SUPPLEMENTARY REPORT

Transcription

1 TO: RGULATORY SRVICS COMMITT TABLD AT 2 5 NOV 214 MTING FROM: TH DIRCTOR OF NVIRONMNTAL AND PLANNING SRVICS MTING DAT: TUSDAY 25 NOVMBR 214 SUPPLMNTARY RPORT I SPA POOL XMPTION RQUST FOR 228 FILLUL STRT, INVRCARGILL I Report Prepared by: S J Tonkin - Manager Building Regulation Servies SUMMARY The owner of 228 Filleul Street, lnverargill has requested that the Counil give onsideration to granting an exemption under the Fening of Swimming Pools At 1987, Setion 6. RCOMMNDATIONS That the spa pool exemption request be delined. IMPLICATIONS 1. Has this been provided for in the Long Term Plan/Annual Plan? NIA. 2. Is a budget amendment required? NIA. 3. Is this matter signifiant in terms of Counil's Poliy on Signifiane? NIA. 4. Impliations in terms of other Counil Strategi Douments or Counil Poliy? NIA. 5. Have the views of affeted or interested persons been obtained and is any further publi onsultation required? NIA. BACKGROUND The owner of 228 Filleul Street, lnverargill has requested that the Counil give onsideration to granting an exemption under the Fening of Swimming Pools At 1987, Setion 6.

2 6. Speial exemptions (1) A territorial authority may, by resolution, grant an exemption from some or all of the requirements of this At in the ase of any partiular pool where the territorial authority is satisfied, having regard to the partiular harateristis of the property and the pool, any other relevant irumstanes, and any onditions it imposes under subsetion (2), that suh an exemption would not signifiantly inrease danger to young hildren. (2) In granting an exemption under subsetion (1 ), the territorial authority may impose suh other onditions relating to the property or the pool as are reasonable in the irumstanes. (3) Any exemption granted or ondition imposed under this setion may be amended or revoked by a territorial authority, by resolution. Attahed as Appendix 1 is the request from the owner for an exemption. Appendix 2 is a series of photographs of the area where the spa pool is proposed to be installed. For Counillors' information and guidane, opies of the Fening of Swimming Pools At 1987, Guidelines for Territorial Authorities on The Fening of Swimming Pools At 1987, and New Zealand Standard 85:26 are attahed as Appendix 3. In partiular, Setion 6 Speial exemption under the guidelines publiation will provide meaningful useful guidane. Also NZ Standard 85:26 has been introdued by Standards New Zealand but is not ited in the Building At or Building Code as a means of ompliane for any pools. It an be used as an alternative solution, but lnverargill's building setion has not aepted this standard in the past. The reason is the Ministry of Business Innovation and mployment was going to have this standard inluded in the Building Code last year, but as at November 214 it is still not ited as any means of ompliane but ould be used as guidane by the Counillors. The key onsideration and test is whether the exemption will signifiantly inrease danger to young hildren. CONCLUSION It is reommended that the spa pool exemption be delined. The reasons for this reommendation are: 1. Children's safety relies on a person undertaking some at i.e. fitting a spa pool over. The Fening of Swimming Pools At provisions that Counil inspetors follow do not rely on any at as the rules are set very learly - a fene has to be 12mm high, gates or door self lose and lath et. In other words, an owner or person in harge of a pool does not have to think about doing anything. 2. The property is in a built up area where hildren reside in the neighbourhood. **********

3 Page 1 of2 Simon Tonkin APPNDIX 1 From: Sent: To: C: Amy Swain [Amy.Swain@rothbury.o.nz] Tuesday, 18 November 214 1:1 a.m. P - Building Simon Tonkin; 'Todd Swain' Subjet: FW: Appliation for Speial xemption under Setion 6 of the Fening of Swimming Pools At 1987: Spa Pool with Lokable Lid Good morning We Todd and Amy Swain hereby apply for a speial exemption under the provisions of setion six of the Fening of Swimming Pools At The property in respet of whih this appliation is made is situated at 22b Filleul Street, lnverargill. This exemption appliation relates to: Lokable lid for a Spa Pool fully omplying with NZS85:26/3.1 but not with the Fening of Swimming Pools At With regards to omplying with NZS85:26/3.1 A. The top of the spa is not less than 76 mm above ground level. B. The over shall be lokable and shall be loked when the spa is un-oupied. C. The loking devie shall ontain a mehanial loking mehanism/self loking mehanism in addition to lathing shut. D. The loks shall not be readily opened or released by a hild.. The over shall have a weight bearing apaity of 2 kg. F. The over shall omply with standard ASTM Fl34691 (hek label). G. The over shall taper from the entre hinge to the outside edge. H. When loked the over shall not open greater than 1 mm. I. The over and loks shall be in good working order. J. Warning stikers shall be plaed on the over to advise that it shall be loked in plae when the spa pool is unoupied. K. Removable steps, removable furniture or other objets that an assist young hildren to limb onto the over shall be stowed 12 mm away from the side of the spa pool. We have one lath that needs replaed and we will need to have some stikers/signage made up. Additional information: With the pending/proposed Law hange to the Fening At this is the main reason for why we haven't fened our spa pool, as advised by Hamish Handley 'We hope that it an go before the House early next year and then to Selet Committee where there will be publi input. One of the proposed hanges is that spa pools that are at least 76 above a dek and have an approved hild resistant over will not be swimming pools under the At. This provision is in the pool safety Standard NZS 85: 26 that originally we were hoping to referene under Clause F4.' We are a bak setion, our yard annot be seen from the road, however we do bak onto the riverbank whih our yard is learly visible however a small hild should not be able to enter as our fening & gate is high and the gate is always lathed (we have 3 ats & a dog and do not want any dogs oming onto or jumping the fene into our setion). We do not have any hildren and our friends & family are aware that we have our own rule that no-one under the age of 13 years old is allowed in our Spa regardless if there is a parent/adult in it. My parents in Albert Town who are also on a riverbank (Clutha) had this exemption and they had no gate or fene to stop anyone wandering in from both the riverbank side and the road onto their setion, we feel our setion is of a better set up. After wathing 'The Blok' (Television Show in Aukland) of the four properties, two of them had a spa pool & one had a hot tub all had exemptions, this has prompted us to apply also in the interim till the At hanges. 18/11/214

4 Page 2 of2 Please let us know if you require any further information, or we are happy to meet with you. Kind regards Amy & Todd Swain 18/11/214

5 APPNDIX 2 Legend Distrit Boundary Railway Transpower Strutures Transpower Overhead I Property Boundary Proposed Subdivision Legal Boundary Parks and Reserves Unformed Road Formed Non-Legal Road Unformed Legal Road \ lnverargill " t" Date Printed: 2 November 214 I SCAL 1: Meters 21 Information shown is the urrently assumed knowledge as at date printed. If the information is vital. onfirm with the Authoritive Owner. &.O. Aerial Images Copyright lnverargill City Counil. Cadastral information is delived from Land Information New Zealand, CROIM'l COPYRIGHT RSRVD.

6 ( lnverargill ; OJr / Properly do 22 Otober 214 Todd Bevan Swain and Amy Deneese Swain 22B Filleul Street INVRCARGILL 981 Dear Sir I Madam FNCING OF SWIMMING POOLS ACT FILLUL STRT, INVRCARGILL Pursuant to the Fening of Swimming Pools At 1987, all owners of swimming pools must ensure that their pools are fened in aordane with the At. Following a reent inspetion of your property it was found there is a spa pool on site that does not have a building onsent and is not fened in aordane with the Fening of Swimming Pools At Please have the spa pool drained within 1 working days. An Inspetor will return in 1 days to ensure the pool has been drained. You have two options: either remove the pool and ontat lnverargill City Counil for an Inspetion to onfirm the pool has been removed; or apply for a building onsent, with all the relevant doumentation showing the fening onstrution and bakflow requirements in ompliane with the Fening of Swimming Pools At To book an inspetion or for any queries, please ontat the Building Servies Team on Yours faithfully SJ TONKIN MANAGR - BUILDING RGULATION SRVICS Civi Adm inistration Bu il din g 11 sk Street Private Bag 91 4 lnverargill 984 New Zea land DX No. YA923 TL

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10 .. '{"- lnverargiu CIT"'!' t lllkil Inspetion Sheet SHT# Reinspetion Address: 2_2 B f=<llvel s_ '1,,illil'lg eu11seht No: Date: 1 q, U- r If' Time: [/.: 3: Inspetor: I am ompetent to undertake this inspetion OR I am inspeting under supervision I diretion of: Chek Advisory Notes on BC Advise Owner I Tradesman of Notes Yes I No Tradesperson: This inspetion sheet is to be used for all reinspetions. Inspetors to read notes/failed items on previous inspetion sheet and write omments appropriate to the failed items, or add any new items. Comments...?.. 1..JP AS T.l:.-:P...?.. ' '..: P.!.!..!... 9Y.....S f<?.o.'=-.....? T!:" f'!t.!1:...! <?.... s..<.: t.? ?......?....s : N?.f..... '.-....;J... 3:.. P..M... a.e.!! f.?..., r? e.':!......:jj.n.?.....?.....i.? :... ::IP.....( \? :$ ,... feqq... - BP.... K. - 1:::!.f!!9!...\.? l'.?.: : f'...? ? Y.':":! ! '!.? G.1?..l,.:;:...\5... r.. S..... TS CY. C-K..'.C"... JP... I'Q:d Q.- '! <?.P ":::'::? f..w..'? <2:-' k...! m ":! :C:.... Results ntered into Pathways D Yes D No Appliant's Building Control Proess Card Signed D Yes D No D Inspetion Pass Site notie left onsite for pass with onditions or fail D Pass with Conditions D Fail D Yes Offier: A-xD O_'fr-J _&rj _ Date: Note: Inspetors to note there may be some aspets of onstrution that are not v d by this heklist. Any additional items to be reorded under omments setion. Instrutions: If outome is no (i.e. not approved), identify reasons in omments setion. All setions must be ompleted. Key: Yes= approved: No= not approved: NIA= not appliable: B246a - V6-5 Jul 211 Page 1 of 1

11 Page 1 of 2 Andy Johnson From: Sent: To: Simon Tonkin Wednesday, 19 November 214 1:41 a.m. Andy Johnson Subjet: FW: Appliation for Speial xemption under Setion 6 of the Fening of Swimming Pools At 1987: Spa Pool with Lokable Lid Andy an you do this hek as well - Bex has the fi les I think and please read this as th is is what they are proposing - I need to have a report done ny tomorrow night - s From: Amy Swain [mailto:amy.swain@rothbury.o.nz] Sent: Tuesday, 18 November 214 1:1 a.m. To: P - Building C: Simon Tonkin; 'Todd Swain' Subjet: FW: Appliation for Speial xemption under Setion 6 of the Fening of Swimming Pools At 1987: Spa Pool with Lokable Lid Good morning We Todd and Amy Swain hereby apply for a speial exemption under the provisions of setion six of the Fening of Swimming Pools At The property in respet of whih this appliation is made is situated at 22b Filleul Street, lnvera rgill. This exemption appliation relates to: Lokable lid for a Spa Pool fully omplying with NZS85:26/3.1 but not with the Fening of Swimming Pools At With regards to omplying with NZS85:26/3.1 A. The top of the spa is not less than 76 mm above ground level. B. The over shall be lokable and shall be loked when the spa is un-oupied. C. The loking devie shall ontain a mehanial loking mehanism/self loking mehanism in addition to lathing shut. D. The loks shall not be readily opened or released by a hild.. The over shall have a weight bearing apaity of 2 kg. F. The over shall omply with standard ASTM F (hek label). G. The over shall taper from the entre hinge to the outside edge. H. When loked the over shall not open greater than 1 mm. I. The over and loks shall be in good working order. J. Warning stikers shall be plaed on the over to advise that it shall be loked in plae when the spa pool is un-oupied. K. Removable steps, removable furniture or other objets that an assist young hildren to limb onto the over shall be stowed 12 mm away from the side of the spa pool. We have one lath that needs replaed and we will need to have some stikers/signage made up. Additional information: With the pending/proposed Law hange to the Fening At this is the main reason for why we haven't fened our spa pool, as advised by Hamish Handley 'We hope that it an go before the House early next year and then to Selet Committee where there will be publi input. One of the proposed hanges is that spa pools that are at least 76 above a dek and have an approved hild resistant over will not be swimming pools under the At. This provision is in the pool safety Standard NZS 85: 26 that originally we were hoping to referene under Clause F4.' We are a bak setion, our yard annot be seen from the road, however we do bak onto the 19/11/214

12 Page 2 of:1 riverbank whih our yard is learly visible however a small hild should not be able to enter as our fening & gate is high and the gate is always lathed (we have 3 ats & a dog and do not want any dogs oming onto or jumping the fene into our setion). We do not have any hildren and our friends & family are aware that we have our own rule that noone under the age of 13 years old is allowed in our Spa regardless if there is a parent/adult in it. My parents in Albert Town who are also on a riverbank (Clutha) had this exemption and they had no gate or fene to stop anyone wandering in from both the riverbank side and the road onto their setion, we feel our setion is of a better set up. After wathing 'The Blok' (Television Show in Aukland) of the four properties, two of them had a spa pool & one had a hot tub all had exemptions, this has prompted us to apply also in the interim till the At hanges. Please let us know if you require any further information, or we are happy to meet with you. Kind regards Amy & Todd Swain 19/11/214

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16 APPNDIX 3 Reprint as at 28 November 213 Fening of Swimming Pools At 1987 Publi At 1987 No 178 Date of assent 2 July 1987 Commenement 2 July 1987 Contents Page Title 2 Short Title 2 2 Interpretation 2 3 Appliation to existing pools 3 4 Appliation to new pools 3 5 xempted pools 3 6 Speial exemptions 4 7 Notifiation of existene of pool to territorial authority 5 8 Obligations of owner and persons in ontrol of pool 5 9 Offene 6 1 Obligation of territorial authorities 7 11 Power of entry for territorial authority offiers 7 12 Delegation of powers to ommittees of ounillors 8 13 ffet of At on bylaws and other laws 8 l 3A ffet of Building At 24 on bylaws 8 Note Changes authorised by subpart 2 of Part 2 of the Legislation At 212 have been made in this reprint. Note 4 at the end of this reprint provides a list of the amendments inorporated. This At is administered by the Ministry of Business, Innovation, and mployment.

17 Reprinted as at Fening of Swimming Pools At November B Fening in aordane with Shedule must be treated as 9 means of ompliane 13 C Amendment and replaement of Shedule 9 14 Amendment to Fening At Shedule 1 Means of ompliane for fenes under this At An At to promote the safety of young hildren by requiring the fening of ertain swimming pools 1 Short Title This At may be ited as the Fening of Swimming Pools At / 2 Interpretation In this At, unless the ontext otherwise requires, fene-- (a) means a fene that omplies with the requirements of the building ode in fore under the Building At 24 in respet of swimming pools subjet to this At; and (b) inludes any part of a building and any gates or doors that form part of the fene gates or doors does not inlude any door to whih lause 11 of the Shedule applies immediate pool area means the land in or on whih the pool is situated and so muh of the surrounding area as is used for ativities or purposes arried on in onjuntion with the use of the pool judiial offier means any Distrit Court Judge, Justie, Community Magistrate, or Registrar of a Distrit Court (other than a onstable); but does not inlude any person who is a member or employee of the territorial authority owner means the owner of a pool; exept- ( a) where the pool is subjet to a hire purhase agreement within the meaning of the Inome Tax At 27, m whih ase it means the purhaser of the pool: 2

18 Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 s 5 (b) where the pool is on premises that are not subjet to a tenany under the Residential Tenanies At 1986 and the pool is subjet to a lease or is part of premises subjet to a lease, in whih ase it means the lessee of the pool or the premises swimming pool and pool mean an exavation, struture, or produt that is used or is apable of being used for the purpose of swimming, wading, paddling, or bathing; and inludes any suh exavation, struture, or produt, that is a spa pool territorial authority has the same meaning as in the Loal Government At 22. Setion 2 fene: substituted, on 31Marh25, by setion 414 of the Building At 24 (24 No 72). Setion 2 judiial offier: amended, on 3 June 1998, by setion 7 of the Distrit Courts Amendment At I 998 (1998 No 76). Setion 2 owner paragraph (a): amended, on 1 April 28 (effetive for 28-9 inome year and later inome years, exept when the ontext requires otherwise), by setion ZA 2(1) of the Inome Tax At 27 (27 No 97). Setion 2 territorial authority: substituted, on 1 July 23, by setion 262 of the Loal Government At 22 (22 No 84). 3 Appliation to existing pools This At shall apply in respet of any swimming pool onstruted, ereted, or installed before 1 September 1987 at any time on or after 1 May 1988 when the pool is filled or partly filled with water. 4 Appliation to new pools This At shall apply in respet of any swimming pool onstruted, ereted, or installed on or after 1 September 1987 at any time when the pool is filled or partly filled with water. 5 xempted pools Nothing in this At shall apply in respet of- ( a) any pool that has no part of the top of its side walls less than 1.2 metres above the adjaent ground level or any permanent projetion from or objet standing on the ground outside and within 1.2 metres of the walls, where the outside surfae of the side walls is onstruted so as to inhibit limbing and any ladder or 3

19 s 6 Reprinted as at Fening of Swimming Pools At November 213 (b) other means of aess to the interior of the swimming pool an be readily removed or rendered inoperable and is removed or rendered inoperable whenever it is intended that the pool not be used: any exavation, struture, or produt, in whih the maximum depth of water does not exeed 4 mm: ( ) any exavation, struture, or produt,- (i) (ii) that is not used in assoiation with any house, home unit, apartment building, shool, hospital, hotel, motel, amping ground, or other similar premises; and that is not modified for use, or intended to be used, for swimming, wading, paddling, or bathing: ( d) any pool intended to be used for wading or paddling in any plae that is under the administration of a loal authority: ( e) any pool that is wholly enlosed within a building that is used prinipally for a purpose or purposes not related to the use of the pool: (f) any pool where- (i) (ii) persons are employed and present to provide supervision of the pool whenever the pool is available for use; and aess to the pool is effetively prevented by a fene that omplies with this At or by loked gates or doors whenever the pool is not intended to be available for use. 6 Speial exemptions ( 1) A territorial authority may, by resolution, grant an exemption from some or all of the requirements of this At in the ase of any partiular pool where the territorial authority is satisfied, having regard to the partiular harateristis of the property and the pool, any other relevant irumstanes, and any onditions it imposes under subsetion (2), that suh an exemption would not signifiantly inrease danger to young hildren. 4

20 Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 s 8 (2) In granting an exemption under subsetion (I), the territorial authority may impose suh other onditions relating to the property or the pool as are reasonable in the irumstanes. (3) Any exemption granted or ondition imposed under this setion may be amended or revoked by a territorial authority, by resolution. 7 Notifiation of existene of pool to territorial authority ( 1) very owner of a pool to whih this At applies when the pool is filled or partly filled with water or to whih this At will apply on or after 1 May 1988 when the pool is filled or partly filled with water shall omply with any reasonable requirement of the territorial authority to advise the territorial authority of the existene of the pool. (2) very person who proposes to onstrut or install a pool to whih this At will apply when the pool is filled or partly filled with water shall notify the territorial authority of the intention to onstrut or install the pool before the onstrution or installation ommenes. (3) An appliation for a building onsent under the Building At 24 in respet of the onstrution or installation of a pool shall be deemed to be notifiation under this setion. Setion 7(3): added, on I July by setion 92(1) of the Building At 1991 (1991 No 15). Setion 7(3): amended, on 31Marh25, by setion 414 of the Building At 24 (24 No 72). 8 Obligations of owner and persons in ontrol of pool (I) very owner of a pool to whih this At applies shall ensure that, exept as provided in any exemption granted under setion 6, the pool, or some or all of the immediate pool area inluding all of the pool, is fened by a fene that omplies with the requirements of the building ode in fore under the Building At 24 in respet of swimming pools subjet to this At at all times when this At applies in respet of the pool. (2) very owner of a pool to whih this At applies shall omply or ensure that there is ompliane with every ondition imposed under setion 6(2). 5

21 Reprinted as at s9 Fening of Swimming Pools At November 213 (3) very person who has possession of the property on whih any pool to whih this At applies is situated shall ensure that the pool is not filled or partly filled with water at any time when the person knows or ould reasonably be expeted to know that any obligation imposed by this setion on that or any other person is not being omplied with. (4) The fat that a person omplies with any obligation imposed by this setion shall not exuse that person from any other duty imposed by law. Setion 8( 1 ): amended. on 31 Marh 25. by setion 414 of the Building At 24 (24 No 72). Setion 8(1): amended, on 1 July 1992, by setion 92(1) of the Building At 1991 (1991 No 15). 9 Offene ( 1) very person who, without reasonable ause, fails to omply with any obligation imposed by setion 7 or setion 8 ommits an offene and is liable on onvition to a fine not exeeding $5 and, where the failure is a ontinuing one, to a further fine not exeeding $5 for every day on whih the failure has ontinued. (2) Where the owner or person entitled to possession or ontrol of a pool to whih this At applies is not entitled to possession of the property on whih the pool is situated or the immediate pool area (whether beause of any tenany agreement, agreement to oupy a hotel room, motel, or amping ground, or otherwise) it shall be a defene to any proeedings for any offene desribed in subsetion ( 1) in relation to setion 8 if the ourt is satisfied that the owner took all reasonable steps- ( a) to ensure that the obligation was omplied with; and (b) to ensure that the persons in possession of the property or entitled or likely to be in the immediate pool area are made aware of the existene of the pool. (3) Where any person is onvited of the offene desribed in subsetion ( 1) in relation to setion 8 the ourt may order that the pool be drained of water and be kept empty until the pool is fened in a manner that omplies with this At or any ondition imposed under setion 6(2) is met, as the ase may require. 6

22 Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 s II Setion 9(1): amended, on 1 July 213, by setion 413 of the Criminal Proedure At 211 (211 No 81). 1 Obligation of territorial authorities very territorial authority shall take all reasonable steps to ensure that this At is omplied with within its distrit. 11 Power of entry for territorial authority offiers (I) Without limiting any other powers of any territorial authority, any offier of a territorial authority who has reasonable grounds to believe- ( a) thatthere is on any land within the distrit of the territorial authority a swimming pool to whih this At applies; and (b) that the pool is not fened as required by this At, or any ondition imposed under setion 6(2) is not being omplied with,- may at any reasonable time enter on the land and arry out an inspetion to determine whether or not there is on the land suh a pool that is not fened as required by this At, or whether or not the ondition is being omplied with. (2) Nothing in subsetion (I) shall onfer on any person the power to enter any house, home unit, or apartment building unless the entry is authorised by a warrant given by a judiial offier on written appliation on oath, whih shall not be granted unless the judiial offier is satisfied that the entry is essential to enable the inspetion to be arried out. (3) very warrant issued under subsetion (2) shall be direted to a named offier of the territorial authority and shall be valid for a period of I month from the date of its issue or suh lesser period as the judiial offier onsiders appropriate; and the period of validity shall be shown in the warrant. ( 4) very person exerising the power of entry onferred by subsetion (I) shall arry a warrant of authority issued by the territorial authority and speifying- ( a) the name and the offie or offies held by the person: (b) that the person is authorised by the territorial authority to exerise the power onferred by subsetion (1) to enter the land and arry out the inspetion. 7

23 Reprinted as at s 12 Fening of Swimming Pools At November 213 (5) very person exerising the power of entry onferred by subsetion ( 1) shall produe the warrant of authority and evidene of identity- ( a) if pratiable on first entering the land or premises; and (b) whenever subsequently reasonably required to do so. 12 Delegation of powers to ommittees of ounillors The territorial authority may delegate its powers and funtions under setion 6 and lause 11 of the Shedule to any ommittee of the territorial authority appointed under lause 3 of Shedule 7 of the Loal Government At 22 that omprises only members of the territorial authority; but may not delegate those powers and funtions to any ommittee that has any members who are not members of the territorial authority or to any offier of the authority. Setion 12: substituted, on 1 July 23, by setion 262 of the Loal Government At 22 (22 No 84). 13 ffet of At on bylaws and other laws ( 1) [Repealed] (2) [Repealed] (3) Nothing in this At shall in any way restrit the power of any territorial authority to make and enfore bylaws relating to the fening of pools to whih this At does not apply. ( 4) Nothing in this At shall in any way restrit the power of the Crown or any territorial authority or other person to enfore any other law relating to the fening of pools to whih this At applies or any other pools. Setion 13(1): repealed, on I July 1992, by setion 92(1) of the Building At 1991 (1991No15). Setion 13(2): repealed, on 1 July 1992, by setion 92(1) of the Building At 1991 (1991No15). 13A ffet of Building At 24 on bylaws (1) A territorial authority may not make any bylaw under this At that purports to have the effet ofrequiring any pool subjet to this At to ahieve performane riteria additional to or more restritive than those speified in the Building At 24 or the building ode in fore under that At. 8

24 Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 s 14 (2) A territorial authority may not make any bylaw purporting to have the effet of allowing a pool subjet to this At to be fened to a standard that would provide less protetion against young hildren gaining aess to the pool than the performane standard set by the said building ode. Setion l 3A: inserted, on l July 1992, by setion 92( l) of the Building At 1991 (1991 No 15). Setion 13A heading: amended, on 31 Marh 25, by setion 414 of the Building At 24 (24 No 72). Setion 13A(l): amended, on 31 Marh 25, by setion 414 of the Building At 24 (24 No 72). 13B Fening in aordane with Shedule must be treated as means of ompliane Any provision that is made for the fening of swimming pools that is in aordane with the Shedule must, in respet of-- ( a) matters subjet to the Building At 24, be treated as an aeptable solution or a verifiation method establishing ompliane with the building ode for the purposes of setion 19 of that At, and the requirements of this At: (b) building and premises not subjet to the Building At 24, be treated as a reasonable and adequate provision for the purposes of this At. Setion 13B: substituted, on 31Marh25, by setion 414 of the Building At 24 (24 No 72). Setion 13B(a): amended, on 28 November 213, by setion 76 of the Building Amendment At 213 (213 No 1). 13C Amendment and replaement of Shedule The Governor-General may, by Order in Counil,- ( a) amend the Shedule; or (b) repeal the Shedule and substitute a new shedule. Setion 13C: substituted, on 2 September 27, by setion 4 of the Fening of Swimming Pools Amendment At 27 (27 No 57). 14 Amendment to Fening At 1978 Amendment(s) inorporated in the At(s). 9

25 Reprinted as at Shedule Fening of Swimming Pools At November 213 Shedule ss BB, BC Means of ompliane for fenes under this At Shedule heading: amended, on 1July1992, by setion 92(1) of the Building At 1991 (1991No15). Height 1 ( 1) The fene shall extend- ( a) at least 1.2 metres above the ground on the outside of the fene; and (b) at least 1.2 metres above any permanent projetion from or objet permanently plaed on the ground outside and within 1.2 metres of the fene. (2) Notwithstanding sublause (1 ), where the fene is onstruted of perforated material, netting, or mesh and any opening in the material, netting, or mesh has a dimension (other than the irumferene or perimeter) greater than 1 mm, the fene shall extend at least 1.8 metres above the ground or the projetion or objet. Ground learane 2 Any learane between the bottom of the fene and ground level shall not exeed 1 mm. Materials 3 All materials and omponents shall be of a durable nature and shall be ereted so as to inhibit any hild under the age of 6 years from limbing over or rawling under the fene from the outside. Shedule lause 3: amended, on 2 November 1989, by setion 2(1) of the Fening of Swimming Pools Amendment At 1989 (1989 No 117). 4 xept where the fene is horizontally lose-boarded or is made of perforated material, netting, or mesh, the spaing between adjaent vertial pales, panels, or other posts shall not exeed I mm at any point. 1 Shedule lause 4: amended, on 2 November 1989, by setion 2(2) of the Fening of Swimming Pools Amendment At 1989 (1989 No 117).

26 Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 Shedule 5 All fening supports, rails, rods, and wires, that are not vertial, and all braing that is not vertial, shall be inaessible for use for limbing from the outside. Shedule lause 5: substituted, on 2 November 1989, by setion 2(3) of the Fening of Swimming Pools Amendment At I 989 (I 989 No I I 7). SA Notwithstanding lause 5, a fene may have horizontal supports, rails, rods, or wires, that are aessible for use for limbing from the outside, and horizontal braing that is aessible for suh use, if- ( a) the distane between any 2 of them at any point is at least 9 mm; and (b) there is no other support, rail, rod, wire, or braing (other than a vertial rail) between the same 2 at any point. Shedule lause SA: inserted, on 2 November 1989, by setion 2(3) of the Fening of Swimming Pools Amendment At I 989 ( 1989 No I I 7). 6 Where any perforated material, netting, or mesh is used, no opening in that material, netting, or mesh shall have any dimension (other than the irumferene or perimeter) greater than 5 mm. 7 All perforated material, netting, or mesh material shall be firmly attahed at both top and bottom to a rail, pipe, or similar firm struture, or otherwise be of suh a nature that the fene annot readily be rossed by hildren under the age of 6 years. Gates and doors 8 very gate or door shall be so onstruted as to omply with the relevant requirements of lauses I to 7, and shall be so mounted that- ( a) it annot open inwards towards the immediate pool area: (b) it is lear of any obstrution that ould hold the gate or door open and no other means of holding the gate or door open is provided: 11

27 Reprinted as at Shedule Fening of Swimming Pools At November 213 ( ) when lifted up or pulled down the gate or door does not release the lathing devie, ome off its hinges, or provide a ground learane greater than 1 mm. Operation of gates and doors 9(1) very gate or door shall be fitted with a lathing devie. (2) Where the lathing devie is aessible from the outside of the fene only by reahing over the fene, gate, or door or through a hole in the fene, gate, or door, the lathing devie and the lowest point of any hole giving aess to it shall be at least 1.2 metres above the ground on the outside of the fene. (3) Where the lathing devie is otherwise aessible from the outside of the fene, gate, or door, the lathing devie shall be at least 1.5 metres above the ground on the outside of the fene. 1 very gate or door shall be fitted with a devie that will automatially return the gate or door to the losed position and operate the lathing devie when the gate or door is stationary and 15 mm from the losed and seured position. Doors in walls of buildings 11 Where any building forms part of a fene and the pool is not ontained within the building, any door that gives aess to the immediate pool area need not omply with the requirements for gates or doors set out in lauses 8 to 1 to the extent (if any) that the territorial authority is satisfied that suh ompliane is impossible, unreasonable, or in breah of any other At, regulation, or bylaw, and the door is fitted with a loking devie that, when properly operated, prevents the door from being readily opened by hildren under the age of 6 years. 12

28 ' ' Reprinted as at 28 November 213 Fening of Swimming Pools At 1987 Notes Reprints notes 1 General This is a reprint of the Fening of Swimming Pools At 1987 that inorporates all the amendments to that At as at the date of the last amendment to it. 2 Legal status Reprints are presumed to orretly state, as at the date of the reprint, the law enated by the prinipal enatment and by any amendments to that enatment. Setion 18 of the Legislation At 212 provides that this reprint, published in eletroni form, will have the status of an offiial version one issued by the Chief Parliamentary Counsel under setion 17(1) of that At. 3 ditorial and format hanges ditorial and format hanges to reprints are made usmg the powers under setions 24 to 26 of the Legislation At 212. See also 4 Amendments inorporated in this reprint Building Amendment At 213 (213 No 1): setion 76 Criminal Proedure At 211 (211 No 81): setion 413 Inome Tax At 27 (27 No 97): setion ZA 2(1) Fening of Swimming Pools Amendment At 27 (27 No 57) Building At 24 (24 No 72): setion 414 Loal Government At 22 (22 No 84): setion 262 Distrit Courts Amendment At 1998 (1998 No 76): setion 7 Building At 1991 (1991No15): setion 92(1) Fening of Swimming Pools Amendment At 1989 ( 1989 No 117) Wellington, New Zealand: Published W1der the authority of the New Zealand Govemment

29

30 Contents Page Foreword Bakground Building At 1991 Neessity for Fening of Swimming Pools At Parental/Caregiver Responsibility Water Safety Training 6 Role of Pool Suppliers Fening of Swimming Pools At Setion and and 13A 13B 13C Short Title Interpretation Appliation to xisting and New Pools xempted Pools Speial xemptions Notifiation of xistene of Pool to Territorial Authority Obligations of Owner and Persons in Control of Pool Offenes Obligations of Territorial Authority Power of ntry for Territorial Authority Delegation of Powers to Committee of Counil ffet of At and Building At 1991 on Bylaws and Other Laws Fening in Aordane with Shedule a Means of Compliane Amendment and Replaement of Shedule 14 Amendment to Fening At 1978 Shedule Appendix A - Summary of Report of the Loal Bills Committee on the Fening of Private Swimming Pools Appendix B - Pamphlet for Pool Owners FNCING OF SWIMMING POOLS ACT I 987 GUIDLINS FOR TRR1TORIAL AUTHORITIS 2

31 Foreword Drowning is a major ause of the aidental death of young hildren in New Zealand. Many drownings happen in private homes, in unfened, or inadequately fened, swimming and spa pools. It has been estimated that, with the adequate fening of pools, at least half these deaths (and other, non-fatal, aidents) would have been prevented. General onern about these unneessary deaths led Parliament to enat the Fening of Swimming Pools At This At requires that, in the absene of a speifi individual exemption, every private swimming and spa pool be properly fened. Water Safety New Zealand has statistis showing that drownings of hildren under six years old have dereased sine the introdution of the At. ah territorial authority is responsible for the enforement of the At. However, we have beome aware of the development of some problems. Water Safety New Zealand reently had a survey onduted by the Injury Prevention Researh Unit of the University of Otago. This survey highlighted diffiulties some territorial authorities were having in trying to reonile the presriptive regime in the Shedule to the At with the performane based riteria of the building ode introdued under the Building At In an endeavour to deal with these issues, the Department onsulted the following organisations: the Building Industry Authority; the Offie of the Commissioner for Children; the Ministry of Health; Loal Government New Zealand; Water Safety New Zealand; the Injury Prevention Researh Unit of the University of Otago; and the Royal New Zealand Plunket Soiety. The onsultations led to the development of the new guidelines attahed. These guidelines outline the requirements of both the At and the Code, and explain how they interat. They are intended to assist territorial authorities to satisfy their responsibilities under both ats and, I hope, to assist them to explain, to individual pool and spa owners, what their duties are. Although there is an assumption that territorial authority offiers are familiar with the At, some departmental omment on its provisions has been inluded. Also inorporated is a brief history of events leading up to the introdution of the At, and a suggested pamphlet outlining the responsibilities of pool owners whih territorial authorities are enouraged to distribute to every household. It is important that territorial authorities fully enfore the fening of residential swimming and spa pools. The major reason is, of ourse, to help guard young hildren from potential drowning or injury. I ommend these guidelines to all territorial authorities, and hope that they will be of assistane to regulatory staff and building inspetors when interpreting and enforing the At. FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRJTORIAL AUTHORITIS 3

32 : Staff in Loal Government Servies an further larify any provisions in the At (but annot give opinions or rulings about partiular ases). They an be ontated on telephone (4) , fax (4) , and Roger Blakeley Seretary for Internal Affairs August 1999 FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRITORIAL AUTHORITIS 4

33 Bakground There has been publi debate about the desirability and method of fening swimming pools for many years. In the early l 98's, Parliament's Loal Bills Selet Committee arried out the most omprehensive investigation of this issue. In its 1983 report, the Committee onluded that swimming pools should be fened beause: (a) (b) They are a signifiant hildhood water hazard; Pool fening is the most effetive means of preventing drownings of preshool hildren in private swimming pools; ( ) It is totally impossible for parents or guardians to supervise the hildren in their are every minute of the day; ( d) There are no equal or greater water hazards for pre-shool hildren; ( e) Where there is a reasonable and viable means of proteting young hildren from hazards suh as private swimming pools, the hildren have a right to that protetion; and (t) The value of aesthetially pleasing gardens annot be plaed above the value of human lives. A summary of the report is inluded in this booklet as Appendix A. The first Standard Model Bylaw (NZS 921) relating to the fening of swimming pools, was developed in 1979 by the then Standards Assoiation. At the time, it was generally believed that pre-shool drownings were aused by toddlers wandering from adjoining properties, or the road, onto properties whih had a pool. The model bylaw, therefore, provided a pool owner with the options of either ereting a fene around the property, or around that part of the property whih ontained the pool. The Loal Bills Committee onluded that this view was mistaken. It found that about 8% of pre-shool drownings in private pools ourred either in a hild's home, or when it was visiting as an invited guest. In light of this new information, the Committee reommended that the model bylaw be amended to delete the option allowing the property only to be fened. This reommendation was adopted in 1984 when a new model bylaw was issued by Standards New Zealand. The Committee also strongly reommended that all territorial authorities whih had not adopted a bylaw requiring the fening of private swimming pools, should do so as soon as possible. However, by 1987, only about one-third of all territorial authorities had made suh a bylaw. It was the desire to see provisions similar to the Standard Model Bylaw in legislation that led to a Private Member's Bill being introdued into Parliament in This triggered the enatment of the Fening of Swimming Pools At the following year. The purpose of the At is stated in the long title as, "An At to promote the safety of young hildren by requiring the fening of ertain swimming pools". It does this by requiring that pool owners fene their swimming or spa pools and the immediately surrounding areas. In ertain situations, exemptions from the provisions of the At an be granted. FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRITORIAL AUTHORITIS 5

34 ; Building At 1991 The At was subsequently amended by the Building At The amendment requires that new pool fenes, or alterations to existing fenes omply with the performane standard of the Building Code in fore under that At. Previously, pools had to be fened to the standard speified in the Shedule to the Fening of Swimming Pools At. Beause the Building At is not retrospetive, existing pool fenes are still required to meet the standard speified in the Shedule. However, that Shedule is deemed a ompliane doument in terms of the Building At. Performane standard F4.3.4 of the Building Code provides for alternative means of fening a pool. It does this by requiring fenes to be a ontinuous barrier of appropriate height, rigidity, and strength to restrit aess to the pool or the immediate pool area by hildren under six years of age. This gives territorial authorities the flexibility to approve varying strutures as Jong as they meet the performane standard, and thereby affords owners a hoie in how they may fene their pools. However, the reognised aeptable rules for pool fenes are in the Shedule to the Fening of Swimming Pools At. That is, the Shedule represents the "benhmark" whih territorial authorities should judge fenes against when deiding on the appropriateness of any alternative. Any alternative design must be at least as safe as if the fene were onstruted to the speifiations in the Shedule in order to omply with the performane standard of the Building Code. It is assumed that a ommon sense approah will be taken when deiding on the appropriateness ofan alternative design, keeping in mind the purpose of the At and the standard speified in the Shedule. If there is a dispute with a pool owner or some unertainty with regard to a partiular pool fene, the Building Industry Authority an be approahed to make a determination. The survey undertaken for Water Safety New Zealand in 1997 found that some territorial authorities believe that an exemption is required from some, or all of the provisions of the At before an alternative design may be approved. This is not the ase. A territorial may grant an exemption from any or all of the requirements of the At (see setion 12) if it is satisfied that suh an exemption, "... would not signifiantly inrease danger to young hildren". Neessity for the Fening of Swimming Pools At Between 198 and 1997, 129 hildren aged under six drowned in private swimming and spa pools in New Zealand. 1 This aounts for nearly 4% of all drownings involving pre-shool hildren. Drowning is seond only to road aidents as the major ause of aidental death for these hildren. An Australian study found that for every hild who drowns, there are at least nine others involved in serious near drowning aidents 2. Suh aidents an leave hildren with permanent moderate to severe brain damage. Fening is neessary, therefore, to prevent not only deaths, but also serious injury. 1 Soure: Water Safety New Zealand 2 Health Department of Western Australia FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRITORIAL AUTHORITIS 6

35 Parental/Caregiver Responsibility Parents/aregivers do have a responsibility to are for hildren. However, it is unrealisti to expet supervision alone to prevent pre-shool hildren from gaining aess to private swimming and spa pools. The Loal Bills Committee found that in eah ase where a hild drowned, in a private pool, an adult was present on the property. Young hildren are inquisitive and tend to be attrated to water. This attration is one reason why the existene of a pool is partiularly dangerous to pre-shool hildren. It is extremely diffiult to onstantly supervise a hild every minute, espeially where there is more than one hild. Pre-shool hildren and toddlers are mobile, and it an take only a few moments for them to get out of sight of parents/aregivers. A study of the irumstanes in whih preshoolers had drowned, reported that it was ommon for parents/aregivers to have taken their eyes off the hild for only a few minutes. 3 Attention may temporarily lapse for a number of reasons. For example, one may assume that another person is supervising the hild, or may leave the hild unwathed to answer the telephone, or perhaps be distrated by a domesti emergeny. Pool fenes will safeguard a hild even when a parent/aregiver is not in a position to supervise it. Water Safety Training Children between the ages of one and three years are those most vulnerable to drowning in private swimming and spa pools. Statistis show that over 7% of pre-shool fatalities in private swimming and spa pools our to hildren in this age group. Researh suggests that eduating pre-shoolers is not a pratial solution to the drowning problem. 4 The Loal Bills Committee onluded that pre-shool hildren an not be expeted to learn the elements of water safety or be taught how to reat appropriately in an emergeny. It is also unrealisti to expet pre-shool hildren to keep away from an unfened pool merely beause they have been told to do so. While some five-year-olds may understand that pools an be dangerous, it would be unreasonable and unrealisti to expet every hild to understand this, and to have the self-disipline never to go near a pool. Role of Pool Suppliers It is reognised that pool suppliers are in the unique position of being able to provide information to pool owners on their obligations to fene their pool to the required standard. A leaflet outlining pool-owners' responsibilities has been distributed to pool suppliers nation-wide, and they have been enouraged to give a opy of this to all their ustomers. 3 Hassall, I B, Australian Pediatris Journal, 1989; 25 4 Geddis, D, New Zealand Medial Journal, 1984; 97 FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRJTORIAL AUTHORITIS 7

36 FNCING OF SWIMMING POOLS ACT 1987 SUMMARY AND COMMNT SCTION 1 - SHORT TITL 1.1 This setion names the At the Fening of Swimming Pools At SCTION 2 - INTRPRTATION 2.1 This setion defines ertain terms used in the At. These are disussed below: 2.2 "Fene" -The At requires that new fenes and alterations to existing fenes be onstruted to meet the performane standard of the Building Code. This Code requires fenes to be a ontinuous barrier of an appropriate height, rigidity, and strength to restrit aess to the pool or the immediate pool area. In order for a fene to meet the performane standard, it must be built to be at least as safe as if it were onstruted to the speifiations in the Shedule to the Fening of Swimming Pools At. A fene onstruted to the Shedule's speifiations automatially meets the standard of the Building Code. xisting pool fenes are still required to meet the speifiations of the Shedule. 2.3 "Gates or Doors., - The term "gates or doors" refers to gates in pool fenes and doors in any building whih makes up part of a fene. Gates must be onstruted so that they open outwards and lose and lath automatially. Lathes must be at least 1.2 metres above the ground, if loated on the inside of a fene, or 1.5 metres above the ground if loated on its outside. A door may be built in the wall of a building that forms part of a pool fene. If it does, it must be fitted with a lok whih prevents it being readily opened by hildren under the age of six. As an extra safety preaution, it is preferable that the lok be at a height not easily reahable by toddlers. 2.4 "Immediate Pool Area" - This definition is of partiular importane for the appliation of the At. Setion 8 requires pool owners to fene the pool, and some or all of the "immediate pool area", that is the- "land in or on whih the pool is situated and so muh of the surrounding area as is used for ativities or purposes arried on in onjuntion with the use of the pool". What an the "immediate pool area" inlude? The definition of immediate pool area is important beause it is only that area, along with the pool, whih an be enlosed by the fene. The Department believes the examples given below adequately portray the ommon sense approah whih territorial authorities should take in determining the appropriate area to be fened. FNCING OF SWIMMING POOLS ACT 1987 GUIDLINS FOR TRRITORIAL AUTHORITIS 8