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 Waitākere Ranges Local Board Swimming Pool Fencing
Exemptions Committee:
a)
That the minutes of the Waitakere Ranges Local
Board Swimming Pool Fencing Exemptions Committee, held on Tuesday, 11
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 Submissions from applicants
At the meeting
applicants will be given the chance to explain their application to the
committee, should they wish to do so.
You will have
the chance to present additional information that supports your application.
The committee might ask you questions about your application.
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Waitākere
Ranges Local Board Swimming Pool Fencing Exemptions Committee
06 June 2014
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Swimming Pool
Fencing Exemption - Special Exemption (Section 6) Fencing of Swimming Pools Act
1987
File No.: CP2014/11590
Purpose
1. The purpose of this report is to
present to the Waitakere Ranges Local Board 7 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 Waitākere Ranges
Local Board Swimming Pool Fencing Exemptions Committee:
a) Receives the applications by:
i) Nubra Trustee Company Ltd,
757B West Coast Rd, Oratia
ii) HDM and RH Lawry, 922 West
Coast Rd, Oratia
iii) CH Shaw, 288 Forrest Hill Rd,
Oratia
iv) Grant and Debbie Gilmore, 6
Awhiorangi Promenade, Swanson
v) Peter Munro, 17 Puketaha Rd,
Swanson
vi) Jim and Anne Leyland, 9
Mudgeways Rd, Massey
vii) JJ Boulton, 31 Roick Parade,
Glen Eden
b) 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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Comments
3. 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
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.
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.
Consideration
Local
board views and implications
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.
15. If an application is declined the applicant will be required to
fence their pool in accordance with the Act.
16. The exemption hearing process under the Act does not trigger the
significance policy but it is an important statutory function.
17. 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.
18. The Local Board is the decision maker in relation
to exemption applications under the Act.
Maori
impact statement
19. This report does not raise issues of particular
significance for Maori.
General
20. Compliance with the Act is a mandatory requirement for all
pool owners unless exempt.
21. 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
22. 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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Nubra Trustee Company Ltd, 757B West Coast Road,
Oratia
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11
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bView
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HDM and RH Lawry, 922 West Coast Road, Oratia
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19
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cView
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CH Shaw, 288 Forrest Hill Road, Oratia
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25
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dView
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Grant and Debbie Gilmore, 6 Awhiorangi Promenade,
Swanson
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31
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eView
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Peter Munro, 17 Puketaha Road, Swanson
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35
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fView
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Jim and Anne Leyland, 9 Mudgeways Road, Massey
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41
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gView
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JJ Boulton, 31 Roick Parade, Glen Eden
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47
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Signatories
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Authors
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Wolfgang Nethe - Team Leader, Compliance&
Enforcement
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Authorisers
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Ian McCormick - Manager Building Control
Glenn Boyd - Relationship Manager Henderson-Massey,
Waitakere Ranges, Whau
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