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
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That the Albert-Eden Local Board Swimming Pool Fencing Exemptions
Committee:
a)
confirm the ordinary minutes of its meeting, held on Thursday, 27
February 2014, as a true and correct record.
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5 Leave of Absence
At the close of
the agenda no requests for leave of absence had been received.
6 Acknowledgements
At the close of
the agenda no requests for acknowledgements had been received.
7 Petitions
At the close of
the agenda no requests to present petitions had been received.
8 Deputations
At the close of
the agenda no requests for deputations had been received.
9 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
members.
At the close of
the agenda no requests for public forum had been received.
10 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.”
11 Notices of Motion
At the close of
the agenda no requests for notices of motion had been received.
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Albert-Eden
Local Board Swimming Pool Fencing Exemptions Committee
25 June 2014
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Swimming
Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming
Pools Act 1987
File No.:
CP2014/13221
Purpose
1. The purpose of
this report is to present to the Albert-Eden Local Board 6 applications for
special exemptions from some of the requirements of the Fencing of Swimming
Pools Act 1987 (The Act).
Executive Summary
2. The Local Board
must conduct a hearing and consider each of the applications for special
exemption. The Local Board must resolve to decline, grant or grant subject to
conditions, the exemptions sought.
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Recommendation/s
That the Albert-Eden
Local Board Swimming Pool Fencing Exemptions Committee:
a) Receive the
report.
b) That the Local
Board receive the applications by:
i) Paul Rouse –
7 Verona Ave, Mt Albert
ii) Chris &
Katie Noble – 7a Fairlands Road, Waterview
iii) Grant &
Shierdan Alexander – 17a Stilwell Road, Mt Albert
iv) Lisa &
Michael Barker – 23 La Veta Ave, Mt Albert
v) Nigel Pengelly
– 55 Fourth Ave, Kingsland
vi) Yvonne Hack –
88 Richardson Road, Mt Albert
c) That the Local
Board determine each 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) declining
the application for special exemption sought.
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Discussion
3.
a) Each property,
which is the subject of an application before the Local Board, has been
inspected by Auckland Council pool inspectors. In each case, the swimming/spa
pool fencing does not comply with that Act. The details of non-compliance in
each case vary and are specified in the attachments to this report. Each
applicant has chosen to seek a special exemption from the requirements of the
Act.
b) The purpose of
the Act is stated to be “to promote the safety of young children by requiring
the fencing of … swimming pools”.
c) 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.
d) An exemption
can only be granted by the Local Board 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.
e) 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.
f) Another
common consideration for Local Boards 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 Local Board is
satisfied that a door within a wall in a building meets that test, the Local
Board must also be satisfied that an exemption would not significantly
increase the danger to young children.
g) 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).
h) 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.
Consideration
4. The
recommendations contained within this report fall within the Local Board’s
delegated authority.
5. The Act enables
an exemption to be granted from clauses 8 to 10 of the Act (doors in walls of
buildings) if the Local Board 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.
6. 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.
7. The Local Board
may resolve to grant, grant subject to conditions, or decline an application
for special exemption.
8. If an
application is declined the applicant will be required to fence their pool in
accordance with the Act.
9. The exemption
hearing process under the Act does not trigger the significance policy but it
is an important statutory function.
10. 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.
Local Board Views
11. The Local Board
is the decision maker in relation to exemption applications under the Act.
Maori Impact Statement
12. This report does
not raise issues of particular significance for Maori.
General
13. Compliance with
the Act is a mandatory requirement for all pool owners unless exempt.
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
14. The decision must be made by resolution and contain conditions (if
any).
Attachments
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No.
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Title
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Page
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aView
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7 Verona Avenue Application and
Evaluation
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11
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bView
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7a Fairlands Avenue Application and
Evaluation
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43
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cView
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17a Stilwell Road Application and
Evaluation
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55
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dView
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17a Stilwell Road Plans
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61
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eView
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23 La Veta Avenue Application and
Evaluation
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65
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fView
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55 Fourth Avenue Application and
Evaluation
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81
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gView
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88 Richardson Road Application and
Evaluation
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103
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hView
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Appendix - FOSPA
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121
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iView
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Appendix - NZS 8500-2006
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141
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Signatories
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Author
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Chant'e Bellve - Swimming Pool
Inspector
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Authorisers
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Ian McCormick - Manager Building
Control
Adam Milina - Acting Relationship
Manager - Albert-Eden & Orakei Local Boards
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