Building (Pools) Amendment Act 2016

1: Title
This Act is the Building (Pools) Amendment Act 2016.
2: Commencement
This Act comes into force on 1 January 2017.
3: Principal Act
This Act amends the Building Act 2004 principal Act 2017-01-01 Building Act 2004
1: Amendments to Building Act 2004
4: Section 5 amended (Overview)
After section 5(2)﻿(b)﻿(iv)
v: provisions relating to residential pool safety:
5: Section 7 amended (Interpretation)
In section 7 abode place of abode
a: means any place used predominantly as a place of residence or abode, including any appurtenances belonging to or enjoyed with the place; and
b: includes—
i: a hotel, motel, inn, hostel, or boarding house:
ii: a convalescent home, nursing home, or hospice:
iii: a rest home or retirement village:
iv: a camping ground:
v: any similar place immediate pool area independently qualified pool inspector
a: accepted by the chief executive as qualified to carry out inspections to determine whether a pool has barriers that comply with the requirements of section 162C
b: whose acceptance has not been withdrawn pool
a: means—
i: any excavation or structure of a kind normally used for swimming, paddling, or bathing; or
ii: any product (other than an ordinary home bath) that is designed or modified to be used for swimming, wading, paddling, or bathing; but
b: does not include an artificial lake pool operator residential pool
a: in a place of abode; or
b: in or on land that also contains an abode; or
c: in or on land that is adjacent to other land that contains an abode if the pool is used in conjunction with that other land or abode small heated pool
a: has a water surface area of 5 m 2
b: is designed for therapeutic or recreational use
6: Section 8 amended (Building: what it means and includes)
Replace section 8(1)﻿(b)﻿(ii)
ii: any means of restricting or preventing access to a residential pool; and
7: Section 11 amended (Role of chief executive)
1: After section 11(f)
fa: accepts (and withdraws acceptance of) independently qualified pool inspectors for the purpose of section 162D
2: In section 11(m)﻿(iii) ; and ; or
3: After section 11(m)﻿(iii)
iv: to enforce duties or obligations under section 162E
8: Section 12 amended (Role of building consent authority and territorial authority)
After section 12(2)﻿(j)
ja: enforces duties or obligations under section 162C
9: New section 67A inserted (Territorial authority may grant waivers or modifications in relation to means of restricting access to residential pools)
After section 67
67A: Territorial authority may grant waivers or modifications in relation to means of restricting access to residential pools
1: A territorial authority may grant a waiver or modification of section 162C(1) or (2)
2: In deciding whether to grant a waiver or modification under subsection (1), the territorial authority must have regard to all of the relevant circumstances (including the particular characteristics of the pool and the land on which it is situated). 1987 No 178 s 6
10: New subpart 7A of Part 2 inserted
After section 162
7A: Special provisions for residential pools
162A: Purpose
The purpose of this subpart is to prevent drowning of, and injury to, young children by restricting unsupervised access to residential pools by children under 5 years of age.
162B: Application of subpart
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 the requirements of the building code—
a: that are in force; or
b: that were in force when the pool was constructed, erected, or installed (after 1 September 1987) and in respect of which a building consent, code compliance certificate, or certificate of acceptance was issued (in relation to the means of restricting access to the pool).
3: In the case of a small heated pool, the means of restricting access referred to in subsection (1) need only restrict access to the pool when the pool is not in use.
4: The following persons must ensure compliance with this section:
a: the owner of the pool:
b: the pool operator:
c: the owner of the land on which the pool is situated:
d: the occupier of the property in or on which the pool is situated:
e: 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:
f: 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. 1987 No 178 s 8
162D: Periodic inspections of residential pools
1: Every territorial authority must ensure that the following residential pools within its jurisdiction are inspected at least once every 3 years, within 6 months before or after the pool’s anniversary date, to determine whether the pool has barriers that comply with the requirements of section 162C
a: residential pools other than small heated pools:
b: small heated pools that have barriers that are not exempt, in terms of Schedule 1, from the requirement to have a building consent.
2: A territorial authority may accept a certificate of periodic inspection from an independently qualified pool inspector for the purpose of subsection (1) in lieu of carrying out an inspection under section 222.
3: If a territorial authority decides not to accept a certificate of periodic inspection from an independently qualified pool inspector under subsection (2), the territorial authority must, within 7 working days of making that decision, give notice to the chief executive of the decision and the reasons for the decision.
4: If an independently qualified pool inspector inspects a pool for the purpose of this section and decides that the pool does not have barriers that comply with the requirements of section 162C section 67A
5: In this section,— anniversary date
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 a pool that did not require a building consent,—
i: the date on which notice was given under section 7 of the Fencing of Swimming Pools Act 1987; or
ii: if subparagraph (i) does not apply, the date on which the existence of the pool came to the knowledge of the territorial authority certificate of periodic inspection
a: is issued by an independently qualified pool inspector; and
b: is in the prescribed form (if any); and
c: certifies that a pool has barriers that comply with the requirements of section 162C section 67A
162E: Manufacturers and retailers must supply notice
1: Every person who manufactures, sells, or offers for sale in New Zealand any new product that is designed to be used for swimming, wading, paddling, or bathing, other than an ordinary home bath, must ensure that there is supplied with the pool a notice approved by the chief executive setting out or summarising the responsibilities of owners, pool operators, and occupiers under section 162C(4)
2: The chief executive may, by notice in the Gazette
3: Every person who fails to comply with subsection (1) commits an offence.
4: An offence against subsection (3) is an infringement offence.
11: Section 163 amended (Definitions for this subpart)
In section 163 specified person specified person
a: the owner of a building:
b: if a notice to fix relates to building work being carried out,—
i: the person carrying out the building work; or
ii: if applicable, any other person supervising the building work:
c: if a notice to fix relates to a residential pool, a person referred to in section 162C(4)
12: Section 165 amended (Form and content of notice to fix)
After section 165(1)﻿(f)
g: if it relates to a residential pool, it may direct that the pool be drained of water and be kept empty (until the requirements of section 162C
13: Section 168 amended (Offence not to comply with notice to fix)
1: Before section 168(1)
1AA: A person commits an offence who fails to comply with a notice to fix a means of restricting access to a residential pool.
1AB: A person who commits an offence against subsection (1AA) is liable on conviction to a fine not exceeding $5,000.
2: In section 168(1) a notice to fix any other notice to fix under this Act
3: In section 168(2) this section subsection (1)
14: Section 188 amended (Determination by chief executive)
1: After section 188(3)﻿(a)
aa: waivers or modifications of section 162C(1) or (2)
2: After section 188(3)
3A: The chief executive must only grant a waiver or modification of section 162C(1) or (2)
15: Section 222 amended (Inspections by territorial authority)
1: After section 222(1)﻿(a)﻿(iii)
iv: any residential pool (or the immediate pool area); and
2: In section 222(1)﻿(b) ; and
3: After section 222(1)﻿(b)
c: to enter premises for the purpose of determining whether section 162C
4: In section 222(4) inspection
iia: section 162C
16: Section 402 amended (Regulations: general)
After section 402(1)﻿(i) Acceptance of independently qualified pool inspectors:
ia: prescribing matters in respect of the acceptance and renewal of acceptance of independently qualified pool inspectors, including the fees or charges payable:
17: New sections 450A and 450B inserted
After section 450
450A: Transitional and savings provision for residential pools
1: Fencing of a residential pool in accordance with clauses 1 to 10 of the Schedule of the Fencing of Swimming Pools Act 1987 (as that schedule was in force immediately before 1 January 2017) is an acceptable solution for establishing compliance with the building code for the purpose of section 162C
2: Sections 22(2) and (3), 23, 24, and 25A apply to the acceptable solution in subsection (1) as if it had been issued by the chief executive under section 22(1) of this Act.
3: In this section and the Schedule of the Fencing of Swimming Pools Act 1987,— fence fencing
450B: Savings provision for existing residential pools
1: This section applies to a residential pool that was constructed, erected, or installed before 1 January 2017 (an existing pool
2: An existing pool is deemed to have barriers that comply with section 162C
a: complied with the Schedule of the Fencing of Swimming Pools Act 1987 (as that schedule was in force) immediately before 1 January 2017; and
b: continue to comply with those requirements subject to—
i: any exemption that was granted under section 6 or clause 11 of the Schedule of that Act and that was subsisting immediately before 1 January 2017; and
ii: the conditions of any such exemption.
3: Alternatively, an existing pool is deemed to comply with section 162C
a: the outside surface of the side walls of the pool is constructed so as to inhibit climbing; and
b: no part of the top of any side wall of the pool is less than 1.2 m above—
i: the adjacent ground level; and
ii: any permanent projection from the ground outside of the pool and within 1.2 m of the walls of the pool; and
iii: any object standing on the ground outside of the pool and within 1.2 m of the walls of the pool; and
c: any ladder or other means of access to the interior of the swimming pool—
i: can be readily removed or made inoperable; and
ii: is removed or made inoperable whenever the pool is not intended to be in use. 1987 No 178 s 5(a)
18: Schedule 1 amended
1: In the Schedule 1 s 42(1)﻿(b) s 12
2: In Schedule 1, replace clause 21(2)
2: Subclause (1) does not include a fence or hoarding to restrict access to a residential pool.
3: In Schedule 1, after clause 21
21A: Means of restricting access to small heated pools
Installation of a safety cover as a means of restricting access to a small heated pool that is a residential pool.
4: In Schedule 1, heading to clause 23 (excluding swimming pools)
5: In Schedule 1, clause 23 (except a swimming pool as defined in section 2 of the Fencing of Swimming Pools Act 1987)
2: Final and miscellaneous provisions
19: Repeal of Fencing of Swimming Pools Act 1987
The Fencing of Swimming Pools Act 1987 2017-01-01 Fencing of Swimming Pools Act 1987
20: Consequential amendments to other enactments
Amend the enactments specified in the Schedule 2017-01-01 Fencing Act 1978 Building (Infringement Offences, Fees, and Forms) Regulations 2007 Building Regulations 1992