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City not involved in conviction contrary to POAG

Media statement 8 April 04

Waitakere City Council not involved in conviction contrary to POAG claim

Waitakere City Council is not aware of the issues raised by Mr Gary Osborne of the Pool Owners’ Action Group, in a press release published by Scoop. Those issues have not been raised directly with the Council.

“If a conviction has been entered in a matter where it should not have been, that is a court matter and POAG should direct their enquiries and their comments to the court” says the Council’s manager of legal services, Denis Sheard.

“As POAG is canvassing for people with swimming pool grievances to contact them, they should also advise people who respond, of their legal responsibilities. People who receive a summons from the Court should read the document so that they will know the consequences for not responding to the summons. One possible consequence is the entry of a conviction against someone who doesn’t turn up to court,” Mr Sheard says.

The council is equally mystified by Mr Osborne’s claim that POAG is taking a class action against the Council.

“We haven’t heard anything about it. The Council has sought a declaratory judgement from the Court – but that’s not remotely similar to a class action.

Mr Sheard says that the purpose of that declaratory judgment is to resolve the differences which have arisen between the Council and members of POAG over the interpretation of the Fencing of Swimming Pools Act.

“The Act empowers Councils to determine what is and what is not the immediate pool area. POAG members have disputed the Council’s ruling, so we have asked the court to make a declaration, on the issue,” he says.

Accordingly, existing prosecutions relating directly to the issues in dispute have been adjourned to allow the declaratory judgment proceedings to be argued.

The Council is, meanwhile, has no choice but to continue to bring prosecutions against people who do not comply with the Council’s requirements for fencing pools. This is because the Fencing of Swimming Pools Act places a positive obligation on Councils to ensure compliance.

The Council has a duty to interpret what the act means and then enforce its interpretation. If it does not do so and death or injury occurred, the Council and the pool owner could be liable for criminal charges.

Those who wish to plead not guilty, however, and whose issues are the same as those covered by the declaratory judgment, can also have their cases adjourned until the court has made its ruling.

The Council awaits the outcome with interest. It is hoped that the decision will assist pool owners to better understand their obligations under the Act and also assist the Council to fulfil its statutory duty to police the requirements of the Act“ Mr Sheard says.


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