Territorial authorities' obligations around the fencing of swimming pools

The recent drowning of a 21-month old child in Levin serves as a timely reminder of the importance of ensuring private swimming pools and spa pools are properly fenced.

Territorial authorities have important statutory responsibilities to help ensure that existing and new swimming pools and spa pools in their districts are properly fenced and stay properly fenced. These responsibilities are contained in two key pieces of legislation: the Fencing of Swimming Pools (FSP) Act 1987 and the Building Act 2004.

The Fencing of Swimming Pools Act (FSP) is currently being reviewed by the Department of Building and Housing. This is to ensure that the legislation is operating as effectively as possible to prevent infant drownings. A first round of consultation happened earlier this year, closing on 30 June 2008. Over 80 submissions were received, which are currently being analysed for possible improvements that can be made to the Act. A second consultation is planned for 2009 on the proposed improvements.

Swimming pool drownings

Between 1980 and 2006, 193 children under six years old drowned in swimming and spa pools in New Zealand. Of this total, 162 drownings were in private pools - 74 in the seven years prior to the FSP Act coming into force, and 88 in the 20 years following its introduction.

Obligations under two Acts

Territorial authorities need to be fully aware of their specific obligations and responsibilities under both the FSP Act and the Building Act and also how the interface between the two Acts works.

The FSP Act requires swimming pools and spa pools to be fenced, except where an exemption applies.¹ The FSP Act covers what types of pool must be fenced and how they must be fenced. It also places an obligation on territorial authorities to help ensure that pool owners comply with the Act. More specifics about such obligations are outlined below.

The FSP Act is closely linked with the Building Act 2004. Under the Building Act, a building consent is required to build or install a pool or to fence an existing pool. To obtain a building consent, the design work in the building consent application must satisfy the performance standards of the Building Code.

One way to do this is to use Compliance Documents published by the Department of Building and Housing, which reference Schedule One of the FSP Act. Schedule One sets out a means of compliance for fences under the FSP Act and covers issues such as the height of the fence, ground clearance, materials to be used in the fence, gates and doors used and how they operate. The diagram, right, describes the relationship between the two Acts and shows that compliance with the FSP Act is partly dependent on compliance with the Building Act.

Someone building a swimming pool must comply with both the FSP Act and the Building Act. This helps ensure territorial authorities are aware of all new pools being built or installed in their area so they can monitor ongoing compliance with fencing requirements.  

Interface between the Fenancing of Swimming Pools Act and the Building Act

The Fencing of Swimming Pools Act 1987

Pool owners

The FSP Act requires owners of existing swimming pools (unless they are exempted) to ensure their pool is fenced to the appropriate standard required by the Act (section 8).

Pool owners are obliged to comply with any reasonable requirement of the territorial authority to advise it of the existence of the pool (section 7(1)). Owners intending to build a new swimming pool must also comply with the FSP Act and notify the territorial authority of their intention to construct or install the pool before the construction or installation commences (section 7(2)). Lodging a building consent application for the proposed construction or installation of the pool is sufficient to meet this requirement. Pool owners who to fail to comply with the FSP Act's requirements in these sections commit an offence.

Territorial authorities' role and obligations

Territorial authorities have a statutory obligation to take 'all reasonable steps' to ensure that the FSP Act is complied with within their district (section 10). Guidelines are available which give more detail on what 'all reasonable steps' means.² However, in summary this is likely to include the following sorts of activities.

Activity	Options
Informing owners of their responsibilities under the FSP Act	Sending letters or information flyers to owners, having web-based information, publishing newspaper advertisements. Other options could involve including information with rates letters, informing people during the building consenting process under the Building Act 2004, or advising applicants for Land Information Memoranda of the FSP Act's requirements.
Locating existing pools in their area	Territorial authorities should maintain a database of all existing pools in their areas and keep it up to date. If current information on existing pools is inadequate, possible means of working out the number of pools in the district include house-to-house surveys, aerial surveys, or checking with Valuation New Zealand for details of properties.
Conducting inspections	Inspections are a routine compliance tool that all territorial authorities should regularly undertake. Under the FSP Act, territorial authorities can: - inspect fences on existing pools built prior to the former Building Act 1991 for compliance - inspect new pools during the building process to ensure compliance with both the Building Act 2004 and the FSP Act - make subsequent inspections on all pools to ensure ongoing compliance with the FSP Act and the Building Code. This is important to help ensure fences do not fall into a state of disrepair over time. The FSP Act allows territorial authority officers to enter onto and inspect a property. However, it is important that such monitoring and compliance activity is carried out lawfully. For instance: - the inspection must be done at a reasonable time of day, and - there must be reasonable grounds to believe that there is an unfenced or inadequately fenced pool on the property or that a special exemption under section 6 of the FSP Act is not being properly complied with, and - officers should have proper warrant, identification, know the scope of their actual powers, and always act within them (see section 11).
Taking enforcement action	Under the FSP Act, territorial authorities can prosecute non-complying pool owners who fail to erect a fence (where one does not exist) or fail to maintain a compliant fence around their pool. A court prosecution should be undertaken when other means of obtaining voluntary compliance have failed. Enforcement proceedings under the Building Act 2004 may also be an option for territorial authorities to consider in certain cases (see facing page).

The Building Act 2004

The Building Act 2004 specifies a range of core building control responsibilities on local councils. Some of these link closely with territorial authorities' obligations under the FSP Act 1987. There are two main ways that this is the case.

Compliance checking

Historically, territorial authorities have been responsible for enforcing the Building Act in their districts. A large part of this role has involved building officials undertaking their core compliance checking role, which can involve processing building consent applications and issuing building consents, inspecting building work as it is constructed, and approving completed building work.

The Building Act 2004 introduced a new scheme to help strengthen how local councils undertake such functions. From 31 March 2009, these functions will only be able to be carried out by organisations that have been accredited and registered as building consent authorities. 72 out of 73 territorial authorities across the country applied for accreditation as a building consent authority. Many have since become accredited and are now fully approved to operate as building consent authorities. The others are steadily working towards achieving accreditation and, until 31 March 2009, are deemed to be building consent authorities. These organisations are therefore responsible for assessing building consent applications that relate to the building or installing of a pool or the fencing of an existing pool to ensure the application complies with the Building Code. Clause F4 of the Building Code sets out some broad performance standards, which include pool fencing.

As the building project progresses, council building inspectors may also carry out inspections to ensure the building work complies with the building consent and other relevant requirements under the Building Act.

Enforcement of the Building Act 2004

Territorial authorities have a number of enforcement powers under the Building Act, which are directly relevant to the fencing of pools and complement their enforcement powers under the FSP Act 1987.

Notices to fix

Building consent authorities or territorial authorities can issue notices to fix under the Building Act if they have reasonable grounds to believe that a person is contravening or failing to comply with the Building Act or regulations made under the Act. Such notices require a person to remedy the breach in question.

Examples where a notice to fix may be issued could include where:

• the owner has failed to obtain a building consent for the pool or pool fence, and building work has been progressed
• building work relating to the pool or pool fence does not comply with the building consent issued by the building consent authority.

Infringement notices

The Building (Infringement Offences, Fees, and Forms) Regulations 2007 give territorial authorities the option of issuing an infringement notice on any person who commits an offence by not complying with certain provisions of the Building Act. These regulations specify the exact offences in the Act that can be dealt with as infringement offences and the fees payable that are associated with each. These fees range from $250 to $2,000 depending on whether the offence is procedural in nature or more serious.

Examples of where an infringement notice could be issued by a territorial authority relating to the fencing of pools include where:

• pool owners fail to comply with the Building Act's requirement that building work be carried out in accordance with the building consent (see section 40)
• pool owners fail to comply with a notice to fix issued under the Building Act (see section 168).

Prosecution

Territorial authorities can also initiate prosecution proceedings in court if they reasonably believe that an offence under the Building Act has been committed.

Some territorial authorities may choose to take enforcement action under the Building Act rather than the FSP Act 1987, as they believe there is a better enforcement frame-work in the more modern Building Act. For instance, there is a higher penalty for the offence of failing to comply with a notice to fix under the Building Act than there is for an offence under the FSP Act 1987. This may provide a bigger deterrent for the behaviour in question.

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1. Certain types of swimming pools are exempted from the FSP Act, such as public swimming pools, pools less than 400 mm deep, indoor residential pools and pools with sides higher than 1.2 m. Territorial authorities may also grant special exemptions. 

2. Download the Guidelines for Territorial Authorities on the Fencing of Swimming Pools [PDF 459 KB, 40 pages].