BUILDING (POOLS) AMENDMENT BILL

Transcription

1 BUILDING (POOLS) AMENDMENT BILL Departmental Report to the Local Government and Environment Committee 8 March 2016

2 Departmental Report Introduction Introduction This is the officials report to the Local Government and Environment Committee on the Building (Pools) Amendment Bill (the Bill). It contains the following: Part A Summary and key themes Summary of recommended amendments to the Bill Key themes arising from the submissions Further policy decisions made by Cabinet Part B Clause-by-clause analysis Officials recommendations on matters not raised by submitters Clause-by-clause analysis of submissions Other submissions within the scope of the Bill Submissions for regulatory change outside scope of the Bill List of submitters. All changes recommended in this report are subject to advice from, and drafting by, the Parliamentary Counsel Office. There were 183 submissions on the Bill (including 32 written submissions). Of these, 51 submissions expressed (or appeared to express) overall support or qualified support for the Bill, 109 submissions expressed (or appeared to express) overall opposition or significant concern with the Bill, and 23 made comments but did not express either overall support or opposition to the Bill. The specific reasons for support or opposition to the Bill are discussed in Part B of this departmental report. 2

3 Departmental Report Summary of recommended amendments to the Bill Summary of recommended amendments to the Bill Item number in Part B Clause of the Bill Clause 1 Title No changes are recommended to this clause. Clause 2 Commencement No changes are recommended to this clause. Clause 3 Principal Act No changes are recommended to this clause. Clause 4 Proposed section 5(2)(b)(iv): Overview No changes are recommended to this clause. Clause 5 Section 7 (Interpretation) 5.7 Amend the Bill so that spa pools are subject to the same requirements as hot tubs. The policy intention is to treat spa pools and hot tubs (with sidewalls at least 760mm high) differently to other residential pools in relation to barrier requirements (see item 16.16), building consent requirements (see item 14.1) and mandatory inspections (see item 12.2). 5.9 Amend the Bill, if necessary, to reflect the policy intention that the top of the sidewall should be at least 760mm above the adjacent level surface or climbable objects (such as steps). We will consult with Parliamentary Council Office (PCO) about whether any amendment is necessary to reflect this policy intention Amend the Bill, if necessary, to exclude artificial lakes. The policy intention is for the Bill to focus on residential swimming pools (see item 5.17). We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Clause 6, Section 8(1)(b)(ii) A pool barrier is a building No changes are recommended to this clause. 3

4 Departmental Report Summary of recommended amendments to the Bill Clause 7, new subpart 7A Proposed section 162A Purpose 7.2 Amend the Bill to reflect that the role of territorial authorities includes ensuring that the pool barrier requirements are complied with. By creating enforcement powers, the Bill gives territorial authorities the role of enforcing the pool barrier requirement. The roles of territorial authorities under the Act are summarised in section 12 of the Act. It may be appropriate to amend this section. Proposed section 162B Application of new subpart 7A No changes are recommended to proposed section 162B. Proposed section 162C Residential Pools must have means of restricting access Officials rec. 1.1 Amend the Bill to clarify that spa pools and hot tubs must be provided with a means of restricting access (such as a cover), but that means of restricting access is not required to operate continuously. The policy intention is that spa pools and hot tubs should not require a barrier that restricts access continuously, if they have sidewalls at least 760mm high and a compliant cover. A determination found a spa pool did not comply with clause F4 of the building code because, once the cover is off, it is no longer a barrier restricting access to the pool [Determination ]. 7.9 Amend the Bill to provide scope for territorial authorities and the Ministry of Business, Innovation and Employment (MBIE) to grant waivers and modifications of the pool barrier requirement in proposed section 162C of the Act. Currently, sections 67 and 188 of the Act provide for waivers of building code requirements. It would be consistent, given that proposed section 162C also contains performance requirements, that there be scope to provide for waivers of proposed section 162C. Situations may arise where it is appropriate to grant a waiver or modification. For example, commercial pools fall within the definition of residential pool if there is a household unit on the same land, but for operational reasons it might not be appropriate for the pool barrier to operate at all times. Officials rec. 1.2 Amend the Bill so that applicable requirements are subject to waivers granted under section 188. Proposed section 162C(2) takes into account waiver or modification of the building code granted by Building Consent Authorities (BCAs) under section 67 of the Act. It would be consistent if the proposed section also took into account waivers and modifications granted by MBIE under section 188 as part of issuing determinations. 4

5 Departmental Report Summary of recommended amendments to the Bill 7.18 Amend the Bill to include the person who operates the pool as a specified person. As part of providing effective and efficient enforcement tools, the policy intention is that the territorial authority may take action against any person who, in their opinion, could be expected to ensure compliance and are in a position to fix the non-compliance. Sometimes this person is the occupier, for example where an occupier of a property props a gate open and is capable of fixing the problem. Territorial authorities are expected to use the power reasonably, and are unlikely to use issue notices to fix to occupiers who are not in a position to address the noncompliance. Sometimes the person who operates the pool is neither the owner nor the occupier. Proposed section 162D Manufacturer and retailer notice 7.26 Amend the Bill to clarify that MBIE (not territorial authorities) have the role of enforcing the requirement that manufacturers and retailers comply with proposed section 162D. The policy intention is that MBIE will monitor and enforce the requirement, because enforcement needs to be very cost-efficient given that any reduction in drowning as a result of the notice requirement is not expected to be significant. Many manufacturers and retailers operate nationally. MBIE expects that its power under section 207A of the Act (power to require person to provide information or produce documents) provides it with a tool to assist with its enforcement of proposed section 162D. Proposed section 162E Bylaws 7.33 Amend the Bill by deleting proposed section 162E. On reflection, section 162E is not necessary because the policy intention is already achieved by section 152 of the Local Government Act The policy intention is to have nationallyconsistent building requirements. Accordingly, territorial authorities should not impose requirements more restrictive than the building code. Clause 8, Section 163 Specified person for a notice to fix No changes are recommended to this clause. Clause 9, Proposed section 165 Power to direct the pool to be drained No changes are recommended to this clause. Clause 10, Section 168 Offence for failing to comply with a notice to fix a pool barrier No changes are recommended to this clause. 5

6 Departmental Report Summary of recommended amendments to the Bill Clause 11, Section 222 Power to inspect residential pools 11.1 Amend the Bill, if necessary, to reflect the policy intention that section 222A should not affect the right of territorial authorities to carry out an inspection under section 222 at any time permitted by that section. The policy intention is that territorial authorities should have effective powers for ensuring that proposed section 162C is complied with. Where a territorial authority considers it necessary, they should be able to inspect any spa pool, hot tub and portable pool. They should be able to inspect any residential pool whenever necessary (for example, after receiving a complaint) even if that inspection is sooner than the next mandatory inspection. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Officials rec. 1.3 Amend the Bill, if necessary, to reflect the policy intention that the powers governing the manner in which a territorial authority may carry out an inspection of a pool under section 222 are the same as the powers governing the manner in which territorial authorities carry out other inspections under section 222 of the Act. In order to reflect this policy intention, it may be appropriate for section 223(2) of the Act to include the specified persons in proposed section 162C(3) as persons who must give all reasonable assistance to enable an authorised officer to inspect the pool. We will consult with Parliamentary Council Office (PCO) on how best to reflect the policy intention and any consequential amendments to the Act. Clause 12, Proposed section 222A Periodic inspections of residential pools 12.1 Amend the Bill so that inspections are required three-yearly. The concern raised by submitters is one of the key themes of the submissions, and is discussed in Part A of this departmental report. Territorial authorities that currently conduct periodic inspections report that fewer than 50 per cent of pools are compliant the first time they visit during each inspection cycle. Overseas research indicates that inspections improve the level of compliance. Compliance at any given moment in time would be higher with more frequent inspections because any noncompliance would be addressed after each inspection. An estimated 60 per cent of pools (in 17 districts) are currently inspected three-yearly. Moving all pools to three-yearly inspections is estimated to increase overall inspection costs by $1 million. The average cost of an inspection is estimated to be $180. 6

7 Departmental Report Summary of recommended amendments to the Bill Officials rec. 1.4 Amend the Bill so that all pools where a pool barrier has been installed must be inspected on a periodic basis, except where the barrier is a cover (for spa pools and hot tubs that have sidewalls at least 760mm high). Currently, the Bill exempts all spa pools, hot tubs and portable pools from periodic inspection. The recommended change caters for situations where an owner of a spa pool, hot tub or portable pool has obtained a building consent and installed a barrier other than a cover (see item 1.6). Periodic inspections would verify that that barrier continues to perform as intended in the building consent. The reason for the proposed exemption (for spa pools and hot tubs that have sidewalls at least 760mm high where the barrier is a cover) is discussed under item 12.2 (and in Part A of this departmental report because it is a key theme of the submissions) Amend the Bill so that the periodic inspections may be carried out by independently qualified pool inspectors (IQPIs persons approved by MBIE as being qualified to carry out periodic pool inspections). The policy intention is that territorial authorities must ensure pools are inspected on a regular basis, but pool owners (and territorial authorities) should have the option of engaging IQPIs to carry out inspections. This proposed amendment is discussed further in Part A of this departmental report Amend the Bill to extend the inspection window to six months either side of the anniversary date (currently the window is three months). This meets the policy intention that regular inspections are carried out efficiently, because the longer window will enable territorial authorities to distribute their inspection workload throughout the year. Clause 13 Transitional and savings provisions Proposed section 450A Transitional provision for residential pools No changes are recommended to proposed section 450A. Proposed section 450B Savings provisions for existing pools Officials rec. 1.5 Amend the Bill to allow owners of existing pools to have the option of complying with the building code as amended by the Bill. Section 450B saves existing pools from having to be upgraded to comply with proposed clause F9 of the building code. However, some pools do not comply with the existing requirements but could comply with proposed clause F9. For example, owners of pools with doors that are difficult to make self-closing may wish to install a door alarm. The policy intention is to give owners of such pools the option of complying with the proposed building code requirements. 7

8 Departmental Report Summary of recommended amendments to the Bill 13.8 Amend the Bill, if necessary, to reflect the policy intention that existing indoor home pools that are currently exempt under section 5(e) of FOSPA (and under the limit of application of clause F4.3.3 and F4.3.4(f) of the building code) will be required to comply with the new pool barrier requirements. The policy intention is that both new and existing indoor pools will be subject to the pool barrier requirements because there is a high drowning risk when young children inside the house have unrestricted access to the pool. Drowning data [1] shows that 65 per cent of young children who drowned after gaining unsupervised access to a home pool were inside the house before they went unnoticed to the pool. We understand that restricting access will generally be achievable by installing a self-closing mechanism or alarm on the door to the pool. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. [1] Data from Water Safety New Zealand. Drownings in home pools between 1993 and Amend the Bill, if necessary, to reflect the policy intention that existing pools that are currently exempt under section 5(d) and 5(f) of FOSPA (and under the limit of application of clause F4.3.3 and F4.3.4(f) of the building code) will be required to comply with the new pool barrier requirements if they are residential pools. The Bill does not exempt the types of pool described in section 5(d) and (f) of FOSPA because: non-residential pools are not the focus of the residential pool provisions the building code regulates building work, rather than directly regulating how people use those buildings. Item 7.9 discusses the situations where a waiver could be appropriate for such pools, if they fall within the definition of residential pool. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Clause 14, Schedule 1 amended Building work for which building consent is not required Officials rec. 1.6 Amend the Bill so that building consent is required for all pool barriers, except a cover (for spa pools and hot tubs that have sidewalls at least 760mm high). Currently, the Bill exempts all barriers of spa pools, hot tubs and portable pools from requiring building consent. The recommended change caters for situations where an owner of a spa pool, hot tub or portable pool wishes to install a barrier (other than a cover). The building consent process is useful for both the owner and the territorial authority because it confirms that the barrier complies with the building code. We expect that these situations will be relatively rare because spa pools and hot tubs are usually sold with a safety cover, and because we understand that few owners install permanent barriers surrounding portable pools (and are likely to drain the pool rather than install a permanent barrier). The reason for the proposed exemption (for covers of spa pools and hot tubs that have sidewalls at least 760mm high) is discussed under item 14.1 (and in Part A of this departmental report because it is a key theme of the submissions). 8

9 Departmental Report Summary of recommended amendments to the Bill Clause 15, Repeal of Fencing of Swimming Pools Act 1987 No changes are recommended to this clause. Clause 16 Consequential amendments Fencing Act 1978 No changes are recommended to Bill in relation to the Fencing Act Building (Infringement Offences, Fees, and Forms) Regulations 2007 Infringement fees relating to pool safety provisions No changes are recommended to Bill in relation to the Building (Infringement Offences, Fees, and Forms) Regulations Clause F4 of the building code Existing performance standards for pool barriers No changes are recommended to Bill in relation to clause F4 of the building code. Proposed clause F9.1 of the Building Code Objective of clause F9 No changes are recommended in relation to proposed clause F9.1 of the building code. Proposed clause F9.2 of the Building Code Functional requirement for residential pool barriers 16.4 Amend the Bill, if necessary, to reflect the policy intention that, where the Act requires pools to achieve performance criteria, those performance criteria are also required by the building code. Proposed section 162C(1) of the Act sets out certain performance criteria for pools, that they, must have physical barriers that restrict access to the pool by unsupervised children under 5 years of age. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Proposed clause F9.3.1 of the Building Code Barriers must be able to restrict entry Amend the Bill to ensure alignment (where appropriate) between proposed section 162C and proposed clause F9 of the building code. The policy intention is that: pool barriers should restrict unsupervised access continuously spa pools and hot tubs should not require a barrier that restricts access continuously, if they have sidewalls at least 760mm high and a compliant cover (see item 1.1) Amend the Bill, as necessary, to align the language of the building code and the Act. 9

10 Departmental Report Summary of recommended amendments to the Bill Proposed clause F9.3.2 of the building code: Barriers must cover the pool or surround the immediate pool area Amend the Bill, if necessary, to reflect the policy intention that the barrier could be in any location so long as it restricts access to the pool, and does not enclose any area that is not part of the immediate pool area. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Proposed clause F9.3.3 Performance criteria for gates No changes are recommended in relation to proposed clause F9.3.3 of the building code. Proposed clause F9.3.4 of the Building Code Performance criteria for doors, and performance standard for windows Amend the Bill, if necessary, to reflect the policy intention that a building may form all of the barrier, or part of it. We will consult with PCO about whether any amendment is necessary to reflect this policy intention Amend the Bill, if necessary, to reflect the policy intention that proposed clause F9.3.4 relates to doors and windows that form part of the pool barrier. We will consult with PCO about whether any amendment is necessary to reflect this policy intention. Clause 16, Proposed clause F9.3.5 of the Building Code Performance criteria for covers No changes are recommended in relation to proposed clause F9.3.5 of the building code. 10

11 Departmental Report Key themes arising from the submissions Key themes arising from the submissions The key themes raised in submissions on the Bill related to the following: A. Reliance on performance-based standards in the building code for the means of restricting access to residential pools B. Use of the term physical barrier rather than fence C. Allowing doors and windows to be used as part of the immediate pool area D. Safety covers for spa pools and hot tubs E. Frequency of residential pool inspections. In addition, Cabinet has decided to make changes to the way in which periodic pool inspections are conducted by introducing independent pool inspections. A. Reliance on performance-based standards in the building code for the means of restricting access to residential pools Clause 7, proposed section 162C requires that every residential pool that is filled or partly filled with water must have physical barriers that restrict access to the pool by unsupervised children under five years of age. The requirements for the means of restricting access to residential pools are set out in the building code, in particular in proposed clause F9. The policy intention is to rely on the performance-based approach in the building code to specify the requirements for restricting access to pools. Background The current fencing requirements in the Fencing of Swimming Pools Act 1987 (FOSPA) 1, as well as the barrier requirements proposed under the Bill, are subject to the performancebased approach of the building code. The building code is made under the Building Act 2004 (the Act). The building code states, in general terms, how the completed building must perform in its intended use. It contains functional requirements and performance criteria that cover matters such as protection from fire, structural strength, moisture control and durability. In order to grant a building consent, the Building Consent Authority (BCA) must be satisfied on reasonable grounds that the requirements of the building code have been met. Consent applicants can show this through the use of acceptable solutions or they may propose alternative solutions. 1 Section 8 of FOSPA requires pool fences to comply with the building code 11

12 Departmental Report Key themes arising from the submissions Acceptable solutions are specific ways of complying with the building code. These are developed (and published) by the Ministry of Business, Innovation, and Employment through a statutory consultation process under section 29 of the Act. Acceptable solutions do this by giving specific construction details. The Schedule to FOSPA, which sets out specific construction details for pool fences, is an acceptable solution which provides one way to comply with the building code (the Schedule will continue to be an acceptable solution under the Bill). An alternative solution is a design that complies with the requirements of the building code, but does not follow a specific compliance path provided by an acceptable solution. To obtain a building consent for a proposed alternative solution, a building consent applicant must demonstrate to the BCA that a proposed alternative solution will comply with the requirements of the building code. Any alternative solution should normally be at least as effective as the comparable acceptable solution. The BCA would compare any alternative solution with the pertinent acceptable solution or relevant industry standards (such as New Zealand Standard NZS 8500:2006 Safety barriers and fences around swimming pools, spas and hot tubs). Submissions Nineteen submitters indicated specific concern with using the performance-based approach for the means of restricting access to residential pools proposed in the Bill. The main suggestion was that prescriptive standards should be used instead of a performance-based approach. The submitters suggested that a performance-based approach may lead to a more lax attitude towards pool protection and the installation of barriers that are unsafe. It was argued that prescriptive standards: are robust, independent and objective do not send a message to the public that the present strict requirements around pool safety have been relaxed do not leave the determination of the adequacy of a pool s safety in the hands of individuals (Building Consent Authority officials) who may lack knowledge of, and commitment to, child safety. Officials comment Officials do not recommend amending the Bill by introducing prescriptive standards for pool barriers rather than relying on performance-based standards set out in the building code. To introduce prescriptive standards would represent a move away from the existing performance-based approach to pool barriers under FOSPA. Moving to prescriptive standards would effectively mean that alternative solutions will not be allowed. As a consequence, innovative solutions that are just as, if not more, effective at restricting access to a pool will no longer be allowed. An example of an alternative solution, which may not be catered for in a prescriptive standard, would be an innovative, nonstandard solution to allow a disabled person access to a pool while continuing to restrict access to young children. It would not be feasible to write up all possible fencing solutions in prescriptive standards. 12

13 Departmental Report Key themes arising from the submissions B. Use of the term physical barrier rather than fence The submitters that were in favour of a prescriptive standard also argued that pools should have a fence rather than physical barriers to restrict access. The submitters were of the view that the wording physical barrier was considered too vague and would allow for unproven ways to restrict access to a pool. The submitters also argued that the requirement that pools have physical barriers creates uncertainty and introduces the ability to interpret pool safety requirements more broadly and liberally, and this would result in decreased pool safety. Officials do not recommend amending the Bill to require all pools to have a fence. The definition of a fence under FOSPA is already broad. Under section 2 of FOSPA it states, a fence: a. means a fence that complies with the requirements of the building code in force under the Building Act 2004 in respect of swimming pools subject to this Act b. includes any part of a building and any gates or doors that form part of a fence. Therefore, under the current regime, fencing may include a wide range of structures such as retaining walls, garden walls, glass barriers, as well as more traditional fencing). This illustrates that the current fencing requirement is not limited to traditional fencing. However, the term fencing does preclude spa pool covers and natural barriers, such as vertical cliffs, from being used as means to restrict access to a pool by children under five. The use of the wording physical barrier will allow for these kinds of barrier. Any natural feature used as part of a barrier would need to comply with the building code it must be durable and must restrict access (moreover, any proposed natural barrier would need to be compared with the applicable acceptable solution using the process described above under the background heading). C. Allowing doors and windows to be used as part of the immediate pool area Clause 16, proposed clause F9.3.4 of the building code sets out performance criteria for doors, and performance standard for windows (where a building forms part of the barrier). The policy intention is to allow access from a home directly to the immediate pool area. Submissions Twenty-seven submitters expressed concern about doors being used as part of the pool barrier. The main suggestion was that the clause be amended to require all pools to have four-sided fencing (i.e. no direct access from the dwelling to the pool area). The main reason given was that four-sided isolation fencing is the most effective way of preventing unsupervised children from entering the immediate pool area. 13

14 Departmental Report Key themes arising from the submissions Officials comment Officials do not recommend amending the Bill to require all pools to have four-sided fencing. Anecdotal evidence from TAs indicates that up to half of pools have a door as part of the pool barrier. Home pool drownings involving doors that were left open decreased from a peak of eight in the 10 years to 2002, to two in the 10 years to Developments that may have contributed to this decrease include: in 2003, departmental guidance noted that self-closing devices were now available for sliding and sliding-folding doors in 2006, a determination found that a sliding door must be either self-closing or have another means of restricting access. Queensland research 3 found that pool barriers with doors posed three times greater risk of drowning than where there was no door. The main reason was that doors either did not have a self-closing mechanism, or the mechanism was broken. Another reason was caregivers let children outside to play without supervision. In one instance, the self-closing mechanism had been deliberately overridden. Under the Bill, the regular inspection regime would ensure that door mechanisms are maintained. Moreover, limiting the pool area to the immediate pool area reduces the risk of caregivers letting young children into the area (this area, per definition, does not provide for a children s play area). D. Safety covers for spa pools and hot tubs Under clause 16, proposed clause F9.3.2(b) of the building code, barriers that cover a spa pool or hot tub are permitted. Submissions Eleven submitters suggested that the Bill be amended to state that spa pools and hot tubs continue to be treated in the same way as swimming pools for the purposes of fencing requirements. It was argued that they pose the same risks of drowning to children and will be accessible if their covers are non-compliant or are not used correctly. Requiring these pools to have fences will be an added layer of protection between children and pools. 2 Drownings of children aged 0-4 in home pools. Data from Water Safety New Zealand. 3 Barker R, Pitt W R, Hockey R, Spinks D, Scott D (unpublished) Pool barrier design to prevent toddler immersion deaths. Queensland Injury Surveillance Unit. Brisbane. 14

15 Departmental Report Key themes arising from the submissions Officials comment Officials disagree with the view that spa pools and hot tubs pose the same drowning risk as swimming pools. Spa pools accounted for 11 per cent of drownings of children under five in the past twenty years. During this period, child-resistant covers became the industry norm. There has been one recorded drowning in spa pools and hot tubs with child resistant pool covers in the past ten years 4, despite there being an estimated 100,000 unfenced spa pools. In contrast, there have been 19 drowning fatalities of children under the age of five in residential pools in the last decade (according to a 2013 estimate, there are 60,000 swimming pools subject to FOSPA). Officials do not recommend amending the Bill so that spa pools and hot tubs are subject to the same barrier (and inspection) requirements as other residential pools because: they pose a lower drowning risk spa pools usually have safety covers (and sides that are at least 760mm high) they are hard for TAs to locate. It is estimated that 96 per cent of spa pools are unfenced. Requiring all spa pools to be fenced would cost spa pool owners an estimated $300 million. E. Frequency of residential pool inspections Clause 12, proposed section 222A(1) requires TAs to inspect residential pools (other than spa pools, hot tubs and portable pools) every five years to determine if the pool barrier requirements are being complied with. FOSPA does not expressly require TAs to periodically inspect all pools in their district. Proposed section 222A provides for a new mandatory requirement for TAs to periodically inspect residential pools (other than spa pools, hot tubs, and portable pools) once every five years. The mandatory regime creates a consistent national approach to periodic inspections of pools to ensure that owners comply with the pool barrier requirements. Submissions There were 75 written submissions on the proposed periodic inspection regime. All submitters were in favour of periodic inspections in general. Forty-two submitters were in favour of a more frequent inspection regime and a majority (31) of these submitters suggested that TAs inspect pools three rather than five-yearly because: compliance is higher where councils pro-actively and regularly monitor compliance the risk of drowning is lower in compliant pools. 4 Data from Water Safety New Zealand submission on the Bill to the Local Government and Environment Committee 15

16 Departmental Report Key themes arising from the submissions Officials Comment On 7 March 2016, Cabinet agreed to require TAs to inspect pools three-yearly rather than every five years and directed officials to recommend amendments to the Bill accordingly. Overseas research indicates that inspections improve the level of compliance 5. Compliance at any given moment in time would be higher with more frequent inspections because pools will be compliant (or brought into compliance) soon after each inspection. A majority of pools (an estimated 60 per cent of pools in 17 districts) are currently inspected on a three-yearly basis. A move to a mandatory inspection regime of three years would therefore not represent a major shift for the majority of pool owners. Moving all TAs to mandatory three-yearly inspections would result in an estimated annual increase in costs of $1 million. The average cost of an inspection is estimated to be $ Bugeja L and Franklin RC (2012) An analysis of stratagems to reduce drowning deaths of young children in private swimming pools and spas in Victoria, Australia, International Journal of Injury Control and Safety Promotion, DOI: / Gulliver P and Chalmers D (2006) Fencing of swimming pools legislation: literature review University of Otago, Dunedin. Stevenson MR, Rimajova M et al. (2003) Childhood drowning: Barriers surrounding private swimming pools. Pediatrics111(2):e115-e119 van Weerdenburg K, Mitchell R and Wallner F (2003) Management of domestic swimming pools and compliance levels: A comparison of approaches in three local government areas NSW. Water Safety Taskforce. 16

17 Departmental Report Further policy decisions made by Cabinet Further policy decisions made by Cabinet On 7 March 2016, Cabinet agreed that periodic pool inspections can be conducted by independently qualified (private) pool inspectors and directed officials to recommend amendments to the Bill accordingly. Independent pool inspections are desirable in terms of consumer choice and convenience. This is especially the case for pool owners that regularly engage tradespeople to carry out pool servicing and maintenance work. These tradespeople could potentially offer pool inspections as an add-on service at low cost. The policy intention is that TAs must ensure pools are inspected on a regular basis, as part of their responsibility for ensuring that the barrier requirements are complied with. It would be consistent with that policy intention if pool owners could engage independent pool inspectors to undertake those inspections. Similarly, TAs should be able to outsource these relatively simple inspections if they find they do not have the capacity to conduct them. Using independent pool inspectors would be consistent with the way specified systems are managed under the Act. For specified systems, owners engage independently qualified persons (IQPs) to inspect specified systems (as provided under sections 7 [definition of independently qualified person] and 110 of the Act). This system is currently used for the certification of safety of lifts and other life-essential building services like sprinkler systems and fire alarms. An independently qualified pool inspector (IQPI) would be inspecting existing pools that have already been approved by the building consent authority (BCA) as complying with the building code when they were constructed. The IQPI would be reporting to the TA whether the pool barrier continues to comply with the requirements that applied to that pool when it was installed. The regime would involve the following: a person must apply to MBIE to be an IQPI MBIE must decide whether the person is qualified to carry out periodic pool inspections, based on set criteria, and must maintain a list of these pool inspectors if the IQPI notifies the TA that an inspection has been carried out and includes a report on the compliance of the pool, that notification satisfies a TA s obligation to undertake the periodic inspection of the pool. 17

18 Departmental Report Officials recommendations on matters not raised by submitters Officials recommendations on matters not raised by submitters The table below contains recommended changes proposed by officials, on matters that were not specifically raised by submitters. Item Clause Recommendation 1.1 Proposed section 162C(1) residential pools must have a barrier 1.2 Clause 7 Proposed section 162C(2): applicable requirements for barriers 1.3 Clause 12, proposed amendments to Section Clause 12, proposed section 222A periodic inspection of residential pools Amend the Bill to clarify that spa pools and hot tubs must be provided with a means of restricting access (such as a cover), but that means of restricting access is not required to operate continuously. The policy intention is that spa pools and hot tubs should not require a barrier that restricts access continuously, if they have sidewalls at least 760mm high and a compliant cover. A determination found a spa pool did not comply with clause F4 of the building code because, once the cover is off, it is no longer a barrier restricting access to the pool [Determination ]. Amend the Bill so that applicable requirements are subject to waivers granted under section 188. Proposed section 162C(2) takes into account waiver or modification of the building code granted by Building Consent Authorities (BCAs) under section 67 of the Act. It would be consistent if the proposed section also took into account waivers and modifications granted by the Ministry of Building, Innovation and Employment (MBIE) under section 188 as part of issuing determinations. Amend the Bill, if necessary, to reflect the policy intention that the powers governing the manner in which a territorial authority may carry out an inspection of a pool under section 222 are the same as the powers governing the manner in which territorial authorities carry out other inspections under section 222 of the Act. In order to reflect this policy intention, it may be appropriate for section 223(2) of the Act to include the specified persons in proposed section 162C(3) as persons who must give all reasonable assistance to enable an authorised officer to inspect the pool. We will consult with Parliamentary Council Office (PCO) on how best to reflect the policy intention and any consequential amendments to the Act. Amend the Bill so that all pools where a pool barrier has been installed must be inspected on a periodic basis, except where the barrier is a cover (for spa pools and hot tubs that have sidewalls at least 760mm high). Currently, the Bill exempts all spa pools, hot tubs and portable pools from periodic inspection. The recommended change caters for situations where an owner of a spa pool, hot tub or portable pool has obtained a building consent and installed a barrier other than a cover (see item 1.6). Periodic inspections would verify that that barrier continues to perform as intended in the building consent. The reason for the proposed exemption (for spa pools and hot tubs that have sidewalls at least 760mm high where the barrier is a cover) is discussed under item 12.2 (and in Part A of this departmental report because it is a key theme of the submissions). 18

19 Departmental Report Officials recommendations on matters not raised by submitters Item Clause Recommendation 1.5 Clause 13, Proposed section 450B Savings provisions 1.6 Clause 14, proposed amendments to Schedule 1 (exempt building work) Amend the Bill to allow owners of existing pools to have the option of complying with the building code as amended by the Bill. Section 450B saves existing pools from having to be upgraded to comply with proposed clause F9 of the building code. However, some pools do not comply with the existing requirements but could comply with proposed clause F9. For example, owners of pools with doors that are difficult to make self-closing may wish to install a door alarm. The policy intention is to give owners of such pools the option of complying with the proposed building code requirements. Amend the Bill so that building consent is required for all pool barriers, except a cover (for spa pools and hot tubs that have sidewalls at least 760mm high). Currently, the Bill exempts all barriers of spa pools, hot tubs and portable pools from requiring building consent. The recommended change caters for situations where an owner of a spa pool, hot tub or portable pool wishes to install a barrier (other than a cover). The building consent process is useful for both the owner and the territorial authority because it confirms that the barrier complies with the building code. We expect that these situations will be relatively rare because spa pools and hot tubs are usually sold with a safety cover, and because we understand that few owners install permanent barriers surrounding portable pools (and are likely to drain the pool rather than install a permanent barrier). The reason for the proposed exemption (for covers of spa pools and hot tubs that have sidewalls at least 760mm high) is discussed under item 14.1 (and in Part A of this departmental report because it is a key theme of the submissions). 19

20 Clause-by-clause analysis of submissions This clause-by-clause analysis notes support or opposition to each clause, and discusses where submissions indicate that the Bill should be changed. Each submission item is discussed under the clause of the Bill that it primarily relates to. The submission items are highly summarised. Given the volume of submissions, errors may have occurred in the process of summarising the submissions. Clause 1 Title Clause 1 is the title clause. There were no submissions relating to this clause. Clause 2 Commencement Clause 2 is the commencement clause. It provides that the Bill will come into force on 1 January There were no submissions relating to this clause. Clause 3 Principal Act Clause 3 provides that this Bill amends the Building Act 2004 (the Act). There were no submissions relating to this clause. 20

21 Clause 4 Proposed section 5(2)(b)(iv): Overview Clause 4 amends section 5 of the Act, the overview section, to reflect changes made by this Bill, and states that the Act contains provisions relating to residential pool safety. Submissions on the repeal of the Fencing of Swimming Pools Act 1987 (FOSPA) are related to this section and therefore are included here as well. There were 34 submissions relating to this clause. Of these, five expressed (or appeared to express) support, 6 and 29 expressed (or appeared to express) opposition or significant concern. 7 Item Submissions on Clause 4 Overview Recommendation 4.1 Various submitters [1] made submissions that showed concern about repealing FOSPA and including provisions for residential pools in the Act. The main submission was that repealing the stand-alone Act for pool safety (FOSPA) could be perceived as signalling that pool safety has been given a lower priority. [1] Aktive-Auckland Sport & Recreation, Amanda Fitzgerald, Gavin Frost, Injury Prevention Aotearoa, Julie Chambers, Kim Parker, New Zealand Recreation Association, Office of the Children's Commissioner, Paediatric Society of New Zealand, Rebecca Johnson, Royal New Zealand Plunket Society, SafeKids Aotearoa, Starship Child Health, The Salvation Army New Zealand Fiji and Tonga Territory, Waikato Child and Youth Mortality Review Group, Waitemata Child Youth Mortality Review Group, Water Safety New Zealand, WaterSafe Auckland, Wellington City Council. No change. The policy intention is that there be a coherent and efficient regulatory scheme for regulating building work relating to pool barriers. Currently, two regulatory schemes are operating (in duplicate) under the FOSPA and the Act. 6 Support: Christchurch City Council, Hastings District Council, Manawatu District Council, Nelson City Council, Waikato Building Consent Group. 7 Oppose: Aktive-Auckland Sport & Recreation, Alane Nilsen, Albany Community Preschool, Amanda Fitzgerald, Brenden Mischewski, Dianne Northcott, Every Child Counts, Gavin Frost, Injury Prevention Aotearoa, Julie Chambers, Kim Parker, Marilyn Burton, Mary Glaisyer, New Zealand Recreation Association, Office of the Children's Commissioner, Paediatric Society of New Zealand, Rebecca Johnson, Royal New Zealand Plunket Society, SafeKids Aotearoa, Safekids Coalition Taupo District, Safer North Community Trust, Tauranga City Council, The Salvation Army New Zealand Fiji and Tonga Territory, Waikato Child and Youth Mortality Review Group, Waitemata Child Youth Mortality Review Group, Water Safety New Zealand, WaterSafe Auckland, Wellington City Council. 21

22 Clause 5, Proposed Amendments to Section 7 (Interpretation) Clause 5 amends section 7 of the Act, the interpretation section, to insert new definitions of abode (or place of abode), hot tub, immediate pool area, pool, portable pool, residential pool, and spa pool. Clause 5 Definition of abode and residential pool There were 12 submissions relating to Clause 5 (definition of 'abode' and residential pool ). Of these, three expressed (or appeared to express) support or qualified support, 8 four expressed (or appeared to express) opposition or significant concern, 9 and five made comments but did not express either support or opposition. 10 The main concern was that all pools (whether public, semi-private or private; residential or non-residential) should come under the Bill, because all pools pose risks to the safety of children. Item Submissions on Clause 5 Definition of abode and residential pool Recommendation 5.1 Waikato Building Consent Group, Professor Brian Darlow, Dr Karen Munro, John Tait and Barry O Donnell made submissions that showed concern about the proposal that the pool safety provisions apply only to residential pools. The main reason given was that all pools (whether public, semiprivate or private; residential or nonresidential) should come under the Bill, because all pools pose risks to the safety of children. John Tait submitted that the definition of abode needs to consider situations in which a pool is displayed, for example pools in shopping mall atriums. 5.2 Christchurch City Council and WaterSafe Auckland made submissions that showed concern about the proposal to use a definition of abode, which is a definition not found in existing legislation. The main reason given was that using pre-existing definitions will result in clarity and make the Bill easier to understand. WaterSafe Auckland suggested that the existing definition of household unit in section 7 of the Act be used. No change. The policy intention is to establish a regime for residential pools because, at home, caregivers cannot be expected to be actively supervising the pool at all times, which is why a physical barrier is required to restrict access to the pool. The situation is not the same in respect of non-residential pools, where operators often employ personnel to control access to the facilities, and young children do not usually have access without adults. In these environments, a mandatory requirement to have a physical barrier around a pool does not always make much sense. Health and safety legislation requires operators of these pools to manage the associated risks in the most effective way possible, so child safety around non-residential pools will still be paramount and a legal obligation. No change. The definition of abode is intended to cover all dwellings and visitor accommodation. The definition of household unit does not cover all the intended types of accommodation. 8 Support or qualified support: Christchurch City Council, Rangitikei District Council, Manawatu District Council. 9 Oppose: Barry O'Donnell, Dr Karen Munro, Professor Brian Darlow, Waikato Building Consent Group. 10 Unclear: Ian Bailey, John Tait, Local Government New Zealand, WaterSafe Auckland, Wellington City Council. 22

23 Item Submissions on Clause 5 Definition of abode and residential pool Recommendation 5.3 Rangitikei District Council submitted that hospices and boarding houses be removed from the definition. 5.4 Christchurch City Council submitted that the definition of abode be amended to refer to any outbuildings belonging to or enjoyed with the place instead of appurtenances, possibly with a definition of outbuilding added to the Bill. Alternatively, that a definition of appurtenances is included in the Bill to make it clear pool buildings and the like are covered. This is because the current definition is insufficiently clear. 5.5 Wellington City Council submitted that the definition of residential pools includes reference to sidewalls. 5.6 Ian Bailey submitted that the Bill should exempt residential pools in rural areas, as his property has 3 ponds, several large troughs, a house driveway, and a farm access road all within 100 metres of his house. In his view, any of these could be a significant hazard to a young child who was unsupervised, and the risk of a child dying in his swimming pool would be no greater than from any other of these hazards. No change. The policy intention is that the definition include all dwellings and visitor accommodation, and be as simple as possible, minimising the potential for future debate about why certain types of accommodation are included or excluded. No change. The policy intention is to ensure that all pools associated with dwellings (or visitor accommodation) fall within the definition of residential pool. The word appurtenances in the Bill contributes to this policy intention by ensuring that the meaning of abode is broad. The term appurtenances includes outbuildings. No change. The policy intention is that all residential pools (including above-ground pools) must have barriers that restrict access by unsupervised young children. See item 16.21, where officials propose that the barrier could be in any location so long as it restricts access. Non-climbable sidewalls could form part of the pool barrier. Barriers would need to be placed around any access points to the pool (such as ladders). No change. The Bill focuses on residential swimming pools, which pose the greatest risk to young children. On farms, health and safety legislation requires farm operators to manage risks in the most effective way possible. 23