Introduction

What is the Fencing of Swimming Pools Act 1987?

The Fencing of Swimming Pools Act 1987 was introduced following general concern about the number of children under six drowning in swimming pools.

The Act requires swimming pools and spa pools to be fenced except where an exemption applies. It states what types of pool must be fenced and how they must be fenced. It also places an obligation on territorial authorities to ensure that pool owners comply with the Act.

Although the Act does not have a stated purpose within its text, the Act was intended to promote the safety of young children around swimming pools. The evaluation of the Act will not question the existence of the Act, but will look at ways to improve its effectiveness.

The Act is closely linked into the Building Act 2004. Figure 1 (below) plots how the two Acts interface and shows that compliance with the Act is dependent on compliance with the Building Act 2004.

A building consent is required to:

• build or install a pool
• fence an existing pool.

To obtain a building consent, the fence design must satisfy the performance standards of the Building Code (set out in the Building Regulations 1992). One way to do this is to use Compliance Documents¹ which reference Schedule One of the Act.

Someone building a swimming pool must comply with both the Fencing of Swimming Pools Act 1987 and the Building Act 2004. The effect of this is to ensure that territorial authorities are aware of all new pools being built or installed in their area so they can monitor ongoing compliance with fencing requirements.

The Act enables territorial authorities to:

• inspect for fences on existing pools built prior to the Building Act 1991 for compliance
• inspect new pools during the building process to ensure compliance with both the Building Act 2004 and the Fencing of Swimming Pools Act 1987
• make subsequent inspections on all pools to ensure ongoing compliance with the Fencing of Swimming Pools Act 1987 and the Building Code
• prosecute pool owners who fail to erect (where one does not exist) or maintain a compliant fence around their pool.

A key purpose of the Act is to ensure that pool owners (whether they built the pool or inherited it from the previous land owner) do not allow fences to fall into a state of disrepair, enabling a young child to access the pool. Pools incorporated entirely within a domestic house are exempt from fencing requirements.

Background

In 1986, pool fencing was deemed the most effective means of preventing drownings of pre-school children in private swimming pools. The number of unnecessary deaths from drownings in private swimming pools provided the impetus for Parliament to enact the Fencing of Swimming Pools Act 1987. Statistics from Water Safety New Zealand² show drownings of children under six years old have decreased significantly since the introduction of the Act.

Table 1: Comparison of drowning figures for children UNDER SIX in swimming pools (including spa pools)
Period 1980 - 1986 (7 years prior to the act)	Period 1987 - 1996 (decade post act)	Period 1997 - 2006 (the last decade)
81	68	44

Between 1980 and 2006, 193 children under six years old drowned in swimming and spa pools in New Zealand. Of these, 162 drownings were in private pools (74 in the seven years prior to the Act and 88 in the 20 years following its introduction).

The effect of the Act can be seen in Figure 2 (below) which plots the trend over the last 27 years. While the precise number of swimming pools (including spa pools) in New Zealand is not known, it is estimated that they have increased from around 57,593 in 1996 to 73,670 in 2006³ (there are no estimates on the number of pools prior to 1996).

The gradual decline in the number of children drowning under six years old shows that the Act has had an effect, particularly bearing in mind the increase in the number of swimming pools by an estimated 30% in the last 10 years alone.

Although the statistics have shown a reduction in drowning numbers, children are still drowning.

There has been criticism of the clarity of parts of the Act (see Table 2: Summary of Issues). Since the Act came into force, various arms of the Judiciary (namely the High Court and Coroners Court), have requested urgent attention by government to address discrepancies and ambiguities. Territorial authorities have also said they face difficulties enforcing the Act effectively because the Act is not clear and because they do not have the powers and resources they need to force pool owners to comply. Consequentially, pool owners have said this uncertainty has led to inconsistent and unfair enforcement of the Act.

Following the transfer of the administration for the Act to the Department in October 2006, the Department agreed with the Minister for Building and Construction a programme of work to address these issues. Once the evaluation is complete, the Department will report its findings back to the Minister.

¹ The Department of Building and Housing publishes Compliance Documents. These set out a method of complying with a specific requirement of the Building Code. Compliance Documents are commonly followed in domestic building projects because they provide a straightforward 'building recipe'.

² Water Safety New Zealand Inc is a national organisation responsible for educating New Zealanders on water safety issues and raising public awareness of dangers associated with water. The organisation maintains a comprehensive database of statistics on drowning incidents.

³ Based on a study in January 2007 by the University of Otago's Injury Prevention Research Unit into the compliance and enforcement of the Fencing of Swimming Pools Act 1987 commissioned by Water Safety New Zealand. The study estimated 16,600 new pools were constructed in the last 10 years from data provided by territorial authorities.