Auckland Regional Public Health Service
Cornwall Complex
Floor 2, Building 15
Greenlane Clinical Centre
Private Bag 92 605
Symonds Street
Auckland 1150
New Zealand
Telephone: 09-623 4600
Facsimile: 09-623 4633
27 October 2015
Submission to the Local Government and Environment Select
Committee on the Building (Pools) Amendment Bill
Thank you for the opportunity to provide a response to the proposed Building (Pools)
Amendment Bill.
The following submission has been prepared by the Auckland Regional Public Health
Service and is endorsed by the Chief Executives of the Auckland, Waitemata and
Counties Manukau District Heath Boards.
The primary contact point for this submission is:
Mariota Smutz
Chief Advisor Policy & External Affairs
Auckland Regional Public Health Service
Private Bag 92 605
Symonds Street
Auckland 1150
mariotas@adhb.govt.nz
Once again, thank you for this opportunity to submit on this issue.
Yours sincerely
Geraint Martin
Chief Executive
Counties Manukau Health
Dr Dale Bramley
Chief Executive
Waitemata District Health Board
Jane McEntee
General Manager
Auckland Regional Public Health Service
Ailsa Claire
Chief Executive
Auckland District Health Board
Dr David Sinclair
Medical Officer of Health
Auckland Regional Public Health Service
SUMMARY AND KEY RECOMMENDATIONS
1.
The Fencing of Swimming Pools Act 1987 (FOSPA) has been a highly
effective piece of legislation.
Childhood drowning in domestic pools has
reduced by over 70% since its introduction.
We estimate that over 200
childhood deaths from drowning and several thousands of near drowning
injuries have been prevented.
2.
Fencing, maintenance and monitoring (and the associated costs) are
important aspects of responsible pool ownership.
3.
The proposed Building (Pools) Amendment Bill’s provisions are likely to erode
domestic pool safety significantly over time and increase childhood
drownings.
4.
ARPHS considers it realistic to estimate that these changes will lead to an
increase of two-five deaths over 10 years, rather than a reduction of six
deaths as estimated in the Regulatory Impact Statement (RIS).
5.
Key issues include:

Removal of the primacy of child safety;

Removal of the requirement for fencing around pools, and replacement
with “barriers” which could include methods not known to be effective;

Change from clear regulatory requirements to a more ambiguous
“performance”-based approach under the Building Code;

Exemption of some spa pools from fencing;

A “voluntary” approach to safety for spas and hot tubs, and flexible pools
(e.g. inflatables or hire pools), including for fitted lids which are meant to
be childproof, but need to be operated by adults;

A relaxation in design and construction requirements. FOSPA seeks to
prevent unsupervised pool access for children aged under six years, but
the Bill only requires barriers capable of restricting access by children
aged under five years.
Given the growth and motor developmental
change at this age, we consider this poses an additional risk;

While requiring regular inspection is an improvement, current good
practice is for three yearly inspections, not five yearly as proposed;

Continuing to allow direct access from the house via doors, and therefore
potentially eroding safety requirements, despite a three- to five-fold
increase in drowning risk compared to when direct access from the house
is prohibited;

There is no requirement for pool installers or suppliers to ensure that
there is a compliant fence or barrier;

Repeal of the duty of owners to inform councils of pools requiring fences;

Repeal of duty of Councils to ensure ongoing compliance other than
through periodic inspection.
6.
We disagree with the economic assessment that is provided to support the
Bill, because of its assumptions, interpretation of information provided by
councils, and discounting rate.
When these are amended, the reported
economic benefit of $17 million (NPV) largely disappears, and may, in some
scenarios, actually produce an economic loss.
7.
We agree that some consolidation of the legislation, clarification of standards
and processes, and supporting good practice by pool owners, installers and
councils would be useful. However, we consider that the justification given for
the changes proposed in the Bill is flawed.
8.
Auckland Regional Public Health Service recommends that the Committee
either:

sets this Bill aside and request it be redrafted, following a full assessment
of the issues raised; or

makes extensive amendments to the Bill to ensure that child safety is not
compromised, and ensures that at least the level of protection in the
existing legislation is retained.
9.
ARPHS wishes to be heard in support of this submission.
Introduction
10.
Auckland Regional Public Health Service (ARPHS) provides public health
services to the population of Auckland, Counties-Manukau and Waitemata
District Health Boards, and covers approximately 1.5 million people. A brief
description of the service is provided in Appendix 1.
11.
The proposed Building (Pools) Amendment Bill (the Bill) and associated
documents, including the two Regulatory Impact Statements (RIS 2013 and
RIS 2015), along with economic information supplied by the Ministry of
Business, Innovation and Employment (MBIE), and research reports, have
been assessed by senior public health and public policy staff at ARPHS. The
Bill has been discussed by the Community and Public Health Advisory
Committees of the Waitemata and Auckland District Health Boards and the
Board of Counties Manukau Health.
12.
This submission includes: (1) a brief overview of childhood drowning and
approaches to pool safety; (2) an assessment of the provisions in the Bill; (3)
an assessment of economic information supplied by MBIE; (4) topics not
covered in the Bill; and (5) specific comments on clauses in the Bill.
Swimming pool safety
13.
The Fencing of Swimming Pools Act 1987 (FOSPA) has been a highly
effective piece of legislation.
Childhood drowning in domestic pools has
reduced by over 70% since its introduction. Prior to FOSPA, on average
about 11 children under the age of five drowned per year in home swimming
pools. Since FOSPA came into effect, on average 2-3 children under the age
of five drowned per year in domestic pools, despite an estimated 30%
increase in the number of pools (Child and Youth Mortality Review
Committee, 2009). Using these results, we estimate that over 200 childhood
deaths from drowning and several thousand near drowning emersions have
been prevented. For each pool drowning, approximately 2-3 children sustain
permanent brain injury, and about another five survive but need hospital care.
(Kemp & Sibert, 1991; Suominen & Vähätalo, 2012)
14.
In comparison, road crashes kill on average 12-15 children and adolescents
aged under 15 years each year (NZ Transport Agency, 2015).
15.
Despite progress, New Zealand’s record on childhood drowning lags behind
comparable countries, including Australia, the UK, the USA and most of
Western Europe (Lin, Wang, Lu, & Kawach, 2014).
16.
The principles of preventing childhood drowning were thoroughly worked
through during the development of the FOSPA1, but seem to have taken a
secondary place to cost reduction in development of the current Bill.
17.
Pools are inherently hazardous for young children. Death or serious brain
injury happens rapidly (within 2-5 minutes) after emersion which means that
short lapses in parental supervision or distraction are sufficient to allow a
mobile toddler to gain access to a pool if physical barriers are not in place.
Resuscitation skills and hospital care have only a modest impact on
outcomes (Suominen & Vähätalo, 2012).
18.
Effective safety systems incorporate several components, each of which
reduces risk, and adds to the safety margin. When safety components fail
they need to fail safely, and not increase risk. For example, a damaged gate
catch should not allow the gate to be opened. Any equipment reliant on
electricity needs to return to a safe state if power fails.
19.
An extensive research review on preventing childhood drowning in domestic
pools by the internationally respected Cochrane Collaboration (Thompson &
Rivara, 1998 (Rev 2006)) concluded that:

Pool fencing is highly effective at preventing childhood drowning.

Fencing which isolates the pool and prevents direct access from the
house is about five times more effective at preventing childhood drowning
than perimeter fences which allow direct access from the house.

Fencing of both in-ground and above-ground pools reduce risk by a factor
of 4-5.

Inspection and enforcement are necessary – legal obligation and
information for owners alone are ineffective at preventing childhood
drowning.
Information on fence inspections
20.
The Ministry of Building, Innovation and Employment (MBIE) has released
information it had compiled from councils on compliance with FOSPA. While
the information from councils was incomplete, findings included:

59% of pools are already monitored three-yearly, and at least 20% of
pools are not monitored
1
See "Waitakere CC v Hickman" (2003) for a succinct historical summary

Only 44% of pools complied with FOSPA requirements when inspected.
Failure rate was 63% in Auckland, 49% in Christchurch and Wellington,
and 70% in Napier. This indicates a much higher failure rate than stated
in the supporting document for the Bill (reported at 20%).
Administration issues for the current legislation
21.
A criticism of the current legislation is that it is difficult to interpret,
cumbersome and expensive to implement, and so is implemented
inconsistently by Councils around the country.
22.
However, some councils have made considerable effort to develop processes
to make implementation practical and consistent.
Auckland Council’s
“Swimming Pool Fencing – Code of Practice”, for example, provides a
systematic approach, covering each aspect of the FOSPA requirements, links
to the Building Code and the NZ Standard NZS 5800:2006 (Safety Barriers
and Fences Around Swimming Pools, Spas and Hot Tubs), and sets out
internal council processes for assessment and decision-making. The Code,
and the Council’s policy of three yearly inspections, provides a basis for “good
practice” and a nationally consistent application of the current legislation.
23.
In addition several determinations and court cases (notably Waitakere CC v
Hickman) have clarified interpretation.
24.
It is important to consider to what extent the reported problems with the
current system result from reluctance to implement FOSPA.
For some
councils, implementation is a low priority activity which incurs costs, whereas
the benefits of reduced drownings are invisible. ARPHS considers that pool
fencing, maintenance and inspection and associated costs are actually part of
responsible pool ownership.
Bill provisions
Change from specified standard to “performance-based approach” reduces safety
margins
25.
ARPHS is concerned at the move away from the prescriptive requirements of
the FOSPA to a performance-based approach in the Building Code to specify
the requirements for restricting access to pools. This is coupled with the Bill
removing the mandatory requirement for pools to be fenced, potentially
allowing the use of less effective methods such as pool covers and alarms
instead of fences.
ARPHS is concerned that such a shift will undermine the
safety regime designed to protect young children around pools.
26.
Deregulation and the move to a performance-based Building Code have
contributed to the leaky building crisis (Easton, 2010; Hunn, Bond, &
Kernohan, 2002; Mumford, 2011).
27.
A “performance-based” approach will allow pool owners and installers to
propose methods to Councils which would appear to be effective, but would
otherwise not meet current standards. Proposals could be presented and
subsequently approved without substantiating evidence of effectiveness. We
are concerned that this will be open to subjective interpretation, and gradually
erode safety by allowing marginally effective or ineffective methods to
become acceptable solutions under the Building Code.
28.
A number of determinations and court decisions have turned down proposed
exemptions to the current FOSPA requirements on the grounds that they do
not meet regulatory standards, notably "Waitakere CC v Hickman" (2003).
We are concerned that these types of proposals could meet the lower
“performance-based” code.
29.
As an example, automated sliding doors have been proposed as an option for
direct access from a house. We have not found evidence that they are at
least as effective as current standard gates, nor that they fail safely (e.g.
during power failures).
30.
ARPHS believes the rationale for the change to a performance based
standard has not been established and that caution needs to be taken in
supporting such a move because the inconsistencies within the performance
based scheme may lead to serious adverse events.
31.
ARPHS recommends that:
a) The proposed amendment to the Building Code F9 be deleted; and
b) The contents of the Schedule to FOSPA become the basis for a regulation
under Section 20 of the Building Act specifying the only means of complying
with the Building Act for restricting access to domestic pools.
c) Work be undertaken to update the NZ Standard 8500:2006.
Spa pools and hot tubs
32.
ARPHS disagrees with exempting some spa pools from fencing requirements,
and instead relying on “childproof” covers. This contrasts with the current law
and with NZ Standard 8500:2006, Safety Barriers and Fences Around
Swimming Pools, Spas and Hot Tubs. NZS 8500:2006 section 3.10 requires
a fence for any hot tub or spa where its top surface is less than 760mm above
the surrounding ground or deck. A lockable “childproof” cover is acceptable
when a spa or hot tub is at least 760mm above ground and not easily
openable by a child under the age of six years.
33.
In this situation both the height and “childproof” lockable cover reduce risk to
some extent, but not as much as a fence and self-closing gate. The Bill
effectively removes one of these barriers for spa pools, increasing the risk of
drowning.
34.
ARPHS recommends that the Bill be amended to ensure safety is not eroded
for spa pools and that the current requirements under FOSPA as well as the
NZS 8500 2006 remain.
Direct access from houses
35.
Both FOSPA and the Bill continue to allow direct access to the pool area from
the house. This is despite research confirming that children are between
three and five times more likely to drown where there is a door directly from
the house to the pool area. The RIS notes that the law in Australia has
changed to prohibit doors from opening directly into the pool area following
this research.
36.
The RIS and associated material estimates that up to half of new home pools
have an associated door directly into the house, and over 7000 pools
currently have doors which are not self-closing.
37.
We were unable to locate any research showing that self-closing doors or
door alarms are effective in reducing childhood drowning. There is research
on the effectiveness of pool alarms, which are set off when pool water is
disturbed. The research finds these alarms may be unreliable as there can
be delays of several minutes between a child falling into the pool and the
alarm being activated (Whitfield, 2000). In addition, as well as there being
problems with a time delay a key issue for alarms is that they require
someone to be available in the house to respond to the alarm which may not
necessarily be the case.
38.
Direct access via a door means there is only one barrier, whereas access
only via a gate provides two barriers for a child leaving a house and getting
into a pool area. According to the RIS and Water Safety NZ, 65% of young
children who drowned in home pools in New Zealand were with a caregiver
inside the house immediately prior to unnoticed access to the pool.
39.
The Bill has a lower requirement for doors than for gates, even though the
risk is substantially higher. There is no requirement in the proposed Building
Code section F9.3.4 for self-latching mechanisms, or for doors to open away
from the pool for example.
40.
At a minimum, direct access doors should be allowed by exception only, but
ARPHS recommends that direct access to the pool area by a door from the
house be prohibited for all new pools, and phased out where practical in
existing pools. Part 2 of the Schedule concerning the Building Regulations (if
retained) should be amended as follows:
F9.3.4. Where a building forms part of an immediate pool area barrier,
(a) Doors between the building and the immediate pool area are prohibited.
(b) Windows opening from a building into the immediate pool area must be
constructed or positioned to restrict prevent the passage of children
(c) All pools must comply within 5 years of this section coming into force
unless an exemption is granted by the local authority
Reducing design requirements by changing age criteria
41.
The Bill indirectly proposes a significant downgrade of design and
performance requirements.
The FOSPA requires that fences, gates and
doors be designed and constructed so that they prevent access by children
under the age of six years (FOSPA Schedule sections 3, 7 and 10). The Bill
would only require barriers to prevent access by children under the age of five
years (Clause 7, proposed Section 162C(1) and Schedule Part 2, proposed
Building Regulation Clause F9.2).
42.
NZS 8500:2006 also refers to children under the age of six years.
43.
The change to the age criteria is a significant change for which no justification
is given in the consultation document, the RIS or the Bill’s explanatory note.
44.
Between the ages of five and six years children undergo significant
development in physical height and strength, dexterity and cognitive abilities.
An average five year old is more able to open a gate or door, or climb a fence
than an average four year old.
In addition, development varies between
children.
45.
There is every good reason to expect the Bill’s proposal will increase the
number of drowning and near drowning incidents over time as barriers
become easier to overcome.
46.
ARPHS recommends that all references to “child under five years of age” in
the Bill be replaced by “child under six years of age”, as in the current
legislation.
Depth of pool covered by legislation differs from original proposal
47.
The original Cabinet decision in November 2013 was for the depth of pools to
which regulations apply would change from 400mm to 300mm. The RIS from
2013 outlines the issues well. ARPHS supports Cabinet’s original decision,
as it would provide a further improvement in pool safety.
48.
ARPHS recommends replacing all references in the Bill to 400mm with
300mm.
Requirement for periodic inspections
49.
ARPHS welcomes the proposed requirement for periodic pool inspections,
but recommends three yearly inspections rather than the proposed five yearly
inspections.
50.
Territorial authorities currently vary widely in their frequency of inspection.
This is unsatisfactory, especially in the light of the high failure rate found by
Councils which do regular inspections noted above. Clearly many councils
are failing their obligations under Section 10 of FOSPA:
“Every local authority shall take all reasonable steps to ensure that this Act is
complied with within its district”.
51.
Requiring councils to undertake regular inspections is therefore necessary.
This measure has support from reliable scientific research (Thompson &
Rivara, 1998 (Rev 2006)). The legislation should formalise what is currently
regarded as good practice, rather than sub-standard practice.
52.
Information released by MBIE estimates that 59% of pools are already
inspected three-yearly. Of pools inspected, failure rates of over 45% were
found by most councils, including those which conducted three yearly
inspections. MBIE’s information indicates that, on average, about 10% of
pool fences and gates become non-compliant with FOSPA requirements in a
year, e.g. through lack of maintenance or damage. This may include repeat
failures and issues which could be easily remedied.
However, the Bill’s
proposal of five yearly inspections will effectively mean that over half of pools
will have less frequent inspection and so up to 10% more fences and gates
would be non-compliant (and hence unsafe) than under current good practice
(three yearly inspections). This more than offsets the gain from improving
inspection in other councils. We estimate that this will increase the numbers
of deaths by up to four over 10 years, rather than reducing deaths by six in 10
years as estimated in the Bill’s supporting documentation.
53.
ARPHS considers that a three year inspection interval is the minimum needed
to have any degree of confidence that pool fencing will remain effective. A
three-yearly inspection cycle is common among larger councils and should be
regarded as good practice. As noted above, the scientific research shows
that inspection and enforcement are an essential part of pool safety
(Thompson & Rivara, 1998 (Rev 2006)).
54.
Information provided by MBIE under the OIA estimates average pool fence
inspections to cost $180. Changing the inspection frequency from five years
to three would increase the annual average cost per pool by just $24 (from
$36 to $60). Assuming a Value of Statistical Life of $4 million, we estimate
there would be a benefit of between $25 and $30 million from reduced
drowning with three-yearly inspections to offset against additional costs.
55.
ARPHS recommends that the wording in Clause 12, inserting new section
222A be amended to read (in line 9):
… once every 3 years…
56.
Current legislation allows councils to pass on the costs to pool owners under
section 219 of the Building Act. This is appropriate as part of responsible
pool ownership.
Obligations on person installing pool and Council
57.
Proposed Section 162C(3) (Clause 7) includes a list of persons who must
ensure compliance.
58.
The proposed list places no obligation on the person or company installing or
constructing a pool to ensure it complies with the legislation at the time of
completion.
This is a significant gap, which would allow pools to be
constructed and then time to lapse before the owner installs a fence or
barriers and seeks final Building Code compliance certification (if needed).
This increases risk unnecessarily. Domestic pools need to be seen as a
package comprising the pool structure, pumps and filters, electricity supply
AND fences, gates and other barriers.
59.
The Bill repeals the current obligation for pool owners to inform the territorial
authority of their intention to build or install a pool (including a spa pool or hot
tub) which may need a fence (FOSPA Section 7). This is a retrograde step.
60.
The Bill also repeals Section 10 of the FOSPA which requires territorial
authorities to “take all reasonable steps to ensure that [FOSPA] is complied
with within its district”. No justification is given in the Bill’s explanatory note or
the RIS. This is a retrograde step.
61.
ARPHS recommends that in Clause 7, Section 162C(3) is amended to add:
(f)
the person or company constructing or installing the pool, at the time
construction or installation is completed such that the pool can be used as
intended.
(g)
the territorial authority
Repeal of council special exemption procedures
62.
The Bill repeals the exemption process through special Council committees in
Section 12 of the FOSPA.
The RIS and background documents do not
provide an analysis of exemptions made by committees around the country,
but a high degree of variability would not be unexpected. The Bill proposes to
consider exemptions through existing Building Act processes, which, at least,
should ensure that people assessing exemptions have knowledge and
experience of building and pool safety issues. ARPHS supports the repeal of
this exemption in principle.
Proposals to ensure breaches are remedied promptly
63.
We support in principle the provisions in the Bill as described in the 2015 RIS
for ensuring that breaches are remedied. Prosecution options need to be
retained.
Economic Assessment
64.
We have reviewed the economic analysis used in developing the discussion
paper, Cabinet Papers and RIS. MBIE themselves note that the information
is incomplete, but estimated a $17 million NPV (Net Present Value) benefit
from the proposed changes. This saving is a key part of the justification for
repealing the FOSPA.
65.
We disagree with the assessment, because of its assumptions, interpretation
of information provided by councils, and discounting rate. The assessment
also ignores the cost of disabilities for children who survive drowning but are
left with brain damage.
When these various factors are amended, the
reported economic benefit of $17 million (NPV) largely disappears, and may,
in some scenarios, actually produce an economic loss.
66.
As an example, the economic analysis assumed that 80% of inspected pools
were compliant with the FOSPA requirements (i.e. a 20% failure rate). As
described above, this appears to differ considerably from material compiled
by MBIE which showed failure rates of over 45% found by most councils,
including those which conducted three yearly inspections. The Bill effectively
reduces the frequency of inspections for nearly 60% of pools.
67.
Based on MBIE’s figures, approximately 10% of fences and gates will
become non-compliant per year, because of lack of maintenance,
deterioration or damage. Seventy one percent of childhood pool drownings
related to non-compliance with FOSPA (either structural or functional),
according to information released by MBIE. These figures lead us to estimate
an increase of two–five childhood pool drownings over 10 years with the law
change, rather than a decrease by six as estimated by MBIE. This alters the
economics considerably. The current Government “value of statistical life” is
approximately $4 million2, which indicates that additional costs of up to $32
million need to be incorporated into the analysis (i.e. from eight additional
deaths over that presumed by MBIE).
Appropriate discount rate for long term child safety
68.
We have serious concerns about the discount rate used of 8%. This high rate
inevitably favours a short term approach, as opposed to a longer term
approach of investing in child safety and development.
69.
In contrast to the 8% rate used in New Zealand, the UK government’s
standard discount rate is 3.5% (and 3% for projects extending more than 20
years), and the European Commission’s is 5%. US Federal agencies use a
range of discounting rates depending on the topic, but are commonly between
4% and 7%.
70.
Choice of discount rate is important for policy decisions.
For childhood
drowning (where short term cost savings lead to long term harm) an 8%
discount rate is not justifiable.
We support a rate such as the UK’s.
Changing the discount rate alone decreases the “benefit” of the law change of
$17 million by several million dollars, depending on the scenario selected.
2
The Value of Statistical Life is derived across all ages. However, when valuing children’s lives, the
“Life years lost” method is often more appropriate and generally results in higher values. See Leung and
Guria (2006)
Proliferation of inexpensive portable pools
71.
ARPHS is concerned that the Bill does not cater for continued increase of
inexpensive portable pools. The assumption used is that these types of pools
are temporary and they are emptied after use. This may be valid for small
paddling pools. However, with these new types of portable pools that are up
to 750mm deep, and with a filter unit, the intention is not to be temporary but
to keep the pool filled for longer periods. In addition, they can take over an
hour to fill completely, making it less likely to be emptied and refilled
frequently.
72.
These pools are available at retail stores for as little as $79.98. This Bill does
not cater for this new type of pool and does not consider their risk.
73.
74.
75.
Residential pool safety has not traditionally been an issue for lower socioeconomic families and communities.
This is because the market simply
priced people out of being a pool owner. That has fundamentally shifted with
cheaper pools readily available for purchase.
76.
We would emphasise that with an increase in access to home pools across
socio-economic boundaries, the risk is elevated too.
77.
As discussed further in the next section, MBIE officials have highlighted their
caution regarding assumptions made around behaviour change of consumers
in response to legislative change, specifically, how buyers of spa pools and
portable pools would respond to being informed about their new obligations
under the proposed Bill.
78.
With the proliferation of cheap portable pools becoming increasingly available
and accessible (due to price point and number of retail stores offering), a
likely scenario is created where protective fencing requirements are too
expensive, and obligations on consumers will not be fully complied or
adhered to. Together, these factors create further risk especially for children
living in lower-socio economic conditions.
Policy development
79.
ARPHS considers that the Bill does not give adequate priority to child safety,
and instead its priority on cost savings will erode child safety and lead to a
gradual increase in preventable childhood drownings.
80.
Policy direction is set through a number of drivers, and we appreciate those
drivers will have their own character and nature and at times, may conflict.
Research-derived evidence is an important topic in relation to the
disestablishment of the FOSPA – an Act of Parliament that has, since its
implementation, had a profound reduction in drownings. This is known and
can be quantified.
81.
Evidence based policy decision making is a fundamental operation of
democratic processes and governance. It is important in this context because
public safety initiatives have a long time horizon, while many financial
considerations have a short time horizon.
Policy and planning decisions
made today will have long term impacts – some of which may not immediately
be obvious and quantifiable.
82.
Officials in MBIE have highlighted their uncertainty about the available
information in the 2013 RIS:
There is considerable uncertainty surrounding the estimates in the 2013 RIS,
the estimates should generally be treated with caution. This is particularly the
case where the estimates are a ratio of two numbers – such as relative risk of
drowning. The uncertainty arises from:

Few drownings per year in home pools providing limited data with
which to assess the effect of options on the risk of drowning

Unknown quantities including (among others) the number of spa pools
and garden pools, and the average cost of fencing and of self-closing
door mechanisms

Quantities that might be known if MBIE had gathered additional data
(MBIE kept the scope of data requests to data that they thought would
be most relevant)

Assumptions about behaviour change in response to the legislative
changes, for example how buyers of spa pools and portable pools
would respond to being informed about their obligations under the
proposed Bill.
83.
Negative impacts or unintended consequences resulting from this Bill will
equate to the loss of life of children, and or serious brain injury from near
death drowning.
84.
In this case, there are a number of areas in the Bill that lack clarity of
supporting evidence to justify the proposed changes before the Select
Committee. Examples where there are gaps in evidence for the proposed Bill
include:

It is unclear how child safety will improve with retailers and
manufacturers notifying consumers about obligations at the point of
sale, since research indicates this does not reduce drowning rates
significantly, if at all. The RIS states this will be an improvement
without any supporting evidence;

It is unclear how the inspection period increasing from three years
currently to five years will save additional lives. Again the information
states there will be less drownings without further clarification;

Limitation of the data, as expressed in MBIE’s 2013 RIS, also
warrants a cautionary approach when considering this Bill;

Contrary and conflicting information and assumptions used by officials
when assessing the economic savings.
85.
Supporting papers for this Bill also indicate the need to repeal the FOSPA is
due to inconsistency of its application across Councils. ARPHS submits that
it is likely to be more effective and efficient to amend the FOSPA to ensure
application of the rules are consistently executed across all Councils. This
would be a simpler and more efficient exercise, while keeping the intent and
purpose of the FOSPA intact. Given the benefits and lives saved from the
FOSPA, the repeal of this Act is unnecessary.
86.
ARPHS recommends that this Bill is either set aside and that further work is
done by officials to ensure appropriate research and evidence based policy is
provided to decision making bodies, like Cabinet and the Select Committee.
Conclusion
87.
Thank you for this opportunity to submit on this Bill. The potential impact on
lives is an issue of significance for the health sector.
88.
The Fencing of Swimming Pools Act 1987 provides a known and tested
protective regime for young children.
This proposed Building (Pools)
Amendment Bill erodes that safety net.
89.
We recommend that the Select Committee either:

sets this Bill aside and request it be redrafted, following a full assessment of
the issues raised; or

makes extensive amendments to ensure at least the level of protection in the
existing legislation.
Appendix 1 - Auckland Regional Public Health Service
Auckland Regional Public Health Service (ARPHS) provides public health services
for the three district health boards (DHBs) in the Auckland region (Auckland,
Counties Manukau and Waitemata District Health Boards).
ARPHS has a statutory obligation under the New Zealand Public Health and
Disability Act 2000 to improve, promote and protect the health of people and
communities in the Auckland region.
The Medical Officer of Health has an
enforcement and regulatory role under the Health Act 1956 and other legislative
designations to protect the health of the community.
ARPHS’ primary role is to improve population health. It actively seeks to influence
any initiatives or proposals that may affect population health in the Auckland region
to maximise their positive impact and minimise possible negative effects on
population health.
The Auckland region faces a number of public health challenges through changing
demographics, increasingly diverse communities, increasing incidence of lifestylerelated health conditions such as obesity and type 2 diabetes, infrastructure
requirements, the balancing of transport needs, and the reconciliation of urban
design and urban intensification issues.
Appendix 2: Amendments Proposed
Clause
Original
Recommended amendment
5
spa pool means a pool that—
‘Spa pool’—this definition differs from that of ‘hot tub’ and other than
(a) has a water surface area of 5 m2 or less; and
the obvious difference of the former incorporating a water jet or an
(b) is designed for therapeutic or recreational use; and
aeration system, there is no reason as to why
(c) incorporates a water jet or an aeration system
Add as a new sub-clause (d)
(d) has sidewalls(i) that are not (at any point) less than 760 mm above the adjacent
ground; and
(ii) the outside surfaces of which are constructed so as to inhibit
climbing.’
that the Bill be amended to reflect current law and/or NZS 8500:2006.
6
6 Section 8 amended (Building: what it means and
includes) 25
Agree
Replace section 8(1)(b)(ii) with:
(ii) any means of restricting or preventing access to a
residential pool; and
7
162A Purpose
There is no clause in the Bill that seeks to amend the section 3
The purpose of this subpart is to prevent unsupervised
access to residential pools by young children.
purposes of the Building Act 2004. Currently this is focussed solely on
buildings and building work. It is recommended that section 3
Purposes, be amended to include the wording we propose for clause
7, new section 162A below. Add as a new subsection 3(c)
3(c) to prevent serious injury or death by restricting access to
residential pools by young children.
Proposed amendment
While it is desirable to restate the purpose, the proposed wording is
too restrictive. It does not cover the situation of an empty fall or
preventing injury from a fall into an empty or partially empty pool.
[Delete the words in this section and replace with ‘The purpose of
this subpart is to prevent serious injury or death by preventing
access to residential pools.’]
162B Application of subpart
ARPHS recommends amending 400mm to 300mm
This subpart applies to pools with a maximum depth of
water of 400 mm or more.
162C Residential pools must have means of restricting
access
(1) Every residential pool that is filled or partly filled with
water must have physical barriers that restrict access to the
pool by unsupervised children under 5 years of age.
(2) The means of restricting access referred to in subsection
(1) must comply with—
(a) the applicable requirements of the building code (subject
to any waiver or modification granted under section 67); or
(b) if the pool was constructed, erected, or installed before 1
ARPHS recommends amending “children under 5 years of age” to
“children under 6 years of age”
January 2017, section 450B.
(3) The following persons must ensure compliance with this
section:
(a) the owner of the pool:
(b) the owner of the land on which the pool is situated:
(c) the occupier of the property in or on which the pool is
situated:
(d) if the pool is subject to a hire purchase agreement (as
that term is defined in the Income Tax Act 2007), the
purchaser of the pool:
ARPHS recommends that 162C(3) be amended to add additional
subclauses:
(f)
the person or company constructing or installing the pool, at
the time construction or installation is completed such that the pool can
be used as intended.
g) the territorial authority.
(e) if the pool is on premises that are not subject to a
tenancy under the Residential Tenancies Act 1986 but the
pool is subject to a lease or is part of premises subject to a
lease, the lessee of the pool or the premises.
(4) In this section, applicable requirements means the
requirements that applied when the pool was constructed,
erected, or installed.
12
12 New section 222A inserted (Periodic inspections of
pools)
After section 222, insert:
222A Periodic inspections of residential pools
(1) Every territorial authority must ensure that every
residential pool within its jurisdiction, other than a spa pool,
hot tub, or a portable pool, is inspected by an authorised
officer under section 222 once within 3 months before or
after the pool’s anniversary date.
ARPHS recommends: the wording “every 5 years” be amended to
once every 3 years
(2) In this section,—
anniversary date, in relation to a pool, means—
(a) the date of issue of the code compliance certificate or
the certificate of acceptance in respect of the pool; or
ARPHS recommends an additional sub-clause be created in Section
222A:
222A (3): The local authority may charge the property owner for any
inspection under provisions of section 219 of the Building Act 2004
(b) in the case of an existing pool that did not require a
building consent,
(i) the date when notice was given under section 7 of the
Fencing of Swimming Pools Act 1987; or
(ii) if no notice was given, the date when the existence of
the pool came to the knowledge of the territorial authority
existing pool means a pool that was constructed, erected,
or installed before 1 January 2017.
Part 2
Amendments to legislative instruments
Building (Infringement Offences, Fees, and Forms)
Regulations 2007
(SR 2007/403)
In Schedule 1, replace the item relating to section 168 with:
s 162D Supplying a pool product without an approved notice
- 500
s 168(1AA) Failing to comply with a notice to fix in relation
to a means of restricting access to a residential pool - 500
s 168(1) Failing to comply with any other notice to fix - 1,000
Building Regulations 1992 (SR 1992/150)
ARPHS recommends that proposed amendments the Building Act - F9
be deleted and the contents of the Schedule to FOSPA become the
basis for a regulation under Section 20 of the Building Act 2004
specifying the only means of complying with the Building Act for
restricting access to domestic pools.
In Schedule 1, delete clauses F4.3.3, F4.3.4(f), and F4.3.5.
In Schedule 1, after clause F8, insert:
Clause F9—Means of restricting access to residential
pools
Provisions Limits on application
Objective
F9.1 The objective of this provision is to prevent injury or
death to young children involving residential pools.
Functional requirement
F9.2 Residential pools having a depth of water greater than
400 mm at any point must have means of restricting access
that prevents unsupervised access by a child under 5 years
of age.
Performance
Provisions - Limits on application
F9.3.1 Residential pools must be provided with a barrier or
barriers able to restrict the entry of children into a pool or
the immediate pool area.
F9.3.2 Barriers must either—
(a) surround the immediate pool area; or
(b) in the case of a spa pool or hot tub, cover the pool itself.
Performance F9.3.2(b) applies only to those spa pools or
hot tubs where—
(a) the top surface of every wall of the pool is at all points
not less than 760 mm above the adjacent floor or ground
As an alternative - ARPHS recommends that direct access to the
pool area by a door from the house be prohibited for all new pools, and
phased out where practical in existing pools.
Part 2 of the Schedule concerning the Building Regulations should be
amended as follows: :
F9.3.4. Where a building forms part of an immediate pool area
barrier,
(d) Doors between the building and the immediate pool area
are prohibited.
and the walls of the pool inhibit climbing; and
(e) Windows opening from a building into the immediate pool
(b) the area of the water surface is not greater than 5 m2.
area must be constructed or positioned to prevent the
F9.3.3 A barrier surrounding an immediate pool area must
have no permanent objects or projections on the outside
that could assist children in negotiating the barrier.
passage of children
(f) All pools must comply within 5 years of this section coming
Any gates must—
into force unless an exemption is granted by the local
(a) open away from the pool; and
authority
(b) not be able to be readily opened by children; and
(c) automatically return to the closed position after use.
F9.3.4 Where a building forms part of an immediate
pool area barrier,—
(a) doors between the building and the immediate pool area
must not be able to be readily opened by children, and must
either—
(i) emit an audible warning when the door is open;
or
(ii) close automatically after use:
(b) windows opening from a building into the immediate pool
area must be constructed or positioned to restrict the
passage of children.
F9.3.5 Where a cover is provided as a barrier
to a spa pool or hot tub, it must—
(a) restrict the entry of children when closed; and
(b) be able to withstand a reasonably foreseeable load; and
(c) be able to be readily returned to the closed position; and
(d) have signage indicating its child safety features.
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