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1
Building Amendment Bill 2003
BUILDING AMENDMENT BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the legislation
The objective of the Bill is to improve safety for young children around
residential swimming pools.
Reasons for the Bill
The Bill is required to address the incidence of drowning and near
drowning of young children in domestic swimming pools. Approximately
seven young children drown each year in residential swimming pools.
Ways in which the objectives are to be achieved
The objectives of the Bill are to be achieved by amending the Building
Act 1975 (BA). The amendments will
· Restrict a local government's ability to grant pool fencing
exemptions to only those situations where it would not be
practicable, because of a disability of an occupant of the
building, to provide access in accordance with the standards.
· Require new pools that are constructed on or after the
commencement of the Bill that are "on" residential buildings to
be fenced. The BA currently only requires fencing around
"outdoor swimming pools". Pools "on" a building are currently
not considered to be "outdoor swimming pools" and are not
required to be isolated by a fence. For example, a pool on a deck
attached to a house meets the definition of a pool "on" a building
and therefore is not covered by the current law.
· Insert a new provision into the BA to require warning signs to be
provided on the property where a swimming pool is to be
constructed prior to its commencement. The purpose of the sign
is to alert those supervising young children that a danger, in the
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Building Amendment Bill 2003
form of a swimming pool under construction, is present. The
signs are to remain in place until a complying swimming pool
fence has been erected on the site and the fence certified by a
building certifier.
· Clarify that a pool owner must ensure that a complying pool
fence is in place and maintained to appropriate standards at all
times while the pool is filled with water.
· Insert a new provision into the BA to require a sign to be placed
near a new pool that contains instruction on the application of
Cardiopulmonary Resuscitation.
Why this way of achieving the objectives is reasonable and appropriate
The legislative framework requiring fences to be constructed around
swimming pools is contained in the Act. There is no alternative to
amending legislation to achieve the objectives of the Bill.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
objectives.
Administrative cost to government of implementing the Bill
There will be no other direct cost burden on the Government by adopting
the proposed changes to the legislation. However, there will be costs
associated with the implementation of a proposed communication strategy
to directly target affected parts of the community.
Consistency with fundamental legislative principles
The office of the Parliamentary Counsel has advised that the provisions
do not infringe fundamental legislative principles.
Consultation
The following community organisations have been consulted during the
preparation of the Bill:
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Building Amendment Bill 2003
Local Government Association of Queensland, Gold Coast City Council,
Brisbane City Council, Housing Industry Association, Queensland Master
Builders Association, Swimming Pool and Spa Association, Royal
Australian Institute of Architects, Building Designers Association of
Queensland, and Australian Institute of Building Surveyors.
The following Government Agencies have been consulted about the
proposed legislation: Department of the Premier and Cabinet, Queensland
Treasury, Department of State Development, Queensland Health,
Department of Industrial Relations, Department of Housing, Department of
Emergency Services, Department of Justice and Attorney-General, and Dr
Robert Pitt (Queensland Injury Surveillance Unit).
EXPLANATION OF PURPOSE AND INTENDED
OPERATION OF EACH CLAUSE
Short title
Clause 1 describes the short title of the Act as being the Building
Amendment Act 2003.
Commencement
Clause 2 provides that the provisions of the Act will commence on a
date to be fixed by proclamation.
Act amendment
Clause 3 declares that the Building Amendment Act 2003 amends the
Building Act 1975
Amendment of section 3 (Definitions)
Clause 4 amends section 3 dealing with definitions for the Act.
Subclause (1) inserts new definitions for:
"construct", means for part 3, for an outdoor swimming pool on
residential land, includes install or place the pool on the land. This
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Building Amendment Bill 2003
covers both the installation of an inground pool and the placement of
an above ground pool or a portable pool exceeding a specified size on
the land. The current Act does not require "portable wading pools" to
be fenced. A "portable wading pool" is defined as a pool that can only
be filled with water to a maximum depth of 450mm, and has a volume
no more than 2000 litres, and has no filtration system.
"fencing standards", means for part 3, for an outdoor swimming pool on
residential land, constructed before the commencement of the
Building Amendment Act 2003, the standards applying for the fencing
for the pool immediately before the commencement. The Department
proposes to prepare guidelines, which will clearly identify the
standards applying at any particular time before the commencement.
For a pool constructed on or after the commencement, the "fencing
standards" are the standards applying after the commencement of the
Bill.
However, if on the commencement of the Building Amendment Act
2003 the existing pool is not fenced or the fencing does not comply
substantially with the "fencing standards", the fence must be upgraded
to comply with the standards as though the pool was constructed after
the commencement. This would apply where the pool owner has
made little or no attempt to comply with the "fencing standards". It
would not be appropriate in this case for the pool to be fenced to
outdated and inferior standards. This concept is consistent with the
proposed new section 16 which requires fences which have been
demolished, removed or in substantial disrepair to be replaced with a
fence as though the pool was a new pool constructed after the
commencement of the Building Amendment Act 2003.
"pool owner", means for part 3, an owner of residential land on which
there is an outdoor swimming pool. However, if the occupier of the
residential land, or part of the land, on which the pool is situated is the
owner of the pool, the occupier is the "pool owner" of the pool and
not the owner of the land.
Subclause (2) amends the existing definition of "indoor swimming pool"
so that only pools wholly enclosed by the walls of the building are
considered to be "indoor swimming pools". Pools on a deck or on a roof
and not wholly enclosed by walls are "outdoor swimming pools".
Subclause (3) deletes the existing definition of "revocation notice" and
inserts a new definition of "revocation notice".
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Building Amendment Bill 2003
Insertion of new ss12T to 12V
Clause 5 inserts new sections 12T to 12V.
New Section 12T (Definitions for pt 3)
Section 12T inserts new definitions of "construct", "fencing
standards" and "pool owner, (See Clause 4 sub clause 1 and 3).
New Section 12U (Meaning of "fencing standards")
Section 12U inserts a new definition of "fencing standards" (see clause 4
sub clause 1).
New Section 12V (Meaning of "pool owner")
Section 12U inserts a new definition of "pool owner" (see clause 4 sub
clause 1).
Replacement of ss14 to 16
Clause 6 omits existing sections 14 to 16 and inserts new sections 14 to
16E.
New Section 14 (Outdoor swimming pool must be fenced)
Section 14 only applies to existing outdoor swimming pools on
residential land. An outdoor swimming pool is defined in section 3 of the
Act.
Subsection 14(1) specifies that the pool owner of an outdoor swimming
pool on residential land must ensure the pool has around the pool, fencing
complying with the "fencing standards" for the pool and that the fencing is
kept in good condition.
For example, and unless the local government granted an exemption to
fence the pool:
· For a swimming pool constructed before 1991, in a local
government area that had a local law that required a swimming
pool to be fenced (to a height not less than 900mm) and which
required openings from a building to be such that they inhibited
access by young children from a building to a swimming pool,
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Building Amendment Bill 2003
the fence and openings would have to be constructed and
maintained to that standard. If the council's local law did not
require the fence and openings in the building giving access to
the pool to meet this standard, the local law is of no effect.
· For a swimming pool constructed before 1991, in a local
government area that had no local law requiring a swimming
pool to be fenced, the pool must be fenced and the fence
maintained to the standards applicable for existing pools in the
1991 pool fencing laws. That is, the pool fences must be
constructed to a height not less than 900mm and any openings
from a building being such that they inhibit access by young
children from the building to the swimming pool.
· For a swimming pool constructed after 1991, the fence must be
constructed in accordance with the standard specified in the
Regulation in force at the time the pool was constructed.
Subsection 14(2) clarifies that a pool owner is not responsible to
undertake additional work on a pool fence as a result of the actions of the
owner or occupier of adjoining land causing a complying fence to no
longer comply. For example, if an adjoining owner or occupier places an
object against the pool fence so as to provide a foothold for a young child,
the pool owner is not required to construct a new fence or change existing
fencing to correct the problem.
New Section 15 (Resuscitation sign for outdoor swimming pool)
Section 15 Inserts a new provision that requires a resuscitation sign to be
installed near new outdoor swimming pools.
Subsection 15(1) applies to an outdoor swimming pool on residential
land if the pool is constructed after the commencement of this section.
Subsection 15(2) requires the owner of the pool to display a resuscitation
sign complying with the requirements for a resuscitation sign prescribed
under a regulation and in the way prescribed under a regulation.
Subsection 15(3) defines a resuscitation sign.
New Section 16 (replacing fencing)
Section 16 requires a pool owner who demolishes, removes or allows a
fence to fall into such a state of disrepair as to not make it practicable to
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Building Amendment Bill 2003
repair the fence, to install a new fence complying with the current fencing
standard specified in the Regulation.
For the new fence, the owner must ensure a building certifier has given a
certificate in the approved form stating that the fence complies with the
pool fencing requirements under the Act as soon as is practicable. Before
the new fence is constructed, a development approval must be obtained.
It would not be necessary to construct a new fence where the existing fence
is maintained and kept in good condition
New Section 16A (Warning sign required before constructing outdoor
swimming pool)
Subsection 16A(1) clarifies that the section only applies to outdoor
swimming pools on residential land.
Subsection 16A(2)(a) requires a warning sign to be displayed on the site
before construction starts. The contents of the sign and the manner in
which it is displayed will be prescribed in a Regulation.
Subsection 16A(2)(b) requires the warning sign to be displayed until a
complying pool fence has been constructed and a building certifier certifies
that the fencing complies with the fencing requirements of the Act.
Subsection 16A(3) places an obligation on the pool owner, the pool
builder, or both the pool owner and the pool builder to comply with section
16A.
New section 16B (Constructing outdoor swimming pool)
Subsection 16B (1) applies to a person who is the pool owner of a
swimming pool that has been constructed or who will be the pool owner of
a swimming pool that is in the process of being constructed, that has not
yet been filled with water to a depth greater than 300mm. This is different
to section 14 which applies to existing swimming pools that have been
filled with water.
Subsection 16B (2) requires the pool owner mentioned in sub clause 16B
(1) to ensure the pool has a fence, complying with the standards,
constructed around the pool before it is filled with water to a depth
exceeding 300mm. However, the pool owner has a defence for not having a
complying fence around the pool if the pool owner has a reasonable excuse
for not doing so. For example, a reasonable excuse may be if, as a result of
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Building Amendment Bill 2003
a flood or torrential rain, the pool became filled with water to a depth
exceeding 300mm.
Subsection 16B (2) also requires the pool owner to ensure that a building
certifier has given the pool owner a certificate stating that the fence
complying with the standard has been constructed around the pool.
New Section 16C (Application for exemption from fencing)
Subsection 16C (1) allows the owner of an existing pool or the owner of
a pool under construction to apply to the local government for an
exemption of the pool fencing standards.
Subsection 16C (2) requires the local government to decide the
application for an exemption within 5 business days after the application is
made.
Subsection 16C (3) specifies that a local government can only grant an
exemption to the swimming pool standards in cases where it would be
physically impracticable for the person who is an occupier of the land to
access the pool, because that person has a physical disability. For example,
it may be appropriate to grant an exemption to allow an access gate to open
into the pool area if it is not possible for a person with a disability to enter
to pool area if a gate complying with the fencing standards is installed.
Subsection 16C (4) allows the local government to request medical
evidence that supports a person's claims that they have a disability that
would make it physically impracticable to access the pool.
Subsection 16C (5) allows the local government to impose conditions it
considers necessary or desirable to prevent a young child accessing the
pool. It would not be appropriate to allow no fencing if a person with a
disability occupies the property. The fencing standards would still apply to
the part of the fence that is not exempted.
In addition, any other conditions the local government considers
appropriate to ensure young children living at the property or visiting the
property are protected and prevented from entering the pool
unaccompanied may be imposed by the local government.
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Building Amendment Bill 2003
New Section 16D (Steps to be taken after application decided)
Subsection 16D (1) requires the local government to give written notice of
its decision on an application for an exemption as soon as practicable after
making its decision.
Subsection 16D (2) requires the notice to state:
· reasons for the decision;
· advice on appeal rights; and
· the time in which to make the appeal.
Subsection 16D (3) clarifies that the part of a fence that is not the subject
of the exemption application must still comply with the pool fence
standards.
Subsection 16D (4) requires the pool fence to be converted back to a
fence that complies with the pool fence standard if the applicant ceases to
be the pool owner, the person who was given the exemption no longer
occupies the land or it has become physically impracticable for the person
who was granted the exemption to access the pool.
Subsection 16D (5) places an obligation on the person to comply with
each condition attached to the exemption.
New section 16E (Revocation of exemption)
Subsection 16E (1) applies if pursuant to 16D of the Act:
· The pool owner of an existing pool is given an exemption of the
fencing standards; or
· The pool owner of a proposed pool is given an exemption of the
fencing standards.
If the local government is satisfied that the decision:
· Was based on a false or misleading particular given by the
applicant; or
· The applicant stops being the pool owner for the pool; or
· The person because of whom the exemption was granted is no
longer an occupier of the land; or
· It is no longer physically impracticable for the person because of
whom the exemption was granted to access the pool; or
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Building Amendment Bill 2003
· If the exemption was subject to conditions--the applicant has
contravened a condition.
Subsection 16E (2) applies if Subclause 16E (1) is applicable. The local
government must issue a show cause notice inviting the applicant to show
cause why the decision should not be revoked.
Subsection 16E (3) allows the local government to issue a revocation
notice, which must be in writing, revoking the decision previously given
after considering the response to a show cause notice.
Subsection 16E (4) specifies the detail that a revocation notice must
contain. This includes a requirement for the applicant to ensure that a pool
fence complying with Subclause 14(1) is installed and the day in which the
fence must be installed.
Subsection 16E (5) specifies the maximum penalty that applies for a
failure to comply with the revocation notice.
Subsection 16E (6) provides that a failure to comply with a revocation
notice is also a failure to perform work under the Local Government Act
1993 (LGA) section 1066. This means, if the owner or occupier of land or a
structure fails, or both the owner and occupier fail, to perform work
required to be performed under the LGA, a local government may, by its
employees or agents, enter the land or structure and perform the work.
Amendment of s 17 (Advice as to compliance)
Clause 7 amends the existing section 17 of the Act.
Subclause (1) amends existing sub section 17(1) by replacing "owner"
with "pool owner (as defined in 12V of the Act) of an outdoor swimming
pool". "Pool owner" is applicable only to Part 3 of the Act. "Owner" is a
definition that applies to other parts of the Act, excluding Part 3.
Subclause (2) amends existing sub sections 17(2)(b), 3(b) and (4) by
replacing "owner" with "pool owner". "Pool owner" is applicable only to
Part 3 of the Act. "Owner" is a definition that applies to other parts of the
Act, excluding Part 3.
Amendment of section 19 (Apportionment of cost of constructing
dividing fence)
Clause 8 amends existing section 19 by changing the words "constructed
or installed" in subsection (1) to "constructed". This is because "installed"
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Building Amendment Bill 2003
is now included in the new definition of "construct" in the proposed new
section 12T.
Amendment of s 20 (Appeals about swimming pool fencing)
Clause 9 amends existing sub section 20(1) by clarifying that the owner
of an existing outdoor swimming pool or the person who will be the owner
of an outdoor swimming pool that is yet to be constructed or that is in the
process of being constructed, may appeal to a tribunal under the Integrated
Planning Act 1997. The appeal can be against a decision or lack of a
decision in the prescribed time, by a local government or a private certifier
about fencing around a pool.
Insertion of new pt 7, div 1, hdg
Clause 10 inserts a new heading `Division 1--Transitional provisions
for Local Government Act 1993'.
Insertion of new pt 7, div 2, hdg
Clause 11 inserts a new heading `Division 2--Transitional provisions
for Building and Integrated Planning Amendment Act 1998'.
Replacement of section 59 (Lawfully constructed swimming pool
fences protected)
Clause 12 deletes existing section 59 and inserts a new heading
`Division 3--Transitional provisions for Building Amendment Act 2003'
and new transitional provisions 59 and 58A to 58C.
New section 58A (Definitions for div 3)
Section 58A inserts new definitions of "amending Act", "commencing
day" and "unamended Act" for the purposes of Division 3.
New section 58B (Existing exemption from fencing swimming pool)
Subsection (1) clarifies that section 58B applies to an exemption given
under the Act before it was amended by the Building Amendment Act 2003
provided the exemption was not previously revoked.
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Building Amendment Bill 2003
Subsection (2) clarifies that the previously given exemption is still valid
Subsection (3) clarifies that any conditions attached to the exemption
still apply.
New section 58C (Undecided application for exemption from fencing
swimming pool)
Subsection (1) clarifies that section 59B applies where an application for
an exemption has been made before the commencement of the Building
Amendment Act 2003 and the application has not been decided by the local
government.
Subsection (2) provides that the unamended Act continues to apply to
the application. This has the effect of the application being treated as if the
unamended Act was still in force. It will mean that the applicant must
comply with any conditions attached to the exemption imposed under the
unamended Act. It will also provide the applicant with the same rights of
appeal against a decision of the local government about the application;
New Section 58D (When resuscitation sign for outdoor swimming pool
not required)
Section 58D inserts a new transitional provision that clarifies that a
resuscitation sign is not required if the work on the pool started before the
commencing day, or approval to carry out construction of the pool was
given before the commencing day, or an application to allow the
construction of the pool and fence was made before the commencing day.
New section 59 (Revocation of decisions or previous variations)
Section 59 applies to exemptions given under section 15 of the
unamended Act and to a variation given under section 30M as in force
immediately before the commencement of the Building and Integrated
Planning Amendment Act 1998, part 2.
Section 59 requires decisions on exemptions or variations made under
section 16 of the unamended Act before the commencement of the Building
Amendment Act 2003 to be treated as if the unamended Act had not been
amended.
© State of Queensland 2003