Swimming Pools Act

Swimming Pools 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.

Who does the act apply to?

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.

What pools need to be fenced?

All private swimming pools and heated pools with a surface area greater than 5m2 have to be fenced unless:

• The maximum depth is 400mm or less
• The walls of the pool are 1.2 metres or more above the ground (or pool surrounds)
• Indoor pools associated with an abode require complying barriers. (However the pool barrier will still require a building consent).

Where must the pool be situated?

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 can form part of the pool barrier, provided it is 1.800 m high on the poolside of the fence and the pool is situated at least 1.000 m from the boundary fence.

Why is the act necessary?

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.

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.

Parental Responsibility

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.

Section 7 Amended - Interpretation

In section 7:

Abode or Place of Abode-

(a) means any place used predominantly as a place of residence or abode, including any appurtenances belonging to or enjoyed with the place; and

(b)includes-

(i)  a hotel, motel, inn, hostel, or boarding house

(ii)  a convalescent home, nursing home, or hospice

(iii)  a rest home or retirement village

(iv)  a camping ground

(v)  any similar place

Immediate Pool Area-

(a) means the land in or on which the pool is situated and so much of the surrounding area as is used for activities carried out in relation to or involving the pool.

Independently Qualified Pool Inspector-

(a) means a person-

(i)   Accepted by the Chief Executive as qualified to carry out inspections to determine whether a pool has barriers that comply with the requirements of section 162C;

and

(ii)  Whose acceptance has not been withdrawn

Pool-

(a) means-

(i)   any excavation or structure of a kind normally used for swimming, paddling, or bathing; or

(ii)  any product (other than an ordinary home bath) that is designed or modified to be used for swimming, wading, paddling, or bathing; but

(b)  does not include an artificial lake

Pool Operator-

(a)  means a person who operates and maintains a pool on a day-to-day basis

Residential Pool-

means a pool that is-

(a)  in a place of abode; or

(b)  in or on land that also contains an abode; or

(c)  in or on land that is adjacent to other land that contains an abode if the pool is used in conjunction with that other land or abode

Small Heated Pool-

means a heated pool (such as a spa pool or a hot tub) that-

(a)  has a water surface area of 5 m2 or less; and

(b)  is designed for therapeutic or recreational use.

What can the immediate pool area include?

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.

• Whether a barbeque area would be part of the immediate pool area would depend on whether it was normally used in conjunction with the pool. The most important factor in where the fence is situated is its location in relation to the rest of the property. The fence should be situated to prevent children moving directly to the pool from the house, other buildings, garden paths or other areas of the property that would normally be available to young children.

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 Building Code Clause F9 Figures 1 and 2.

Is a Boundary Fence Sufficient?

A boundary fence can be used as part of the barrier provided it is 1.800 m high on the poolside of the fence and the pool is located no closer than 1.000 m from the fence.

Height

Clause 1

The outside walls of the barrier must be a least 1.2 m high. They must also be at least 1.2 m above any permanent object that is within 1.2 m of the outside of the fence.

This means, for example, that if there is decking within 1.2 m of the barrier, then the fence has to be at least 1.2 m 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 m of the barrier.

Problems may arise where a boundary fence forms part of a pool fence and the neighbour allows trees, stacking wood etc within 1.2 m 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).

A boundary fence can be used as part of the barrier provided it is 1.800 m high on the poolside of the fence and the pool is located no closer than 1.000 m from the fence.

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 m high.

Ground Clearance

The space between the bottom of the fence and the ground must not exceed 100mm.

Materials

The fence must be durable and able to prevent children under the age of five from gaining access to the pool. This is a new provision.

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 amended to allow polypropylene fences which require support only from corner posts.

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.

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:

• If the holes in the perforated material, netting or mesh are 10mm or less the fence must be at least 1.2 m high.
• If the holes are more than 10mm the fence must be at least 1.8 m high
• An opening of more than 50mm is not permitted in any circumstances.

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

Gates and doors must be constructed to comply with the relevant parts of the Building Act 2004 and Building Code clause F9. They must also be mounted so that:

• They cannot open inwards
• They are clear of anything that could hold them open and no other means of holding them open is provided and
• When lifted up or pulled down they do not release from the latch, come off the hinges or provide a ground clearance of greater than 100mm.

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.

Operation of gates and doors

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 m 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 m 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.

Building Wall Forming the Pool Barrier

Windows in the Building Wall

Where there is a window that can open above and within 2400mm vertically of the immediate pool area the window shall have either:

(a) The lower edge of the opening no less than 1000mm above the floor inside the building with no projections underneath of more than 10mm, or

(b) A restrictor limiting the size of the opening such that a 100mm diameter sphere cannot pass through, or

(c) A permanently fixed screen over the opening that a 100mm diameter sphere cannot pass through.

Doors in the Building Wall

Doors in a building wall that provide access into the immediate pool area shall be single leaf doors that are not more than 1000mm in width. These doors shall be side hinged or sliding.

Doors in a building wall providing access into the immediate pool area shall have:

(a) Either a self-closing device or an audible alarm, and

(b) A self-latching device that automatically operates on the closing of the door and that must be released manually, and

(c) The release for the latching device located not less than 1500mm above the inside floor, and

(d) A sign which shall be:

      (i) fixed adjacent to the inside door handle at a height between 1200mm and 1500mm stating:

"Swimming Pool. Close the Door"

and

       (ii) composed of black letters of minimum height 5mm complying with Paragraphs 2.2 and 3.2.2 of F8/AS1.

For hinged doors that open towards the pool, a self-closing device shall return the door to the closed and latched position from any position when the door is stationary. For all other doors, a self-closing device shall return the door to the closed and latched position when the door is stationary and 150mm or further from the closed and latched position.

A door alarm shall:

(a) Produce an alarm tone of 75dBAL10 when measured at a distance of 3000mm that commences 7 seconds after the door's self-latching device is released, and

(b) Automatically return to a state of readiness when the door is closed and latched, and

(c) Have a low battery charge warning that may be visual or audible.

Door alarms may be provided with a deactivation switch placed not less than 1500mm above floor level that silences the alarm for not more than 15 seconds.