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Rodney Local Board Swimming Pool Fencing Exemptions Committee
09 June 2014
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ITEM TABLE OF CONTENTS PAGE
1 Welcome 5
2 Apologies 5
3 Declaration of Interest 5
4 Confirmation of Minutes 5
5 Leave of Absence 5
6 Acknowledgements 5
7 Petitions 5
8 Deputations 5
9 Public Forum 5
10 Extraordinary Business 5
11 Notices of Motion 6
12 Applications for Special Exemptions under Section 6 of the
Fencing of Swimming Pools Act 1987 7
13 Consideration of Extraordinary
Items
PUBLIC EXCLUDED
14 Procedural Motion to Exclude the Public 11
12 Applications for Special Exemptions under Section 6 of the
Fencing of Swimming Pools Act 1987 (under separate cover)
a. 308 Matua Road, Kumeu 11
b. 10 Wyn Close, Kaukapakapa 11
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 Rodney Local Board Swimming Pool Fencing Exemptions
Committee:
a)
confirm the ordinary minutes of its meeting,
held on Monday, 12 May 2014, including the
confidential section, 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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Rodney Local
Board Swimming Pool Fencing Exemptions Committee
09 June 2014
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Applications
for Special Exemptions under Section 6 of the Fencing of Swimming Pools Act
1987
File No.:
CP2014/09534
Purpose
1. The purpose of
this report is to present the Rodney Local Board with applications for special
exemption 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 the applications for special exemption. The
Local Board must resolve to revoke, decline, grant or grant subject to
conditions, the exemptions sought.
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Recommendation/s
That the Rodney Local Board Swimming Pool Fencing Exemptions Committee:
a) receive the
applications by:
i) Susan
Maskovich, 308 Matua Road, Kumeu
ii) Grant and
Jacquie Alsop, 10 Wyn Close, Kaukapakapa
b) determine the
applications, 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, or
iv) review or
revoke an existing special exemption.
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Comments
3. Auckland
Council pool inspectors have inspected the properties, which are the subject of
an application before the Local Board. In each case, the swimming pool fencing
does not comply with that Act. The details of non-compliance are specified in
the attachments to this report. The applicants have 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 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.
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 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.
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 Local Board’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 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.
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 Local Board
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 that 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 & Implications
17. The Local Board
is the decision maker in relation to exemption applications under the Act.
18. Compliance with
the Act is a mandatory requirement for all pool owners unless exempt.
19. Council’s pool
inspectors have consulted with the applicants. The 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.
Maori Impact Statement
20. This report does
not raise issues of particular significance for Maori.
Implementation
21. The decision
must be made by resolution.
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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308 Matua Road, Kumeu (Under
Separate Cover) - Confidential
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bView
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10 Wyn Close, Kaukapakapa (Under
Separate Cover) - Confidential
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Signatories
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Authors
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Jan Barnard – Senior Swimming Pool
Specialist
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Authorisers
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Barry Smedts – Manager Compliance
Lesley Jenkins - Relationship Manager
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