to the Department of Local Government - SPASA NSW · Walls” are not an acceptable building solution under the BCA deemed to satisfy provisions. Alternative solutions Licence holders

Swimming Pool and Spa Alliance (SPASA) 1/33 Daking Street, North Parramatta NSW 2151

Tel: 61+2 9630 6300 - Fax: 61+2 9630 6355 Email: [email protected]

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16 July 2013

SUBMISSION BY THE

Swimming Pool and Spa Alliance

to the

Department of Local Government

regarding

Wet Edge Pools Zero Edge Pools

Infinity Edge Pools Negative Edge Pools

Vanishing Edge Pools Disappearing Edge Pools

Out of Ground Pool Walls



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The Hon. Don Page, MP Minister for Local Government Level 33 Governor Macquarie Tower 1 Farrer Place SYDNEY NSW 2000 Email: [email protected]

CC

The Hon. (Brad) Bradley Ronald HAZZARD MP Minister for Planning and Infrastructure Governor Macquarie Tower, Level 31, 1 Farrer Place Sydney, NSW 2000 Email: [email protected] Neil Cocks Director Building Professionals Board GPO Box 3720 PARRAMATTA NSW 2150

Email: [email protected]

THE SWIMMING POOL AND SPA ALLIANCE (SPASA) The Swimming Pool and Spa Alliance (SPASA) represents hundreds of Australian businesses within the swimming pool and spa industry. Members of SPASA include pool builders, manufacturers, suppliers, retailers, technical servicemen, subcontractors, installers, consultants and other allied trades, all of whom set themselves apart from the rest of the industry by setting standards of skill, workmanship and ethical business behaviour in the best interests of pool and spa owners. SPASA is also a Registered Training Organisation (RTO) that provides training and assessment to the swimming pool and spa industry. Our courses are designed in consultation with key industry stakeholders and our qualifications and accreditations are highly valued by government, employers and the wider community.

mailto:[email protected]





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THE SWIMMING POOL REGULATION AND THE BUILDING CODE OF AUSTRALIA Above Ground Pools and Out of Ground Pool Walls Swimming Pools Regulation 2008 With the exception of NSW, the walls of an “Above Ground Pool” and an “Out of Ground Pool Wall” are considered an effective barrier. Clause 3 within the definition of the Swimming Pools Regulations 2008 references AS1926.1 - 2007, but excludes Clause 2.10 of the Standard in NSW which refers to the fencing requirements for “Above Ground Pools”. As the Act, Standard and Regulation never contained definition of what is an “Above Ground Pool” some Council Officers and Private Certifiers formed a view that all “out of ground pool walls” including those on “Infinity Edge pools” were required to be independently fenced with a separate child resistant barrier despite already complying with the prescribed barrier requirements. Equally, many Infinity Edge Pools have been approved and were not required to be independently fenced with a separate child resistant barrier for a number of the following reasons:

- The Infinity Edge Pool was not considered an “Above Ground Pool” by the Council Officer or Private Certifier because they correctly identified them as being vastly different. Differences that have now been articulated within AS1926.1 – 2012.

- The Infinity Edge Pool wall height exceeded the prescribed dimensions and technical requirements as set out within AS1926.1 – 2007 (1200mm height, finish, projections, indentations)

Building Code of Australia Despite the clarification within the revised AS1926.1 – 2012, the 2013 Building Code of Australia now includes a NSW variation for “out of ground pools” under Part 3.9.3 within Volume Two National Construction Code. This variation ONLY applies in New South Wales “to the technical construction requirements for barriers to restrict access to swimming pools, subject to the walls of out-of-ground pools and above ground pools, including inflatable pools, not being considered to be effective barriers.”



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Excerpt below from 2013 Building Code of Australia extract (came into effect 1st May 2013)

AUTRALIAN STANDARDS CS-034 COMMITTEE

Standards are published documents setting out specifications and procedures designed to ensure products, services and systems are safe, reliable and consistently perform the way they were intended to. They establish a common language which defines quality and safety criteria.

The following nominated organisations are represented on Committee CS-034 which was charged with drafting the current version of AS1926.1 – 2012:

ABCB NSW Department of Health

ACCC NSW Office of Fair Trading

Australian Industry Group Planning South Australia

Australian Institute of Building Surveyors Royal Life Saving Society Australia

Building Codes Queensland Swimming Pool and Spa Alliance

Bureau of Steel Manufacturers of Australia Swimming Pool and Spa Association of WA

Consumers Federation of Australia Swimming Pool and Spa Association of VIC

Kidsafe



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Outcomes derived by this committee are based on sound industrial, scientific, technical and practical experience as well as statistics. In revising AS1926.1, Committee Members sought to provide a definition for an “Above Ground Pool” in order to differentiate it from a swimming pool with an “Out of Ground Pool Wall.” The Committee developed the following definitions:

Clause 2.9 “Above-Ground Pools” For above-ground pools that are factory fabricated and designed for assembly and installation on site, including inflatable pools, the walls of the pool shall be considered an effective barrier provided they comply with the relevant provisions of Clauses 2.1 to 2.3. A barrier complying with Clauses 2.1 to 2.4 shall be placed around permanently fixed access ladders and around a designated access point to above-ground pools with removable ladders. Examples of “Above Ground Pools”



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Clause 2.5.3 “Out-of-ground pool walls” Out-of-ground walls of pools that comply with the requirements of a barrier in this Standard shall be considered an effective barrier. (For above-ground pools, see Clause 2.9.)

Examples of Pools with “Out of Ground Pool Walls”

Drop to ground level is 4 metres Wall of pool is 1.4 metres

Wall of pool is 1.5 metres Drop to waterway level is 2 metres

Drop to ground level is 3 metres Pool is built on piers. Pool wall is approx. 8 metres above ground level



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THE NSW VARIATION SPASA notes that the NSW Variation (out of ground pools) is not referenced in the current versions of the NSW Swimming Pools Act 1992 or the Swimming Pools Regulation 2008 but has found its way into 2013 Building Code of Australia. Additionally, the use of the term "out-of-ground pools" in the Building Code of Australia is inaccurate and does not match the terminology used in the Standard – “Out-of-ground pool walls”. In almost all cases, swimming pools being affected by this Variation are not "out-of-ground pools". Rather they are in ground pools with one or two “out of ground walls”. Out of ground walls of pools that comply and/or exceed the requirements of AS1926.1 for a barrier have been and continue to be accepted in all other states and up until May 1, 2013 were accepted by a great majority of councils and private certifiers in NSW. Where such barriers were disallowed by those few councils and private certifiers, they would instruct the homeowner to build another further pool barrier directly in front of the out of ground pool wall. Examples of this include, but are not limited to the following:

A 1200mm tubular barrier being constructed directly in front on a 2000mm out of ground flush wall



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A 1200mm tubular barrier being constructed directly in front of a 1500mm out of ground pool flush wall on a sloping block leading to the water’s edge

A 1200mm masonry wall built directly in front of a 1400mm pool wall



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A 1200mm tubular barrier being constructed on a slope 5 meters below piers which support an out of ground pool whose wall itself is 1500mm

A 1200mm glass barrier directly in front of a 1200mm out of ground pool wall



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EXEMPTIONS AND ALTERNATIVE SOLUTIONS Exemptions Under section 22 of the Swimming Pool Act 1992, the Local Authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases. For an exemption to be granted, the local authority must be satisfied in the particular circumstances of the case. In summary: a) That it is impracticable or unreasonable for the swimming pool to comply with those requirements:

- because of the physical nature of the premises or - because of the design or construction of the swimming pool, or - because of special circumstances of a kind recognised by the regulations as

justifying the granting of an exemption

b) That an alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool.

Deemed to Satisfy and Alternative Solutions

The Building Code of Australia (BCA) is a ‘performance based’ document that provides flexibility when designing a building.

The flexibility allowed under the BCA means that contractors are not ‘locked in’ to a specific construction method and can achieve compliance in several ways. The BCA allows for a number of methods to achieve a building solution providing the method adopted complies with the performance provisions set out for each aspect of the design.

The performance provisions state how a building or its components must achieve minimum standards in relation to such things as the structure, damp and weatherproofing, fire safety, health and amenity, safe movement and access and energy efficiency.

Deemed to satisfy

The most common method to achieve a building solution is to adopt the ‘deemed to satisfy’ provisions in the BCA. This gives the license holder the option of adopting either the ‘acceptable construction practice’ which is the technical information contained in the BCA or using an ‘acceptable construction manual’ where provided, which are generally referenced Australian Standards.

Using either one of these ‘deemed to satisfy’ methods will guarantee compliance with building regulations but a building solution can also be achieved by other means, using the performance provisions.



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If a method not consistent with either the acceptable construction practice or the acceptable construction manual then it can be devised and shown to comply with the relevant performance provisions (alternative solution).

The NSW “Out of Ground Pools” variation within the BCA means that “Out of Ground Pools Walls” are not an acceptable building solution under the BCA deemed to satisfy provisions.

Alternative solutions

Licence holders have the choice to use an ‘alternative solution’. In this instance, license holders are required to provide evidence to support the design, which shows how the use of a material or form of construction will meet the BCA performance requirements. To determine this, license holders have access to a variety of assessment methods which can be used. These include:

- providing evidence such as a report from a registered testing authority, - a certificate from a registered engineer or - a current certificate of conformity or accreditation that may be issued by the

appropriate authority. Verification can also be achieved by a test, calculation or inspection; this may be the case on site where the relevant building surveyor may pass a form of construction or method that does not strictly comply with the BCA but in his or her opinion will satisfy the intent of the regulations. In the vast majority of cases, “out of ground pool walls” satisfy the requirements of AS1926.1 and thus NSW Regulations

Issues with obtaining Exemptions or using an Alternative Solution Whilst many “Infinity Edge Pools” with “Out of Ground Pool Walls” would satisfy and/or exceed the above requirements, almost all local authorities have been reluctant to grant an exemption or consider an alternative solution.

Many of them are bemused by the variation and are unable to explain or understand why the variation is in place - and only in NSW.

Members of SPASA report that local authorities have become risk-averse when faced with an “Application for an Exemption” or an “Alternative Building Solution”. The exposure to liability is at the forefront of their minds despite the fact that in many instances the exemption or alternative solution sought – satisfies or exceeds the legislative and technical requirements.



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The risk of litigation (in the case of an injury or drowning) is amplified when coupled with confusion among local council inspectors and private certifiers on how to interpret the Act, Regulation, standard and the BCA , indicating the need for a mandatory training program to increase knowledge and consistency of application across the state. Consequently, many local authorities and certifiers are unwilling to consider an exemption or an alternative solution despite them having the authority to do so as well as the knowledge that the out of ground pool wall in many cases is safer than the minimum requirement. The situation highlights a process that simply does not work for reasons of fear rather than reviewing and considering the solutions available under the Act and the BCA which cover exemptions, evidence based solutions, performance requirements and expert advice.

AS1926.1- 2012 Clause 2.5.3 states: "Out of ground walls of pools that comply with the requirements of a barrier in this Standard shall be considered an effective barrier." AS1926.1 – 2012 is a safety standard concerned with the safety of young children. The NSW Variation renders clause 2.5.3 of the standard ineffective and unusable within NSW and in doing so gains zero in additional safety when you take into account that many of the out of ground pools walls well exceed the minimum requirement of the standard. In essence, it requires homeowners to duplicate a perfectly compliant and safer barrier with one that is inferior.

IMPACT OF THE VARIATION Constructed Swimming Pools There are over 350,000 constructed swimming pools in NSW with approximately 5,000 to 6,000 new swimming pools being constructed each year. Financial Data Home Warranty Insurance data published by NSW Home Warranty Insurance Scheme Board and independently compiled and audited by Finity Consulting Pty Ltd reveals:

(06-10) 4 year Average)

- Total number of swimming pools built 5,022 pools built annually - Value of swimming pool projects built $181,750,000 million annually



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Break Down:

70% of swimming pools are constructed from concrete

30 % of swimming pools are constructed from fibreglass Key Points: Out of ground pools (inc. infinity pools):

account for 878 (20%) constructed swimming pools in NSW annually

contribute $31,806,250 million to the NSW economy annually Those adversely affected by the NSW Variation are not limited to the swimming pool construction industry. Others include: engineers, architects and designers, landscapers, house builders, manufacturers and wholesalers and the homeowner. As previously highlighted, swimming pool construction of Infinity Edge Pools contributes over $30 million to the NSW economy annually. These figures do not reflect the financial contribution made by Architectural Designers and Architects, Landscapers or other related industries in in the designing of infinity edge pools. In addition to industry, owners of Infinity Edge Pools are forced to spend thousands of dollars on additional barriers despite the fact that in many cases the flush “out of ground pool wall” is significantly higher and safer than the barrier the home owner is being forced to install.

CONSULTATION SPASA understands that every state and territory government has signed a “Memorandum of Understanding” agreeing that they would not make variations to the BCA. In this regard, SPASA is not aware of any consultation that has taken place to allow the term “out of ground pools” to be included in the Building Code of Australia.

FINAL COMMENTS This submission refers only to swimming pools with “Out of Ground Pool Walls”. It is incumbent upon government to ensure that laws and regulations are based on sound and evidentiary principals in order for them to be meaningful, consistent and effective.



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SPASA submits that the NSW variation for “out of ground pools” be removed from the Building Code of Australia and that the NSW Department of Local Government recognise (as have the other jurisdictions) that “out of ground pool walls” are an acceptable barrier when they are no less effective than those requirements prescribed by the standard for a traditional tubular, glass, boundary or other such barrier. The benefits of this would not be limited to the following:

- Bring the entire swimming pool construction industry and the regulators into compliance with the Standard

- Provide a closer step towards the aim of a consistent application of pool barrier rules across Australia

- Enable the use of a perfectly compliant and safe barrier - Common sense approach to using an “out of ground pool wall” as an effective barrier - Allow pool owners to take advantage of their sloping sites or design requirements

without spending thousands of dollars for no gain in safety The current “out of ground pools” variation needs to be removed from the BCA when you consider the reasoning within this submission. To leave the variation as it stands is illogical and unworkable. For further information: Spiros Dassakis - CEO Swimming Pool and Spa Alliance (SPASA) Toll Free: 1800 802 482 Ph: (02) 9630 6300 Email: [email protected] Web: www.spasa.org.au


http://www.spasa.org.au/

Documents

to the Department of Local Government - SPASA NSW · Walls” are not an acceptable building solution under the BCA deemed to satisfy provisions. Alternative solutions Licence holders