Franklin Local Board Swimming Pool Fencing Exemptions

Note: The reports contained within this agenda are for consideration and should not be construed as Council policy

unless and until adopted. Should Members require further information relating to any reports, please contact the relevant manager, Chairperson or Deputy Chairperson.

I hereby give notice that an ordinary meeting of the Franklin Local Board Swimming Pool Fencing Exemptions Committee will be held on:

Date: Time: Meeting Room: Venue:

Tuesday, 8 July 2014

8:30am

Local Board Chambers Pukekohe Service Centre 82 Manukau Road Pukekohe

Franklin Local Board Swimming Pool Fencing Exemptions Committee

OPEN AGENDA

MEMBERSHIP Chairperson Murray Kay Members Brendon Crompton Sarah Higgins Dr Lyn Murphy (Quorum 2 members) Gaylene Harvey

Democracy Advisor 2 July 2014 Contact Telephone: (09) 237 1310 Email: Gaylene.Harvey@aucklandcouncil.govt.nz Website: www.aucklandcouncil.govt.nz

08 July 2014

ITEM TABLE OF CONTENTS PAGE

1 Welcome 5

2 Apologies 5

3 Declaration of Interest 5

4 Confirmation of Minutes 5

5 Leave of Absence 5

6 Acknowledgements 5

7 Petitions 5

8 Deputations 5

9 Public Forum 5

10 Extraordinary Business 6

11 Notices of Motion 6

12 Triennial Schedule of Business Meetings for the Franklin Local Board

Swimming Pool Fencing Exemptions Committee 7

13 Swimming Pool Fencing Exemption Applications – Special Exemption

(Section 6) Fencing of Swimming Pools Act 1987 9

14 Consideration of Extraordinary Items

PUBLIC EXCLUDED

15 Procedural Motion to Exclude the Public 85

13 Swimming Pool Fencing Exemption Applications – Special Exemption

(Section 6) Fencing of Swimming Pools Act 1987

C. 3 Annieston Pl application 85

D. 3 Annieston Pl evaluation 85

E. 24 Liberty Cres application 85

F. 24 Liberty Cres evaluation 85

G. 63 Coalmine Rd application 85

H. 63 Coalmine Rd evaluation 85

I. 193 Kitchener Rd application 85

J. 193 Kitchener Rd evaluation 85

K. 198 Broomfields Rd application 85

L. 198 Broomfields Rd evaluation 85

M. 477 Ponga Rd application 85

N. 477 Ponga Rd evaluation 85

O. 958 Ararimu Rd application 85

P. 958 Ararimu Rd evaluation 85

Q. 79 Rutherford Road, application 85

R. 79 Rutherford Road, evaluation 85

08 July 2014

1 Welcome

The Chairman will open the meeting and welcome everyone present. 2 Apologies

An apology has been received from Board Member Lyn Murphy, who is on leave of absence..

3 Declaration of Interest

Members are reminded of the need to be vigilant to stand aside from decision making when a conflict arises between their role as a member and any private or other external interest they might have.

4 Confirmation of Minutes

This is the first meeting during the 2013-2016 term, there are no minutes for confirmation.

5 Leave of Absence

At the close of the agenda no requests for leave of absence had been received. 6 Acknowledgements

At the close of the agenda no requests for acknowledgements had been received. 7 Petitions

At the close of the agenda no requests to present petitions had been received. 8 Deputations

At the close of the agenda no requests for deputations had been received.

9 Public Forum

A period of time (approximately 30 minutes) is set aside for members of the public to address the meeting on matters within its delegated authority. A maximum of 3 minutes per item is allowed, following which there may be questions from members. At the close of the agenda no requests for public forum had been received.

08 July 2014

10 Extraordinary Business

Section 46A(7) of the Local Government Official Information and Meetings Act 1987 (as amended) states: “An item that is not on the agenda for a meeting may be dealt with at that meeting if- (a) The local authority by resolution so decides; and (b) The presiding member explains at the meeting, at a time when it is open to the

public,- (i) The reason why the item is not on the agenda; and

(ii) The reason why the discussion of the item cannot be delayed until a

subsequent meeting.” Section 46A(7A) of the Local Government Official Information and Meetings Act 1987 (as amended) states: “Where an item is not on the agenda for a meeting,- (a) That item may be discussed at that meeting if-

(i) That item is a minor matter relating to the general business of the local authority; and

(ii) the presiding member explains at the beginning of the meeting, at a time

when it is open to the public, that the item will be discussed at the meeting; but

(b) no resolution, decision or recommendation may be made in respect of that item

except to refer that item to a subsequent meeting of the local authority for further discussion.”

11 Notices of Motion

At the close of the agenda no requests for notices of motion had been received.

08 July 2014

Triennial Schedule of Business Meetings for the Franklin Local Board Swimming Pool Fencing Exemptions Committee

File No.: CP2014/14254

Purpose 1. Pursuant to the requirements of clauses 21(5)(d) and 22(1)(a) of Schedule 7 of the Local

Government Act 2002, a date has to be set for the remaining business meetings in for the 2013-2016 term of the Franklin Local Board Swimming Pool Fencing Exemptions Committee.

Executive Summary 2. To enable times to be scheduled and protected in members’ diaries it was informally agreed

with members to meetings of the Committee on a quarterly basis (based on applications received in previous years).

3. Meetings can be cancelled if no applications have been received.

4. It is proposed to schedule meetings of the Committee prior to the Franklin Local Board workshops on the second Tuesday of each quarter, noting a larger break over each Christmas period.

5. This schedule does not preclude the Forum setting extraordinary meetings to consider business if required.

Recommendation/s That the Franklin Local Board Swimming Pool Fencing Exemptions Committee confirms the following meeting dates for the 2013-2016 triennial term:

i) 14 October 2014 ii) 10 February 2015 iii) 12 May 2015 iv) 11 August 2015 v) 10 November 2015 vi) 9 February 2016 vii) 10 May 2016 viii) 9 August 2016

Attachments There are no attachments for this report.

Signatories

Authors Gaylene Harvey - Democracy Advisor

Authorisers Teresa Turner - Relationship Manager

08 July 2014

Swimming Pool Fencing Exemption Applications – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987

File No.: CP2014/14077

Purpose 1. The purpose of this report is to present to the Franklin Local Board Swimming Pool

Exemptions Committee, eight (8) applications for special exemptions from some of the requirements of the Fencing of Swimming Pools Act 1987 (The Act).

Executive Summary 2. The Franklin Local Board Swimming Pool Fencing Exemptions Committee must conduct a

meeting and consider each of the applications for special exemption. The Committee must resolve to decline, grant or grant subject to conditions, the exemptions sought.

Recommendation/s a) That the Franklin Local Board Swimming Pool Fencing Exemptions Committee

receives the applications by:

i) N W & B A Reid – 3 Annieston Place, Waiuku

ii) N J & D J Retford Family Trust – 24 Liberty Cres, Beachlands

iii) P K & B A Heighway – 63 Coalmine Road, Papakura

iv) G & L Horne – 193 Kitchener Road, Pukekohe

v) D & C Jupe – 198 Broomfields Road, Whitford

vi) J G French – 477 Ponga Road, Papakura

vii) T & H Groenestein – 958 Ararimu Road, Ararimu

viii) D & C Cleverly – 79 Rutherford Road, Pukekohe East

b) That the Franklin Local Board Swimming Pool Fencing Exemptions Committee determine each application, by way of resolution, to:

i) grant the application for special exemption as sought, or

ii) grant the application subject to conditions, or

iii) decline the application for special exemption sought.

Discussion 3. Each property, which is the subject of an application before the Local Board, has been

inspected by Auckland Council pool inspectors. In each case, the swimming/spa pool fencing does not comply with that Act. The details of non-compliance in each case vary and are specified in the attachments to this report. Each applicant has chosen to seek a special exemption from the requirements of the Act.

4. The purpose of the Act is stated to be “to promote the safety of young children by requiring the fencing of … swimming pools”.

5. The Act requires pool owners to fence their pool with a fence. Specific detail on the means of achieving compliance with the Act is contained in the schedule to the Act. If a pool is not fenced with a complying fence it is an offence under the Act, unless exempt.

6. An exemption can only be granted by the Local Board after a consideration of the particular characteristics of the property and the pool, other relevant circumstances and taking into account any conditions it may impose. Then, only if “satisfied that an exemption would not significantly increase the danger to young children”, can an exemption be granted.

08 July 2014

7. Defining the immediate pool area will be relevant to considerations concerning the property and the pool. The immediate pool area means the land in or on which the pool is situated and as much of the surrounding area that is used for activities or purposes related to the use of the pool. The Act provides that the fence should be situated to prevent children moving directly to the pool from the house, other buildings, garden paths and other areas of the property that would normally be available to young children.

8. Another common consideration for Local Boards in exemption applications will be instances where a building forms part of the pool fence. Where doors from a building open into the pool area, the Territorial Authority may grant an exemption from compliance with clauses 8 to 10 of the schedule to the Act. It may exempt if it is satisfied that compliance with the Act is impossible, unreasonable or in breach of any other Act, regulation or bylaw, and the door is fitted with a locking device that when properly operated prevents the door from being readily opened by children under the age of 6 years. If the Local Board is satisfied that a door within a wall in a building meets that test, the Local Board must also be satisfied that an exemption would not significantly increase the danger to young children.

9. When granting a special exemption, the Committee may impose such other conditions relating to the property or the pool as are reasonable in the circumstances (section 6(2) of the Act). Issues to be considered include:

a. Will the exemption be personal to the applicant so that on a sale of the property a new owner will need to apply for a new exemption? This might be appropriate where the personal circumstances of the applicant have been considered as a relevant circumstance and had a bearing on the exercise of the discretion.

b. Will the exemption be granted for a fixed term and irrespective of changes of ownership so that the exemption runs with the property?

c. Are there any other conditions which should be imposed, repairs to existing fencing, or a requirement for more frequent inspection of the pool (currently pools are inspected every three years).

10. Any exemption granted or condition imposed may be amended or revoked by the swimming pool exemption committee by resolution. The rules of natural justice would however dictate that this action should not be taken without prior notice to the pool owner and allowing the pool owner an opportunity to be heard.

Consideration 11. The recommendations contained within this report fall within the Local Board’s delegated

authority.

12. The Act enables an exemption to be granted from clauses 8 to 10 of the Act (doors in walls of buildings) if the Local Board is satisfied that compliance with the Act is impossible, unreasonable or in breach of any other Act, regulation or bylaw and the door is fitted with a locking device that when properly operated prevents the door from being readily opened by children under the age of 6 years.

13. The overarching consideration in terms of the Act is that a resolution to grant an exemption may only be made after having regard to the particular characteristics of the property and the pool, any other relevant circumstances and any conditions it may impose, and only if it is satisfied that such an exemption would not significantly increase the danger to young children.

14. The Local Board may resolve to grant, grant subject to conditions, or decline an application for special exemption.

15. If an application is declined the applicant will be required to fence their pool in accordance with the Act.

16. The exemption hearing process under the Act does not trigger the significance policy but it is an important statutory function.

08 July 2014

17. The Council is committed to ensuring the Auckland is a safe place for children to live and play in. Pool fencing issues have a strong relationship with the Council’s strategic priorities for community safety.

Local Board Views

18. The Franklin Local Board Swimming Pool Fencing Exemptions Committee is the decision maker in relation to exemption applications under the Act.

Maori Impact Statement

19. This report does not raise issues of particular significance for Maori.

General

20. Compliance with the Act is a mandatory requirement for all pool owners unless exempt.

21. Council’s pools inspectors have consulted with the applicants in each case. Applicants have been made aware of the Council’s requirements to ensure fencing is compliant with the Act. The applicants have elected to seek a special exemption for individual reasons.

Implementation Issues 22. The decision must be made by resolution and contain conditions (if any).

Attachments

No. Title Page

A Appendix - FOSPA 13

B Appendix - NZS 8500-2006 31

C 3 Annieston Pl application - CONFIDENTIAL

D 3 Annieston Pl evaluation - CONFIDENTIAL

E 24 Liberty Cres application - CONFIDENTIAL

F 24 Liberty Cres evaluation - CONFIDENTIAL

G 63 Coalmine Rd application - CONFIDENTIAL

H 63 Coalmine Rd evaluation - CONFIDENTIAL

I 193 Kitchener Rd application - CONFIDENTIAL

J 193 Kitchener Rd evaluation - CONFIDENTIAL

K 198 Broomfields Rd application - CONFIDENTIAL

L 198 Broomfields Rd evaluation - CONFIDENTIAL

M 477 Ponga Rd application - CONFIDENTIAL

N 477 Ponga Rd evaluation - CONFIDENTIAL

O 958 Ararimu Rd application - CONFIDENTIAL

P 958 Ararimu Rd evaluation - CONFIDENTIAL

Q 79 Rutherford Road, application - CONFIDENTIAL

R 79 Rutherford Road, evaluation - CONFIDENTIAL

Signatories

Authors Chant'e Bellve - Swimming Pool Inspector

Authorisers Ian McCormick - Manager Building Control

Teresa Turner - Relationship Manager

08 July 2014

Public Excluded Page 85

Exclusion of the Public: Local Government Official Information and Meetings Act 1987

That the Franklin Local Board Swimming Pool Fencing Exemptions Committee exclude the public from the following part(s) of the proceedings of this meeting.

The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution follows.

13 Swimming Pool Fencing Exemption Applications – Special Exemption (Section 6) Fencing of Swimming Pools Act 1987

i) Attachment C - 3 Annieston Pl application ii) Attachment D - 3 Annieston Pl evaluation iii) Attachment E - 24 Liberty Cres application iv) Attachment F - 24 Liberty Cres evaluation v) Attachment G - 63 Coalmine Rd application vi) Attachment H - 63 Coalmine Rd evaluation vii) Attachment I - 193 Kitchener Rd application viii) Attachment J - 193 Kitchener Rd evaluation ix) Attachment K - 198 Broomfields Rd application x) Attachment L - 198 Broomfields Rd evaluation xi) Attachment M - 477 Ponga Rd application xii) Attachment N - 477 Ponga Rd evaluation xiii) Attachment O - 958 Ararimu Rd application xiv) Attachment P - 958 Ararimu Rd evaluation xv) Attachment Q - 79 Rutherford Road, application xvi) Attachment R - 79 Rutherford Road, evaluation

Reason for passing this resolution in relation to each matter

Particular interest(s) protected (where applicable)

Ground(s) under section 48(1) for the passing of this resolution

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

s7(2)(a) - The withholding of the information is necessary to protect the privacy of natural persons, including that of a deceased person.

In particular, the report contains personal information for applicants and photos which could impact on the security of the property should this be made public..

s48(1)(a)

The public conduct of the part of the meeting would be likely to result in the disclosure of information for which good reason for withholding exists under section 7.

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