Across the ditch... pool fencing in NZ


Monday, 28 May, 2018


Across the ditch... pool fencing in NZ

We’ve been through the same thing here, now the pool fencing saga is playing out in New Zealand.

New pool safety legislation came into effect in New Zealand on 1 January 2017. The Building (Pools) Amendment Act 2016 repealed the Fencing Swimming Pools Act 1987 and inserted provisions relating to residential pool safety into the Building Act 2004.

According to the Ministry for Business, Innovation and Employment (MBIE), key changes to the code included:

  • residential swimming pool barriers must be inspected every three years;
  • safety covers will be used as barriers for spa pools and hot tubs; and,
  • territorial authorities will have better tools to enforce pool barrier requirements, including notices to fix and infringement notices.
     

Provisions in the building code included clause 162C (1), which deems that residential pools (filled or partly filled) must have means of restricting access — via a physical barrier — by unsupervised children under five years of age. Clause 162C (2) states that the means of restricting access must comply with the current code requirements, or those that were in force at the time of construction or installation (post 1987). 

This probably seems fairly straightforward, not to mention familiar. Unfortunately — as is often the case with retrospective legislation — the implementation hasn’t exactly been smooth sailing. There’s been conjecture over ‘short cuts’ and ‘loopholes’, a couple of backflips and a whole lot of complaining as industry, government and water safety groups try to reach some sort of consensus.

While the new Act requires territorial authorities to inspect pool fences, it also allows regions to waive or modify building code requirements. The intent here is for authorities to exercise judgement when dealing with ‘unusual compliance conditions’.

What is a suitable physical barrier?

In February this year, local NZ news website stuff.co.nz reported that in the 12 months since the new Act came into effect, MBIE had received 25 waiver applications that nominated automatic covers as a suitable physical barrier to swimming pool access. Had 23 of the 25 waiver applications not originated in one council district, the trend may not have been immediately apparent.

The bulk of the applications came from Marlborough District Council, which said it had sought clarification from MBIE on the use of electric safety covers versus fences. The council said it had received no signal to suggest this was an unsuitable solution, so continued to submit waiver applications in the same vein. The crux of the issue here is the subjective nature of the process — what inspectors in one district determine to be a reasonable modification won't necessarily be seen that way by others. One man’s ‘unusual compliance conditions’ are not the same as another’s, if you like.

At this point, Water Safety NZ (WSNZ) stepped in and suggested the only acceptable form of barrier was fencing and that the inclusion of pool covers as an alternative threatened to introduce uncertainty because the practice is open to human failure. As five children under the age of five had died in preventable deaths since the legislation came into effect, WSNZ said that allowing pool covers as an alternative to fencing was effectively a ‘short cut’ that introduced unacceptable risk and should be banned.

Covers banned

By late March, the use of automatic pool covers without fencing was banned nationwide, with MBIE ruling the practice as non-compliant with the building code. MBIE said that a compliant pool fence with automatically closing gates or door alarms presented less risk than the use of an automated pool cover. This is because the pool cover could be left open — even if only temporarily — when a supervising adult was not present. Given that the overriding intent of building code changes was to prevent injury or death to young children in residential pools, MBIE deemed the increased risk associated with (fenceless) pool cover use as incompatible with that overall objective.

Predictably, not everyone was happy with the outcome. In Marlborough, 200 affected pool owners will have to apply for building consent to install a compliant barrier. For those with expired exemptions, that is an immediate requirement and, for those with as-yet-unexpired waivers, a compliant installation must be in by the expiry date (which can be between five and 10 years). 

For those with an immediate issue, the council suggested a range of remedies including putting up a temporary barrier and draining pools to 400 millimetres or less. The latter of these presents an additional problem, as it potentially creates a drop of more than one metre. Not only is this also unallowable under the building code, it represents an even greater safety risk, according to industry members. Temporary measures aside, home owners with expired waivers have only 90 days to comply.

Industry members suggest that planned pool installation projects have been cancelled in the wake of the ruling and that home owners fear their property value will go down because of the fencing requirement. Some wondered if MBIE got it wrong and whether the determination should have been challenged by Marlborough. The NZ Pool Industry Association (NZPIA) polled its members to see if they should get involved, but the general consensus was 'no'.

The devil is in the detail

According to NZPIA, the devil is in the detail... because the Building Act does not explicitly rule out the use of covers as a barrier, it believes they should be allowed. Some industry members feel that the ‘human failure’ argument isn’t justified, as an adult is equally capable of leaving a pool gate open as they are of not covering a pool. Faulty and inoperable gates also represent a notable risk, so can’t be deemed 100% failsafe. In justifying the issuing of waivers, Marlborough District Council said that no children have drowned at locations where automated pools covers are installed since the practice commenced.

There are calls to make determinations on a case-by-case basis, given that every pool installation is different.

When discretion fails

Compounding an already complex and contentious issue is the recent discovery by Whangarei District Council (WDC) that many previously approved fencing installations are actually non-compliant.

This came to light when a home owner sought certification on a property being sold. The inspection found the pool fence didn’t meet with code, despite having previously been approved. This prompted the council to conduct a random audit, which saw 10 of the 11 inspected properties failing. Council said it was likely the fault of inspection officers ‘using more discretion than was likely appropriate’, again highlighting limitations with an essentially subjective process.

There are over 1200 privately owned pools in the district, many of which will undoubtedly be recognised as non-compliant.

WDC plans a complete review of its database and reassessment of fencing installations — starting with pools seen as ‘higher risk’. It also reminded pool owners of their own obligations and encouraged self-inspection with a focus on vegetation growth and changes to buildings, ground level or surrounding gardens.

Size matters

So, pools must be fenced. End. Of. Story. Or is it? Clause 162C (3) of the Building Act says, “In the case of a small heated pool, the means of restricting access referred to in subsection (1) need only restrict access to the pool when the pool is not in use.”

This means that spa pools, provided they are 760 mm above the ground and have a surface area of less than five square metres, don’t need a fence, but are required to have a lockable cover in place when they are not in use. Any pool that extends beyond five square metres and is deeper than 400 mm is automatically recognised as a pool, regardless of whether it is 760 mm above the ground. This means the fencing rule applies.

Early days

The legislation may have come into effect in January 2017, but most of the issues outlined in this article have come to light within the last three months, which serves to remind what a complicated undertaking this is... and we’ve only looked at the nuts and bolts of implementation.

As an initiative designed to save lives, the focus often moves to seemingly secondary issues — like aesthetics and property values. We’re a little further down the track in Australia, pretty much at the point where seeing an unfenced pool is akin to watching someone light up a cigarette in the office or a restaurant — once commonplace, but now unthinkable. Hopefully the dust will settle in NZ and consensus be achieved. If it only saves one child’s life, it has to be worth the trouble.

Image credit: © stock.adobe.com/au/Dominique Ducouret

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