BUILDING (POOLS) AMENDMENT BILL

BUILDING (POOLS) AMENDMENT BILL Supplementary information and advice requested by the Committee Briefing to the Local Government and Environment Committee 1 December 2015

Introduction 1 This briefing provides further information and advice on a number of matters requested by the committee on 19 November 2015: Facts and figures around pool inspections, compliance and fencing by pool type How territorial authorities locate pools Building Code requirements for pool barriers and safety repercussions of the proposed changes under the Bill Pool drowning figures. Facts and figures around pool inspections, compliance and fencing by pool type 2 The Fencing of Swimming Pools Act 1987 (FOSPA) empowers territorial authorities (TAs) to inspect any pool they have reasonable grounds to believe is non-compliant. It requires TAs to take all reasonable steps to ensure owners comply with FOSPA, but provides no further guidance about what steps are reasonable. The absence of further guidance has resulted in uncertainty about how much monitoring is prudent, and TAs have consequently taken different approaches. At one extreme, an estimated 17 TAs (covering 60 per cent of pools) inspect pools every three years; at the other extreme, an estimated 30 TAs (covering 20 per cent of pools) do not periodically inspect pools in their area. 3 The table below gives an overview of the periodic pool inspection practices of TAs as recorded in 2013 (see Annex 1 for a list of all known territorial authority inspection regimes). Table 1 - Periodic inspections by territorial authorities of swimming pools by frequency Estimated frequency of inspection Estimated number of territorial authorities Per cent of territorial authorities Swimming pools Per cent of swimming pools Three-yearly or less 17 26% 35,326 59% Four to seven-yearly 8 11% 8,651 14% Longer than seven-yearly 12 18% 4,414 7% Subtotal 37 55% 48,391 80% No periodic inspections 30 45% 11,901 20% Total 67 100% 60,291 100% Notes: totals may not add due to rounding. Swimming pools means swimming pools that are subject to FOSPA, excluding spa pools, portable pools and other water hazards. The numbers are extrapolated to take account of the five territorial authorities from which MBIE did not receive data. Compliance 4 Almost all drownings in New Zealand (96 per cent) occurred in non-compliant pools. The reasons for non-compliance were that the: 1 gate or door to the pool area had been left open (39 per cent of drownings) fence had not been maintained (13 per cent of drownings) 1 Drowning by children aged under five years outside at home between 1993 and 2012 in swimming pools, spa pools and garden ponds. Excludes small paddling pools, indoor pools, and other water hazards. Data from Water Safety New Zealand's DrownBase. 2

owner had not installed a compliant fence (45 per cent of drownings). 5 Discussions with water safety groups and TAs have indicated that some owners did not maintain their means of restricting access to the pool because they: were unaware of the danger that pools pose to young children preferred to let the TA inspect their pool and tell them what needs to be done. 6 The table below compares levels of compliance between TAs with different periodic inspection periods and was obtained following a request to TAs in April 2013. Table 2 Comparison of level of compliance between councils with different periodic inspections Territorial authority Estimated # Swimming pools Three year inspections Estimated # Spa pools Estimated Compliance Horowhenua 198 26 92% Whangarei 1,064 186 87% Hastings 2,528 63 79% Wairoa 46 21 68% Kapiti Coast 865 100 61% Waikato 1,693 147 53% Wellington City 300 474 50% Auckland 26,247 9,304 37% Subtotal - Three year inspections 32,941 10,321 44% Four to seven-year inspections New Plymouth 1,073 433 73% Marlborough 1,052 750 60% Manawatu 379 14 51% Christchurch City 4,588 612 51% Masterton 187 444 36% Subtotal - Four to seven-year inspections 7,280 2,252 55% Inspections longer than seven years Hauraki 361 60 80% Timaru 762 283 53% Napier City 1,006 801 30% Selwyn 704 300 28% Subtotal - inspections longer than seven years 2,833 1,444 42% Notes: includes only those territorial authorities that provided data sufficient to enable the level of compliance to be estimated. Relates to pools visited between 1 July 2011 and 30 June 2012. In this table, swimming pools excludes spa pools, portable pools and other water hazards. 7 Some TAs reported over 80 per cent compliance, while others reported less than 40 per cent compliance. The figures should be treated with caution because: the reason for the large difference in reported compliance is unclear 3

aside from non-compliance as a result of a lack of maintenance, the data also includes pools that never had a compliant fence installed some data were estimates rather than operational records. 8 Overseas research indicates that inspections improve the level of compliance. 2 Research in Western Australia (four-yearly inspection regime) found that the level of compliance was initially low (45 per cent) when pool inspections first started, but improved over time to reach 71 per cent compliance (Stevenson et al (2003)). 9 A five-yearly mandatory inspection regime was arrived at based on: overseas evidence that inspections would result in better compliance the data obtained from TAs (mentioned earlier) the ongoing ability for councils to inspect any pool they have reasonable grounds to believe is non-compliant. Inspection of water hazards other than swimming pools and spa pools and drowning risk 10 Data from TAs indicates that eight TAs have identified 659 other water hazards (e.g. garden ponds, storm water retention ponds) that FOSPA applies to. Only two TAs identified significant numbers (i.e. >100) of these hazards (see Annex 1). Auckland Council identified 453, and Kapiti Coast Council identified 122 properties with these hazards. 11 Although there is limited data, officials estimated there could be between 10,000 and 30,000 other water hazards in New Zealand, of which between 1500 and 4000 were estimated to be subject to FOSPA (i.e. deeper than 400mm). Garden ponds accounted for six drownings every 10 years on average (see drowning tables on page 9). Based on this information, the risk of drowning in garden ponds was estimated to be 20 per cent of the risk of drowning in swimming pools. How territorial authorities locate pools 12 Owners of pools have an obligation under section 7 of the (current) FOSPA to notify TAs of the existence of pools. The Building Act 2004 requires owners to seek building consents for swimming pools and the associated fencing. 13 In principle, TAs should be aware of the existence of every pool in their district through this notification and building consent requirements. In practice, this is not always the case particularly with spa pools and hot tubs. Owners of these structures often do not apply for a building consent nor do they notify the council of their existence under FOSPA. 14 Compliance of pool fencing with the Building Code will be initially verified by Building Consent Authorities (BCA) through the building consent process. If a fence does not comply with the requirements set out in the Building Act 2004 (and the Building Code), the owner of a pool will not receive a Code Compliance Certificate. 15 Under the Bill, a building consent will be required for the means to restrict access to a residential pool (e.g. fence). TAs will continue to be able to locate pools based on the building consent that is required for the pool barrier (rather than the pool itself). In addition, the proposed requirement to inspect all residential pools (other than spa 2 Bugeja and Franklin (2012), Gulliver and Chalmers (2006), Stevenson et al (2003), van Weerdenburg et al (2003). 4

pools, hot tubs and portable pools) every five years will mean that TAs authorities will need to ensure they know the location of pools in their district. Building Code requirements for pool barriers and safety repercussions of the proposed changes under the Bill How the Building Code operates 16 All building work in New Zealand, including work on swimming pool fencing, must comply with the Building Code, which is the First Schedule to the Building Regulations 1992. 17 The Building Code does not prescribe how work should be done but states, in general terms, how the completed building must perform in its intended use. The Building Code contains functional requirements and performance criteria that cover matters such as protection from fire, structural strength, moisture control and durability. 18 Building plans and specifications are assessed by BCAs to ensure that the completed building work will comply with the Building Code. When the BCA is satisfied, it will issue a building consent for the work to proceed. 19 The Building Code consists of 37 technical clauses. In general, these clauses contain: Objectives - The social objective that completed building work must achieve (i.e. what the building is intended to be used for) Functional requirements - What the completed building work must do to satisfy the social objective Performance criteria - Qualitative or quantitative criteria with which buildings must comply in their intended use. 20 In order to grant a building consent, the 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. 21 Acceptable solutions are specific ways of complying with the Building Code and these are developed (and published) by the Ministry of Business, Innovation, and Employment through a statutory process under section 29 of the Act. Acceptable solutions do this by giving specific construction details. An example of an acceptable solution to comply with the Building Code is the Schedule to FOSPA which sets out the requirements for pool fences. 22 An alternative solution is a design that complies with one or more requirements of the Building Code, but does not follow a compliance path provided by an acceptable solution. To obtain a building consent for an 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. 23 BCAs must have documented policies and procedures for assessing whether alternative solutions comply with the Building Code, and must have systems in place to ensure that competent employees or contractors undertake such assessments. These processes allow flexibility and innovation in building, while ensuring that 5

people can use buildings safely without endangering their health. BCAs would compare the performance of a proposed alternative solution with the performance of the acceptable solutions. Any alternative solution should normally be at least as effective as the comparable acceptable solution. 24 Pool fences are currently subject to the performance based approach of the Building Code section 8 of FOSPA requires pool fences to comply with the Building Code. The main requirements of the building code that apply to pool fences are contained in clause F4 Safety from Falling. 3 Pool fences are also required to comply with the general requirements of the Building Code, such as clause B2 relating to durability. 25 Some submitters appear to believe that the Schedule to FOSPA is the prescribed and only way to comply with the pool fencing requirements of FOSPA. This is a misunderstanding; the Schedule is merely an acceptable solution, which provides one way to comply with pool fencing requirement. Changes to pool barrier requirements (and repercussions) 26 This Bill aims to remove the confusion mentioned in the previous paragraphs by incorporating all barrier requirements under the Building Act 2004. 27 As part of the Bill, a separate Building Code clause for pools will be created. The proposed Clause F9 is specific to pool safety and sets out barrier requirements for pools. Pool barriers will also continue to be required to comply with the general requirements of the Building Code. 28 The table below summarises the changes to the requirements for pool barriers made by the Bill, and notes the expected effect on the risk on drowning. 3 http://www.building.govt.nz/userfiles/file/publications/building/compliance-documents/f4-safetyfrom-falling.pdf 6

Table 3 Changes to pool barrier requirements and effect on the risk of drowning Current Proposed Effect on the risk of drowning Spa pool and hot tub covers cannot be used as pool barriers because a cover is not a fence [Section 8 of FOSPA]. Territorial Authorities may grant special exemptions to this requirement [section 6 of FOSPA]. Certain covers for spa pools or hot tubs can be used as pool barriers. The spa pool or hot tub must have a water surface area of less than 5m 2 and have sides at least 760mm high that inhibit climbing [Proposed clause F9.3.2 of the Building Code]. The cover must be able to withstand a reasonably foreseeable load and not be easily opened by a young child. It must also be able to be readily closed and have signage indicating its child safety features [Proposed clause F9.3.5 of the Building Code]. No significant change in the risk of drowning is expected. The 2013 regulatory impact statement highlighted that spa pools accounted for 11 per cent of drownings in the past twenty years. During this period, child-resistant covers became the industry norm. There have been no drownings in spa pools with safety covers in the last 10 years. Based on these statistics and the estimated number of spa pools, we estimate that the risk of drowning in spa pools appears to be in the order of one per cent of the risk of drowning in unfenced swimming pools. Pools must have a fence that complies with the building code [Section 8 of FOSPA]. A fence can include structures such as retaining walls and garden walls [Section 2 of FOSPA, definition of fence ]. The building code requires pools to have barriers that restrict access [Clause F4 of the Building Code]. Barriers must restrict access [Clause F4.3.4(a) and (f) of the Building Code] Access must be restricted to children under six years. [Clause F4.3.4(f) of the Building Code] Pools must have a barrier that complies with the Building Code. [Proposed Section 162C(1) and (2)] Barriers must restrict unsupervised access [Proposed section 162C(1)] Access must be restricted to children under five years. [Proposed Section 162C(1)] No change in the risk of drowning is expected. The main barrier other than a fence is a spa pool or hot tub cover (discussed above). Another example is a natural barrier such as a cliff. BCAs would compare the performance of any proposed natural barrier with the performance of comparable acceptable solutions. The Schedule to FOSPA will continue to be an acceptable solution. In addition, MBIE intends to develop new acceptable solutions that include specifications for spa pool and hot tub covers, as well as a wider range of specifications for fences, including boundary fences and garden walls. The new acceptable solutions are likely to draw on New Zealand Standard NZS 8500:2006 and the equivalent Australian Standards. No significant change in the risk of drowning is expected. This change is intended to allow for spa pool covers and hot pool covers to be a barrier. It recognises that access does not need to be restricted while the pool is supervised. Currently, clause F4 of the Building Code requires barriers to restrict access. No change in the risk of drowning is expected. NZ and international pool barrier specifications are, in practice, aimed at children younger than five. Eighty per cent of the children who drown are aged under three. Older children can breach barriers but few do in practice. 7

Current Proposed Effect on the risk of drowning Doors must be self-closing (or have another means of restricting access). [Clause F4 of the Building Code] 4 Doors must be self-closing, or have an alarm that ensures a door will not be left open. [Proposed clause F9.3.4(a) of the Building Code] No significant change in the risk of drowning is expected. When doors are closed they restrict access (because they must not be able to be readily opened by children). Self-closing mechanisms and door alarms help to ensure that doors remain closed. Door alarms are internationally recognised (e.g. in the International Spa and Pool Safety Code, and by the US Consumer Products Safety Commission). Door alarms are already in use in New Zealand where a territorial authority has granted a special exemption under section 6 of FOSPA. Sliding and bi-fold doors are popular, and mechanical self-closers are not always practical for these door types. Doors must open away from the pool. [Clause 8(a) of the Schedule to FOSPA] Doors may open in either direction [Proposed clause F9.3.4(a) of the Building Code] No significant change in the risk of drowning is expected. Currently, doors may open away from the pool, or in the case of sliding and folding doors, sideways. The pool safety standard (NZS 8500) is that doors may open in either direction. This approach is proposed to be adopted in the building code. Where an existing door is used as a pool barrier, it can sometimes be difficult to refit the door in order to change the direction of the door swing. For example, for doors that open inwards into buildings, it is more difficult prevent moisture from entering under the door. 4 See section 7 of Determination 2009/76, which found that doors must be self-closing or have another means of restricting access. 8

Pool drowning figures 29 The following table is from the November 2013 Regulatory Impact Statement and shows the pool type where young children drowned in home pools in New Zealand in the last twenty years. Two-thirds drowned in swimming pools, with the others drowning in spa pools, portable pools, garden ponds and other hazards. Table 4 - Drowning by children aged 0-4 years in home pools between 1993 and 2012 Pool type Estimated number Young children drowned over 20 years to 2012 Risk of drowning relative to unfenced swimming pool Swimming pools 60,000 56 68% 15% Spa pools 100,000 9 11% < 1% Portable pools 200,000 4 5% < 1% Garden ponds 10,000 30,000 11 13% 10% 20% Other water hazards Not estimated 2 2% Not estimated Total* 370,000 390,000 82 100% NA Notes: totals may not add due to rounding. Excludes drownings in buckets, rubbish bins and indoors. Data from Water Safety New Zealand's DrownBase. 30 In the last ten years, child-resistant covers had become the industry norm, and there have been no recorded drownings in child-resistant spa pools. 9

Annex 1 Council inspection regimes Number of pools, and estimated inspection period Council Three-yearly Estimated # swimming pools Estimated # spa pools Estimated # portable pools Estimated # other water hazards Auckland 26,247 9,304 590 453 Buller 30 0 0 0 Far North 546 272 0 0 Hastings 2,528 63 0 0 Horowhenua 198 26 0 0 Hurunui 191 170 0 0 Invercargill City 0 181 0 0 Kapiti Coast 865 100 30 122 Kawerau 36 25 0 0 Opotiki 40 1 0 0 Ruapehu 62 92 0 0 Thames-Coromandel 316 220 0 0 Waikato 1,693 147 0 0 Wairoa 46 21 0 0 Wellington City 300 474 120 20 Whangarei 1,064 186 0 0 Four to seven-yearly Christchurch City 4,588 612 0 0 Manawatu 379 14 0 0 Marlborough 1,052 750 250 10 Masterton 187 444 0 0 Nelson City 1,000 200 0 0 New Plymouth 1,073 433 17 3 Stratford 86 7 0 0 Longer than sevenyearly Dunedin City 0 6 0 0 Hauraki 361 60 0 0 Kaipara 261 82 0 0 Lower Hutt City 152 757 0 0 Napier City 1,006 801 0 0 Otorohanga 177 71 0 0 Selwyn 704 300 50 0 South Wairarapa 140 28 0 0 Taupo 195 133 16 29 Timaru 762 283 0 0 Whakatane 510 191 0 0 No periodic inspections Ashburton 520 111 0 0 Carterton 213 0 0 0 Central Hawke's Bay 447 48 0 0 Central Otago 340 36 2 2 Clutha 0 12 0 0 Gisborne 266 169 0 0 Hamilton City 1,274 170 0 0 10

Council Estimated # swimming pools Estimated # spa pools Estimated # portable pools Estimated # other water hazards Kaikoura 87 14 0 0 Mackenzie 44 6 0 0 Matamata-Piako 837 116 0 0 Porirua City 79 192 0 0 Queenstown Lakes 0 106 0 0 Rangitikei 200 81 0 0 Rotorua 1,019 396 0 0 South Taranaki 389 97 0 0 South Waikato 430 99 100 20 Southland 0 46 0 0 Tararua 140 80 0 0 Tasman 1,114 175 0 0 Tauranga City 1,724 421 0 0 Upper Hutt City 62 151 0 0 Waimate 130 28 0 0 Waipa 397 167 0 0 Waitaki 355 76 0 0 Waitomo 138 35 0 0 Wanganui 625 156 0 0 Western Bay of Plenty 677 165 0 0 Westland 0 88 0 0 No data received Chatham Islands Territory 0 2 0 0 Gore 0 44 0 0 Grey 0 50 0 0 Palmerston North City 1,167 309 0 0 Waimakariri 819 178 0 0 Total known pools 60,291 20,275 1,175 659 Notes to the table: Notes: The table shows the estimated number of pools subject to FOSPA that are known to councils, and the estimated frequency of pool inspections. Estimated # swimming pools excludes spa pools, portable pools and other water hazards. Based on data MBIE requested from territorial authorities in April 2013 as part of the review of FOSPA. MBIE made estimates where data was unavailable. 11