As summer approaches, many Kiwis will seek cool relief from the heat by plunging into their household swimming pools. But tragically, according to statistics, every year 4 to 5 children drown, and 35 to 45 more are seriously injured in pools. To help prevent fatal and near fatal outcomes, pool owners need to ensure that  their swimming pools comply with the fencing requirements of the Fencing of Swimming Pools Act 1987 (FOSPA) and Building Act 2004.

However, the legislation does not provide pool owners with clear guidance on how they should fence their swimming pools because there is a disconnect between the FOSPA, on one hand, and the Building Act 2004 and Building Code, on the other. 

The general requirement for swimming pool fencing is contained in section 9 of the FOSPA which requires pool owners to fence all or some of the 'immediate pool area' (a relatively uncertain definition in itself) with a fence that complies with the Building Code. This is significant because pool owners are not required to fence their pools in accordance with the more prescriptive fencing requirements set out in the Schedule to the FOSPA. Instead, the Schedule to the FOSPA is only a 'compliance document' under the Building Act (see section 13B FOSPA) so a pool owner will be deemed to have complied with the Building Code if they comply with the Schedule (a position restated in clause 1.2.7 of Acceptable Solution F4/AS1 2007, itself also not an absolutely binding document). 

As a compliance document is only one means of complying with the Building Code, pool owners are free to argue that the Building Code has been complied with although they may not have complied with the Schedule to the FOSPA. Alternatively, pool owners may apply to the territorial authority for an exemption from the FOSPA's fencing requirements; or for a waiver or modification of the Building Code under the Building Act.

When considering whether the Building Code has been complied with, or whether to grant an exemption under the FOSPA, or a waiver or modification under the Building Act, the recently 'operative' New Zealand Standard NZS 8500:2006 'Safety Barriers and Fences Around Swimming Pools, Spas and Hot Tubs' is a relevant consideration. The Standard is ultimately intended to replace the schedule to the FOSPA as setting out the standards for swimming pool fencing but is unlikely to be incorporated into the legislation during the term of the current government.

In the meantime, the Standard is useful as a guide to what industry, regulators and water safety interest groups consider to be appropriate swimming pool fencing requirements. Pool owners who have complied with the Standard may attempt to defend their current fencing arrangements as being in accordance with the Building Code.

However, more legislative certainty is required for territorial authorities. Parliament needs to tighten the FOSPA to make the minimum standards for the fencing of swimming pools binding in the absence of an exemption granted under that Act. Perhaps the best way to do this would be to amend the Schedule to the FOSPA by duplicating the Standard and amending section 9 of the FOSPA to require pool owners to fence all or some of the immediate pool area with a fence that complies with the Schedule. That would certainly make enforcement more effective.

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