Fencing of Swimming Pools Act 1987

1: Short Title
This Act may be cited as the Fencing of Swimming Pools Act 1987.
2: Interpretation
In this Act, unless the context otherwise requires,— fence
a: means a fence that complies with the requirements of the building code in force under the Building Act 2004
b: includes any part of a building and any gates or doors that form part of the fence gates or doors of the Schedule immediate pool area judicial officer Community Magistrate, owner
a: where the pool is subject to a hire purchase agreement within the meaning of the Income Tax Act 2007
b: where the pool is on premises that are not subject to a tenancy under the Residential Tenancies Act 1986 swimming pool pool territorial authority Local Government Act 2002 Section 2 fence substituted 31 March 2005 section 414 Building Act 2004 Section 2 judicial officer amended 30 June 1998 section 7 District Courts Amendment Act 1998 Section 2 owner amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 2 territorial authority substituted 1 July 2003 section 262 Local Government Act 2002
3: Application to existing pools
This Act shall apply in respect of any swimming pool constructed, erected, or installed before 1 September 1987 at any time on or after 1 May 1988 when the pool is filled or partly filled with water.
4: Application to new pools
This Act shall apply in respect of any swimming pool constructed, erected, or installed on or after 1 September 1987 at any time when the pool is filled or partly filled with water.
5: Exempted pools
Nothing in this Act shall apply in respect of—
a: any pool that has no part of the top of its side walls less than 1.2 metres above the adjacent ground level or any permanent projection from or object standing on the ground outside and within 1.2 metres of the walls, where the outside surface of the side walls is constructed so as to inhibit climbing and any ladder or other means of access to the interior of the swimming pool can be readily removed or rendered inoperable and is removed or rendered inoperable whenever it is intended that the pool not be used:
b: any excavation, structure, or product, in which the maximum depth of water does not exceed 400 mm:
c: any excavation, structure, or product,—
i: that is not used in association with any house, home unit, apartment building, school, hospital, hotel, motel, camping ground, or other similar premises; and
ii: that is not modified for use, or intended to be used, for swimming, wading, paddling, or bathing:
d: any pool intended to be used for wading or paddling in any place that is under the administration of a local authority:
e: any pool that is wholly enclosed within a building that is used principally for a purpose or purposes not related to the use of the pool:
f: any pool where—
i: persons are employed and present to provide supervision of the pool whenever the pool is available for use; and
ii: access to the pool is effectively prevented by a fence that complies with this Act or by locked gates or doors whenever the pool is not intended to be available for use.
6: Special exemptions
1: A territorial authority may, by resolution, grant an exemption from some or all of the requirements of this Act in the case of any particular pool where the territorial authority is satisfied, having regard to the particular characteristics of the property and the pool, any other relevant circumstances, and any conditions it imposes under subsection (2), that such an exemption would not significantly increase danger to young children.
2: In granting an exemption under subsection (1), the territorial authority may impose such other conditions relating to the property or the pool as are reasonable in the circumstances.
3: Any exemption granted or condition imposed under this section may be amended or revoked by a territorial authority, by resolution.
7: Notification of existence of pool to territorial authority
1: Every owner of a pool to which this Act applies when the pool is filled or partly filled with water or to which this Act will apply on or after 1 May 1988 when the pool is filled or partly filled with water shall comply with any reasonable requirement of the territorial authority to advise the territorial authority of the existence of the pool.
2: Every person who proposes to construct or install a pool to which this Act will apply when the pool is filled or partly filled with water shall notify the territorial authority of the intention to construct or install the pool before the construction or installation commences.
3: An application for a building consent under the Building Act 2004 Section 7(3) added 1 July 1992 Building Act 1991 Section 7(3) amended 31 March 2005 section 414 Building Act 2004
8: Obligations of owner and persons in control of pool
1: Every owner of a pool to which this Act applies shall ensure that, except as provided in any exemption granted under section 6 building code in force under the Building Act 2004
2: Every owner of a pool to which this Act applies shall comply or ensure that there is compliance with every condition imposed under section 6(2)
3: Every person who has possession of the property on which any pool to which this Act applies is situated shall ensure that the pool is not filled or partly filled with water at any time when the person knows or could reasonably be expected to know that any obligation imposed by this section on that or any other person is not being complied with.
4: The fact that a person complies with any obligation imposed by this section shall not excuse that person from any other duty imposed by law. Section 8(1) amended 31 March 2005 section 414 Building Act 2004 Section 8(1) amended 1 July 1992 Building Act 1991
9: Offence
1: Every person who, without reasonable cause, fails to comply with any obligation imposed by section 7 section 8
2: Where the owner or person entitled to possession or control of a pool to which this Act applies is not entitled to possession of the property on which the pool is situated or the immediate pool area (whether because of any tenancy agreement, agreement to occupy a hotel room, motel, or camping ground, or otherwise) it shall be a defence to any proceedings for any offence described in subsection (1) section 8
a: to ensure that the obligation was complied with; and
b: to ensure that the persons in possession of the property or entitled or likely to be in the immediate pool area are made aware of the existence of the pool.
3: Where any person is convicted of the offence described in subsection (1) in relation to section 8 section 6(2) Section 9(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
10: Obligation of territorial authorities
Every territorial authority shall take all reasonable steps to ensure that this Act is complied with within its district.
11: Power of entry for territorial authority officers
1: Without limiting any other powers of any territorial authority, any officer of a territorial authority who has reasonable grounds to believe—
a: that there is on any land within the district of the territorial authority a swimming pool to which this Act applies; and
b: that the pool is not fenced as required by this Act, or any condition imposed under section 6(2) may at any reasonable time enter on the land and carry out an inspection to determine whether or not there is on the land such a pool that is not fenced as required by this Act, or whether or not the condition is being complied with.
2: Nothing in subsection (1) shall confer on any person the power to enter any house, home unit, or apartment building unless the entry is authorised by a warrant given by a judicial officer on written application on oath, which shall not be granted unless the judicial officer is satisfied that the entry is essential to enable the inspection to be carried out.
3: Every warrant issued under subsection (2) shall be directed to a named officer of the territorial authority and shall be valid for a period of 1 month from the date of its issue or such lesser period as the judicial officer considers appropriate; and the period of validity shall be shown in the warrant.
4: Every person exercising the power of entry conferred by subsection (1) shall carry a warrant of authority issued by the territorial authority and specifying—
a: the name and the office or offices held by the person:
b: that the person is authorised by the territorial authority to exercise the power conferred by subsection (1) to enter the land and carry out the inspection.
5: Every person exercising the power of entry conferred by subsection (1) shall produce the warrant of authority and evidence of identity—
a: if practicable on first entering the land or premises; and
b: whenever subsequently reasonably required to do so.
12: Delegation of powers to committees of councillors
The territorial authority may delegate its powers and functions under section 6 Schedule clause 30 Section 12 substituted 1 July 2003 section 262 Local Government Act 2002
13: Effect of Act on bylaws and other laws
1:
2:
3: Nothing in this Act shall in any way restrict the power of any territorial authority to make and enforce bylaws relating to the fencing of pools to which this Act does not apply.
4: Nothing in this Act shall in any way restrict the power of the Crown or any territorial authority or other person to enforce any other law relating to the fencing of pools to which this Act applies or any other pools. Section 13(1) repealed 1 July 1992 Building Act 1991 Section 13(2) repealed 1 July 1992 Building Act 1991
13A: Effect of
Building Act 2004
1: A territorial authority may not make any bylaw under this Act that purports to have the effect of requiring any pool subject to this Act to achieve performance criteria additional to or more restrictive than those specified in the Building Act 2004
2: A territorial authority may not make any bylaw purporting to have the effect of allowing a pool subject to this Act to be fenced to a standard that would provide less protection against young children gaining access to the pool than the performance standard set by the said building code. Section 13A inserted 1 July 1992 Building Act 1991 Section 13A heading amended 31 March 2005 section 414 Building Act 2004 Section 13A(1) amended 31 March 2005 section 414 Building Act 2004
13B: Fencing in accordance with Schedule must be treated as means of compliance
Any provision that is made for the fencing of swimming pools that is in accordance with the Schedule must, in respect of—
a: matters subject to the Building Act 2004 an acceptable solution or a verification method section 19
b: building and premises not subject to the Building Act 2004 Section 13B substituted 31 March 2005 section 414 Building Act 2004 Section 13B(a) amended 28 November 2013 section 76 Building Amendment Act 2013
13C: Amendment and replacement of Schedule
The Governor-General may, by Order in Council,—
a: amend the Schedule; or
b: repeal the Schedule and substitute a new schedule. Section 13C substituted 20 September 2007 section 4 Fencing of Swimming Pools Amendment Act 2007
14: Amendment to Fencing Act 1978
Amendment(s) incorporated in the Act(s)