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

Ailsa Claire Chief Executive Auckland District Health Board

Jane McEntee General Manager Auckland Regional Public Health Service

Dr David Sinclair Medical Officer of Health Auckland Regional Public Health Service

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

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 socio-

economic 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 lifestyle-

related 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—

(a) has a water surface area of 5 m2 or less; and

(b) is designed for therapeutic or recreational use; and

(c) incorporates a water jet or an aeration system

‘Spa pool’—this definition differs from that of ‘hot tub’ and other than

the obvious difference of the former incorporating a water jet or an

aeration system, there is no reason as to why

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

Replace section 8(1)(b)(ii) with:

(ii) any means of restricting or preventing access to a residential pool; and

Agree

7 162A Purpose

The purpose of this subpart is to prevent unsupervised access to residential pools by young children.

There is no clause in the Bill that seeks to amend the section 3

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

This subpart applies to pools with a maximum depth of water of 400 mm or more.

ARPHS recommends amending 400mm to 300mm

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:

(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.

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.

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

(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.

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

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

(b) the area of the water surface is not greater than 5 m2.

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.

Any gates must—

(a) open away from the pool; and

(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

(e) Windows opening from a building into the immediate pool

area must be constructed or positioned to prevent the

passage of children

(f) All pools must comply within 5 years of this section coming

into force unless an exemption is granted by the local

authority

(c) be able to be readily returned to the closed position; and

(d) have signage indicating its child safety features.

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