Problem identification

The reason the law requires people to fence their swimming pools is to promote the safety of young children around swimming pools. The number of children under six years old drowning in swimming pools has reduced from an average of 11.5 drownings per year in the seven years before the Act, to an average of four drownings per year in the last seven years.

However, on average four children under six years old are still drowning each year. By addressing the issues with the Act and how they impact on the safety of children around swimming pools the Act may be made even more effective. We have identified nine main causes why young children continue to drown in swimming pools and the impact this has on their safety around swimming pools. Figure 3 identifies the impact of the causes that lead to drownings.

Questions

Q Do you agree with this breakdown of the causes of child drownings and, if not, why not? Have we missed anything?

 

Issues

The evaluation of the Act will not question the existence or purpose of the Act. Statistics show the numbers of drownings have continued to fall steadily since 1987. However, children are still drowning and the Department is aware there are operational issues around compliance and enforcement. The following is a table summarising the issues we would like your feedback on.

Table 2: Summary of Issues

	Issue	Summary
1	Restricting the access of young children to swimming pools	This section begins a discussion on whether fencing is still the best means of keeping young children safe around swimming pools. It discusses the various methods of restricting children's access to swimming pools outlined in a new New Zealand Standard, and what changes would need to be made to the Act to reference all the changes.
2	Public awareness of the Act.	This section addresses the perceived issue of how low public awareness of pool owners' obligations under the Act is affecting compliance levels.
3	Section 2 and 5 interpretation of 'swimming pool'	This section looks at concerns raised by pool owners and territorial authorities that sometimes it is difficult to determine whether a pool is a swimming pool for the purposes of the Act and therefore requires fencing.
4	Section 2 interpretation of 'immediate pool area'	This section is a discussion around difficulties in determining what should be fenced and what should remain outside the fenced pool area. For example, barbecues, a dining area, a children's play area.
5	Boundary fencing	This section looks at the issue of whether fencing the boundary of a property satisfies the requirements of the Act to fence the pool.
6	Ready-made pools	This section looks at issues to do with ready-made pools. These are often installed without adherence to either the Act or the Building Act 2004. Territorial authorities have little or no way of knowing how many properties have ready-made pools in their area so they can enforce the legislation.
7	Non-notification of pools	This section deal with problems experienced by territorial authorities in enforcing the Act when they are not notified of the existence of pools in their area.
8	Records	This section deals with record-keeping. Many territorial authorities do not have systems for recording the whereabouts of swimming pools in their area that need to be inspected.
9	Re-inspection	This section deals with re-inspection issues. Not all territorial authorities have a policy to re-inspect pool fencing for ongoing compliance with the Act.
10	Territorial authorities' powers	This section addresses the need for greater powers of enforcement. Territorial authorities have expressed a need for more powers to enforce the Act and ensure pool owners meet their obligations.

Analysis of issues

1 Restricting the access of young children to swimming pools

In this section we begin a discussion on whether fencing should be the only means of protecting young children around swimming pools or whether there are alternatives that are equally (or more) effective in preventing young children from drowning.

The Act in its current form is centred on the need for fencing around swimming pools. There is no clear objective or purpose statement in the Act, although it is implicit that the reason for fencing is to prevent unsupervised access to swimming pools. The intention of this discussion is not to do away with fences, but to look at widening the options and shifting the focus away from fences and towards what the Act is trying to achieve: ensuring swimming pools do not pose a drowning risk to young children.

Similarly, the Building Code sets performance standards only for fences as a means of achieving compliance with the Act. The performance-based Code sets out the standard that must be achieved, provides an Acceptable Solution to achieving the standard, but leaves the way open for alternative fencing solutions to meet the standard. There is an opportunity to shift the focus away from performance standards for fences and instead provide a wider performance standard in line with the purpose of the Act, ie, to put in place safety systems around pools that will prevent unsupervised access to swimming pools and reduce drownings.

The Act has been in place for 20 years and since then there have been changes in the way pools are designed and built, how they are used and the safety systems to prevent drowning. This evaluation is an opportunity to look at alternatives to fencing and assess whether any of these are viable.

The New Zealand Standard NZS 8500 takes a first step in this direction. It talks about the use of lockable lids for spa pools as an alternative to fencing. Also available on the market are rigid retractable covers for swimming pools. It is solutions like these we are seeking your feedback on.

In addition we are looking at whether to reference the Standard in a Compliance Document. This would give a benchmark for the performance standard set by the Code. The Standard cannot currently be referenced because the Act clearly states that a pool must be 'fenced by a fence', whereas the Standard enables spa pool owners to do away with fences if they have a lockable lid. To reference the Standard, the Act must be changed to allow alternatives to fencing.

If the Act is changed to allow alternatives to fencing, some of the following changes will need to be made.

1) The name of the Act would need to change to reflect the 'purpose' rather than the method of compliance (as it currently does).

2) The Act would need to state clearly its purpose (to ensure pool owners restrict young children accessing their pool) and objectives (to prevent drowning).

3) The wording of the Act would need to change to be in line with the purpose of the Act.

4) The Building Code would need to set clear performance standards to enable territorial authorities to assess the validity of alternatives.

Questions

Q1.1 Is fencing the most effective means of preventing young children from drowning?

Q1.2 What alternatives to fencing are available? What are the advantages and disadvantages of these? How does the drowning risk compare to fencing a pool?

Q1.3 What advantages do you anticipate from shifting the focus from fencing to a purpose statement requiring pool owners to restrict access to the pool to prevent drowning?

Q1.4 What disadvantages do you anticipate from shifting the focus from fencing to a purpose statement requiring pool owners to restrict access to the pool to prevent drowning?

Q1.5 What costs would be involved for territorial authorities, pool owners and/or anyone else in making this change?

Q1.6 Are there other impacts we should consider in making this change?

Q1.7 Are there other options that should be considered?

2 Public awareness

We have identified that one of the major barriers to compliance with the Fencing of Swimming Pools Act 1987 is the low level of public awareness of the law. This was supported in a recent report (published in January 2007) commissioned by Water Safety New Zealand which surveyed territorial authorities on compliance and enforcement with the Act.

In the survey, territorial authorities were asked to rank six commonly given reasons for not fencing a pool. Lack of knowledge of the law was the second most common reason given by pool owners. The reasons given ranked from most to least common were:

• lack of fencing options
• lack of knowledge of the law
• cost of fencing
• presence of other unfenced water hazards on the property
• owner doesn't agree with the law
• no pressure from the local authority to comply.

We would like to understand why public awareness of pool owners' obligations to install and maintain a fence around their pools is low.

Questions

Q2.1 Do you agree that there is low public awareness of pool owners' responsibilities under the Act?

Q2.2 What evidence is available to support this view?

Q2.3 What do you think of the following options for increasing public awareness? More information available on the Act A clearly stated 'purpose' in the Act Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing Incorporating the Act into the Building Act 2004

Q2.4 What other options are there to increase public awareness?

Q2.5 What is your preferred option and why?

Q2.6 What would be the impact of your answer to the last question on pool owners, territorial authorities, and the public as a whole (including advantages and disadvantages and estimates of any financial impacts)?

Q2.7 What would be the impact if this issue is not addressed?

 

3 Interpretation of 'swimming pool':

The Act requires pool owners to erect and maintain a fence around their swimming pool. We have been told that sometimes it is hard to determine whether a pool is a swimming pool for the purposes of complying with the Act. Examples might include garden ponds, lakes or other water features.

The Act defines 'swimming pool and pool' as 'an excavation, structure or product that is used or is capable of being used for the purpose of swimming, wading, paddling or bathing; and includes any such excavation, structure or product, that is a spa pool'.

The intention is to cast the definition broadly as children drown in all manner of pools. The Act requires all pools caught by the definition to have a fence unless the pool is one of the six types exempted in section 5 of the Act, or the pool owner obtains a special exemption from their territorial authority (local council).

Figure 4 shows the process for determining whether the Act will apply.

We understand the issue is about the determination of whether a pool must be fenced. The effect is different interpretations of the Act being applied. For example, a pool that may be exempt in one area is not exempt in another.

Questions

Q3.1 Do you agree that clarity of the law and inconsistent application of it are issues? if so, please provide examples of types of pools where the Act is not clear or where there has been inconsistent application of the Act.

Q3.2 What do you think of the following options for improving clarity? Amending the Act to simplify the test More information available on the Act Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing

Q3.3 What other options are there to improve clarity?

Q3.4 What is your preferred option and why?

Q3.5 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q3.6 Are there pools that should not require fencing? What are these and why?

Q3.7 What would be the impact of your answer on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q3.8 What would be the impact if this issue is not addressed?

4 Interpretation of 'immediate pool area':

The Act requires pool owners to ensure some or all of the immediate pool area, including all of the pool, is fenced. Section 2 of the Act defines the 'immediate pool area' as:

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.

In 1999, the Department of Internal Affairs produced a guidance document for territorial authorities to help them determine the boundaries of the immediate pool area. This said the 'immediate pool area' may include the pool, its decking, and any changing sheds, but not a vegetable garden, a clothes-line, a barbecue area, a children's sandpit, or a slide or swing. The fence should prevent young children moving directly to the pool from the house, other buildings, garden paths, or other areas of the property normally open to them.

In 2004, Waitakere City Council sought a declaratory judgment in the High Court to get further clarity on the meaning of immediate pool area. This indicated that the activities included in the 'immediate pool area', for example a barbeque, need not occur exclusively in conjunction with the use of the pool. However, the activity must be closely connected, associated or combined with the use of the pool.

Currently the Act requires the size of the 'immediate pool area' to be determined by territorial authorities based on the circumstances of each case. In practice, 'immediate pool area' is being interpreted very differently from one territorial authority to the next.

In 2007, a survey report commissioned by Water Safety New Zealand, found that defining the immediate pool area was stated by territorial authorities as the greatest difficulty they faced in enforcing the Act.

Questions

Q4.1 Do you agree that the interpretation of 'immediate pool area' is unclear? Why?

Q4.2 What do you think of the following options for improving clarity? Amending the Act to increase clarity More information available on the Act Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing

Q4.3 What other options are there to improve clarity?

Q4.4 What is your preferred option and why?

Q4.5 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q4.6 What do you think the 'immediate pool area' should include? Why?

Q4.7 What would be the impact of your answer on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q4.8 What would be the impact if this issue is not addressed?

5 Boundary fencing

The Act requires pool owners to ensure some or all of the immediate pool area, including all of the pool, is fenced. A definition of 'immediate pool area' is in the previous section.

We have been told the words 'some or all' create uncertainty about exactly what area must be fenced, and in particular whether boundary fencing is compliant, since the Act does not explicitly exclude fencing all of the immediate pool area and more.

This point was also identified by High Court Judge Randerson in Waitakere City Council v Hickman and Anor,⁴ where the territorial authority sought declaratory judgments on several interpretation issues with the Act.

Judge Randerson ruled out boundary fencing, concluding the fenced area must be sufficiently confined so that it may properly be described as being in the 'immediate' area of the pool. This supports the guidance document issued by the Department of Internal Affairs which said: 'The fence should prevent young children moving directly to the pool from the house, other buildings, garden paths, or other areas of the property normally open to them.'

However, the 2007 survey report commissioned by Water Safety New Zealand shows that territorial authorities identified boundary fencing as the second greatest difficulty they faced in enforcing the Act.

Questions

Q5.1 Do you think the legitimacy of boundary fencing is unclear? Why?

Q5.2 What do you think of the following options for improving clarity? Amending the Act to increase clarity More information available on the Act Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing

Q5.3 What other options are there to improve clarity?

Q5.4 What is your preferred option and why?

Q5.5 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q5.6 Do you think boundary fencing should be a means of compliance? Why?

Q5.7 What would be the impact of your answer on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q5.8 What would be the impact if this issue is not addressed?

6 Ready-made pools

Since 1980, of the 162 children under six years old who drowned, 17 drowned after climbing or falling into a spa pool. Spa pools and other 'ready-made pools' are included within the definition of 'swimming pool' under the Act, and owners of these type of pools must comply with the fencing requirements.

As ready-made pools can be bought in a shop and easily installed by the owner, the building control process is known to be inadvertently or intentionally bypassed.

The reason for requiring that ready-made pools enter the building control process is so they can be assessed for the drowning risk they pose to young children. The building consent process enables territorial authorities to assess the drowning risk and require, or give special exemption from, the fencing requirements to be met.

These controls are important because once territorial authorities are notified of the existence of a ready made pool they can:

• assess the drowning risk to young children
• inform the pool owner of their obligations under the Act
• ensure the pool owner complies with the Act and or any special exemptions so that young children's lives are not put at risk
• do re-inspections to ensure that the Act and/or any special exemptions are being complied with.

Questions

Q6.1 What could be done to increase compliance with the Act in respect of ready-made pools?

Q6.2 Given the level of risk, should spa pools be treated the same as swimming pools?

Q6.3 What do you think of the following options for improving compliance? More information available on the Act Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing

Q6.4 What other options are there to improve compliance?

Q6.5 What is your preferred option and why?

Q6.6 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q6.7 What would be the impact if this issue is not addressed?

7 Non-notification of pools

Every pool owner is obligated to inform their territorial authority of the existence of the pool. Likewise, every person who proposes to construct or install a pool that falls within the definition of swimming pool under the Act must inform the territorial authority before they start the work. Since the Building Act 2004 requires a building consent be obtained to do the work, an application for a building consent is deemed to be notification.

Non-notification of pools puts the lives of young children at risk and makes it very difficult for territorial authorities to meet their obligation to enforce the Act. Notification of the existence of a pool is important because territorial authorities:

• need to have complete records of all the pools in their area
• must inspect all pools in their area and cannot do so unless they know a pool exists
• can assist pool owners to understand their obligations under the Fencing of Swimming Pools Act 1987
• can systematically re-inspect pools to ensure ongoing compliance.

A pool owner commits an offence when they do not notify the territorial authority of the existence of their pool by contravening either the Act, the Building Act 2004, or both.

The problem of non-notification is two-fold.

• People who buy a property with a pool may assume that the existence of the pool has been notified to the territorial authority and that the fence has been inspected and approved.
• A person who proposes to construct or install a pool may fail to notify their territorial authority as they are either unaware of, or unwilling to adhere to, the Act.

Questions

Q7.1 Do you think there is a problem of non-notification?

Q7.2 If so, why is this? How big a problem is it?

Q7.3 What do you think of the following options for improving notification? More information available on the Act and pool owners' responsibilities Information on the Act distributed to pool owners by territorial authorities, designers, retailers and builders of pools and pool fencing

Q7.4 What other options are there to improve notification?

Q7.5 What is your preferred option and why?

Q7.6 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q7.7 What would be the impact if this issue is not addressed?

8 Records

The Act does not specify that territorial authorities must keep records, only that they must take 'all reasonable steps' to ensure the Act is complied with.

This is a wide obligation, intended to enable territorial authorities do everything within their means to ensure pool owners comply with the Act, including locating and inspecting existing pools in their area.

While most territorial authorities keep records of pools in their area, we have been told some territorial authorities do not keep any records. We would like to understand the importance of record-keeping to territorial authorities in ensuring that pool owners comply with the Act.

Questions

Q8.1 How important is record-keeping, and why?

Q8.2 Do you think record-keeping is necessary for territorial authorities to meet their obligations under the Act?

Q8.3 What do you think of the following options for improving records? Amending the Act to require records to be kept More guidance information available on how territorial authorities can meet their obligations under the Act

Q8.4 What other options are there to improve record-keeping?

Q8.5 What is your preferred option and why?

Q8.6 What would be the impact of your answers on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and estimates of any financial impacts)?

Q8.7 If you are a territorial authority, what system of record-keeping do you have? If none, please state this.

Q8.8 If none, what other means do you use to meet your obligations under the Act?

Q8.9 What would be the impact if this issue is not addressed?

9 Re-inspection of pools

The Act gives territorial authorities the power to inspect the pool fencing at the time the pool is being built, and to subsequently make periodic re-inspections.

The importance of re-inspection is to ensure that fences are not left to degrade to an extent that children are able to access the pool. For example, broken latches on gates must be fixed. It is also important because properties with pools change ownership, and new owners need to be aware of the importance of maintaining the fence.

However, the Act does not specify that territorial authorities must carry out re-inspections to ensure the fencing is being maintained and is still compliant.

We would like your feedback on the importance of re-inspections.

Questions

Q9.1 How important are re-inspections, and why?

Q9.2 Do you think re-inspections are necessary for territorial authorities to meet their obligations under the Act? How frequently should re-inspections occur? Who should meet the costs of re-inspections?

Q9.3 What do you think of the following options for re-inspections? Amending the Act to require territorial authorities to do regular re-inspections More guidance information available on how territorial authorities can meet their obligations under the Act

Q9.4 What other options are there for re-inspections?

Q9.5 What is your preferred option and why?

Q9.6 What impact would your suggestions have on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and financial costs)?

Q9.7 If you are a territorial authority, what policy of re-inspection do you have? If none, please state this.

Q9.8 If none, what other means do you use to meet your obligations under the Act?

Q9.9 What would be the impact if this issue is not addressed?

10 Territorial authorities powers

We have been told by territorial authorities that they do not have sufficient powers to enforce the Act, as their only enforcement option is bringing costly prosecution proceedings.

Since the Act came into force in 1987, only a small number of prosecutions have been brought by territorial authorities for offences under section 9 of the Act.

Unlike the Building Act 2004, this Act does not provide for intermediate enforcement measures like infringement notices. Territorial authorities have told us they use Notices to Fix under the Building Act 2004 as a means of enforcement. However, territorial authorities must still undertake prosecution proceedings where a pool owner does not comply with the Notice to Fix. The main difference is there is a much higher penalty for the offence of failing to comply with a Notice to Fix under the Building Act 2004 than for an offence under the Act.⁵

The Building Act 2004 does provide for infringement notices and fines, and regulations for these are currently being developed. Once these regulations are in force, territorial authorities will be able to issue infringement notices to people who do not comply with a Notice to Fix.

We have been asked to look at whether infringement notices and fines could be adopted as an enforcement method under the Act to reserve prosecution as a last resort for persistent offenders only.

Questions

Q10.1 There have been a very small number of prosecutions brought by territorial authorities since the Act came into force. In your view, does this accurately reflect the number of pool owners not complying with the Act? If not, please provide more details about why there are not more prosecutions.

Q10.2 If you are a territorial authority, what is your policy for enforcing the Act when a pool owner is not complying with their obligations? Do you regularly use Notices to Fix and, if so, how many did you issue in the last year? How effective are they in enforcing the Act?

Q10.3 What do you think of the following options? Amending the Act to enable territorial authorities to issue infringement notices and fines for offences under the Act Moving enforcement of the Act under the Building Act 2004 to bring it into line with other building-related offences, ie, by moving offences under the Act into the Building Act, and providing for infringement notices to be issued for offences under the Building Act. Do nothing

Q10.4 Are any other options available?

Q10.5 What impact would each of these options have on pool owners, territorial authorities, and the public as a whole (including advantages, disadvantages and financial costs)?

Q10.6 What is your preferred option and why?

Q10.7 Do you think the penalty for an offence under the Act needs to be increased? If so, by how much? What would be the advantages and disadvantages of this?

Q10.8 In light of your responses above would enforcement measures be improved, and to what extent?

⁴ Waitakere City Council v Hickman [2005] NZRMA 204

⁵ Prosecutions of an offence under the Act may attract a fine not exceeding $500 and, where the failure is a continuing one, a further fine not exceeding $50 for every day on which the failure has continued. Compare this with a failure to comply with a Notice to Fix, which may attract a fine not exceeding $200,000 and, in the case of a continuing offence, a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.