Posted: 31 July 2018
The building was issued a building permit after the Fencing of Swimming Pools Act (FOSPA) came into force (on 1 September 1987) and before the Building Act 1991 applied (1 July 1992) In 2011, the building consent authority (BCA) issued an exemption under section 5(e) of FOSPA for the indoor pool, which meant it did not need a barrier. The exemption was granted because the pool was completely enclosed within the building.
On 1 January 2017 the Building Act was amended and FOSPA was repealed. The Building Act now requires inspections of residential pool barriers at least once every three years. In 2017, the council carried out an inspection of the pool and told the owners a barrier was now needed to comply with section 162C of the Building Act.
Section 162C(1) of the Building Act requires all residential pools to have a physical barrier to restrict access to the pool by unsupervised young children. This applies regardless of when the pool was constructed.
Section 162C(2) didn’t apply in this case because there was no barrier, however the determination provided some commentary about the provision.
Section 162C(2) states that the physical barrier that restricts access to the pool 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 ("compliance documents") was issued.
The Building Act 1991 came into force 1 July 1992 and introduced building consents and code compliance certificates, both 'compliance documents' referred to in Section 162C(2)(b). That section of the Building Act is written in a way that doesn't include pools constructed between 1 September 1987 and 1 July 1992.
The determination discussed the requirements for barriers built between these dates, which would not have a building consent or code compliance certificate. It concluded Parliament didn't intend to require upgrades to barriers constructed between 1 September 1987 and 1 July 1992, if they complied with the bylaws at the time. This view was informed by the other sections in the Building Act regarding pools.
In 2011 the owners had been granted an exemption from the requirement to have a barrier, under section 5(e) of FOSPA. The owners believed the requirement in section 162C for a physical barrier could not now be applied because the pool had an exemption under FOSPA. The determination disagreed with this view. The determination considered it would be inconsistent with the purpose of the Building Act and its residential pool sections to conclude that a residential pool without a barrier that was granted an exemption now complies with section 162C(1).
The determination concluded that because the pool does not have a physical barrier to restrict access by young children it doesn't comply with section 162C of the Building Act.
Previous determinations is a register of all previous determinations.