I hereby give notice that an ordinary meeting of the Waiheke Local Board Swimming Pool Fencing Exemption Committee will be held on:

 

Date:                      

Time:

Meeting Room:

Venue:

 

Thursday, 11 December 2014

6.30pm

Waiheke Local Board Office
Oneroa Bowling Club
100 Ocean View Road
Alison Park
Waiheke Island

 

Waiheke Local Board Swimming Pool Fencing Exemption Committee

 

OPEN AGENDA

 

 

 

MEMBERSHIP

 

Chairperson

John Meeuwsen

 

Deputy Chairperson

Beatle Treadwell

 

Members

Paul Walden

 

 

(Quorum 2 members)

 

 

 

Carmen Fernandes

Democracy Advisor

 

5 December 2014

 

Contact Telephone: 021 415 875

Email: Carmen.Fernandes@aucklandcouncil.govt.nz

Website: www.aucklandcouncil.govt.nz

 

 


 

 

 


Waiheke Local Board Swimming Pool Fencing Exemption Committee

11 December 2014

 

 

ITEM   TABLE OF CONTENTS                                                                                        PAGE

1          Welcome                                                                                                                         5

2          Apologies                                                                                                                        5

3          Declaration of Interest                                                                                                   5

4          Confirmation of Minutes                                                                                               5

5          Public Forum                                                                                                                  5

6          Extraordinary Business                                                                                                5

7          Swimming Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987                                                                                            7  

8          Consideration of Extraordinary Items 

PUBLIC EXCLUDED

            Procedural Motion to Exclude the Public                                                                 11

            Swimming Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987

a.      2 Tiri Road, Waiheke Island                                                                              11  

 


1          Welcome

 

2          Apologies

 

At the close of the agenda no apologies had been received.

 

3          Declaration of Interest

 

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

 

4          Confirmation of Minutes

 

That the Waiheke Local Board Swimming Pool Fencing Exemption Committee:

a)         Confirm the ordinary minutes of its meeting, held on Friday, 8 August 2014, including the confidential section, as a true and correct record.

 

5          Public Forum

 

A period of time (approximately 30 minutes) is set aside for members of the public to address the meeting on matters within its delegated authority. A maximum of 3 minutes per item is allowed, following which there may be questions from www members.

 

At the close of the agenda no requests for public forum had been received.

 

6          Extraordinary Business

 

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“An item that is not on the agenda for a meeting may be dealt with at that meeting if-

 

(a)        The local authority by resolution so decides; and

 

(b)        The presiding member explains at the meeting, at a time when it is open to the public,-

 

(i)         The reason why the item is not on the agenda; and

 

(ii)        The reason why the discussion of the item cannot be delayed until a subsequent meeting.”

 

Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as amended) states:

 

“Where an item is not on the agenda for a meeting,-

 

(a)        That item may be discussed at that meeting if-

 

(i)         That item is a minor matter relating to the general business of the local authority; and

 

(ii)        the presiding member explains at the beginning of the meeting, at a time when it is open to the public, that the item will be discussed at the meeting; but

 

(b)        no resolution, decision or recommendation may be made in respect of that item except to refer that item to a subsequent meeting of the local authority for further discussion.”

 

 


Waiheke Local Board Swimming Pool Fencing Exemption Committee

11 December 2014

 

 

Swimming Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987

 

File No.: CP2014/27190

 

  

Purpose

1.       The purpose of this report is to present to the Waiheke Local Board Swimming Pool Fencing Exemption Committee one application for special exemption from some of the requirements of the Fencing of Swimming Pools Act 1987 (The Act).

Executive Summary

2.       The Waiheke Local Board Swimming Pool Fencing Exemptions Committee must conduct a hearing and consider each of the applications for special exemption.  The Committee must resolve to decline, grant or grant subject to conditions, the exemptions sought.

 

Recommendation/s

That the Waiheke Local Board Swimming Pool Fencing Exemption Committee:

a)      Receives the application by:

i)        Phil McNally & Maggie Lethwaite – 2 Tiri Road, Waiheke Island.

b)      Determines the application, by way of resolution, to:

i)        grant the application for special exemption as sought, or

ii)       grant the application subject to conditions, or

iii)      decline the application for special exemption sought.

Discussion

3.       The property, which is the subject of an application before the Committee, has been inspected by Auckland Council pool inspectors.  The spa pool fencing does not comply with the Act.  The details of non-compliance are specified in the attachments to this report. The applicant has chosen to seek a special exemption from the requirements of the Act.

4.       The purpose of the Act is stated to be to promote the safety of young children by requiring the fencing of swimming pools.

5.       The Act requires pool owners to fence their pool with a fence.  Specific detail on the means of achieving compliance with the Act is contained in the schedule to the Act.  If a pool is not fenced with a complying fence it is an offence under the Act, unless exempt.

6.       An exemption can only be granted by the Committee after a consideration of the particular characteristics of the property and the pool, other relevant circumstances and taking into account any conditions it may impose.  Then, only if “satisfied that an exemption would not significantly increase the danger to young children”, can an exemption be granted.

7.       Defining the immediate pool area will be relevant to considerations concerning the property and the pool. The immediate pool area means the land in or on which the pool is situated and as much of the surrounding area that is used for activities or purposes related to the use of the pool.  The Act provides that the fence should be situated to prevent children moving directly to the pool from the house, other buildings, garden paths and other areas of the property that would normally be available to young children.

 

8.       Another common consideration for the Committee in exemption applications will be instances where a building forms part of the pool fence.  Where doors from a building open into the pool area, the Territorial Authority may grant an exemption from compliance with clauses 8 to 10 of the schedule to the Act.  It may exempt if it is satisfied that compliance with the Act is impossible, unreasonable or in breach of any other Act, regulation or bylaw, and the door is fitted with a locking device that when properly operated prevents the door from being readily opened by children under the age of 6 years. If the Committee is satisfied that a door within a wall in a building meets that test, the Committee must also be satisfied that an exemption would not significantly increase the danger to young children.

9.       When granting a special exemption, the Committee may impose such other conditions relating to the property or the pool as are reasonable in the circumstances (section 6(2) of the Act).  Issues to be considered include:

a.   Will the exemption be personal to the applicant so that on a sale of the property a new owner will need to apply for a new exemption?  This might be appropriate where the personal circumstances of the applicant have been considered as a relevant circumstance  and had a bearing on the exercise of the discretion

b.   Will the exemption be granted for a fixed term and irrespective of changes of ownership so that the exemption runs with the property?

c.   Are there any other conditions which should be imposed, repairs to existing fencing, or a requirement for more frequent inspection of the pool (currently pools are inspected every three years).

 

10.     Any exemption granted or condition imposed may be amended or revoked by the swimming pool exemption committee by resolution.  The rules of natural justice would however dictate that this action should not be taken without prior notice to the pool owner and allowing the pool owner an opportunity to be heard

11.     The recommendations contained within this report fall within the Committee’s delegated authority.

12.     The Act enables an exemption to be granted from clauses 8 to 10 of the Act (doors in walls of buildings) if the Committee is satisfied that compliance with the Act is impossible, unreasonable or in breach of any other Act, regulation or bylaw and the door is fitted with a locking device that when properly operated prevents the door from being readily opened by children under the age of 6 years.

13.     The overarching consideration in terms of the Act is that a resolution to grant an exemption may only be made after having regard to the particular characteristics of the property and the pool, any other relevant circumstances and any conditions it may impose, and only if it is satisfied that such an exemption would not significantly increase the danger to young children.

14.     The Committee may resolve to grant, grant subject to conditions, or decline an application for special exemption.  If an application is declined the applicant will be required to fence their pool in accordance with the Act.

15.     The exemption hearing process under the Act does not trigger the significance policy but it is an important statutory function.

16.     The Council is committed to ensuring the Auckland is a safe place for children to live and play in.  Pool fencing issues have a strong relationship with the Council’s strategic priorities for community safety.


Consideration

Local Board Views

17.       The Local Board is the decision maker in relation to exemption applications under the Act.

Maori Impact Statement

18.       This report does not raise issues of particular significance for Maori.

General

19.       Compliance with the Act is a mandatory requirement for all pool owners unless exempt.

20.     Council’s pools inspectors have consulted with the applicants in each case.  Applicants have been made aware of the Council’s requirements to ensure fencing is compliant with the Act.  The applicants have elected to seek a special exemption for individual reasons.

Implementation Issues

21.       The decision must be made by resolution and contain conditions (if any).

 

Attachments

No.

Title

Page

aView

2 Tiri Road, Waiheke Island (Under Separate Cover) - Confidential

 

      

Signatories

Authors

Phillip Curtis - Senior Swimming Pool Specialist

Authorisers

Barry Smedts - Manager Compliance

Judith Webster - Relationship Manager

     

 


Waiheke Local Board Swimming Pool Fencing Exemption Committee

11 December 2014

 

 

Exclusion of the Public: Local Government Official Information and Meetings Act 1987

 

That the Waiheke Local Board Swimming Pool Fencing Exemption Committee:

a)      exclude the public from the following part of the proceedings of this meeting.

The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution follows.

7          Swimming Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987 - Attachment a - 2 Tiri Road, Waiheke Island

Reason for passing this resolution in relation to each matter

Particular interest(s) protected (where applicable)

Ground(s) under section 48(1) for the passing of this resolution

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

s7(2)(a) - The withholding of the information is necessary to protect the privacy of natural persons, including that of a deceased person.

In particular, the report contains.

s48(1)(a)

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.