Environmental / Resource Management

New Swimming Pool Fencing Law Passed By Parliament

Parliament has passed the Building (Pools) Amendment Bill, which the government claims will strengthen pool safety compliance and reduce the accidental drowning of children

Splashing around in a swimming pool during the summer is a joy for many kiwi children, but the safety risks of having young children around swimming pools, particularly when unsupervised, are undeniable.  In 1987, in a bid to reduce the number of accidental drownings of children, Parliament passed the Fencing of Swimming Pools Act, which required all swimming pools to be fenced.  The introduction of this requirement has significantly reduced the number of accidental drownings, but in recent years the government has expressed concern that the requirements have not been enforced consistently across New Zealand, and that the enforcement tools available to local authorities for non-compliance were deficient.

FOSPA repealed

The Building (Pools) Amendment Bill, which will take effect from 1 January 2017, represents a major overhaul of swimming pool safety requirements.  The Bill repeals the Fencing of Swimming Pools Act 1987, and incorporates swimming pool safety requirements into the Building Act 2004.  This means that swimming pool safety requirements will now stand alongside the other safety and building regulation powers contained within that Act.

Inspection regime introduced

The Bill introduces a compulsory nationwide requirement for all swimming pools to be inspected and certified every three years, to ensure ongoing compliance with safety requirements.  Under the previous regime, many local authorities (including those within the Auckland region where the majority of swimming pools are located) carried out three yearly or periodic inspections, but there was no requirement to do so.  Pool owners are provided with a choice as to whether the inspections are carried out by the local authority or by a MBIE approved independently qualified pool inspector.  If they opt for an inspection by an independent pool inspector, owners must provide a certificate of inspection to the territorial authority.


The new law also broadens the range of enforcement options available to councils.  Under the previous regime, the only enforcement option provided for in the FOSPA was to prosecute the landowner.  This tool was rarely used, largely because a prosecution is a costly process and may not necessarily be a proportionate tool for addressing a minor non-compliance.  Under the previous regime, in certain circumstances councils could use tools available under the Building Act (such as notices to fix or dangerous buildings notices).  The new regime, explicitly makes provision for councils to issue notices to fix and infringement notices for more minor incidences of non-compliance.

Compliance measures

However, while these new rules may ensure greater compliance with safety requirements, the new law also relaxes safety requirements in certain key respects.  Above ground spa pools do not need to be fenced provided that they restrict access to young children by having a lockable, child resistant cover, and are at least 760 mm above the ground.  Garden and drainage ponds are also explicitly excluded from swimming pool requirements.  While this may be seen as weakening safety requirements, the reality is that these fencing requirements were rarely complied with or enforced under the old regime, and in the case of spa pools, the risks posed by a properly covered spa pool appear to be very small.

The new rules only apply to residential pools with a maximum depth of 400 mm or more, which means that the majority of portable swimming pools will also be exempt from fencing requirements.  This recognises the difficulty of enforcing such obligations for a pool that by its very nature, is usually only temporary.  However, under the new law, retailers and manufacturers are legally required to inform purchasers of their legal obligations to restrict the access of children to swimming pools.

One of the more controversial aspects of the relaxed rules is that the new law no longer requires pools to be fenced on all four sides, instead requiring “physical barriers that restrict access to the pool by unsupervised children under 5 years of age”.  The method of restricting access must comply with the requirements of the building code in force at the time the pool was constructed.  This change is intended to provide a more pragmatic and flexible approach to restricting access to swimming pools, for example, by not requiring infinity pools to be fenced on all four sides provided access is restricted.  However, there is concern in some sectors, such as amongst those specialising in paediatric emergency medicine, that the new rules will reduce certainty, and could increase risk to children by permitting untested measures to be used to prevent access in lieu of the more certain, albeit rigid, requirement that the pool be properly fenced on all sides.

The new law also removes the requirement that safety gates be self-latching, instead requiring that gates must be “not able to be readily opened by children”, although they still have to open outwards and swing shut automatically.  This change appears to recognise that new technology can provide other methods of ensuring that gates adequately restrict access, for example, by installing alarms that go off if the gate is not shut properly.  

Overall, the new law appears to provide a more flexible and pragmatic way of ensuring compliance with swimming pool safety requirements.  However, the greater flexibility provided in the methods of restricting access means that building inspectors will need to take particular care to ensure that the physical barriers do adequately restrict access to young children.

© Brookfields Lawyers 2016 – All Rights Reserved


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