Licensing, Exemptions and Objections Committee 13 … · Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 - ... Barry Herman, the husband of the owner and

Licensing, Exemptions and Objections Committee

Notice of Meeting A meeting of the Licensing, Exemptions and Objections Committee will be held in the Council Chamber, Forum North, Whangarei on:

Tuesday

13 March 2012 9.30am

Committee of: Council

Committee Cr M R Williams (Chairperson)

His Worship the Mayor (Deputy Chair) Cr S J Deeming Cr S L Morgan

Cr J D T Williamson

INDEX Item No Page No

1. Minutes of a Meeting of the Licensing, Exemptions and Objections Committee held 8 February 2012 ........................................................................................................ 1 2. Hearing of Objection to Classification of a Dog as Menacing.............................................. 3 3. Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 -

Mr Lawrence and Mrs Ruth Elliot ..................................................................................... 14 4. Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 -

Mr D Wynne and Mrs K Wynne ....................................................................................... 39 5. Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 -

Mr Mark and Mrs Claire Pearson ..................................................................................... 60 6. Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 -

Mr R A and Mrs M D Engdahl .......................................................................................... 77

Recommendations contained in this agenda are NOT final decisions. Please refer to the minutes for resolutions.

Licensing, Exemptions and Objections Committee 13 March 2012

1. Minutes: Licensing, Exemptions and Objections Committee Wednesday 8 February 2012

Minutes of a meeting of the Licensing, Exemptions and Objections Committee held in the Council Chamber, Forum North, on Wednesday 8 February 2012 at 1.00pm

Present: Cr M R Williams (Chairperson) Crs S J Deeming, S L Morgan and J D T Williamson

Apology: His Worship the Mayor M C A Cutforth Moved: Cr Williams Seconded: Cr Deeming “That the apology be sustained.”

CARRIED

In attendance: Group Manager District Living (P Dell), Team Leader Environmental Health (R Mussle), District Licensing Inspector (E Platero) and Senior Meeting Co-ordinator (C Brindle)

1. Confirmation of Minutes of a Meeting of the Licensing, Exemptions and Objections Committee held on 8 November 2011

Moved Cr Deeming Seconded Cr Morgan “That the minutes of the meeting of the Licensing, Exemptions and Objections Committee held on 8 November 2011 including the confidential section, having been circulated, be taken as read and now confirmed and adopted as a true and correct record of proceedings of that meeting.”

CARRIED

2. Report – Decisions of the Licensing, Exemptions and Objections Committee Moved Cr Williamson Seconded Cr Morgan “That the report be received.”

CARRIED

3. Appointment of Licensing Inspector – Emmanuel Platero Moved Cr Deeming Seconded Cr Williams “That the District Licensing Agency appoints Emmanuel Platero to carry out all functions of an Inspector under the Sale of Liquor Act 1989.”

CARRIED

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13 March 2012 Licensing, Exemptions and Objections Committee

The meeting closed at 1.03pm

Confirmed this 13th day of March 2012

M R Williams (Chairperson)

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2. Hearing of Objection to Classification of a Dog as Menacing

Reporting officer Michael Henehan (Bylaw Co-ordinator)

Date 23 February 2012

Time Hearing Name

9.30am Objection to classification of a dog as menacing Herman

Hearing Procedure

Objection under the Dog Control Act 1996

1 The Chairperson opens the proceedings by introducing the committee and asking parties to introduce themselves and their witnesses.

2 Staff will briefly outline the objection.

3 Council’s officers/contractor’s report, which has been circulated prior to the hearing, is taken as read.

4 The objector presents his/her case including any supporting evidence from witnesses.

5 The Council’s officers/contractors will speak on his/her report and is available to answer questions.

6 The objector only is given the opportunity to have a right to reply. This gives him/her the chance to clarify matters raised in the Council’s officers/contractors report but not to present new evidence.

7 The Chairperson adjourns the hearing to deliberate on its decision based on the evidence submitted, following which the objector will be notified in writing of the decision.

It is recommended that the following resolution be passed to exclude the public from the meeting during discussion:

“That following the hearing of the matters before the committee, the public be excluded from the meeting pursuant to Section 48 (1) (d) of the Local Government Official Information and Meetings Act to enable the committee to deliberate in private on the decisions made.”

A written decision will be issued within 15 working days.

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2. Hearing of an Objection to Classification of a Dog as Menacing

Reporting officer Michael Henehan (Bylaw Co-ordinator )

Date 23 February 2012

Vision, mission and values

This item is in accord with Council’s vision, mission and values statement as dog control is an issue which balances the rights of dog owners and other members of the public to enjoy the environment in safe manner.

Local Government Act 2002 – The four well-beings

Cultural No link

Economic Dog ownership can have a negative impact on both owners and others affected by dogs.

Environmental Enabling residents and visitors to the district, in particular children, to use streets and public amenities without fear of attack or intimidation by dogs.

Social While the keeping of dogs is a social activity, dog ownership comes with responsibilities to ensure that dogs to not negatively impact on social activities.

Introduction

Section 33A of the Dog Control Act 1996 (DCA) provides that Council may classify a dog as menacing where it is considered that the dog poses a threat to any person, stock, poultry, domestic animal or protected wildlife because of either the observed or reported behaviour of the dog; or any characteristics typically associated with the dog’s breed or type.

The effect of a classification of a dog as menacing is that the dog must not be allowed in public without a muzzle and the dog must be neutered within one month after the classification being received. Neutering has the effect of reducing aggression in dogs. A Dog Control Officer (DCO) may seize any dog if the owner fails to comply with the above requirements (Section 33E DCA).

The owner of a dog which is the subject of a menacing dog classification has a right of objection and has a right to be heard in support of the objection (Section 33B DCA). In considering an objection, Council may uphold or rescind the classification, and in making its determination must have regard to-

(a) the evidence which formed the basis for the classification; and (b) any steps taken by the owner to prevent any threat to the safety of persons or animals; and (c) the matters relied on in support of the objection; and (d) any other relevant matters.

Council has delegated the power to hear objections under the DCA to this committee.

The circumstances

Under the delegated authority of the Regulatory Services Manager, Council has classified a Rottweiler dog, named “Zac”, owned by Josephine Herman, as menacing because of the observed or reported behaviour of the dog, on the grounds of evidence provided by dog control officers and statements from a complainant and two witnesses. The classification is consistent with a process which is followed in the case of dogs rushing people or attacking either people or animals.

Barry Herman, the husband of the owner and acting as the owner’s agent, has objected to this classification and has indicated he wishes to be heard in support of this objection.

The incident which is the subject of this matter occurred at the Kamo Recreation Grounds in the evening of Saturday 3 December 2011. At this time the complainant, who wishes to remain anonymous, states that while she was walking her Border Terrier Fox Terrier cross dog on a leash in the grounds, Mr Herman’s dog Zac, a Rottweiler, which was not on a leash, ran over to her and attacked her dog, which suffered puncture wounds to a shoulder and back of the neck and a further injury causing a significant limp. The complainant’s statement is attached; however identifying details have been deleted from this document.

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Two independent witnesses have supplied statements. Kenny Rodger of Kamo states that upon entering the tennis courts at the Kamo Recreation Centre he was confronted with an aggressive Rottweiler dog which was continuously barking at him. After this incident he heard loud barking and yelping from dogs, whereupon he turned and saw the same Rottweiler dog attacking another smaller dog. Rodger added that he is extremely concerned that “this aggressive Rottweiler is kept unleashed and unrestrained as small children play nearby”.

The second witness, Eamon Nathan from Auckland is the brother in law of the above witness. He states they were confronted by an aggressive black Rottweiler barking at them from the other side of a wire fence. He then saw this unrestrained Rottweiler chasing and then attacking a smaller brown dog.

On being later spoken to by a Dog Control Officer, Mr Herman, who was at the sports ground with a local cricket team, acknowledged that his dog was one complained of. He stated his dog was not on a lead but added that the complainant’s dog had attacked his dog.

On completion of the investigation, Mrs Herman received infringements for owning a dog not under proper control and for owning a dog not micro chipped. There has been no prosecution action in respect to the attack complaint as the complainant has indicated she does not wish the matter to go to court.

Attached are statements of the complainant (with identifying details deleted), the witnesses and Mr Herman.

Also attached are statements from dog control officers Keith Thompson and Vanessa Morris.

Analysis

The evidence which formed the basis of the classification is as follows:

Two witnesses have supplied written statements saying that they were confronted by an aggressive Rottweiler whilst they were playing tennis at the Kamo Recreation Grounds.

The complainant has supplied a written statement stating her dog was on a leash when Zac ran to her and attacked her dog.

The complainant and the witnesses are viewed as credible and the statements of all three are consistent in respect to descriptions of Zac’s aggressive behaviour.

Council’s contract manager Keith Thompson, who has 22 years dog control experience, noted Zac’s behaviour whilst he was in the pound, saying “he was biting and mouthing at the cage door and barking at me in a very aggressive manner”.

Staff have reviewed the actions of DCOs in this case and are confident that the action taken in this case is appropriate. The objector’s view that his unrestrained Rottweiler dog was attacked by a smaller leashed dog is not supported by the complainant and independent witnesses. DCOs are of the view that it is very unlikely that a smaller leashed dog would attack an unleashed larger dog.

The area of the Kamo Recreation Grounds is not a dog exercise area and dogs must be on a leash at all times.

The witnesses’ account of Zac’s observed behaviour prior to the attack is in itself, sufficient evidence for Zac to be classified as menacing notwithstanding the attack issue.

In summary, there is almost always conflicting information between parties. DCOs have completed a thorough investigation in a professional unbiased manner and their recommendation has been made in the interests of community safety.

The role of the committee

Under delegated authority, the committee can uphold or rescind the classification, and in making its determination must have regard to:-

(a) the evidence which formed the basis for the classification; and

(b) any steps taken by the owner to prevent any threat to the safety of persons or animals; and

(c) the matters relied on in support of the objection; and

(d) any other relevant matters.

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This menacing dog classification objection hearing is about taking the most appropriate action to prevent a future attack and applying appropriate precautions to minimise a continued threat to the community.

The evidence which formed the basis of the classification includes the complainant’s and witnesses’ statements and the expert opinion of the DCOs and staff. The committee must assess this objection on the basis of what the dog did and accordingly, given the same circumstances, would the dog behave in a similar manner?

Whilst steps taken by the owner to prevent any threat to the safety of persons or animals is relevant to the committee, evidence of the dog’s character, or evidence of the dog’s previous or subsequent good behaviour is not relevant. The dog owner’s evaluation of a dog’s character is a significant cause of dog attacks. Every dog has the potential to cause injury; even ones that have never shown signs of aggression previously.

Dog owners often treat their pets as members of the family. Owners of dogs subject to an attack by another dog can display an emotional response and likewise, owners of dogs that have attacked or that have been subject to enforcement action often display an emotional response.

Dog management staff with experience in dog behaviour, have deemed that the Rottweiler dog does pose a risk to people and other animals because of reported behaviour of the dog and the menacing classification has been applied accordingly. It is the role of the committee to focus on the potential danger to the public, including children, and consider if the action proposed would achieve a lasting resolution to this matter and is this action appropriate or is it unreasonable?

Please note that the committee can simply uphold or rescind the classification. There is no ability to modify the effects of the classification.

The hearing process

Relevant documents have been made available to the objector.

The hearing procedure should be as informal as possible. The objector may speak and call evidence, or alternatively may be represented by an advocate. The hearing process is detailed in Council’s Dog Management Policy:

1 The Chairperson opens the proceedings by introducing the committee and asking parties to introduce themselves and their witnesses.

2 Staff will briefly outline the objection.

3 Council’s officers/contractor’s report, which has been circulated prior to the hearing, is taken as read.

4 The objector presents his/her case including any supporting evidence from witnesses.

5 The Council’s officers/contractors will speak on his/her report and is available to answer questions.

6 The objector only is given the opportunity to have a right to reply. This gives him/her the chance to clarify matters raised in the Council’s officers/contractors report but not to present new evidence.

7 The Chairperson adjourns the hearing to deliberate on its decision based on the evidence submitted, following which the objector will be notified in writing of the decision.

Summary

“Zac”, a Rottweiler dog owned by Josephine Herman, has been classified by Council as a menacing dog in accordance with Section 33A DCA. Under Section 33B DCA the owner has a right to object to this classification and has a right to be heard in support of his objection. This committee, on completion of the hearing, should now uphold or rescind this classification.

Recommendation

That the Licensing, Exemptions and Objections Committee, having heard the objection to the menacing classification of Rottweiler dog “Zac”, owned by Josephine Herman, will consider the objection and will as soon as practicable, give written notice to the owner of (a) its determination and (b) the reasons for its determination.

Attachment

Statements (Complainant, Roger, Nathan and Dog Control Officers Keith Thompson and Vanessa Morris)

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3. Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 – Mr Lawrence and Mrs Ruth Elliott

Reporting officer Gary Barnsley (Team Leader Compliance)

Date January 2012

Time Hearing Name

9.30am Licensing Exemptions and Objections Committee Mr Lawrence and Mrs Ruth Elliott

Hearing Procedure

Exemption under Section 6 of the Fencing of Swimming Pools Act 1987

Informal as possible – no cross examination. Only Committee members can ask questions

Staff report taken as read

Questions of clarification – staff report

Pool owner presents their case

Question of clarification of pool owner

Any final questions of clarification

Adjourn hearing.

That following the hearing of the matters before the committee, the public be excluded from the meeting pursuant to Section 48 (1) (d) of the Local Government Official Information and Meetings Act to enable the committee to deliberate in private on the decisions made.

Written decision will be issued within 15 working days.

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Report to Licensing, Exemptions and Objections Committee -

Error! Reference source not found.– Mr Lawrence and Mrs Ruth Elliott

Summary

Mr Lawrence Elliott and Mrs Ruth Elliott, the new owners of a property at 133 Ross Road, RD1, Onerahi, Whangarei, have requested a special exemption from full compliance with the requirements of the Fencing of Swimming Pools Act 1987 in terms of a swimming pool located on their property. Though there is some electrified timber fencing around the pool area, and timber gates which access the pool area from the dwelling; the fencing does not fully enclose the pool area and is not compliant with the compliance schedule of the Act. The swimming pool is located in close proximity to the dwelling and access to this area is readily achieved either from the dwelling itself across a timber deck, or via the outside of the dwelling through the timber gates. However, access to the dwelling and to the property in general is not readily available. The property in question is a large lifestyle property located inland of the Parua Bay coastal settlement, comprising just over 17.0 hectares in land area and is located in a wholly rural environment. It is bordered by other similar properties, which are in the main undeveloped and predominantly in bush or small pasture. The dwelling and therefore the pool area are located approximately 700.0m from the access and road boundary, along a metal track, and approximately 140.0m from a small cottage on the property which is tenanted. The tenants of the cottage do have a 5 year old child living at the property, however the child would have no cause to visit the applicants and even then, access to the applicants property and pool area would prove extremely difficult, with a child having to cross cattle grids and electrified fencing to gain access to the pool area. The applicants work predominantly from home, with Mr Elliot being home 3 days of the week and Mrs Elliot being home every morning, so they are at the property the majority of the time and have full view of the pool area from the living areas of the dwelling . Therefore any unauthorised intrusion onto the property itself and particularly into the pool area would be extremely unlikely. Access to the pool area from the dwelling itself is also negated by top locks or window limiters, and the only permanent occupants of the dwelling are the applicants. They do have children who reside outside the district and though they have 2 grandchildren under 6 years who do visit occasionally, they would no doubt be supervised by their parents or the applicants at all times. Being satisfied that in all of the circumstances, the situation at this property and in terms of this swimming pool and with the application of appropriate conditions to any special exemption, would not significantly increase the danger from drowning to young children, the recommendation is that this application for special exemption from the requirements of the Act is granted.

Requirement of the Act

The Fencing of Swimming Pools Act 1987 is an Act to promote the safety of young children by requiring fencing of certain swimming pools and spa pools, and requires that all pool or spa pool owners must ensure that the pool or spa pool is fenced in compliance with the building code to prevent access to the pool or spa pool area by young children. Section 8 of the Act, “Obligations of owner and persons in control of pool” states that every owner of a pool to which this Act applies shall ensure that, except as provided in any exemption granted under section 6 of this Act, the pool, or some or all of the immediate pool area including all of the pool, is fenced by a fence that complies with the requirements of the building code in force under the Building Act 2004 in respect of swimming pools subject to this Act at all times when this Act applies in respect of the pool.

Section 6 - Exemption

Section 6 of the Act provides for special exemption from this requirement, and states:

1. “A territorial authority may, by resolution, grant an exemption from some or all of the requirements of this Act in the case of any particular pool where the territorial authority is satisfied, having regard to the particular characteristics of the property and the pool, any other relevant circumstances, and any conditions it imposes under subsection (2) of this section, that such an exemption would not significantly increase danger to young children.

2. In granting an exemption under subsection (1) of this section, the territorial authority may impose such other conditions relating to the property or the pool as are reasonable in the circumstances.

3. Any exemption granted or condition imposed under this section may be amended or revoked by a territorial authority, by resolution.”

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The Application

In December 2011, Council had cause to undertake a compliance inspection at the property, and it was noted that the swimming pool on the property did not comply with the Act, however after discussions with the property owners; it was considered that an application for special exemption may be appropriate. It may be noted here that the applicants have only owned the property for a few months while the pool was „constructed‟ without the appropriate consents by the previous owner and had been on site for some years prior to the applicants purchasing the property and prior to it coming to Council‟s attention. Council compliance staff undertook an assessment of the swimming pool and the property, in the company of Mrs Elliot and noted that the pool was located in an area immediately adjacent to the dwelling which was not enclosed by compliant pool fencing at that time and for that reason the swimming pool failed to achieve compliance. The issue was discussed on site with the applicant and it was agreed that on the basis of the secluded nature and remoteness of the property, the inaccessibility to the property, the absence of young children living at or visiting the property, then an application for special exemption from the compliance requirements of the Act may be appropriate. The owners of the property have now made such application for a special exemption from the compliance requirements of the Act, and a copy of the application (email correspondence) is attached hereto.

Assessment of the Application for Exemption

Under Section 6 of the Act Council may, by resolution, grant an exemption from some or all of the requirements of the Act, with such conditions as may be necessary, after appropriate consideration of the particular characteristics of the property and the swimming pool, and any other relevant circumstances. In granting an exemption, Council must be satisfied that any such exemption would not significantly increase danger to young children.

In considering the issues raised in such an application, one must refer to the Act in terms of what it seeks to achieve, and the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟ (the Guidelines). The Act states that it is “An Act to promote the safety of young children by requiring the fencing of certain swimming pools”. The Guidelines offer practical evaluations in terms of certain aspects which may not strictly comply with the Act, yet offer some degree of protection or a means to safeguard access to the pool.

Swimming Pool

The swimming pool on the property is open, and does not have any lockable cover or the like . The pool is located within an outdoor amenity area which is immediately adjacent to the dwelling and can be accessed across a deck from the dwelling. The doors and windows of the dwelling which give access to the pool area are fitted with compliant locks and limiters. Otherwise, access to the pool area is unrestricted by fencing to a compliant standard. Though there is some timber fencing which is in part electrified as a stock control measure and two non compliant timber gates. The applicants are of the view that the remoteness and seclusion of the property itself and general inaccessibility to the swimming pool area, in addition to their personal vigilance, provide sufficient means of ensuring protection from the likelihood of small children drowning in the pool and accept full responsibility for ensuring the safety of any young children who may visit the property.

Characteristics of the Property

The location of the swimming pool and the property itself provides extenuating circumstances which may warrant special exemption from compliance requirements. The property owned by Mr & Mrs Elliott is a large rural lifestyle property of just over 17.0 hectares in area, and is located in a wholly rural environment. The property is bordered by other large rural properties to all boundaries, and all these properties are predominantly in bush or small areas of pasture.

Of the few other dwellings in the immediate vicinity, the nearest is a small „rental‟ cottage located on the same property, which is some 140.0m away from the applicants dwelling. The applicants‟ dwelling and therefore the pool area is located some 700.0m from the gated access and road boundary. (See aerial views attached hereto). The swimming pool is located in a „pool area‟ immediately adjacent to the dwelling, and whilst this area is not fenced to a compliant standard, the area is in full view from the living areas of the dwelling.

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There is no view of, or ready access to the dwelling and/or the pool area from any public place and the applicants work from home, so are on the property, the majority of the time, as such it would be extremely unlikely that any unauthorised public access to the dwelling and therefore the pool area would go unnoticed by the applicants. The applicants do have a grown up family, who reside in Cambridge, in the Waikato, and no children reside at the property. The applicants two small grandchildren (Three years and One year) do visit the property on occasion, though they would undoubtedly be supervised at all times. A five year old child does reside at the rented cottage on the property 140.0m away, however due to the terrain, cattle grids and electrified fencing etc, the immediate pool area adjacent to the applicants dwelling could only reasonably be accessed by children under 6 years of age who may be legitimately visiting the actual dwelling which is not a regular occurrence, and even then, the applicants and other adults would no doubt be in attendance to monitor such situations.

As such, there would seem to be no foreseeable circumstances where any child under six years of age would be on the property, in the dwelling or in the pool area whilst unsupervised. For the reasons outlined above, it is considered that the special and extenuating circumstances offered by the applicant in terms of the remoteness and seclusion of the property from public places or public access, the inaccessibility of the property, and the diligence of the applicants in terms of any young children who may have cause to visit the property, then there would be no significant increase in danger to young children presented by th is particular swimming pool and with appropriate conditions attached to any special exemption and the decision should be taken to grant a special exemption in this matter.

Conclusion

This report considers the particular characteristics of the swimming pool, the property itself and the owners/occupants of the property and the relevant legal matters which must be taken into account in considering the application for exemption and the report establishes the following:

a. The swimming pool is located on the property in such a way that it is not exposed to view or to ready access from a public place. As such, unauthorised access to the property and pool area would be extremely unlikely.

b. Access to the property itself is not readily available, and access to the pool area can only be readily attained by the owners or their visitors, as such access to the pool area by the children of any visitors to the property would be supervised by an adult at all times.

c. Whilst this situation does not strictly meet the criteria for compliance with the Act, there are sufficient grounds to consider that the purpose of the Act will be met and the pool area and the property generally meet the criteria for special exemption as discussed in the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟

In these circumstances, it is considered that there would be no significant increase in danger posed to young children by this particular swimming pool on this particular property, and with the application of appropriate conditions to any special exemption granted in this matter, then consequently this application for special exemption pursuant to Section 6 of the Act should be granted with certain conditions.

It is recommended that the following conditions be applied should the exemption be granted:

1. That the exemption is personal to the applicants and will automatically expire upon the property

being sold, or ceasing to be personally owned and occupied by the applicant s.

2. That the applicants must inform any prospective purchaser of the property that the exemption is personal to them and will expire immediately upon complet ion of the sale.

3. That the applicants must inform any visitors to the property with young children under six years, that the immediate pool area is not fully compliant with the Act and as such children must be supervised at all times whilst on the property.

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Recommendation

That having considered the particular characteristics of the property, the swimming pool situated thereon and the occupants of the property, Council is satisfied that there would be no significant increase in danger posed to young children by the swimming pool located at 133 Ross Road, RD 1, Whangarei, or by the granting of a special exemption with appropriate conditions, and therefore GRANTS such special exemption from the compliance requirements of the Fencing of

Swimming Pools Act 1987. This special exemption is granted pursuant to s.6 of the Act and is granted to Mr Lawrence Elliott and Mrs Ruth Elliott, the owners and occupants of the property under the following conditions:

1. That the exemption is personal to the applicants and will automatically expire upon the property being sold, or ceasing to be personally owned and occupied by the applicant s.

2. That the applicants must inform any prospective purchaser of the property that the exemption is personal to them and will expire immediately upon completion of the sale.

3. That the applicants must inform any visitors to the property with young children under six years, that the immediate pool area is not fully compliant with the Act and as such children must be supervised at all times whilst on the property.

Attachments:

1. Letter of application

2. Aerial view of property

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AERIAL VIEWS OF PROPERTY SHOWING LOCATION OF POOL ON PROPERTY AND REMOTE LOCATION AND INACCESSIBILITY OF THE PROPERTY IN GENERAL

Trim Ref: 11/104597

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4. Special Exemption from Compliance with Fencing of

Swimming Pools Act 1987 – Mr D Wynne and Mrs K Wynne

Reporting officer Gary Barnsley (Team Leader Compliance)

Date January 2012

Time Hearing Name

9.30am Licensing Exemptions & Objections Committee Mr D Wynne and Mrs K Wynne

Hearing Procedure








Adjourn hearing.


Written decision will be issued within 15 working days.

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Report to Licensing, Exemptions and Objections Committee - Special Exemption from Compliance with Fencing of Swimming Pools Act 1987– Mr D Wynne and Mrs K Wynne

Summary

Mr David Wynne and Mrs Karen Wynne, the owners of a property located at 356 Cemetery Road, Maunu, Whangarei have requested a special exemption from full compliance with the requirements of the Fencing of Swimming Pools Act 1987 in terms of a spa pool located on their property. They currently have a compliance certificate for a swimming pool which is built into the rear deck adjacent to the dwelling. Whilst the fencing of the swimming pool is fully compliant with the compliance schedule of the Act, a spa pool has recently been located on the deck. This spa pool sits on the deck, but outside of the compliant fencing area, therefore the spa pool does not meet compliance criteria. Whilst this spa pool is fitted with a lockable spa pool cover, which is compliant with New Zealand standard 8500:2006, this is not strictly compliant with the Act, as NZS 8500:2006 has not been cited within the compliance schedule of the Act at this time. However, the fact that compliance with NZS 8500:2006 has been achieved, together with other relevant criteria, such as the seclusion of the property and inaccessibility to the spa pool, may warrant a special exemption pursuant to s.6 of the Act. In addition to the locking spa pool cover, the spa pool is located immediately adjacent to the rear of the dwelling on a slightly elevated deck. The property in question comprises just over 1.0 hectare, is located in a rural environment, and is bordered by other similar lifestyle and pastoral properties. The dwelling and therefore the spa pool are located some 240.0m distant from the access and road boundary and the nearest residence on a neighbouring site is some 220.0m away. The applicants work from home much of the time and any unauthorised intrusion onto the property and particularly onto the spa pool area would be extremely unlikely. Access to the spa pool area from the dwelling itself is not negated as there are no top locks or window limiters fitted, due to the swimming pool being within a compliant fenced area, however the only occupants of the dwelling are the applicants, and their two grown up children (15 years and 17 years) therefore there are no children under 6 years who reside at the property, or who regularly have cause to visit the property. Being satisfied that in all of the circumstances, the situation at this property and in terms of this spa pool, and with the application of appropriate conditions to a special exemption, this would not significantly increase the danger from drowning to young children, the recommendation is that this application for special exemption is granted.

It may be deemed appropriate in this case, that as the swimming pool on the property is itself fully compliant, then the special exemption if granted, be applied to the spa pool and the swimming pool on the property, as it would seem incongruous to specially exempt the spa pool, but not the swimming pool which actually achieves compliance currently, and which ultimately is governed by the same extenuating circumstances which may warrant this application for the spa pool being granted .






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The Application

In May 2009, Council compliance staff inspected the swimming pool on the applicant‟s property and deemed it fully compliant, hence a compliance certificate was issued and the next scheduled swimming pool inspection was set for 2012. In October 2011, the applicants purchased a spa pool which they located on the property, however due to space restrictions within the immediate pool area; the spa pool was located outside of the compliant pool fence. As such, the applicants submitted a written application for special exemption from the compliance requirements of the Act. (See attachment). On 2 November 2011 Council staff attended the property, undertook an inspection and noted that the swimming pool on the property was located on the deck area immediately adjacent to the dwelling and that this area was fully enclosed by compliant pool fencing at that time. However, as the new spa pool was not able to be accommodated within the fenced area, this was situated on the deck immediately adjacent to the dwelling. It was noted that the spa pool is fitted with a lockable spa pool cover, which is compliant with New Zealand standard 8500:2006, though this is not strictly compliant with the Act, as NZS 8500:2006 has not been cited within the compliance schedule of the Act at this time. It was also noted that the windows and doors of the dwelling that gave access to the pool area were not fitted with limiters or top locks, as is required by the compliance schedule of the Act. For these reasons the spa pool failed to achieve compliance. The issue was discussed with the owner and on the basis of the absence of children living at or visiting the property, the remoteness of the property and the inaccessibility to the spa pool area on the property, it was agreed that an application for special exemption from the compliance requirements of the Act may be appropriate. The owner of the property has now made such application for a special exemption from the compliance requirements of the Act , and a copy of the application is attached hereto.


Under Section 6 of the Act Council may, by resolut ion, grant an exemption from some or all of the requirements of the Act, with such conditions as may be necessary, after appropriate consideration of the particular characteristics of the property and the pool, and any other relevant circumstances. In granting an exemption, Council must be satisfied that any such exemption would not significantly increase danger to young children.

In considering the issues raised by the applicant, one must refer to the Act in terms of what it seeks to achieve, and the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟ (the Guidelines). The Act states that it is “An Act to promote the safety of young children by requiring the fencing of certain swimming pools”. The Guidelines offer practical evaluations in terms of certain aspects which may not strictly comply with the Act, yet offer some degree of protection or a means to safeguard access to the pool.

Spa Pool

Whilst the spa pool on the property is not enclosed by compliant pool fencing, it does have a lockable cover and is located within an area immediately adjacent to the dwelling. The spa pool is fitted with a lockable spa pool cover, which is compliant with New Zealand standard 8500:2006 and though this is not strictly compliant with the Act, as NZS 8500:2006 has not been cited within the compliance schedule of the Act at this time, the fact that compliance with NZS 8500:2006 has been achieved, together with other relevant criteria such as the seclusion of the property and inaccessibility to the spa pool, may warrant a special exemption pursuant to s.6 of the Act.

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Doors and Windows Giving Access to Spa Pool Area

The compliance schedule of the Act in terms of doors in walls of buildings, at clause 11 states:

Where a building forms part of a fence, a door in the building wall does not have to comply with clauses 8 to 10 (which specify compliance requirements) if a territorial authority is satisfied that:

(a) Compliance with these clauses is impossible, unreasonable, or in breach of another Act, regulation, or Bylaw; and

(b) The door is fitted with a lock that, when properly operated, prevents the door from being readily opened by children under the age of 6 years.

The Act states, in terms of gates and doors that the term “gates or doors” refers to gates in pool fences and doors in any building which makes up part of a fence. A door may be built in the wall of a building that forms part of a pool fence. If it does, it must be fitted with a lock (at a minimum height of 1.5m) which prevents it being readily opened by children under the age of six. In this case, all the doors which give access to the pool area are not compliant as they do not have locks fitted at a height greater than 1.5m.

In terms of the windows which give access to the pool area, the guidelines state that a window in a building that forms part of the barrier to access the pool area shall be treated as a „fence‟. As such any opening windows lower than 1.2 metres from floor level must be restricted to open no more than 100mm. One must also restrict the window if there are any climbing aids placed against the window, such as furniture and including a window ledge that reduces the required height.

In this regard, the applicant feels that it is unreasonable (refer clause 11 of the Act) to be required to fit compliant door locks and window limiters to the doors and windows which give access to the spa pool area on the property, given that the spa pool is fitted with a NZS compliant spa pool cover, that there are no children under six years who live on the property or regularly visit the property and the general inaccessibility to the spa pool and remote location of the property. In terms of Clause 11, whilst it may be deemed „unreasonable‟ that the applicants fit door locks and window stays sufficient to prevent opening by a child under 6 years, the second part of the clause still requires that such locks are in fact fitted. For this reason, clause 11 can not be applied as in fact no locks are fitted. Therefore, a „special exemption‟ needs to be granted in terms of the doors and windows which access the immediate spa pool area on this property.


The location of the spa pool on the property and the property itself also provides extenuating circumstances which may warrant special exemption from compliance requirements. The property owned by Mr and Mrs Wynne comprises just over 1.0 Hectare in area, mainly in pasture, and is located in a wholly rural environment, bordered by other similar large rural properties to all boundaries. The spa pool is located on a deck area immediately adjacent to the dwelling, and in full view from most areas of the dwelling. The dwelling and therefore the spa pool are located on the property some 240.0m from the access and road boundary, and some 220.0m from the nearest dwelling on another property. (See aerial views attached hereto). Additionally, there is no view of or ready access to the spa pool from any public place and the applicants work from home the majority of the time, as such it would be extremely unlikely that any unauthorised public access to the dwelling and therefore the spa pool would go unnoticed by the owners. The immediate spa pool area could only be accessed by children under 6 years who may be visiting the property, however the applicants, their teenage children (15 years & 17 years) and other adults would no doubt be in attendance to monitor such situations. As such, there would seem to be no foreseeable circumstances where any child under 6 years of age would be on the property, in the dwelling or near to the spa pool whilst unattended.

For the reasons outlined above, it is considered that the special and extenuating circumstances offered by the applicants in terms of the remoteness of the property from public places or public access, the inaccessibility of the property, the lockable spa pool cover and the diligence of the applicants in terms of young children on the property, then there would be no significant increase in danger to young children presented by this particular spa pool and by appropriate conditions attached to a special exemption and the decision should be taken to grant a special exemption in this case.

It may also be deemed appropriate in this particular case, that as the swimming pool located on the property is itself fully compliant with the Act, then the special exemption if granted, should be applied to the spa pool and to the swimming pool on the property, as it would seem incongruous to specially exempt the spa pool, but not the swimming pool which actually achieves compliance currently, and which ultimately is governed by the same extenuating circumstances which warrant this application for the spa pool being granted.

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Conclusion

This report considers the particular characteristics of the swimming pool, the spa pool, the property and the owners/occupants of the property and the relevant legal matters which must be taken into account in considering the application for exemption and the report establishes the following:

a. The swimming pool and the spa pool are located on the property in such a way that they are not exposed to view or to ready access from a public place.

b. Access to the property itself is not readily available, the swimming pool is itself fully compliant, and the spa pool is fitted with a NZS compliant lockable spa pool cover. Access to the pool area by the children of any visitors to the property, would be supervised by an adult at all times.

c. Whilst this situation does not strictly meet the criteria for compliance with the Act, there are sufficient grounds to consider that the purpose of the Act will be met and the swimming pool, spa pool and the property generally meet the criteria for special exemption as discussed in the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟

In these circumstances, it is considered that there is no significant increase in danger posed to young children by the swimming pool and spa pool on this particular property, and with the application of appropriate conditions to any special exemption in this matter, then consequently this application for

special exemption pursuant to Section 6 of the Act should be granted with certain conditions.


1. That the exemption is personal to the applicants and will automatically expire upon the property being sold, or ceasing to be personally owned and occupied by the applicants.

2. That the applicants must inform any prospective purchaser of the property that the exemption is

personal to them and will expire immediately upon completion of the sale. 3. That the applicants must inform any visitors to the property with young children under 6 years,

that the spa pool and the dwelling are not fully compliant with the Act and as such those children must be supervised at all times whilst on the property.

Recommendation

That having considered the particular characteristics of the property, the swimming pool and spa pool situated thereon and the occupants of the property, Council is satisfied that there would be no significant increase in danger posed to young children by the swimming pool and spa pool located at 356 Cemetery Road, Whangarei, or by the granting of a special exemption with appropriate conditions, and therefore GRANTS a special exemption from the compliance

requirements of the Fencing of Swimming Pools Act 1987. This special exemption is granted pursuant to s.6 of the Act and is granted to Mr David Wynne and Mrs Karen Wynne, the owners and occupants of the property under the following conditions:



3. That the applicants must inform any visitors to the property with young children under 6 years, that the spa pool and the dwelling are not fully compliant with the Act and as such those children must be supervised at all times whilst on the property.

Attachments:

1. Letter of Application

2. Aerial View of Property

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Aerial View of property 356 Cemetery Road, Maunu, Whangarei

Showing Remoteness from Road & Neighbouring Properties.

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Swimming Pools Act 1987– Mr Mark and Mrs Claire Pearson

Reporting officer Clive Priest (Compliance Officer)

Date December 2011

Time Hearing Name

9.30am Licensing Exemptions & Objections Committee Mr Mark and Mrs Claire Pearson

Hearing Procedure








Adjourn hearing.


Written decision will be issued.

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Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 – Mr Mark and Mrs Claire Pearson.

Summary

Mr Mark and Mrs Claire Pearson, the owners of a property at 395 Ody Road, Whangarei, have requested a special exemption from full compliance with the requirements of the Fencing of Swimming Pools Act 1987 in terms of a swimming pool located on the property. Though there is compliant fencing around the pool area there are trees growing in close proximity to this fence which contravenes section 1 (1) (b) of the Fencing of Swimming Pools Act 1987. This section of the Act states that the fence shall extend at least 1.2 metres above any permanent projection or object permanently placed on the ground outside and within 1.2 metres of the fence. Because these trees are growing very close to the fence, they provide a means from which to climb over the fence. The swimming pool is located in close proximity to the dwelling and the only access to this area is achieved by entering one of the three pool gates which form part of the existing pool fence. However, access to the dwelling and to the property in general is not readily available. The property in question is a lifestyle property on the eastern side of Taurikura, comprising of just under 34 hectares in land area and located in a rural environment, bordered by other large pastoral properties, and a large undeveloped site which is predominantly in bush. The dwelling and therefore the pool area are located approximately 120.0m from the main entrance. There is a second residential dwelling on site which is located close to the main entrance and road boundary so the separation between the two dwellings would be still approximately 100 metres. Taking into account that the residential property is located nearly 4 kilometres down Ody road and is not visible from the road, the likelihood of a young person under 6 years of age having unsupervised access to the immediate pool area is extremely unlikely. Being satisfied that in all of the circumstances, the situation at this property and in terms of this swimming pool and with the application of appropriate conditions to a special exemption would not significantly increase the danger from drowning to young children, the recommendation is that this application for special exemption from the requirements of the Act is granted.








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The Application

In November 2011, during a scheduled compliance inspection it was noted that there were trees growing closely to the pool fence, while the fence may have complied the trees and the trees location to the pool fence were initially cause for concern as the trees contravene section 1 (1) (b) of the Act. This section of the act states, that the fence shall extend at least 1.2 metres above any permanent projection from or object permanently placed on the ground outside and within 1.2 metres of the fence.

The issue was discussed with the applicants and it was agreed that on the basis of the secluded nature and remoteness of the property, the inaccessibility to the property, the absence of young children living at or visiting the property, then an application for special exemption from the compliance requirements of the Act may be appropriate. The owners of the property have now made such application for a special exemption from the compliance requirements of the Act, and a copy of the application (email correspondence) is attached hereto.


Under Section 6 of the Act Council may, by resolution, grant an exemption from some or all of the requirements of the Act, with such conditions as may be necessary, after appropriate consideration of the particular characteristics of the property and the swimming pool, and any other relevant circumstances. In granting an exemption, Council must be satisfied that any such exemption would not significantly increase danger to young children.


Swimming Pool

The swimming pool on the property is located within an outdoor amenity area which is immediately adjacent to the dwelling. Access to the pool area is restricted by fencing to a compliant standard however as mentioned the trees which are in close proximity to the fence do contravene section 1 (1) (b) of the Act. The applicants are of the view that along with the compliant fence surrounding the pool, the remoteness and seclusion of the property and general inaccessibility to the swimming pool and area provide sufficient means of ensuring protection from the likelihood of small children drowning in the pool and accept full responsibility for ensuring the safety of any young children who may visit the property.


The location of the swimming pool and the property itself provides extenuating circumstances which may warrant special exemption from compliance requirements. The property owned by Mr & Mrs Pearson is a lifestyle property of just under 34 hectares in area, and is located in a wholly rural environment.

Of the few other dwellings in the immediate vicinity, the nearest is some 100 metres away with the only link being a shared gravel access. The applicants‟ dwelling and therefore the „pool area‟ are located on the property some 120.0m from the access and road boundary. (See aerial views attached hereto). The swimming pool is located in a „pool area‟ immediately adjacent to the dwelling, and this area is fenced to a compliant standard with the exception of a few trees which are in close vicinity to the fence.

There is no view of, or ready access to the dwelling and/or the pool area from any public place. The immediate pool area could only reasonably be accessed by children under 6 years of age who may be visiting the property which is not a regular occurrence; however the applicants and other adults would no doubt be in attendance to monitor such situations should they arise.

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As such, there would seem to be no foreseeable circumstances where any child under 6 years of age would be on the property, in the dwelling or in the pool area whilst unsupervised. For the reasons outlined above, it is considered that the special circumstances offered by the applicant in terms of the fenced pool, the remoteness and seclusion of the property from public places or public access, the inaccessibility of the property, the diligence of the applicants in terms of any young children who may have cause to visit the property, then there would be no significant increase in danger to young children presented by this particular swimming pool and by appropriate conditions attached to a special exemption and the decision should be taken to grant a special exemption in this matter.

Conclusion

This report considers the particular characteristics of the swimming pool, the property itself and the owners/occupants of the property and the relevant legal matters which must be taken into account in considering the application for exemption and the report establishes the following:

a. The swimming pool is located on the property in such a way that it is not exposed to view or to ready access from a public place. As such, unauthorised access to the property and pool area would be extremely unlikely.

b. Access to the property itself is not readily available, and access to the pool area can only be readily attained by the owners or their visitors, as such access to the pool area by the children of any visitors to the property would be supervised by an adult at all times.

c. Whilst this situation does not strictly meet the criteria for compliance with the Act, there are sufficient grounds to consider that the purpose of the Act will be met and the pool area and the property generally meet the criteria for special exemption as discussed in the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟

In these circumstances, it is considered that there would be no significant increase in danger posed to young children by this particular swimming pool on this particular property, and with the application of appropriate conditions to any special exemption granted in this matter, then consequently this application for special exemption pursuant to Section 6 of the Act should be granted with certain

conditions.




personal to them and will expire immediately upon completion of the sale. 3. That the applicants must inform any visitors to the property with young children under 6 years of

age, that the immediate pool area is not fully compliant with the Act due to the trees which are in close proximity to the fence and as such children must be supervised at all times whilst on the property.

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Recommendation

That having considered the particular characteristics of the property, the swimming pool situated thereon and the occupants of the property, Council is satisfied that there would be no significant increase in danger posed to young children by the swimming pool located at 395 Ody Road, Whangarei, or by the granting of a special exemption with appropriate conditions, and therefore GRANTS such special exemption from the compliance requirements of the Fencing of Swimming

Pools Act 1987. This special exemption is granted pursuant to s.6 of the Act and is granted to Mr Mark Pearson and Mrs Claire Pearson, the owners and occupants of the property under the following conditions:


2. That the applicants must inform any prospective purchaser of the property that the

exemption is personal to them and will expire immediately upon completion of the sale.

3. That the applicants must inform any visitors to the property with young children under 6 years of age, that the immediate pool area is not fully compliant with the Act due to the trees which are in close proximity to the fence and as such children must be supervised at all times whilst on the property.

Attachments:



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34

Aerial View of property 395 Ody Road, Whangarei

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Swimming Pools Act 1987– Mr R A and Mrs M D Engdahl

Reporting officer Katie Hislop (Compliance Officer)

Date January 2012

Time Hearing Name

9.30am Licensing Exemptions & Objections Committee Mr R A and Mrs M D Engdahl

Hearing Procedure








Adjourn hearing.


Written decision will be issued.

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Special Exemption from Compliance with Fencing of Swimming Pools Act 1987–Mr R A and Mrs M D Engdahl

Summary

Mr R A and Mrs M D Engdahl the owners of a property at 75 Headland Farm Park, Whangarei have requested special exemption from full compliance with the requirements of the Fencing of Swimming Pools Act 1987 in terms of a swimming pool and spa pool located on the property. The property is predominately fenced around the pool areas however the fencing is not fully compliant with the compliance schedule of the Act. The spa pool is fitted with a lockable spa pool cover which is compliant with New Zealand Standard 8500:2006 however this is not compliant with the Act as NZS 8500:2006 has not been cited within the compliance schedule of the Act. Both of the pool areas are located within close proximity to the dwelling and access to this area is achieved via the dwelling itself or through two compliant pool gates. However access to the dwelling and to the property in general is not readily available. The property in question is located within Headland Farm Park which is a gated estate and access can only be achieved via key entry or access code. The property is fenced on three sides with the steep cliffs which extend to the Parua Bay inlet acting as the North eastern boundary. Any unauthorised intrusion onto the property and particularly onto the pool area would be extremely unlikely. Access to the pool area from the dwelling itself is negated as there are top locks and window limiters fitted, the applicants are the only two occupants of the dwelling and there are no children under 6 years who visit, or would have cause to visit the dwelling. Being satisfied that in all of the circumstances, the situation at this property and in terms of the swimming pool and the spa pool which is fitted with a NZS compliant cover, and with the application of appropriate conditions to a special exemption, this would not significantly increase the danger from drowning to young children, then the recommendation is that this application for special exemption is granted.








The Application

In November 2011, Council compliance staff undertook a swimming pool inspection at the property, in the company of Mr Richard Engdahl, who is the owner of the property, At the time of the site visit it was noted that there was a swimming pool and spa pool on the property which were located in the area immediately adjacent to the dwelling, and that this area was not wholly enclosed by compliant pool fencing at that time. For that reason the swimming pool and spa pool failed to achieve compliance. The issue was discussed on site with Mr Engdahl and it was agreed that a special exemption may be appropriate.

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On the basis of the inaccessibility to the property on the north eastern boundary, and the absence of children living at, near to or visiting the property, it was agreed th at an application for special exemption from the compliance requirements of the Act may be sought. Mr Engdahl, the owner of the property has now made such application for a special exemption from the compliance requirements of the Act, and a copy of the application is attached hereto.


Under Section 6 of the Act Council may, by resolution, grant an exemption from some or all of the requirements of the Act, with such conditions as may be necessary, after appropriat e consideration of the particular characteristics of the property and the swimming pool, and any other relevant circumstances. In granting an exemption, Council must be satisfied that any such exemption would not significantly increase danger to young children.


Swimming Pool and Spa Pool

The swimming pool on the property is open, and does not have any lockable cover or the like however the spa pool does have a lockable lid. Spa pools which are fitted with lockable spa pool covers are compliant with New Zealand Standard 8500:2006 however this is not compliant with the Act as NZS 8500:2006 has not been cited within the compliance schedule of the Act. Both pools are located immediately adjacent to the dwelling. Access to the pool areas is restricted by fencing on three of the properties boundaries to a compliant standard. The applicant is of the view that the inaccessibility to the pool and pool areas on the north eastern boundary, together with the spa pool cover which meets compliance with NZS 8500:2006, provide sufficient means of ensuring protection from the likelihood of small children drowning in the pool or spa pool, and accept full responsibility for ensuring the safety of any young children who may visit the property.


The location of the swimming pool and spa pool and the property itself provides extenuating circumstances which may warrant special exemption from compliance requirements. The property owned by Mr & Mrs Engdahl is 1200m

2 and is located at the end of a cul-de-sac which forms a cluster

of approximately four properties. The property is part of a gated estate which is located off Manganese Point Road; the estate itself has many residential properties which are surrounded by an operational sheep farm. Both pools are located in a pool area adjacent to the dwelling and this area is fenced on three sides with one boundary protected by an inlet into Parua Bay and fairly dense bush. All entry points via the dwelling to the pool area have been fitted with top locks and window limiters. There are also two compliant pool gates that are used to gain entry to the pool area from outside of the dwelling. Access to the estate is limited by the fact that access can only be gained with a swipe card or knowledge of the access code which changes every month. The nearest neighbour is only 20m from the property however any access would have to be achieved either via the dwelling or through either one of the compliant pool gates; it would not be possible to access the unfenced north eastern boundary due to the steep terrain and dense bush. Additionally there is no ready access to the property and/or the pools from any public place.

The immediate pool area could only be accessed by children under 6 years who may be visiting the property which is unlikely, however the applicant and other adults would no doubt be in attendance to monitor such situations.

As such, there would seem to be no foreseeable c ircumstances where any child under 6 years of age would be on the property, in the dwelling or in the pool area whilst unsupervised. For the reasons outlined above, it is considered that the special and extenuating circumstances offered by the applicant in terms of the inaccessibility of the property from public places or public access, the inaccessibility of the property due to it being on a gated estate, the diligence of the applicant in terms of young children on the property, then there would be no sign ificant increase in danger to young children presented by this particular swimming pool and spa pool and by appropriate conditions attached to a special exemption and the decision should be taken to grant a special exemption.

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Conclusion

This report considers the particular characteristics of the swimming pool, spa pool, the property and the owners/occupants of the property and the relevant legal matters which must be taken into account in considering the application for exemption and the report establishes the following:

a. The swimming pool and spa pool are located on the property in such a way that they are not exposed to view or to ready access from a public place. The property is fenced on three boundaries with the steep cliffs which extend to the Parua Bay inlet acting as the north eastern boundary.

b. Access to the property itself is not readily available, as the property is located within a gated estate which can only be accessed via key entry or access code.

c. Whilst this situation does not strictly meet the criteria for compliance with the Act, there are sufficient grounds to consider that the purpose of the Act will be met and the pools and the property generally meet the criteria for special exemption as discussed in the Department of Internal Affairs publication, „The Fencing of Swimming Pools Act 1987 Guidelines for Territorial Authorities‟

In these circumstances, it is considered that there would be no significant increase in danger posed to young children by this particular swimming pool and spa pool on this particular property, and with the application of appropriate conditions to any special exemption in this matter, then consequently this application for special exemption pursuant to Section 6 of the Act should be granted with certain conditions.




personal to them and will expire immediately upon completion of the sale. 3. That the applicants must inform any visitors to the property with young children under 6 years,

that the immediate pool areas are not fully compliant with the Act and as such children must be supervised at all times whilst on the property.

Recommendation

That having considered the particular characteristics of the propert y, the swimming pool and spa pool situated thereon and the occupants of the property, Council is satisfied that there would be no significant increase in danger posed to young children by the swimming pool and spa pool located at 75 Headland Farm Park, Whangarei, or by the granting of a special exemption with appropriate conditions, and therefore GRANTS a special exemption from the compliance

requirements of the Fencing of Swimming Pools Act 1987. This special exemption is granted pursuant to s.6 of the Act and is granted to Mr RA Engdahl and Mrs MD Engdahl, the owners and occupants of the property under the following conditions:



3. That the applicants must inform any visitors to the property with young children under 6 years, that the immediate pool areas are not fully compliant with the Act and as such children must be supervised at all times whilst on the property.

Attachments:



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Kia ora Katie,

Per your observation and comments on your visit Thursday, 3

November, and the original request (still in your files) for exemption of our small swimming pool made by Northland Spa

and Pools almost 10 years ago at the time of construction, I am

requesting an official exemption from further inspections. The location of the pool next to a steep cliff leading up directly from

the bay below and the tall fencing on all other sides, plus existing security locks on all access from the house itself all provide more

than required protection from unauthorised entry by small children

(or even adults for that matter). If an additional inspection visit by someone else from WDC is necessary to confirm your

observations in order to grant the exception, please have them phone and set up a time and date that is mutually convenient; I

am able to be available most days as I work from home most of the time.

Thank you for the promptness of response and consideration you have shown; it is appreciated.

Cheers,

Richard

Richard A. Engdahl, PhD, RODC Professor Emeritus, University of North Carolina, Wilmington

CEO, Organisational Imagineering International, Ltd.

75 Headland Farm Park

RD4 Whangarei 0174

New Zealand

09 436 5520

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Aerial View of property 75 Headland Farm Park, Whangarei

Showing location of property within Headland Farm Park

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Aerial View of property 75 Headland Farm Park, Whangarei

Showing steepness of cliffs on north-eastern boundary

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Documents

Licensing, Exemptions and Objections Committee 13 … · Special Exemption from Compliance with Fencing of Swimming Pools Act 1987 - ... Barry Herman, the husband of the owner and