Determination 2017/045 – Summary

Posted: 28 September 2017

Determinations
Determination 2017/045 discusses swimming pool barrier compliance, and section 162C of the Building Act 2004.

Background

In 1986 a building permit was issued for a swimming pool and barrier. These were inspected in 1999, which confirmed that the fencing complied with the Fencing of Swimming Pools Act 1987 (FOSP). The physical barrier to the pool includes the external wall of the house, which incorporates a ranchslider (with a cat door). In 2011 the council issued a building consent to install a spa pool in the immediate pool area and a bifold window over a kitchen servery. In 2014 a code compliance certificate was issued for the building work.

On 1 January 2017 the Building Act was amended by the Building (Pools) Amendment Act 2016. The Building Act requires councils to inspect residential pool barriers at least once every three years. In 2017, the council’s pool inspector carried out an inspection that ‘failed’ because the barrier did not meet the requirements of section 162C of the Building Act. The matters concerned a cat door in the ranchslider, the bifold window, clips on the spa pool cover, and a garden chess set located in the immediate pool area.

Discussion

Section 162C(2) requires the means of restricting access to a pool to comply with the Building Code requirements:

  1. that are in force; or
  2. that were in force when the pool was constructed, erected or installed…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).

The intention is that pool barriers must continue to perform at the standard that was in place when they were installed, and are not required to be upgraded if there are later changes to the requirements in the Building Code that are more onerous.

Section 162C(2)(b) applies to existing pools that were constructed after 1 September 1987 through approval by way of a building consent, or where a code compliance certificate or certificate of acceptance has been issued.

Section 450B applies to existing pools constructed before 1 January 2017, and provides that the barriers are deemed to comply with section 162C if the barriers complied and continue to comply with the Schedule of FOSP that was in force immediately before 1 January 2017. Section 162C(2)(a) provides owners with the option to comply with the Building Code currently in force – meaning that if the current requirements are more onerous the owner may elect to upgrade the pool barrier.

In this case, given that the barrier was altered some years after the pool was installed, the determination considered the interpretation of the phrase “when the pool was constructed” in section 162C(2)(b). The determination noted there will be situations where the pool and the barrier are constructed at different times, or the barrier to the pool is altered sometime after construction of the pool. When this occurs, the phrase “when the pool was constructed” means the requirements of the Building Code in force at the time the barrier to the pool was constructed or altered.

Therefore, the alterations to the barrier were required to comply with the Building Code requirements that were in force in 2011, which was Clause F4 Safety from falling.

The determination concluded that the cat door and the alterations to the barrier did not comply with the requirements of the Building Code (Clause F4) that was in force when the cat door was installed and the barrier altered.

The determination concluded that the garden chess set is a type of entertainment activity that may be carried out within the immediate pool area either in conjunction with or independently of the use of the pool, and that as the spa pool is located within the immediate pool area the damaged clips to the spa pool cover were an item of maintenance.

Decision

The determination stated the barrier to the pool does not comply to the extent required by section 162C of the Building Act in respect of the cat door in the ranchslider and the kitchen bifold window.

Determination 2017/045 in full.

Previous determinations is a register of all previous determinations.

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