Determinations issued
Determination 2005/156
Notice to fix re access and facilities for use by people with disabilities.
The application arose from a territorial authority’s issuing of a notice to fix requiring the upgrading of a building’s access and facilities for use by people with disabilities.
The notice
A complex of five detached buildings, which between them contained 11 unit-titled apartments, had been formed by the subdivision of a larger motel complex, which had included a number of ‘accessible’ units that included features to permit use by people with disabilities. The apartment concerned was originally an accessible unit, but was subsequently altered, without a building consent, with the result that some of its facilities were no longer accessible. The unit title holders of many of the apartments, including the one concerned, made them available to the general public as holiday accommodation.
When the territorial authority became aware of the alteration, it issued a notice to fix requiring certain building work to be undertaken to make the apartment accessible.
The issues
The issues before the Chief Executive were as follows.
- For the purposes of the determination, was the building concerned:
(a) all of the units in the new complex, which consisted
of ‘2 or more buildings. . . managed as 1 building with a common use
and a common set of ownership arrangements’ as provided
by section 8(c)(ii) of the Building Act, or
(b) only the particular unit concerned?
- Did section 118 of the Building Act apply to the building concerned so that it was required to include access and facilities for people with disabilities?
- Was the notice to fix properly issued?
- Should the territorial authority’s decision to issue the notice to fix be confirmed, modified or reversed?
The decision
The Chief Executive took the view that:
- if section 118 applied so that the building concerned was required to comply with the provisions of the Building Code for access and facilities for use by people with disabilities, then it was more
reasonable to apply those provisions to the complex as a whole, so that only a certain number of the apartments were required to be accessible, than solely to the unit concerned. Otherwise, whenever any of the buildings making up the complex was being altered that building would have to be upgraded.
- the provisions for access and facilities for use by people with disabilities did apply because all, or most, of the apartments were used to ‘provide accommodation for the public’ and therefore came within clause (j) of Schedule 2 to the Building Act.
-
for the purposes of the mandatory upgrading requirements of section 112, it had to be accepted that, at the time of subdivision, the new complex complied as nearly as is reasonably practicable with the provisions of the Building Code for access and facilities for use by people with disabilities
- the notice to fix had required that the apartment concerned be brought to a greater degree of compliance than at the time of subdivision. The notice had also specified an unreasonably short timeframe for the completion of the work.
Determination 2006/22
Requirement for fencing a swimming pool in a small back yard
The application for determination
The application arose from the refusal by a territorial authority to amend a building consent for a swimming pool so as to omit a safety barrier separating the pool from a small back yard.
There was a minimal area (the front yard) between the house and the street. Behind the house there was a back yard of approximately 125 m2 which contained the 24 m2 swimming pool. The owners wished to omit a safety barrier along one side of the pool. The result would be that the remaining safety barriers would surround effectively all of the back yard.
The question for determination
The question for determination was whether virtually the entire back yard could properly be described as ‘the immediate pool surround’ for the purposes of clause F4.3.5(a) of the Building Code or as ‘the immediate pool area’ for the purposes of clause F4.3.4(f) of the Building Code.
The Chief Executive’s approach to the questions
The Chief Executive took the term ‘immediate pool surround’ to mean an area around the pool into which it would be unsafe for young children to go unless someone able to protect them was also in the same area (see Determination 2003/6). Applying that approach to this case, the Chief Executive considered that an adult in the back yard who was engaged in activities not related to the use of the pool might not necessarily be aware if a young child was in danger. Accordingly, the back yard could not be accepted as 'the immediate pool surround’.
Since Determination 2003/6 was issued, the term ‘immediate pool area’ in the Fencing of Swimming Pools Act had been considered by the High Court in Waitakere City Council v Hickman.1 The Court held in effect that the immediate pool area was an area used for ‘activities or purposes carried out in conjunction with the use of the pool’.
Activities that would not usually be carried out in conjunction with the use of the pool included the use of clothes lines, vegetable gardens, vehicle or pedestrian access ways, and planting for landscape purposes. On the other hand, activities that would ordinarily be carried out in conjunction with the use of the pool included the use of pool furniture, changing sheds, pumps or pool maintenance equipment, sunbathing areas, and diving boards or other pool equipment.
In considering what activities were likely to be carried out in the back yard, the Chief Executive noted that, on average, houses in New Zealand changed ownership with relatively low frequency, and took the view that both present and future owners of the house must be taken into account when considering what activities were likely to be undertaken in the back yard. Taking that approach in the light of the High Court decision, the Chief Executive considered that future owners were likely to use the back yard as a children’s play area and for other outdoor activities not necessarily associated with the use of the pool, simply because there was no other suitable outdoor area.
The decision
The Chief Executive therefore concluded that the entire back yard could not properly be described as ‘the immediate pool surround’ or ‘the immediate pool area’, and accordingly confirmed the territorial authority’s decision not to amend the building consent.
To read all the Determinations in summary or in full, go to: www.dbh.govt.nz