Auckland High Court Sets Precedent On Pool Fencing
Auckland City Council is urging people with swimming pools to ensure they comply with the Fencing of Swimming Pools Act following a High Court judge's decision which sets precedents on the level of fines that should be imposed and the legal requirement that a pool must be emptied if fencing is inadequate.
Justice Robertson's decision was made after the council successfully appealed to the High Court, unhappy with an earlier decision in the District Court over an inadequately fenced pool in Meadowbank. In the District Court the pool owner had been fined $175 and had not been ordered to empty the pool.
On the pool emptying matter Justice Robertson said:
"Parliament in the frame work of this Act has determined that there is to be a fencing regime in place which is specified in the Schedule to the Act. If that frame work is not adhered to pools are to be emptied. That is the clear thrust of the Act. It therefore follows that orders should be made unless there is good reason to justify acting otherwise."
The Judge also said that on conviction an order to empty the pool should be made unless it was an exceptional situation.
In the case under appeal many of the non-complying matters had been rectified by the time the appeal was heard. An order for emptying of the pool was made. It was ordered to take effect if the owner's exemption application for the last remaining item of non- compliance did not succeed. Justice Robertson said in his decision the level of the fine did not sufficiently reflect the seriousness of the outstanding breaches or the time within which they had not been remedied.
"It seems to me that even against the relatively low maximum fine of $500, a fine of $300 or $400 could not have been challenged. If one allows for the continuing penalty provision then the fine could have been substantially higher."
Auckland City deputy mayor Dr Bruce Hucker says the judge's decision gives a clear message to pool owners about the Fencing of Swimming Pools Act and what breaching it can mean.
"The Act is Government legislation, not a council bylaw. If people don't comply they will be caught and this decision in the High Court means that not only is the council approaching the issue seriously, the courts are as well," Dr Hucker says.
"We are working hard to ensure the Act is adhered to and urge everyone with a pool to ensure their fencing complies at all times. After all, this is about saving lives."