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Manurewa Local Board Swimming Pool Fencing Exemptions Committee
26 February
2015
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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 Public Forum 5
6 Special exemption (Section 6) Fencing of Swimming Pools Act
1987 - 335 Hill Road, Manurewa 7
PUBLIC EXCLUDED
7 Procedural Motion to Exclude the
Public 11
Special
exemption (Section 6) Fencing of Swimming Pools Act 1987 - 335 Hill Road,
Manurewa
a. 335 Hill Road, The Gardens, Manurewa (Under
Separate Cover) 11
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Manurewa Local
Board Swimming Pool Fencing Exemptions Committee
26 February
2015
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Special
exemption (Section 6) Fencing of Swimming Pools Act 1987 - 335 Hill Road,
Manurewa
File No.: CP2015/01818
Purpose
1. The purpose of this report is to
present to the Manurewa Local Board Swimming Pool Fencing Exemptions Committee
one application 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 Manurewa Local Board
Swimming Pool Fencing Exemptions Committee:
a) receive the report
b) receive the application by:
i) Yvette
Stoupe (Robertson) of 335 Hill Road, The Gardens, Manurewa
c) determine 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
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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/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.
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
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.
Local
board views and implications
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.
Implementation
20. 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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335 Hill Road, The Gardens, Manurewa (Under Separate
Cover) - Confidential
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Signatories
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Authors
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Phillip Curtis - Senior Swimming Pool Specialist
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Authorisers
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Barry Smedts - Manager Compliance
Rex Hewitt - Relationship Manager
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Manurewa Local
Board Swimming Pool Fencing Exemptions Committee
26 February
2015
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Exclusion of the Public: Local Government Official
Information and Meetings Act 1987
That the Manurewa Local Board Swimming Pool Fencing
Exemptions Committee:
a) exclude the
public from the following part(s) 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 Special exemption (Section 6) Fencing of
Swimming Pools Act 1987 - 335 Hill Road, Manurewa - Attachment a - 335 Hill Road, The Gardens,
Manurewa (Under Separate Cover)
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Reason for passing this resolution in relation to each
matter
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Particular interest(s) protected (where applicable)
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Ground(s) under section 48(1) for the passing of this
resolution
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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.
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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 personal contact
details of applicant and photos of the property..
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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.
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