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However, we note that one Council that we have been in correspondence with concerning the issue set out a compelling argument for managing risk if certain geotechnical issues are present at the intended site.

Accordingly, the NZPIA is of the understanding our members do not have to apply for building consent to construct a residential swimming pool that complies with clause 23 Schedule 1 Building Act ; however, they may submit such an application in circumstances where they wish to obtain guidance from Council concerning the intended site.

In respect of pool fencing, the Building Pools Amendment Act at section 18 1 amended clause 21 2 so that fences which do not require a building consent does not include pool fences. Accordingly, our members will continue to apply for a building consent for all intended pool fences.

New pool safety legislation came into effect in New Zealand on 1 January Provisions in the building code included clause C 1which 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 C 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 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'.

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What is a suitable physical barrier? 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 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.

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.

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, 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 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 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.

You’ll learn:

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.

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