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Ōrākei
Local Board Swimming Pool Fencing Exemptions Committee
23 May 2016
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Special
Exemption (Section 6) Fencing of Swimming Pools Act 1987
File No.: CP2016/07639
Purpose
1. This report seeks
a decision on the applications for special exemption from some of the
requirements of the Fencing of Swimming Pools Act 1987 (the Act).
Executive Summary
2. Applications
for an exemption for fencing a spa pool have been received from the owners of:
·
19 Kelvin Road, Remuera
·
54 Lucerne Road, Remuera
·
70 Ladies Mile, Remuera
·
36a Armadale Road, Remuera
·
106 Victoria Avenue, Remuera
·
11a Sylvia Road, St Heliers
·
16 Appleyard Crescent, Meadowbank
3. The
applications do not comply with the Act. Pool inspectors have inspected the
properties and consulted with the applicants. Full assessment reports are
attached to this report.
4. The local
board must now resolve to grant, grant subject to conditions or decline the
exemptions sought.
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Recommendation/s
That the Ōrākei
Local Board Swimming Pool Fencing Exemptions Committee determine
each application, by way of resolution, to:
a) grant the
application for special exemption as sought, or
b) grant the
application subject to conditions, or
c) decline the
application for special exemption sought.
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Comments
Background
5. Auckland Council pool inspectors
have inspected each property for which an application for special exemption
from the Act has been received. In each case, the swimming pool fencing does
not comply with the Act. The details of the non-compliance are specified in the
attachments to this report.
6. The council’s pool inspectors
have consulted with the applicants in each case. The applicants have been made
aware of the council’s requirements to ensure fencing is compliant with the Act
and they have chosen to seek a special exemption from those requirements.
Legislative
implications
7. Compliance with the Act is a
mandatory requirement for all pool owners unless exemptions are granted by the
local board.
8. The Act requires pool owners to
fence their pool, or all or some of the immediate pool area including the pool
itself. Specific detail on this is contained in the schedule to the Act. If a
pool does not have a complying fence it is an offence under the Act, unless
exempt.
9. 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.
10. The definition of the immediate
pool area, which is “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”, is a key consideration for granting an exemption.
11. Where a building forms part of
the pool fence and there are doors opening into the pool area, the local board
may grant an exemption from compliance with clauses 8 and 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 six years.
12. When granting a special exemption
the local board may impose reasonable conditions relating to the property or
the pool or reflecting other relevant circumstances. These may include:
a. Making the
exemption personal to the applicant so that on a sale of the property a new
owner will need to apply for a new exemption
b. Granting the
exemption for a fixed term irrespective of changes of ownership
13. Any exemption granted or
condition imposed may be amended or revoked by the local board by resolution.
The rules of natural justice would however dictate that this action should not
be taken without informing the pool owner and giving them the opportunity to be
heard.
Consideration
Local board views and implications
14. Local boards have delegated
authority to approve exemptions to the Fencing of Swimming Pools Act.
15. Before making an exemption, the
local board must consider:
· the
particular characteristics of the property and the pool
· any
other relevant circumstances
· conditions it may be necessary to impose.
16. The local board must also be
satisfied that the exemption would not significantly increase the danger to
young children.
17. The local board may resolve to
grant, grant subject to conditions, or decline the application for special
exemption.
18. If the application is declined
the applicant will be required to fence the pool in accordance with the Act.
Maori impact statement
19. There are no
particular impacts on Maori that are different from those of other pool owners.
Implementation
20. 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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19 Kelvin Road, Remuera
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11
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bView
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54 Lucerne Road, Remuera
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21
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cView
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70 Ladies Mile, Remuera
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31
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dView
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36a Armadale Road, Remuera
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39
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eView
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106 Victoria Avenue, Remuera
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49
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fView
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11a Sylvia Road, St Heliers
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59
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gView
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16 Appleyard Crescent, Meadowbank
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67
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Signatories
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Author
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Brendon Findlay - Swimming Pool Inspector
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Authorisers
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Sally Grey - Manager Weather Tightness &
Compliance
Adam Milina - Relationship Manager - Albert-Eden &
Ōrākei Local Boards
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