Information about the Swimming (Pools) Amendment Act 2016. Purpose of the Act and who it applies to. What needs to be fenced. Parental responsibility. Interpretation of the Act.
Building (Pools) Amendment Act 2016. Click here to access the act.
What is the Act about?
The purpose of the Act, as implied in the Long Title is
"to promote the safety of young children by requiring the fencing of certain swimming pools".
It seeks to do this by requiring every pool owner to fence the pool and the area which immediately surrounds the pool. In certain situations a Council can grant special exemptions from the Act. The Act sets out (in the Schedule) standards that swimming pool fences are required to meet. This is to ensure that pool fences are of a standard that will prevent young children gaining access to the pool. Overall the focus of the Act is on child safety and on preventing swimming pool accidents.
Pool owners, people with pools on their property and this Council all have duties under the Act.
Pool owners must tell the Council that they have a pool. Those intending to get a pool must also tell the Council. All pools must be fenced to the standard set in the Act. If a pool is not fenced to this standard, the owner must ensure that the pool is kept empty.
This Council is required to take all reasonable steps to make sure the Act is complied with.
All private swimming pools and spa pools have to be fenced unless:
(However, these pools still require a building consent).
The fence must only surround the pool and the area immediately around the pool. This area can only include things used in association with the pool, for example a changing shed. It should not include the clothes line or vegetable garden. A boundary fence alone is not sufficient and would not comply with the Act.
For the period 1980-1994 294 pre school children drowned. Of these 101 drowned in the swimming pool at their own home. Drowning is second only to road accidents as the major cause of accidental death for pre-school children. However, Christchurch researchers have found that drowning statistics only reflect the minority of accidents where parental vigilance or luck does not operate (Fergusson et al "Domestic Swimming Pool Accidents to pre School Children"). A recent Australian study has found that for every child who drowns there are at least nine others involved in serious near-drowning accidents. (Health Department of Western Australia page 3.9). Accidents involving serious near drowning can result in children being left with permanent brain damage. Fencing is necessary, therefore, to prevent not only deaths, but also serious injury.
Children between the ages of 1 and 3 years are those most vulnerable to drowning in private swimming pools. Statistics show that about 70% of pre school fatalities in private swimming pools occur to children in this age group. Research suggests that educating pre schoolers is not a practical solution to the drowning problem. (Geddis, page 225).
The Local Bills Committee concluded that pre school children could not be expected to learn the elements of water safety or how to react appropriately to all water related emergencies.
It is also unrealistic to expect pre school children to keep away from an unfenced pool merely because they have been told to do so. While some five year olds may understand that pools can be dangerous, it would be unreasonable and unrealistic to expect children under the age of 3 to understand this and to have the self discipline not to go near a pool.
Parents do have a natural responsibility to care for their children. However, it is unrealistic to expect supervision alone to prevent pre school children from gaining access to private swimming pools. In every case considered by the Local Bills Committee where a child drowned at home, or when visiting, an adult was present on the property. (Local Bills Committee Report, page 38).
The combination of young children being inquisitive, and the attractive nature of pools results in pools being particularly dangerous to pre-school children.
It is extremely difficult for a parent to constantly supervise a child every minute that the child is awake, especially where more than one child has to be cared for. Pre school children even at the toddler stage, are mobile and it can take only a few moments for them to get out of the sight of parents. A recent study which looked into the circumstances where pre schoolers had drowned reported that it was common for care givers to have taken their eyes off the child for only a few minutes. (Hassall, 1989). Parents may lapse their attention from the child for a number of reasons. For example, a parent may assume that a spouse is supervising the child, may temporarily leave the child untended to answer the phone, or may be forced to leave the child untended in the event of an emergency. Pool fences will safeguard the child while the parent is not in a position to supervise the child.
2.1 Section 2 defines certain terms used in the Act. These are discussed below.
2.2 "Fence" - a fence is a structure that totally surrounds a pool so as to prevent pre school children from gaining access to it. A fence must conform to all of the requirements of the Schedule to the Act. It includes any part of a building and any gates or doors that form part of the fence.
2.3 "Gates or Doors" - the term "gates or doors" refers to gates in pool fences and doors in buildings which make up part of a fence. It does not include any door to which Clause 11 of the Schedule applies (see discussion of Clause 11 in the Schedule.)
2.4 "Immediate Pool Area" - the immediate pool area is of particular importance to the meaning of the Act. Section 8 of the Act requires pool owners to fence the pool and some or all of the immediate pool area. The Act defines the immediate pool area as:
2.5 The definition of immediate pool area is important because it is only that area, along with the pool, which can be enclosed by the Fence.
2.6 The "immediate pool area" could include pool decking or changing sheds but not vegetable patches, clothes-lines, children's sandpits, slides or swings.
2.7 The Diagrams illustrate various fences around pools, some of which meet the requirement to fence the pool and some or all of the "immediate pool area", and some of which do not meet this requirement. The diagrams should also be examined in conjunction with Clauses 8 to 11 of the Schedule.
2.8 A boundary fence can be incorporated into the pool fence if it complies with the Schedule to the Act (see diagrams 2-5). However, because the fence is permitted to enclose only the pool and some or all of the "immediate pool area" a boundary fence, by itself, is not sufficient (diagram 8) because there will always be areas on a property which would not be considered part of the immediate pool area". A house, for example could not be considered to be within the immediate pool area.
2.9 The greatest need is to protect those children who are legitimately on the property. A key finding in the 1983 Local Bills Committee Report was that 80% of pre school drownings occur when the child is resident on the property or is present as an invited guest. The Local Bills Committee concluded that this demonstrated that "the fencing of properties only, and not pools is not an effective means of preventing pre school drownings".
2.10 Similar statistics have been found in other studies (for example Hassall 1989).
2.11 "Owner" - owner means any person who owns a pool except:
2.12 where the pool is on the premises which are subject to tenancy under the Residential Tenancies Act 1986 the owner is the owner of the premises.
2.13 "Swimming Pool and Pool" - a swimming pool is any excavation, structure or product that is or can be used for swimming, wading, paddling or bathing - including spa pools. (Section 5 sets out what pools are exempt from the Act).
2.14 "Territorial Authority " - territorial authorities are city or district councils.
This schedule containing the structural information for the fencing of swimming pools is an approved document deemed to satisfy the Building code under the Building Act 1991.
It should be noted that whilst other methods of fencing may be approved, such fencing shall be equal to or better than the requirements of this Schedule.
The outside walls of the fence must be a least 1.2 metres high. They must also be at least 1.2 metres above any permanent object that is within 1.2 metres of the outside of the fence.
This means, for example, that if there is decking within 1.2 metres of the fence, then the fence has to be at least 1.2 metres above the level of the decking. It also means that there must be no trees hedges or stacks of wood, etc, which can be climbed within 1.2 metres of the fence.
Problems may arise where a boundary fence forms part of a pool fence and the neighbour allows trees, stacking wood etc within 1.2 metres of the fence. Under section 8 of the Act it is the responsibility of the pool owner to ensure that the pool is fenced in compliance with the Schedule to the Act. This means that it is the owner's responsibility to ensure that there are no trees, etc, within 1.2 metres of the outside of the fence. Ideally an acceptable solution to this problem should be arrived at between neighbours.
Should the pool owner be unable to ensure that a boundary fence complies with this clause because of objects on the neighbour's side of the fence, in the Department's view, the pool owner must then either make other fencing arrangements which would comply with the Schedule (e.g.change the location of the fence) or ensure that the pool is not filled or partly filled with water. (Section 8 sets out the responsibilities of pool owners).
Where the fence is made of perforated material, netting or mesh, and contains holes more than 10mm wide, the fence must be at least 1.8 metres high.
The space between the bottom of the fence and the ground must not exceed 100mm.
The fence must be durable and able to prevent children under the age of six from gaining access to the pool. This is a new provision. Previously clause 3 stated that the fence had to prevent any person from gaining access to the pool.
Where the fence is made of horizontal close-boards, perforated material, netting or mesh the space between the vertical supporting posts may exceed 100mm.
Where the fence is not made of the above material (for example, a fence made of vertical poles) the space between adjacent vertical poles, panels or other posts must not exceed 100mm.
This is a new provision. Clause 4 originally made no reference to fences made of perforated material, netting or mesh. The Act was mended to allow polypropylene fences which require support only from corner posts.
Clauses 5 and 5A
All fencing supports, rails, rods, wires and bracing which are not vertical shall be inaccessible for climbing from the outside of the fence. This means that a fence can have vertical fencing supports, rails, rods, wires or bracing which are accessible from the outside. But any supports, etc that are not vertical (for example, horizontal or near horizontal rails which could be used for climbing) must be inaccessible from the outside. However, a fence may have horizontal supports etc, which are accessible for climbing from the outside if any two of them are separated by a distance of at least 900mm and there is not support etc other than a vertical rail) between the two.
Clauses 5 and 5A replaced the previous clause 5 to allow horizontal supports to run through the middle of the fence rather than requiring them to be on the inside (pool side) of the fence. The requirement that there be a gap of at least 900mm between any two horizontal supports, is to ensure that pre school children cannot climb over the fence. The new provisions will allow fences made of vertical wire rails.
Where a fence is made of perforated material, netting or mesh, the holes must not be bigger than 50mm wide. When read together, clause 1(2) and clause 6 mean:
Where the fence is made of perforated material, netting or mesh, it shall be firmly attached to a rail or pipe at the top and bottom of the fence, or otherwise be such that the fence cannot be readily crossed by children under the age of six years. This is to ensure that access to the pool cannot be gained by climbing through loose material at the top or bottom of the fence.
Gates and doors must be constructed to comply with the relevant parts of clauses 1 to 7 of the Schedule. They must also be mounted so that:
The reason for prohibiting gates and doors from opening towards the pool, is so that if a gate or door is left unlatched, it cannot be opened by a toddler merely leaning against it. It is more difficult for children, especially those unsteady on their feet, to open a gate or door if they have to pull against it.
Every gate or door must have a latch. Where the latch is on the pool side of the fence and can only be reached over the top of, or through a hole in the fence gate, or door, the latch and the lowest point of the hole must be at least 1.2 metres above the ground on the outside of the fence.
Where the latch is on the outside of the fence it must be at least 1.5 metres above the ground.
Every gate and door must have a device which will automatically close and latch the gate or door, when the gate or door is stationary and 150mm from the closed position. This is to ensure that the gate or door cannot be accidentally left open. The operation of a self closing gate is critical to the safety of the pool.
Where a building forms part of a fence, a door in the building wall does not have to comply with clauses 8 to 10 if the Council is satisfied that:
Diagrams 4 and 5 illustrates examples of doors in buildings which form part of the fence.
Clause 11 allows Councils to use their discretion where it may be considered impossible to make doors in buildings conform to clauses 8 and 10 of the Schedule. In the past it has been suggested that it was impossible for sliding doors such as ranchsliders giving access to a pool to comply with clause 10 of the Schedule because they were not self closing.
As noted in paragraph 6.6 statistics show that, since the introduction of the Act, most pre school drownings have occurred after children have gained access to the pool through doors leading from the house, It is, therefore, important that Council's consider carefully any exemptions and if they are granted, ensure that appropriate locking devices are fitted to the doors.
The Council's powers under clause 11 can be delegated to a committee comprising only council members under section 12.
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