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Whau Local
Board Swimming Pool Fencing Exemptions Committee
18 March 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 Leave of Absence 5
6 Submissions
from applicants 5
7 Swimming Pool Fencing Exemption – Special Exemption (Section
6) Fencing of Swimming Pools Act 1987 7
PUBLIC EXCLUDED
8 Procedural Motion to Exclude the
Public 11
7 Swimming Pool Fencing Exemption – Special Exemption (Section
6) Fencing of Swimming Pools Act 1987
a. 1 Links Road, New Lynn 11
b. 58 McFadzean Drive, Blockhouse Bay 11
c. 43 Tahi Terrace, New Lynn 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 Whau Local Board Swimming Pool Fencing Exemptions
Committee:
a)
Confirms the ordinary minutes of its meeting,
held on Thursday, 28 August 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 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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Whau Local
Board Swimming Pool Fencing Exemptions Committee
18 March 2015
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Swimming Pool
Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming Pools Act
1987
File No.: CP2015/02025
Purpose
1. The purpose
of this report is to present to the Whau Local Board three 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 each of the applications for special
exemption. The Local Board must resolve to decline, grant or grant subject to
conditions, the exemption sought.
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Recommendations
That the Whau Local Board
Swimming Pool Fencing Exemptions Committee:
a) Receives the applications by:
i) Brian & Lynda Chase – 1
Links Road, New Lynn
ii) Geoff Hamer – 58 McFadzean
Drive, Blockhouse Bay
iii) Trudy Wyatt – 43 Tahi
Terrace, New Lynn
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.
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Comments
Discussion
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.
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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1 Links Road, New Lynn (Under Separate Cover) - Confidential
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bView
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58 McFadzean Drive, Blockhouse Bay (Under Separate
Cover) - Confidential
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cView
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43 Tahi Terrace, New Lynn (Under Separate Cover) - Confidential
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Signatories
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Author
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Phillip Curtis - Senior Swimming Pool Specialist
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Authorisers
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Barry Smedts - Manager Compliance
Glenn Boyd - Relationship Manager
Henderson-Massey, Waitakere Ranges, Whau
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Whau Local
Board Swimming Pool Fencing Exemptions Committee
18 March 2015
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Exclusion of the Public: Local Government Official
Information and Meetings Act 1987
That the Whau Local Board Swimming Pool Fencing
Exemptions Committee:
a) Excludes 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 Swimming Pool Fencing Exemption – Special
Exemption (Section 6) Fencing of Swimming Pools Act 1987 - Attachment a - 1 Links Road, New Lynn
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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.
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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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7 Swimming Pool Fencing Exemption – Special
Exemption (Section 6) Fencing of Swimming Pools Act 1987 - Attachment b - 58 McFadzean Drive, Blockhouse Bay
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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.
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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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7 Swimming Pool Fencing Exemption – Special
Exemption (Section 6) Fencing of Swimming Pools Act 1987 - Attachment c - 43 Tahi Terrace, New Lynn
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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.
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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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