Fencing of Swimming Pools Act

The Fencing of Swimming Pools Act 1987 requires that the pool and some or all of the immediate pool area be enclosed with a fence that complies with the legislation. The issue is not about having a pool fence. Everyone agrees that a pool fence is necessary and should be in place. The disagreement relates to whether the Council has the right to tell an owner, who has a fence constructed in accordance with the Act, where that fence is to be located.

The definition of immediate pool area in the legislation is ambiguous. The definition simply states:- "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 interpretation of this section varies widely from region to region and Council to Council. For instance, if you view the Christchurch City Council's website ( http://www.ccc.govt.nz/policy/swimmingpoolsfencing.asp), that Council will consider the requirements of the legislation to be satisfied if the fence surrounding that area is no more than 10 metres away from the edge of the pool. The Christchurch City Council recognises the right of the owner of private land to determine where their pool fence can be located. The Waitakere City Council, would not agree with this approach. The Waitakere Council's approach is to tell pool owners where their fence is to be placed.

The Waitakere City Councils position is that BBQ areas, sunbathing areas and general entertainment areas are not permitted within the immediate pool area. Our position is that these types of activity are carried on in conjunction with the use of a residential swimming pool and as a consequence do form part of the immediate pool area.

The objective of the Act is to promote the safety of young children by requiring certain swimming pools to be fenced. Everyone shares the concern for child safety. We are all in agreement that adequate child proof barriers should be in place to prevent a child from drowning. However the Council's attitude is counterproductive. By focusing on the area that is fenced, rather than the fence itself, we are not dealing with the real issue: stopping a child from gaining access to the pool and drowning.

Our position is that it does not matter if the owner decides what part of their property constitutes the immediate pool area provided the barriers around such an area are child proof. A child proof fence will remain effective whether it is 1 metre from the pool or 100 metres. The true enquiry on the part of the Council should be whether the barrier, where ever it is located, is in fact child proof.

The definition in the Act was drafted to allow maximum flexibility in determining which areas could be barricaded off from the rest of the property. The intention was to allow the pool owner, within reason, to determine what could constitute the immediate pool area.

This position is supported by several Australian states. In NSW the Swimming Pools Act 1992 states:

18 Owner may decide where required child-resistant barrier is to be located The owner of any premises in or on which an outdoor swimming pool is situated may, subject to the other provisions of this Part, determine where any child-resistant barrier required by this Part is to be located.

In March this year the Northern Territory Government replaced their pool Act with new simplified, common sense pool laws. These new laws require effective barriers to be in place but do not attempt to dictate to an owner where a barrier needs to be located.

If we are to prevent a child from drowning, we need to educate pool owners on the need to be vigilant at all times when children are in a pool. Most owners will operate their pool in a safe manner, however for those that do not, user education is the answer.

Some level of responsibility must lie with an owner and this can never be completely removed. If an owner is going to act in an irresponsible manner they will do so no matter where their fence is located. We must remind people, particularly parents, of the need for constant vigilance.

At present the Council is justifying its policy on several building authority decisions which are not applicable to the Fencing of Swimming Pools Act 1987. There is no case law on this issue. The Declaratory Judgment is being sought to clarify the law to provide a binding precedent for all stakeholders across the country, whether they be individual pool owners or Councils, to follow.