introduced. As a consequence I do not believe a broader interpretation will alter the level of child safety accorded to children under the age of six years.
Concluding comment
A decision has yet to be given, however I would expect it to be available shortly. The decision will hopefully clarify how the Act is to be applied.
However I have stated it in the past and will state it again, some level of responsibility must rest with a pool owner. You can never completely remove this obligation. We must remind people, particularly parents, for the need for constant vigilance.
Keep checking the site regularly for updates. When available the decision will be released on this website.