Submission to the Local Government and Environment Select Committee on the Building (Pools) Amendment Bill

Transcription

1 Auckland Regional Public Health Service Cornwall Complex Floor 2, Building 15 Greenlane Clinical Centre Private Bag Symonds Street Auckland 1150 New Zealand Telephone: Facsimile: October 2015 Submission to the Local Government and Environment Select Committee on the Building (Pools) Amendment Bill Thank you for the opportunity to provide a response to the proposed Building (Pools) Amendment Bill. The following submission has been prepared by the Auckland Regional Public Health Service and is endorsed by the Chief Executives of the Auckland, Waitemata and Counties Manukau District Heath Boards. The primary contact point for this submission is: Mariota Smutz Chief Advisor Policy & External Affairs Auckland Regional Public Health Service Private Bag Symonds Street Auckland 1150 mariotas@adhb.govt.nz Once again, thank you for this opportunity to submit on this issue. Yours sincerely Geraint Martin Chief Executive Counties Manukau Health Dr Dale Bramley Chief Executive Waitemata District Health Board Ailsa Claire Chief Executive Auckland District Health Board Jane McEntee General Manager Auckland Regional Public Health Service Dr David Sinclair Medical Officer of Health Auckland Regional Public Health Service

2 SUMMARY AND KEY RECOMMENDATIONS 1. The Fencing of Swimming Pools Act 1987 (FOSPA) has been a highly effective piece of legislation. Childhood drowning in domestic pools has reduced by over 70% since its introduction. We estimate that over 200 childhood deaths from drowning and several thousands of near drowning injuries have been prevented. 2. Fencing, maintenance and monitoring (and the associated costs) are important aspects of responsible pool ownership. 3. The proposed Building (Pools) Amendment Bill s provisions are likely to erode domestic pool safety significantly over time and increase childhood drownings. 4. ARPHS considers it realistic to estimate that these changes will lead to an increase of two-five deaths over 10 years, rather than a reduction of six deaths as estimated in the Regulatory Impact Statement (RIS). 5. Key issues include: Removal of the primacy of child safety; Removal of the requirement for fencing around pools, and replacement with barriers which could include methods not known to be effective; Change from clear regulatory requirements to a more ambiguous performance -based approach under the Building Code; Exemption of some spa pools from fencing; A voluntary approach to safety for spas and hot tubs, and flexible pools (e.g. inflatables or hire pools), including for fitted lids which are meant to be childproof, but need to be operated by adults; A relaxation in design and construction requirements. FOSPA seeks to prevent unsupervised pool access for children aged under six years, but the Bill only requires barriers capable of restricting access by children aged under five years. Given the growth and motor developmental change at this age, we consider this poses an additional risk; While requiring regular inspection is an improvement, current good practice is for three yearly inspections, not five yearly as proposed; Continuing to allow direct access from the house via doors, and therefore potentially eroding safety requirements, despite a three- to five-fold

3 increase in drowning risk compared to when direct access from the house is prohibited; There is no requirement for pool installers or suppliers to ensure that there is a compliant fence or barrier; Repeal of the duty of owners to inform councils of pools requiring fences; Repeal of duty of Councils to ensure ongoing compliance other than through periodic inspection. 6. We disagree with the economic assessment that is provided to support the Bill, because of its assumptions, interpretation of information provided by councils, and discounting rate. When these are amended, the reported economic benefit of $17 million (NPV) largely disappears, and may, in some scenarios, actually produce an economic loss. 7. We agree that some consolidation of the legislation, clarification of standards and processes, and supporting good practice by pool owners, installers and councils would be useful. However, we consider that the justification given for the changes proposed in the Bill is flawed. 8. Auckland Regional Public Health Service recommends that the Committee either: sets this Bill aside and request it be redrafted, following a full assessment of the issues raised; or makes extensive amendments to the Bill to ensure that child safety is not compromised, and ensures that at least the level of protection in the existing legislation is retained. 9. ARPHS wishes to be heard in support of this submission.

4 Introduction 10. Auckland Regional Public Health Service (ARPHS) provides public health services to the population of Auckland, Counties-Manukau and Waitemata District Health Boards, and covers approximately 1.5 million people. A brief description of the service is provided in Appendix The proposed Building (Pools) Amendment Bill (the Bill) and associated documents, including the two Regulatory Impact Statements (RIS 2013 and RIS 2015), along with economic information supplied by the Ministry of Business, Innovation and Employment (MBIE), and research reports, have been assessed by senior public health and public policy staff at ARPHS. The Bill has been discussed by the Community and Public Health Advisory Committees of the Waitemata and Auckland District Health Boards and the Board of Counties Manukau Health. 12. This submission includes: (1) a brief overview of childhood drowning and approaches to pool safety; (2) an assessment of the provisions in the Bill; (3) an assessment of economic information supplied by MBIE; (4) topics not covered in the Bill; and (5) specific comments on clauses in the Bill. Swimming pool safety 13. The Fencing of Swimming Pools Act 1987 (FOSPA) has been a highly effective piece of legislation. Childhood drowning in domestic pools has reduced by over 70% since its introduction. Prior to FOSPA, on average about 11 children under the age of five drowned per year in home swimming pools. Since FOSPA came into effect, on average 2-3 children under the age of five drowned per year in domestic pools, despite an estimated 30% increase in the number of pools (Child and Youth Mortality Review Committee, 2009). Using these results, we estimate that over 200 childhood deaths from drowning and several thousand near drowning emersions have been prevented. For each pool drowning, approximately 2-3 children sustain permanent brain injury, and about another five survive but need hospital care. (Kemp & Sibert, 1991; Suominen & Vähätalo, 2012) 14. In comparison, road crashes kill on average children and adolescents aged under 15 years each year (NZ Transport Agency, 2015). 15. Despite progress, New Zealand s record on childhood drowning lags behind comparable countries, including Australia, the UK, the USA and most of Western Europe (Lin, Wang, Lu, & Kawach, 2014).

5 16. The principles of preventing childhood drowning were thoroughly worked through during the development of the FOSPA 1, but seem to have taken a secondary place to cost reduction in development of the current Bill. 17. Pools are inherently hazardous for young children. Death or serious brain injury happens rapidly (within 2-5 minutes) after emersion which means that short lapses in parental supervision or distraction are sufficient to allow a mobile toddler to gain access to a pool if physical barriers are not in place. Resuscitation skills and hospital care have only a modest impact on outcomes (Suominen & Vähätalo, 2012). 18. Effective safety systems incorporate several components, each of which reduces risk, and adds to the safety margin. When safety components fail they need to fail safely, and not increase risk. For example, a damaged gate catch should not allow the gate to be opened. Any equipment reliant on electricity needs to return to a safe state if power fails. 19. An extensive research review on preventing childhood drowning in domestic pools by the internationally respected Cochrane Collaboration (Thompson & Rivara, 1998 (Rev 2006)) concluded that: Pool fencing is highly effective at preventing childhood drowning. Fencing which isolates the pool and prevents direct access from the house is about five times more effective at preventing childhood drowning than perimeter fences which allow direct access from the house. Fencing of both in-ground and above-ground pools reduce risk by a factor of 4-5. Inspection and enforcement are necessary legal obligation and information for owners alone are ineffective at preventing childhood drowning. Information on fence inspections 20. The Ministry of Building, Innovation and Employment (MBIE) has released information it had compiled from councils on compliance with FOSPA. While the information from councils was incomplete, findings included: 59% of pools are already monitored three-yearly, and at least 20% of pools are not monitored 1 See "Waitakere CC v Hickman" (2003) for a succinct historical summary

6 Only 44% of pools complied with FOSPA requirements when inspected. Failure rate was 63% in Auckland, 49% in Christchurch and Wellington, and 70% in Napier. This indicates a much higher failure rate than stated in the supporting document for the Bill (reported at 20%). Administration issues for the current legislation 21. A criticism of the current legislation is that it is difficult to interpret, cumbersome and expensive to implement, and so is implemented inconsistently by Councils around the country. 22. However, some councils have made considerable effort to develop processes to make implementation practical and consistent. Auckland Council s Swimming Pool Fencing Code of Practice, for example, provides a systematic approach, covering each aspect of the FOSPA requirements, links to the Building Code and the NZ Standard NZS 5800:2006 (Safety Barriers and Fences Around Swimming Pools, Spas and Hot Tubs), and sets out internal council processes for assessment and decision-making. The Code, and the Council s policy of three yearly inspections, provides a basis for good practice and a nationally consistent application of the current legislation. 23. In addition several determinations and court cases (notably Waitakere CC v Hickman) have clarified interpretation. 24. It is important to consider to what extent the reported problems with the current system result from reluctance to implement FOSPA. For some councils, implementation is a low priority activity which incurs costs, whereas the benefits of reduced drownings are invisible. ARPHS considers that pool fencing, maintenance and inspection and associated costs are actually part of responsible pool ownership. Bill provisions Change from specified standard to performance-based approach reduces safety margins 25. ARPHS is concerned at the move away from the prescriptive requirements of the FOSPA to a performance-based approach in the Building Code to specify the requirements for restricting access to pools. This is coupled with the Bill removing the mandatory requirement for pools to be fenced, potentially allowing the use of less effective methods such as pool covers and alarms instead of fences. ARPHS is concerned that such a shift will undermine the safety regime designed to protect young children around pools.

7 26. Deregulation and the move to a performance-based Building Code have contributed to the leaky building crisis (Easton, 2010; Hunn, Bond, & Kernohan, 2002; Mumford, 2011). 27. A performance-based approach will allow pool owners and installers to propose methods to Councils which would appear to be effective, but would otherwise not meet current standards. Proposals could be presented and subsequently approved without substantiating evidence of effectiveness. We are concerned that this will be open to subjective interpretation, and gradually erode safety by allowing marginally effective or ineffective methods to become acceptable solutions under the Building Code. 28. A number of determinations and court decisions have turned down proposed exemptions to the current FOSPA requirements on the grounds that they do not meet regulatory standards, notably "Waitakere CC v Hickman" (2003). We are concerned that these types of proposals could meet the lower performance-based code. 29. As an example, automated sliding doors have been proposed as an option for direct access from a house. We have not found evidence that they are at least as effective as current standard gates, nor that they fail safely (e.g. during power failures). 30. ARPHS believes the rationale for the change to a performance based standard has not been established and that caution needs to be taken in supporting such a move because the inconsistencies within the performance based scheme may lead to serious adverse events. 31. ARPHS recommends that: a) The proposed amendment to the Building Code F9 be deleted; and b) The contents of the Schedule to FOSPA become the basis for a regulation under Section 20 of the Building Act specifying the only means of complying with the Building Act for restricting access to domestic pools. c) Work be undertaken to update the NZ Standard 8500:2006. Spa pools and hot tubs 32. ARPHS disagrees with exempting some spa pools from fencing requirements, and instead relying on childproof covers. This contrasts with the current law and with NZ Standard 8500:2006, Safety Barriers and Fences Around Swimming Pools, Spas and Hot Tubs. NZS 8500:2006 section 3.10 requires a fence for any hot tub or spa where its top surface is less than 760mm above

8 the surrounding ground or deck. A lockable childproof cover is acceptable when a spa or hot tub is at least 760mm above ground and not easily openable by a child under the age of six years. 33. In this situation both the height and childproof lockable cover reduce risk to some extent, but not as much as a fence and self-closing gate. The Bill effectively removes one of these barriers for spa pools, increasing the risk of drowning. 34. ARPHS recommends that the Bill be amended to ensure safety is not eroded for spa pools and that the current requirements under FOSPA as well as the NZS remain. Direct access from houses 35. Both FOSPA and the Bill continue to allow direct access to the pool area from the house. This is despite research confirming that children are between three and five times more likely to drown where there is a door directly from the house to the pool area. The RIS notes that the law in Australia has changed to prohibit doors from opening directly into the pool area following this research. 36. The RIS and associated material estimates that up to half of new home pools have an associated door directly into the house, and over 7000 pools currently have doors which are not self-closing. 37. We were unable to locate any research showing that self-closing doors or door alarms are effective in reducing childhood drowning. There is research on the effectiveness of pool alarms, which are set off when pool water is disturbed. The research finds these alarms may be unreliable as there can be delays of several minutes between a child falling into the pool and the alarm being activated (Whitfield, 2000). In addition, as well as there being problems with a time delay a key issue for alarms is that they require someone to be available in the house to respond to the alarm which may not necessarily be the case. 38. Direct access via a door means there is only one barrier, whereas access only via a gate provides two barriers for a child leaving a house and getting into a pool area. According to the RIS and Water Safety NZ, 65% of young children who drowned in home pools in New Zealand were with a caregiver inside the house immediately prior to unnoticed access to the pool. 39. The Bill has a lower requirement for doors than for gates, even though the risk is substantially higher. There is no requirement in the proposed Building

9 Code section F9.3.4 for self-latching mechanisms, or for doors to open away from the pool for example. 40. At a minimum, direct access doors should be allowed by exception only, but ARPHS recommends that direct access to the pool area by a door from the house be prohibited for all new pools, and phased out where practical in existing pools. Part 2 of the Schedule concerning the Building Regulations (if retained) should be amended as follows: F Where a building forms part of an immediate pool area barrier, (a) Doors between the building and the immediate pool area are prohibited. (b) Windows opening from a building into the immediate pool area must be constructed or positioned to restrict prevent the passage of children (c) All pools must comply within 5 years of this section coming into force unless an exemption is granted by the local authority Reducing design requirements by changing age criteria 41. The Bill indirectly proposes a significant downgrade of design and performance requirements. The FOSPA requires that fences, gates and doors be designed and constructed so that they prevent access by children under the age of six years (FOSPA Schedule sections 3, 7 and 10). The Bill would only require barriers to prevent access by children under the age of five years (Clause 7, proposed Section 162C(1) and Schedule Part 2, proposed Building Regulation Clause F9.2). 42. NZS 8500:2006 also refers to children under the age of six years. 43. The change to the age criteria is a significant change for which no justification is given in the consultation document, the RIS or the Bill s explanatory note. 44. Between the ages of five and six years children undergo significant development in physical height and strength, dexterity and cognitive abilities. An average five year old is more able to open a gate or door, or climb a fence than an average four year old. In addition, development varies between children. 45. There is every good reason to expect the Bill s proposal will increase the number of drowning and near drowning incidents over time as barriers become easier to overcome.

10 46. ARPHS recommends that all references to child under five years of age in the Bill be replaced by child under six years of age, as in the current legislation. Depth of pool covered by legislation differs from original proposal 47. The original Cabinet decision in November 2013 was for the depth of pools to which regulations apply would change from 400mm to 300mm. The RIS from 2013 outlines the issues well. ARPHS supports Cabinet s original decision, as it would provide a further improvement in pool safety. 48. ARPHS recommends replacing all references in the Bill to 400mm with 300mm. Requirement for periodic inspections 49. ARPHS welcomes the proposed requirement for periodic pool inspections, but recommends three yearly inspections rather than the proposed five yearly inspections. 50. Territorial authorities currently vary widely in their frequency of inspection. This is unsatisfactory, especially in the light of the high failure rate found by Councils which do regular inspections noted above. Clearly many councils are failing their obligations under Section 10 of FOSPA: Every local authority shall take all reasonable steps to ensure that this Act is complied with within its district. 51. Requiring councils to undertake regular inspections is therefore necessary. This measure has support from reliable scientific research (Thompson & Rivara, 1998 (Rev 2006)). The legislation should formalise what is currently regarded as good practice, rather than sub-standard practice. 52. Information released by MBIE estimates that 59% of pools are already inspected three-yearly. Of pools inspected, failure rates of over 45% were found by most councils, including those which conducted three yearly inspections. MBIE s information indicates that, on average, about 10% of pool fences and gates become non-compliant with FOSPA requirements in a year, e.g. through lack of maintenance or damage. This may include repeat failures and issues which could be easily remedied. However, the Bill s proposal of five yearly inspections will effectively mean that over half of pools will have less frequent inspection and so up to 10% more fences and gates would be non-compliant (and hence unsafe) than under current good practice (three yearly inspections). This more than offsets the gain from improving

11 inspection in other councils. We estimate that this will increase the numbers of deaths by up to four over 10 years, rather than reducing deaths by six in 10 years as estimated in the Bill s supporting documentation. 53. ARPHS considers that a three year inspection interval is the minimum needed to have any degree of confidence that pool fencing will remain effective. A three-yearly inspection cycle is common among larger councils and should be regarded as good practice. As noted above, the scientific research shows that inspection and enforcement are an essential part of pool safety (Thompson & Rivara, 1998 (Rev 2006)). 54. Information provided by MBIE under the OIA estimates average pool fence inspections to cost $180. Changing the inspection frequency from five years to three would increase the annual average cost per pool by just $24 (from $36 to $60). Assuming a Value of Statistical Life of $4 million, we estimate there would be a benefit of between $25 and $30 million from reduced drowning with three-yearly inspections to offset against additional costs. 55. ARPHS recommends that the wording in Clause 12, inserting new section 222A be amended to read (in line 9): once every 3 years 56. Current legislation allows councils to pass on the costs to pool owners under section 219 of the Building Act. This is appropriate as part of responsible pool ownership. Obligations on person installing pool and Council 57. Proposed Section 162C(3) (Clause 7) includes a list of persons who must ensure compliance. 58. The proposed list places no obligation on the person or company installing or constructing a pool to ensure it complies with the legislation at the time of completion. This is a significant gap, which would allow pools to be constructed and then time to lapse before the owner installs a fence or barriers and seeks final Building Code compliance certification (if needed). This increases risk unnecessarily. Domestic pools need to be seen as a package comprising the pool structure, pumps and filters, electricity supply AND fences, gates and other barriers. 59. The Bill repeals the current obligation for pool owners to inform the territorial authority of their intention to build or install a pool (including a spa pool or hot tub) which may need a fence (FOSPA Section 7). This is a retrograde step.

12 60. The Bill also repeals Section 10 of the FOSPA which requires territorial authorities to take all reasonable steps to ensure that [FOSPA] is complied with within its district. No justification is given in the Bill s explanatory note or the RIS. This is a retrograde step. 61. ARPHS recommends that in Clause 7, Section 162C(3) is amended to add: (f) the person or company constructing or installing the pool, at the time construction or installation is completed such that the pool can be used as intended. (g) the territorial authority Repeal of council special exemption procedures 62. The Bill repeals the exemption process through special Council committees in Section 12 of the FOSPA. The RIS and background documents do not provide an analysis of exemptions made by committees around the country, but a high degree of variability would not be unexpected. The Bill proposes to consider exemptions through existing Building Act processes, which, at least, should ensure that people assessing exemptions have knowledge and experience of building and pool safety issues. ARPHS supports the repeal of this exemption in principle. Proposals to ensure breaches are remedied promptly 63. We support in principle the provisions in the Bill as described in the 2015 RIS for ensuring that breaches are remedied. Prosecution options need to be retained. Economic Assessment 64. We have reviewed the economic analysis used in developing the discussion paper, Cabinet Papers and RIS. MBIE themselves note that the information is incomplete, but estimated a $17 million NPV (Net Present Value) benefit from the proposed changes. This saving is a key part of the justification for repealing the FOSPA. 65. We disagree with the assessment, because of its assumptions, interpretation of information provided by councils, and discounting rate. The assessment also ignores the cost of disabilities for children who survive drowning but are left with brain damage. When these various factors are amended, the reported economic benefit of $17 million (NPV) largely disappears, and may, in some scenarios, actually produce an economic loss.

13 66. As an example, the economic analysis assumed that 80% of inspected pools were compliant with the FOSPA requirements (i.e. a 20% failure rate). As described above, this appears to differ considerably from material compiled by MBIE which showed failure rates of over 45% found by most councils, including those which conducted three yearly inspections. The Bill effectively reduces the frequency of inspections for nearly 60% of pools. 67. Based on MBIE s figures, approximately 10% of fences and gates will become non-compliant per year, because of lack of maintenance, deterioration or damage. Seventy one percent of childhood pool drownings related to non-compliance with FOSPA (either structural or functional), according to information released by MBIE. These figures lead us to estimate an increase of two five childhood pool drownings over 10 years with the law change, rather than a decrease by six as estimated by MBIE. This alters the economics considerably. The current Government value of statistical life is approximately $4 million 2, which indicates that additional costs of up to $32 million need to be incorporated into the analysis (i.e. from eight additional deaths over that presumed by MBIE). Appropriate discount rate for long term child safety 68. We have serious concerns about the discount rate used of 8%. This high rate inevitably favours a short term approach, as opposed to a longer term approach of investing in child safety and development. 69. In contrast to the 8% rate used in New Zealand, the UK government s standard discount rate is 3.5% (and 3% for projects extending more than 20 years), and the European Commission s is 5%. US Federal agencies use a range of discounting rates depending on the topic, but are commonly between 4% and 7%. 70. Choice of discount rate is important for policy decisions. For childhood drowning (where short term cost savings lead to long term harm) an 8% discount rate is not justifiable. We support a rate such as the UK s. Changing the discount rate alone decreases the benefit of the law change of $17 million by several million dollars, depending on the scenario selected. 2 The Value of Statistical Life is derived across all ages. However, when valuing children s lives, the Life years lost method is often more appropriate and generally results in higher values. See Leung and Guria (2006)

14 Proliferation of inexpensive portable pools 71. ARPHS is concerned that the Bill does not cater for continued increase of inexpensive portable pools. The assumption used is that these types of pools are temporary and they are emptied after use. This may be valid for small paddling pools. However, with these new types of portable pools that are up to 750mm deep, and with a filter unit, the intention is not to be temporary but to keep the pool filled for longer periods. In addition, they can take over an hour to fill completely, making it less likely to be emptied and refilled frequently. 72. These pools are available at retail stores for as little as $ This Bill does not cater for this new type of pool and does not consider their risk Residential pool safety has not traditionally been an issue for lower socioeconomic families and communities. This is because the market simply priced people out of being a pool owner. That has fundamentally shifted with cheaper pools readily available for purchase. 76. We would emphasise that with an increase in access to home pools across socio-economic boundaries, the risk is elevated too. 77. As discussed further in the next section, MBIE officials have highlighted their caution regarding assumptions made around behaviour change of consumers

15 in response to legislative change, specifically, how buyers of spa pools and portable pools would respond to being informed about their new obligations under the proposed Bill. 78. With the proliferation of cheap portable pools becoming increasingly available and accessible (due to price point and number of retail stores offering), a likely scenario is created where protective fencing requirements are too expensive, and obligations on consumers will not be fully complied or adhered to. Together, these factors create further risk especially for children living in lower-socio economic conditions. Policy development 79. ARPHS considers that the Bill does not give adequate priority to child safety, and instead its priority on cost savings will erode child safety and lead to a gradual increase in preventable childhood drownings. 80. Policy direction is set through a number of drivers, and we appreciate those drivers will have their own character and nature and at times, may conflict. Research-derived evidence is an important topic in relation to the disestablishment of the FOSPA an Act of Parliament that has, since its implementation, had a profound reduction in drownings. This is known and can be quantified. 81. Evidence based policy decision making is a fundamental operation of democratic processes and governance. It is important in this context because public safety initiatives have a long time horizon, while many financial considerations have a short time horizon. Policy and planning decisions made today will have long term impacts some of which may not immediately be obvious and quantifiable. 82. Officials in MBIE have highlighted their uncertainty about the available information in the 2013 RIS: There is considerable uncertainty surrounding the estimates in the 2013 RIS, the estimates should generally be treated with caution. This is particularly the case where the estimates are a ratio of two numbers such as relative risk of drowning. The uncertainty arises from: Few drownings per year in home pools providing limited data with which to assess the effect of options on the risk of drowning

16 Unknown quantities including (among others) the number of spa pools and garden pools, and the average cost of fencing and of self-closing door mechanisms Quantities that might be known if MBIE had gathered additional data (MBIE kept the scope of data requests to data that they thought would be most relevant) Assumptions about behaviour change in response to the legislative changes, for example how buyers of spa pools and portable pools would respond to being informed about their obligations under the proposed Bill. 83. Negative impacts or unintended consequences resulting from this Bill will equate to the loss of life of children, and or serious brain injury from near death drowning. 84. In this case, there are a number of areas in the Bill that lack clarity of supporting evidence to justify the proposed changes before the Select Committee. Examples where there are gaps in evidence for the proposed Bill include: It is unclear how child safety will improve with retailers and manufacturers notifying consumers about obligations at the point of sale, since research indicates this does not reduce drowning rates significantly, if at all. The RIS states this will be an improvement without any supporting evidence; It is unclear how the inspection period increasing from three years currently to five years will save additional lives. Again the information states there will be less drownings without further clarification; Limitation of the data, as expressed in MBIE s 2013 RIS, also warrants a cautionary approach when considering this Bill; Contrary and conflicting information and assumptions used by officials when assessing the economic savings. 85. Supporting papers for this Bill also indicate the need to repeal the FOSPA is due to inconsistency of its application across Councils. ARPHS submits that it is likely to be more effective and efficient to amend the FOSPA to ensure application of the rules are consistently executed across all Councils. This would be a simpler and more efficient exercise, while keeping the intent and

17 purpose of the FOSPA intact. Given the benefits and lives saved from the FOSPA, the repeal of this Act is unnecessary. 86. ARPHS recommends that this Bill is either set aside and that further work is done by officials to ensure appropriate research and evidence based policy is provided to decision making bodies, like Cabinet and the Select Committee. Conclusion 87. Thank you for this opportunity to submit on this Bill. The potential impact on lives is an issue of significance for the health sector. 88. The Fencing of Swimming Pools Act 1987 provides a known and tested protective regime for young children. This proposed Building (Pools) Amendment Bill erodes that safety net. 89. We recommend that the Select Committee either: sets this Bill aside and request it be redrafted, following a full assessment of the issues raised; or makes extensive amendments to ensure at least the level of protection in the existing legislation.

18 Appendix 1 - Auckland Regional Public Health Service Auckland Regional Public Health Service (ARPHS) provides public health services for the three district health boards (DHBs) in the Auckland region (Auckland, Counties Manukau and Waitemata District Health Boards). ARPHS has a statutory obligation under the New Zealand Public Health and Disability Act 2000 to improve, promote and protect the health of people and communities in the Auckland region. The Medical Officer of Health has an enforcement and regulatory role under the Health Act 1956 and other legislative designations to protect the health of the community. ARPHS primary role is to improve population health. It actively seeks to influence any initiatives or proposals that may affect population health in the Auckland region to maximise their positive impact and minimise possible negative effects on population health. The Auckland region faces a number of public health challenges through changing demographics, increasingly diverse communities, increasing incidence of lifestylerelated health conditions such as obesity and type 2 diabetes, infrastructure requirements, the balancing of transport needs, and the reconciliation of urban design and urban intensification issues.

19 Appendix 2: Amendments Proposed Clause Original Recommended amendment 5 spa pool means a pool that (a) has a water surface area of 5 m2 or less; and (b) is designed for therapeutic or recreational use; and (c) incorporates a water jet or an aeration system Spa pool this definition differs from that of hot tub and other than the obvious difference of the former incorporating a water jet or an aeration system, there is no reason as to why Add as a new sub-clause (d) (d) has sidewalls- (i) that are not (at any point) less than 760 mm above the adjacent ground; and (ii) the outside surfaces of which are constructed so as to inhibit climbing. that the Bill be amended to reflect current law and/or NZS 8500: Section 8 amended (Building: what it means and includes) 25 Replace section 8(1)(b)(ii) with: (ii) any means of restricting or preventing access to a residential pool; and 7 162A Purpose The purpose of this subpart is to prevent unsupervised access to residential pools by young children. Agree There is no clause in the Bill that seeks to amend the section 3 purposes of the Building Act Currently this is focussed solely on buildings and building work. It is recommended that section 3

20 Purposes, be amended to include the wording we propose for clause 7, new section 162A below. Add as a new subsection 3(c) 3(c) to prevent serious injury or death by restricting access to residential pools by young children. Proposed amendment While it is desirable to restate the purpose, the proposed wording is too restrictive. It does not cover the situation of an empty fall or preventing injury from a fall into an empty or partially empty pool. 162B Application of subpart This subpart applies to pools with a maximum depth of water of 400 mm or more. 162C Residential pools must have means of restricting access (1) 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 5 years of age. (2) The means of restricting access referred to in subsection (1) must comply with (a) the applicable requirements of the building code (subject to any waiver or modification granted under section 67); or (b) if the pool was constructed, erected, or installed before 1 [Delete the words in this section and replace with The purpose of this subpart is to prevent serious injury or death by preventing access to residential pools. ] ARPHS recommends amending 400mm to 300mm ARPHS recommends amending children under 5 years of age to children under 6 years of age

21 January 2017, section 450B. (3) The following persons must ensure compliance with this section: (a) the owner of the pool: (b) the owner of the land on which the pool is situated: (c) the occupier of the property in or on which the pool is situated: (d) if the pool is subject to a hire purchase agreement (as that term is defined in the Income Tax Act 2007), the purchaser of the pool: (e) if the pool is on premises that are not subject to a tenancy under the Residential Tenancies Act 1986 but the pool is subject to a lease or is part of premises subject to a lease, the lessee of the pool or the premises. (4) In this section, applicable requirements means the requirements that applied when the pool was constructed, erected, or installed New section 222A inserted (Periodic inspections of pools) After section 222, insert: 222A Periodic inspections of residential pools (1) Every territorial authority must ensure that every residential pool within its jurisdiction, other than a spa pool, hot tub, or a portable pool, is inspected by an authorised officer under section 222 once within 3 months before or after the pool s anniversary date. ARPHS recommends that 162C(3) be amended to add additional subclauses: (f) the person or company constructing or installing the pool, at the time construction or installation is completed such that the pool can be used as intended. g) the territorial authority. ARPHS recommends: the wording every 5 years be amended to once every 3 years

22 (2) In this section, anniversary date, in relation to a pool, means (a) the date of issue of the code compliance certificate or the certificate of acceptance in respect of the pool; or (b) in the case of an existing pool that did not require a building consent, (i) the date when notice was given under section 7 of the Fencing of Swimming Pools Act 1987; or (ii) if no notice was given, the date when the existence of the pool came to the knowledge of the territorial authority existing pool means a pool that was constructed, erected, or installed before 1 January Part 2 Amendments to legislative instruments Building (Infringement Offences, Fees, and Forms) Regulations 2007 (SR 2007/403) In Schedule 1, replace the item relating to section 168 with: s 162D Supplying a pool product without an approved notice s 168(1AA) Failing to comply with a notice to fix in relation to a means of restricting access to a residential pool s 168(1) Failing to comply with any other notice to fix - 1,000 Building Regulations 1992 (SR 1992/150) ARPHS recommends an additional sub-clause be created in Section 222A: 222A (3): The local authority may charge the property owner for any inspection under provisions of section 219 of the Building Act 2004 ARPHS recommends that proposed amendments the Building Act - F9 be deleted and the contents of the Schedule to FOSPA become the basis for a regulation under Section 20 of the Building Act 2004 specifying the only means of complying with the Building Act for restricting access to domestic pools.

23 In Schedule 1, delete clauses F4.3.3, F4.3.4(f), and F In Schedule 1, after clause F8, insert: Clause F9 Means of restricting access to residential pools Provisions Limits on application Objective F9.1 The objective of this provision is to prevent injury or death to young children involving residential pools. Functional requirement F9.2 Residential pools having a depth of water greater than 400 mm at any point must have means of restricting access that prevents unsupervised access by a child under 5 years of age. Performance Provisions - Limits on application F9.3.1 Residential pools must be provided with a barrier or barriers able to restrict the entry of children into a pool or the immediate pool area. F9.3.2 Barriers must either (a) surround the immediate pool area; or (b) in the case of a spa pool or hot tub, cover the pool itself. Performance F9.3.2(b) applies only to those spa pools or hot tubs where (a) the top surface of every wall of the pool is at all points not less than 760 mm above the adjacent floor or ground As an alternative - ARPHS recommends that direct access to the pool area by a door from the house be prohibited for all new pools, and phased out where practical in existing pools. Part 2 of the Schedule concerning the Building Regulations should be amended as follows: : F Where a building forms part of an immediate pool area barrier, (d) Doors between the building and the immediate pool area are prohibited.

24 and the walls of the pool inhibit climbing; and (b) the area of the water surface is not greater than 5 m2. F9.3.3 A barrier surrounding an immediate pool area must have no permanent objects or projections on the outside that could assist children in negotiating the barrier. Any gates must (a) open away from the pool; and (b) not be able to be readily opened by children; and (c) automatically return to the closed position after use. F9.3.4 Where a building forms part of an immediate pool area barrier, (a) doors between the building and the immediate pool area must not be able to be readily opened by children, and must either (i) emit an audible warning when the door is open; or (ii) close automatically after use: (b) windows opening from a building into the immediate pool area must be constructed or positioned to restrict the passage of children. F9.3.5 Where a cover is provided as a barrier to a spa pool or hot tub, it must (a) restrict the entry of children when closed; and (b) be able to withstand a reasonably foreseeable load; and (e) Windows opening from a building into the immediate pool area must be constructed or positioned to prevent the passage of children (f) All pools must comply within 5 years of this section coming into force unless an exemption is granted by the local authority

25 (c) be able to be readily returned to the closed position; and (d) have signage indicating its child safety features.

26 References Child and Youth Mortality Review Committee. (2009). Fifth report to the Minister of Health: Reporting mortality Retrieved from Easton, B. (2010). Regulatory Lessons from the Leaky Home Experience. Policy Quarterly, 6(2). Hunn, D., Bond, I., & Kernohan, D. (2002). Report of the Overview Group on the Weathertightness of Buildings to the Building Industry Authority 31 August Retrieved from Wellington: Kemp, A. M., & Sibert, J. R. (1991). Outcome in children who nearly drown: a British Isles study. BMJ : British Medical Journal, 302(6782), Retrieved from Leung, J., & Guria, J. (2006). Value of statistical life: adults versus children. Accid Anal Prev, 38(6), doi: /j.aap Lin, C.-Y., Wang, Y.-F., Lu, T.-H., & Kawach, I. (2014). Unintentional drowning mortality, by age and body of water: an analysis of 60 countries. Injury Prevention. doi: /injuryprev Mumford, P. (2011). Best Practice Regulation: Setting Targets and Detecting Vulnerabilities. Policy Quarterly, 7(3). NZ Transport Agency. (2015). Road Death Statistics. Retrieved from Suominen, P. K., & Vähätalo, R. (2012). Neurologic long term outcome after drowning in children. Scandinavian Journal of Trauma, Resuscitation and Emergency Medicine, 20, doi: / Thompson, D., & Rivara, F. (1998 (Rev 2006)). Pool fencing for preventing drowning of children. Cochrane Database of Systematic Reviews, 1. doi: / CD Waitakere CC v Hickman (High Court of New Zealand 2003). Whitfield, T. (2000). An evaluation of swimming pool alarms. Retrieved from Washington, DC: