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Council’s Swimming Pool Fencing Code of Practice is the definitive guide for Council when assessing proposals for building consents for new pools, new and existing pool fencing, or alterations to existing pools or pool fencing to ensure compliance with FOSPA or the Fencing of Swimming Pools Act (1987). FOSPA was enacted in 1987 to promote the safety of young children by requiring the fencing of certain pools.

The Code of Practice provides comprehensive background information around relevant policy and the rationale for the necessity to adhere rigorously to the prescripts of this legislation.

Between 1980 and 1987, 72 pre-schoolers drowned in home swimming pools and spa pools in New Zealand “SAFE Kids” NZ statistics indicate that this averaged a mortality rate of approximately 12 children per annum. Since the introduction of FOSPA, this number has reduced to an average of three per annum when the number of home swimming pools and spa pools has increased by approximately 30%.39 This is a clear indication that safety standards, as intended by FOSPA, have had the

appropriate effect on safety over this period of time.

In the interests of safety, Council must remain vigilant in its efforts to ensure that all swimming pools and fencing subject to the requirements of FOSPA are processed, reviewed, inspected and recorded in a rigorous, systematic, and consistent manner.

FOSPA defines a pool as “any excavation, structure, or product that is used or is capable of being used, for swimming, wading, paddling, or bathing” and includes spa pools.

FOSPA applies to all pools, including spa pools, at any time when the pool is filled or partly filled with water, unless it is exempted under Section 5 of FOSPA; an exempt pool is still required to be noted on Council’s pool register.

Every owner of a pool must ensure that the pool or some or all of the immediate pool area including all of the pool, is fenced according to the requirements of FOSPA.

The fence must comply with the requirements of the building code.

A pool may have been built before 1 July 1992 and therefore not have, or not required to have at that time, a building consent. However, all pools must still comply with FOSPA irrespective of the previous or existing consenting status or legislation.

Pool fencing requirements may change over time because of amendments to legislation. Council pool fencing standards will be updated as necessary to reflect these changes when they happen. On-going compliance must be assessed each time the pool is inspected regardless of whether it has been built pursuant to a building consent; whether a Code Compliance Certificate (CCC) has been issued for it; or whether there has previously been a complying pool inspection report. The intent is not to

retrospectively require upgrades of what was previously considered to be compliant pool fencing

each time there is a further clarification of detail through a judicial clarification or a Determination issued

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by the Department of Building and Housing. However where there have been oversights of non- compliance, then these must be remedied and where there has been deterioration or damage that makes the fencing non-compliant, then this must be remedied to current requirements. At all times it must be ensured that the existing safety requirements, which were previously approved, are still in place and still meet compliance with FOSPA and the Building Code.

F.1 Building Consents for new pools or fencing

Application for Building Consent

All new pool and pool fencing require a building consent which will be processed by Council, in its capacity as a Building Consent Authority, against specific internal processes and

methodology to satisfy the legislative requirements of the Building Act (2004), the Building Code, and other relevant legislation such as the Fencing of Swimming Pools Act (1987).

Requirements for Building Consent

Where a building consent application conforms with the requirements of FOSPA, it will be processed in accordance with Council’s standard processing protocols. Where there are alternative solutions proposed, these will be assessed by a Team Leader to ensure all relevant aspects of FOSPA have been considered and adequately dealt with.

Fencing Requirements

Swimming pool fencing is required to ensure the safety of young children. FOSPA is quite specific that a swimming pool must be contained by a fence. Any other safety or security device is considered to be an alternative solution, and will be evaluated in accordance with Council’s approach to such.

What to fence – (the immediate pool area)?

A pool owner has the option to fence either the pool, or some or all of the “immediate pool area”, including all of the pool. The “immediate pool area” is the land in or on which the pool is situated and so much of the surrounding area as is used for activities or purposes carried on in

conjunction with the use of the pool.

A pool owner may indicate, through the consent process, where they consider the fence will be located. However, the location of the fence and the scope of the immediate pool area must be assessed on a case by case basis by Council. Council’s role is to provide an independent check of the owner’s proposals and make a decision as to compliance against all relevant legislation and codes.

In addition to the requirements of FOSPA, there are three key factors which will be considered in determining the immediate pool area are:

1. Immediacy: a limited area in proximity to the pool is intended and one in which it is possible to adequately supervise children. However, the size of the area will depend on the individual circumstances including the total land area involved.

2. Use: where the fenced area is confined to those activities directly related to the pool including changing sheds, pool furniture, pumps or pool maintenance equipment, sunbathing areas, barbeques, diving boards, etc. It is not intended that the fenced area would provide a thoroughfare to other parts of the property.

3. Close connection with the pool: where the activities or purposes taking place are sufficiently enough connected with the use of the pool, such as entertaining areas.

Buildings as Fencing

It is possible to incorporate a building as part of a pool fence but the building wall must still be “immediate” to the pool. Any windows opening to the pool area must have restrictors attached and any doors must have approved locking devices.

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A special exemption is required where the pool owner cannot comply with FOSPA, or proposes a barrier that is not a fence, such as a pool cover or pool / door alarm. Special exemptions can only be granted by a committee of elected Council; the process of applying for a Special exemption is available from Council.

F.2 Building Consents for alterations to existing pools or fencing, or

amendments to existing consents

Building consents for alterations to existing pools or fencing

The consenting requirements for alterations to existing pools are the same as those for new pool and fencing construction.

Alterations to consented pools

Where an existing, previously consented, pool structure is proposed to be altered, the consent assessment will be made against current legislation. The fact that the pool may previously have been consented, has been inspected, and issued with a Code Compliance Certificate does not contain the amended works to historical legislation. The proposal will be assessed against current legislative requirements.

On-site amendments

“On site” amendments are not permitted to pool fencing consents. All proposed changes must be approved as an amendment to the original consent, together with amended plans, and prior to any on-site works commencing.

F.3 New and Existing Pools: Compliance, Maintenance, Safety Awareness

Compliance

It is the pool owner’s responsibility to ensure that the pool continues to comply with FOSPA. Where a pool is exempt from FOSPA, Council will still seek voluntary compliance through the use of safe-guards, barriers, window-restrictors, door-locks etc. to provide safeguards and minimise the risk of drowning to young children.

Maintenance

It is the responsibility of the pool owner to ensure that pool fencing and all relevant structures are maintained sufficiently to ensure compliance to FOSPA. General maintenance will include the servicing and testing of self-latching gates; lockable mechanisms; the inspection and repair of damage to fencing; ensuring that foliage and landscaping features are maintained to provide adequate visibility do not interfere with safety devices.

Safety Awareness

FOSPA is focused on the promotion of safety of young children through the requirement of fencing swimming pools. It is therefore imperative that the pool owner recognises the

enforcement of FOSPA by Council as a direct regard for the safety of those coming into contact with a swimming pool. While Council has the ability to assess, consent, inspect and enforce all aspects of this legislation, there are situations beyond Council’s control that where the pool owner must remain vigilant. These situations include the intentional, or otherwise, overriding of safety devices, such as propping open self-latching gates for convenience of access; neglecting routine maintenance, etc, all of which may have serious consequences.

Changing legislation

Pool fencing requirements may change over time because of amendments to legislation. The at intent at this time is not to retrospectively require upgrades of what was previously

considered to be compliant pool fencing each time there is a further clarification of detail through a statutory process. However where there have been oversights of non-compliance, then these

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must be remedied and where there has been deterioration or damage that makes the fencing non-compliant, then this must be remedied to current requirements. At all times it must be ensured that the existing safety requirements, which were previously approved, are still in place and still meet compliance with FOSPA and the Building Code.

F.4 Disputing Council Decisions

Where a proposed alternative solution is not accepted by Council, and the pool owner disagrees with this decision, the pool owner may apply to the Department of Building and Housing for a determination (section 176-178, the 2004 Act) on the matter.

A “determination” is a decision by the Chief Executive of the Department of Building and Housing about whether particular building work does or does not comply with the Building Code. A determination may also be made about any power or decision of a Building Consent Authority about a building consent, a code compliance certificate, a notice to fix, a certificate of acceptance under section 96, decisions about dangerous buildings, and other matters; see

section 177 the 2004 Act.

Determinations are binding and must be accepted by all parties; section 19 the 2004 Act.

For further information on applying for a determination, refer to the Department’s website: http://www.dbh.govt.nz/determinations

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F.5 Frequently Asked Questions (Public)

The following are examples of Frequently Asked Questions (FAQs) that could reasonably be asked by applicants, and the general public and should be available for general distribution.

These questions will be supplemented with additional responses over time.

1. What is the purpose of the Fencing of Swimming Pool Act (1987)?

The Act is to promote the safety of young children by requiring the fencing of certain pools.

2. My pool was built before 1 July 1992 and does not have a building consent, nor was one needed at the time. Do I still need to comply with FOSPA?

Yes, even if your pool did not require a Building Consent you must still comply with FOSPA. While linked to the requirements of the Building Act and Code, the purpose of FOSPA is to promote the safety of young children with respect to pools.

3. I have a Code Compliance Certificate from Council, therefore my pool and fencing will always be covered by that document?

The Code Compliance Certificate is a record that, at the time of inspection, the pool and

associated structures, including fencing, complied with the Building Act 2004 and the Fencing of Swimming Pools Act 1987. Swimming pools are subject to routine inspection by Council to ensure that the fencing continues to comply with current legislation along with on-going material performance.

4. If legislation changes could my fencing become non-compliant even though it is still in the condition as previously approved by Council?

Most non-compliance occurs through the deterioration of pool fences, failing gates and gate latches, illegal modifications to pool fences and gates being propped open. However, in the event that legislation changes it is possible that a previously approved fence may become technically non-compliant. It is not Council’s expectation that, where a fence has previously complied and legislation changes, additional work would be required to ensure the structure was modified to meet the new legislation unless that work is to rectify damage or deterioration.

5. If legislation changes, will Council require up-grading of a previously complying pool fence to the new or revised standards?

Council will only require an upgrade of those areas subject to deterioration or damage, and not a retrospective upgrade of the fence. However, any up-graded areas must comply with FOSPA.

6. Why can’t a Building Inspector grant or issue an on-site amendment to a pool fence?

Due to the assessment of risk associated with swimming pools, Council has initiated a

processing and decision-making structure that requires approval of certain aspects of a proposal to be made only by a Team Leader or person with delegated authority. All proposed changes must be approved as an amendment to the original consent prior to any on-site works

commencing, with this approval made by the Team Leader and recorded appropriately.

7. What is the “Immediate Pool Area”?

The immediate pool area is only that area, along with the pool, which can be within the pool fence. There is currently no legislative requirement to have the pool independently fenced from a dwelling but there are conditions and restrictions around the use of rooms facing onto the immediate pool area within the dwelling that will be assessed as part of any application, and explained to applicants by Council.

8. Can an entertaining area be included in the immediate pool area?

An entertaining area can be included in the immediate pool area, but this is subject to a number of criteria and conditions that will be determined by Council. Typically activities associated with the use of the pool include for pool furniture, barbeques, tables and chairs. Childrens play

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equipment such as slides and swings are not permitted for good reason as this would indicate that young children would require access to the area to use this equipment.

9. Does my pool need to be located within view from a dwelling?

No, it is not necessary for a pool to be viewed from a dwelling although it is recommended that visual supervision of the activities in the pool areas from a dwelling or other part of a property should be encouraged. It is the owner’s responsibility that adequate supervision is provided for in all instances.

10. What is a proposed “alternative solution”?

Pool fencing proposals that do not comply with the standards in Council’s Code of Practice for Swimming Pool Fencing are referred to as “proposed alternative solutions”. These proposals must be assessed on a case-by-case basis against the standards of Clause F4 of the Building Code by a Team Leader or person with appropriate delegated authority.

11. I expect Council to accept my proposal to allow a cover or alarm to be considered an adequate safety precaution, and therefore without the need to fence my pool?

FOSPA is specific and prescriptive that fencing is to be provided by a “fence”. Other

mechanisms or devices not specified in the Code of Practice for Swimming Pool Fencing will require a Special Exemption from the delegated committee of Councillors, as specified by FOSPA.

12. If I disagree with any of Council’s assessments of a pool fencing proposal, what are my options?

Pool owners who do not agree with Council’s assessment of their pool fencing proposal may apply to the Department of Building and Housing for a determination. The outcome of this determination is binding on all parties.

13. In the absence of approved fencing, will draining my pool make it safe and compliant?

Draining a pool may make it compliant under FOSPA, however Council is required to ensure compliance will all legislation it enforces therefore, in addition to FOSPA, will consider aspects of the Building Act and Code to ensure mitigation of any risk, in addition to drowning, such as that which may occur from falling. Check with your pool constructor prior to draining the pool as this can have an adverse effect on your pool.

14. If my pool fence is also a boundary fence, is my neighbour is required to meet half the cost of that fence?

Boundary fences can be used as part of a pool fence as long as the requirements of FOSPA are met. However, it is not the adjoining property owner’s responsibility to construct or maintain a boundary fence that is also a pool fence; it is the pool owner’s responsibility under the Fencing Act 1978.

15. I have no young children living at my property, or visiting it, or I am in a rural area with other water hazards; why, then, do I need to comply with FOSPA?

The Department of Internal Affairs has given some guidance on what is termed “irrelevant considerations” noting that events and circumstances change. These considerations can be found at “Guidelines for Territorial Authorities on The Fencing of Swimming Pools Act 1987” published by the Department of Internal Affairs: commentary to section 6, pages 19-22.

16. My neighbour has built a structure on his side of the fence which now provides for a climbing point into my pool enclosure.