The initial inspection of the swimming pool at this property was conducted the Monitoring Officer on the 8^th February 2007. This inspection revealed a number of non compliance issues, namely the northern pool gate did not return to a secure position and there was access from the dwelling into the pool area. An inspection sheet was filled out and following the inspection a letter was sent outlining the non compliant issues that were found to be in contravention of the Fencing of Swimming Pools Act 1987, dated 30^th January 2007.

Following this, Mrs Thomson telephoned to enquire about the issues raised in the letter. A further site visit was conducted to show Mrs Thomson what were the issues, as she was not sure which pool gate it was and to clarify the Waiver process that Council requires for the situation, entrance points from the dwelling into the pool area.

On the 14^th February 2007 Council received a letter from J Thomson stating that it was unreasonable of the Council to want the work done within 14 days and that she was not going to empty the pool of water.

Several telephone conversations with Mrs Thomson took place with regards to her obligations in terms of the Swimming pool and fencing of the pool. Mrs Thomson was given a copy of A Guide to Pool Owners; this is an illustrated version of the schedule to the Fencing of Swimming Pools Act 1987 which is a means of compliance with the FOSA 1987.

From this junction Mrs Thomson was given further time to comply with the Act. Furthermore, Glenn East went on unpaid leave for personal reasons during this time in turn the pool remained non compliant.

Graeme Adams, Dog Control Officer, inspected the same property in relation to Mrs Thomson’s dog and noticed that the pool fencing had been removed and a large deck had been constructed. Mr Adams contacted me and a further inspection took place on 1 August 2008. An 18 Month timeframe had elapsed from my first contact with Mrs Thomson. Given that the timeframes to comply with the previous inspection was so great, verbal instruction was given to J Thomson on site with Mr Adams present. Notice was issued on 31 October 2008, giving a further month for Mrs Thomson to apply for a building consent for her Swimming Pool fencing.

Mrs Thomson came into Council to discuss the issues surrounding the consent process, however no consent has been applied for to date, given the dangerous situation of a unfenced pool and large deck and the time given to comply, it is unacceptable and dangerous that no firm action has been undertaken with regard to the deck and pool fencing by Mrs Thomson.

A further inspection took place on 2 December 2008 this revealed that most of the pool fencing had already been erected without a building consent being issued and the pool had been cleaned and was full of water; contravening section 40 of the Building Act 2004 and in contravention of the Notice served under section 8 of The Fencing of Swimming Pools Act 1987 dated 31 October 2008. The inspection of the non consented pool fencing revealed that the pool gate opened toward the pool area and areas of the fencing were under the regulation height requirement, items that would have been identified during the Building consent process.

Glenn East (Monitoring Officer) and Russell Bierre (Regulatory Services Manager) have tried unsuccessfully to contact Mrs Thomson on a number of occasions on her mobile phone and her landline number to discuss the matters of concern. To date no contact from Mrs Thomson has been received.

On 3 December 2008 a letter outlining the action to be taken by Mrs Thomson was mailed out to her. Similarly a Notice to Fix under the Building Act 2004 dated 4 December 2008 was mailed to Mrs Thomson.

RESOLVED

THAT the staff report be received

AND THAT subject to completion of investigations into the non-compliance of the building Act, it be recommended that prosecution be undertaken against the Non-compliance with the Fencing of Swimming Pools Act 1987 and the Building Act 2004

AND THAT the Manager, Regulatory Services write to Mrs Thomson and advises her that prosecution proceedings will commence if this Notice Under Section 8 (1) of the Fencing of Swimming Pools Act 1987 is not complied with by 19 December 2008.

HC08/55 Carmine/Gordon CARRIED

Mr Mark Wallbank (Appellant) and Master Christopher Brinkman and Mrs Margaret Brinkman (Complainants) were in attendance for the benefit of the hearing.

Mr Wallbank admitted that his two dogs had offended and apologised to the Complainants for the distress the behaviour of his dogs had caused Mr Brinkman.

Mr Wallbank provided a description of and the temperament of his two German Shepherd dogs, ‘Tigger’ a Black and Tan neutered German Shepherd and ‘Sheba’ a Black and Tan Female neutered German Shepherd.

The dog Tigger is territorial. He has a leaning towards aggression towards other dogs but not to people. The property is fenced. Tigger normally only barks at the fence and does not attempt to get over the fence. In this instance, the gate was left open so Tigger got out allowing him to attack Mr Brinkman’s dog.

The dogs, to date, have a good record of behaviour although Tigger has shown aggressive behaviour to other dogs previously.

The meter reader has no problem with the dogs and workmen visiting the property have also reported to have no issue with the dog’s behaviour. The dogs alert owners to anyone coming onto the property.

Mr Wallbank reiterated that his dogs were not aggressive towards people. He did not want a repeat of this incident and was prepared to accept responsibility for his dog’s behaviour. Both dogs are loved family pets and have always been good security dogs.

Cr Carmine asked Mr Wallbank if the dogs are walked while leashed. Mr Wallbank replied that they are walked on a lead to the Mackaytown Reserve where he then lets them run free as there is no designated exercise area at Mackaytown.

Mr Wallbank was advised of the conditions imposed on dogs with a menacing classification.

Cr Leonard asked Mr Wallbank if his dogs are responsive to commands. Mr Wallbank replied that no, they are not that responsive and commands often have to be enforced. Generally, they do respond but not immediately.

Cr Carmine asked Mr Wallbank to describe the fencing of his property. Mr Wallbank stated that the fencing does not completely surround the property. There is access on the boundary between his neighbours property which is owned by his parents. If his parents leave the gate to their property open, the dogs can get out onto the road via the gap in the boundary fence then out of their front gate.

Mr Adams presented a report and provided the history of the dogs, giving an account of the incident as recorded by Mr Brinkman.

The first complaint was received on the 1^st of February 2008. The dogs were out of the property. A passing young girl was frightened by the two dogs on her way home from school.

The second complaint was received on 3 November 2008. In this case, Mr Wallbank’s two dogs attacked two other dogs walking with their owners on leads near Mr Wallbank’s residence. The attack resulted in a bite to one of the complainants dogs. The smaller of the complainant’s dogs fought the German Shepherd off.

Mr Adams advised that the fencing around Mr Wallbank’s property is of metal pipe and netting construction. The gate is also of the same construction. The two road frontages are fenced. The fence towards SH2 is also fenced. In his opinion, he stated that the gates are not adequate to secure dogs.

Mr Wallbank, when approached about the incident fully acknowledged that the incident had happened.

They complainant could not distinguish the guilty dog because of the dogs identical appearance.

Mr Wallbank considered that it was probably Tigger that was guilty of the offence, being the more active of the two.

Mr Adams stated the dogs on the first approach are quite intimidating. Mr Adams approached a second time where he found the dogs barking a lot but did not make any contact with him.

Mrs Donna Wallbank, Mr Wallbank’s wife, is the registered owner of the dogs.

Mr Adams also reported on the 1^st of February incident with young the girl as per his staff report.

Mr Brinkman reported on the incident and explained the route he took when walking his dog.

Mr Adams advised that the dogs left the property through the shared boundary fence and through an open gate on his parent’s property.

Mr Wallbank apologised again to Mr Brinkman but stated he had nothing else to add other than to ensure that the dogs cannot get out again. He agreed to conform to the regulations of the Dog Control Act pertaining to a menacing dog classification.

The hearing closed at 4.05pm.