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Waiheke Local
Board Swimming Pool Fencing Exemption Committee
23 July 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 Extraordinary Business 5
7 Swimming Pool Fencing Exemption – Special Exemption (Section
6) Fencing of Swimming Pools Act 1987 7
8 Consideration of Extraordinary
Items
PUBLIC EXCLUDED
Procedural Motion to Exclude
the Public 11
Swimming Pool Fencing Exemption – Special Exemption
(Section 6) Fencing of Swimming Pools Act 1987
a. 5 Gulf Place Waiheke Island 11
b. 1/25 The Strand Waiheke Island 11
c. 42 Beach Parade Waiheke Island 11
d. 1 Karu Street Waiheke Island 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 Waiheke Local Board Swimming Pool Fencing Exemption
Committee:
a)
confirm the ordinary minutes of its meeting,
held on Thursday, 11 December 2014, including the
confidential section, as a true and correct record.
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5 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.
6 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.”
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Waiheke Local
Board Swimming Pool Fencing Exemption Committee
23 July 2015
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Swimming
Pool Fencing Exemption – Special Exemption (Section 6) Fencing of Swimming
Pools Act 1987
File No.:
CP2015/13942
Purpose
1. The purpose of this report is to present to the Waiheke Local
Board Swimming Pool Fencing Exemption Committee four applications for special
exemptions from some of the requirements of the Fencing of Swimming Pools Act
1987 (The Act).
Executive Summary
2. The Waiheke Local Board Swimming Pool Fencing Exemptions
Committee must conduct a hearing and consider each of the applications for
special exemptions. The Committee must resolve to decline, grant or grant
subject to conditions, the exemptions sought.
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Recommendation/s
That the Waiheke Local Board Swimming Pool Fencing Exemption Committee:
a) Receives the application by the
owners of:
i) 5 Gulf Place, Waiheke Island.
ii) 1/25 The Strand, Waiheke
Island.
iii) 42 Beach Parade, Waiheke
Island.
iv) 1 Karu Street, Waiheke Island
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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Discussion
3. The
property, which is the subject of an application before the Committee, has been
inspected by Auckland Council pool inspectors. The spa pool fencing does not
comply with the Act. The details of non-compliance are specified in the
attachments to this report. The 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 Committee 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 the Committee 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
Committee is satisfied that a door within a wall in a building meets that test,
the Committee 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 Committee’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 Committee 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
Committee 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 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.
Consideration
Local Board Views
17. The
Local Board is the decision maker in relation to exemption applications under
the Act.
Maori Impact Statement
18. This
report does not raise issues of particular significance for Maori.
General
19. Compliance
with the Act is a mandatory requirement for all pool owners unless exempt.
20. 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
21. 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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5 Gulf Place Waiheke Island (Under
Separate Cover) - Confidential
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b
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1/25 The Strand Waiheke Island
(Under Separate Cover) - Confidential
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c
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42 Beach Parade Waiheke Island
(Under Separate Cover) - Confidential
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d
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1 Karu Street Waiheke Island
(Under Separate Cover) - Confidential
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Signatories
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Authors
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Stuart Airs - Senior Swimming Pool Specialist
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Authorisers
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Barry Smedts - Manager Compliance
Judith Webster - Relationship Manager
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