THE CORPORATION OF THE TOWN OF PENETANGUISHENE BY-LAW NUMBER 2009-42 BEING A BY-LAW TO REGULATE ENCLOSURES AROUND PRIVATELY OWNED OUTDOOR SWIMMING POOLS (POOL FENCE BY-LAW) WHEREAS pursuant to section 9 of the Municipal Act, 2001 S.O. 2001, chapter 25, (the Act) as amended, a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS pursuant to section 8. (1) of the Act, as amended, sections 9 and 11 shall be interpreted broadly so as to confer broad authority on municipalities (a) to enable them to govern their affairs as they consider appropriate; and (b) to enhance their ability to respond to municipal issues; AND WHEREAS pursuant to section 11. (2) of the Act as amended, a lower-tier municipality has the authority to pass by-laws respecting the health, safety and well-being of persons; AND WHEREAS pursuant to section 11. (3) of the Act, as amended, a lower-tier municipality has the authority to pass by-laws respecting structures, including fences and signs; AND WHEREAS pursuant to section 436 of the Act, as amended, a municipality has the power to pass by-laws providing that the municipality may enter on land at any reasonable time for the purpose of carrying out an inspection to determine compliance of a by-law of the municipality passed under this Act. AND WHEREAS pursuant to section 438 of the Act, as amended, a municipality has the power to pass by-laws providing that the municipality may, in the circumstances set out in the by-laws, undertake inspections pursuant to orders under section 438 of the Act. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF PENETANGUISHENE ENACTS AS FOLLOWS: 1. DEFINITIONS 1.1 Non-defined terms Definitions of words and phrases used in this By-law that are not included in the list of definitions shall have the meanings which are commonly assigned to them in the context in which they are used in this By-law taking into account the specialized use of terms with the various trades and professions to which the terminology applies.
1.2 Defined Terms In this By-law, a) Above-ground Pool is a Pool that is a permanent Pool placed on grade and is not dismantled for the winter season. b) Chief Building Official means the person duly appointed as such for the Town of Penetanguishene and includes a designate. c) Enclosure means a fence, wall or other structure including gates and doors thereof which surrounds and restricts access to a Pool. d) Officer means a Police Officer or a Municipal Law Enforcement Officer, and includes the Chief Building Official or designate. e) In-ground Pool is a Pool that is a permanent Pool that is physically constructed, in whole or in part, within the ground. f) Municipal Law Enforcement Officer means any Municipal Law Enforcement Officer, By-law Enforcement Officer, or other person designated by Council for The Corporation of the Town of Penetanguishene to administer and enforce the provisions of this By-law. g) On-ground Pool is a Pool that is dismantled for the winter season. (Including blow-up and tube framed Pools). h) Owner includes the Owner, lessee, tenant or person in possession of the land where the Pool is located. i) Permit or Pool Enclosure Permit means written permission or written authorization from the Chief Building Official to perform work regulated by this By-law. j) Person includes, but is not limited to, an individual, association, firm, partnership corporation, trust, incorporated company, organization, trustee or agent. k) Pool means a privately owned body of water located outdoors, contained by artificial means capable of holding at least 60 centimetres (24 ) in depth of water at any point and is intended for swimming and shall include above-ground Pools, in-ground Pools, on-ground Pools, spas, hot tubs and whirlpools. l) Temporary Enclosure means an Enclosure used for the purpose of temporarily enclosing a Pool or Pool excavation to effectively prevent access thereto. m) Town means The Corporation of the Town of Penetanguishene. 2
2. GENERAL PROVISIONS 2.1 No person shall: a) excavate or cause or permit excavation for the erection of a pool without a Pool Enclosure Permit first being obtained from the Town; b) use barbed wire or other barbed or sharp materials in the construction of, or in connection with, a pool enclosure; c) use electrical current with respect to any Pool Enclosure; d) place water in or allow water to remain in a Pool unless the Town has inspected the Enclosure and confirmed compliance with this By-law. 2.2 Every Owner of a Pool shall ensure that all Enclosure requirements specified in this Bylaw are complied with. 2.3 When a Pool is not under supervision, the Owner of a Pool shall ensure: a) that every gate, door, or other opening installed within a wall or fence that forms part of the Enclosure is securely closed and locked; b) that every cover for a spa, hot tub or whirlpool shall remain securely closed and locked; c) that every access ladder, or other device provided for access to an above-ground Pool shall be secured in a manner described in subsection 3.3 of this By-law. 2.4 The values provided in metric units of measure which appear in this By-law are official. Imperial equivalent values which appear in brackets are included for convenience only. 3. PERMANENT ENCLOSURE PROVISIONS 3.1 General Provisions Every Owner shall erect and maintain an Enclosure around a Pool that meets the following criteria: a) Minimum Height Enclosures: Enclosures on residential properties shall be a minimum of 1.2 metres (4 ) in height, above grade, measured on the non-pool side of the Enclosure. Enclosures on non-residential properties shall be a minimum of 1.8 metres (6 ) in height above grade, measured on the non-pool side of the Enclosure. 3
b) Maximum Openings Except where other provisions of this By-law apply, Enclosures shall be constructed to prevent a spherical object having a diameter of 10 centimetres (4 ) from passing through the Enclosure. c) Ground Clearance Enclosure components shall: not have more than 5 centimetres (2 ) spacing above a soft-surfaced grade (e.g. grass, topsoil, gravel, etc.) not have more than 10 centimetres (4 ) spacing above a hard-surfaced grade (e.g. cast in place concrete, paved surfaces, or a significant interlocking stone installation) d) Non-Climbable Enclosures shall not be constructed to include a rail or other horizontal or diagonal attachment or bracing on the exterior of the Enclosure that would facilitate climbing, and; Where an Enclosure is constructed of fence with the spacing between vertical boards or pickets in excess of 3.8 centimetre (1.5 ), no horizontal or diagonal attachment or bracing shall be provided between 10 centimetres (4 ) and 120 centimetres (48 ) above grade. e) Location Restrictions Enclosures shall not be constructed on easements or right-of-ways unless the easement specifically provides for the encroachment or an encroachment agreement is in effect for the Enclosure. Enclosures shall be constructed whereby a minimum distance of 1.2 metres (4 ) is maintained between the Enclosure and the water s edge. (iii) Enclosures shall be located at least 1.2 metres (4 ) from any other existing fence not meeting the requirements of this By-law other than fences located on adjacent properties on property lines other than in common with the property on which the Pool is located. f) Protection of doorway openings When a wall of a building forms part of the Enclosure, all doors affording access from the building directly to an enclosed Pool area shall be equipped with: a self closing and self latching device and a lock located not less then 1.2 metres (4 ) above grade on doors not located within a dwelling unit; a locking device located not less than 1.8 metres (6 ) above grade on doors located within a dwelling unit. g) Alternative Locking Devices Locking devices other than those specified in subsection 3.1 may be permitted provided that an equivalent degree of safety is 4
maintained, the locking device complies with all other provisions of this By-law and is approved by the Chief Building Official. h) Protection of other openings When a wall of a building or other structure forms part of the Enclosure, no window or other opening installed in that wall is permitted unless it is capable of being securely closed and locked. i) Care and Maintenance All Pool Enclosures shall be maintained in good repair. 3.2 Fences and Gates Every Owner shall ensure that an Enclosure, constructed of fence, including associated gates, which may be of chain link, wood construction, or wrought iron, shall meet the following criteria: a) Chain link fences must include: (iii) minimum of 12 gauge galvanized steel wire or 14 gauge vinyl covered steel wire with a maximum of 3.8 centimetre (1.5 ) mesh; and wire mesh supported by a minimum of 3.8 centimetre (1.5 ) diameter galvanized steel posts spaced a maximum of 3 metres (10 ) apart; and top and bottom horizontal rails provided of a minimum 3.8 centimetre (1.5 ) diameter galvanized steel, except that a minimum 9 gauge wire, tensioned to restrict lateral movement of the fence mesh, may be substituted for the bottom horizontal rail. b) Wood fences must include: minimum of 1.9 centimetre (0.75 ) by 8.9 centimetre (3.5 ) vertical boards, or 3.8 centimetres (1.5 ) by 3.8 centimetres (1.5 ) pickets; and vertical boards or pickets supported by a top and bottom rail a minimum of 3.8 centimetres (1.5 ) by 8.9 centimetres (3.5 ); and (iii) vertical boards or pickets spaced no more than 3.8 centimetres (1.5 ) apart, or 10 centimetres (4 ) apart where the Enclosure is at least 1.5 metres (5 feet) in height; and (iv) top and bottom rails supported by posts which are a minimum of 8.9 centimetres (3.5 ) by 8.9 centimetres (3.5 ) and which are spaced a maximum of 2.44 metres (8 ) apart. c) Wrought iron fences shall: not include tubular, or hollow components; and have minimum 12.5 mm (1/2 ) by 12.5 mm(1/2 ) square, or 12.5 mm(1/2 ) diameter round, vertical bars; and 5
(iii) have vertical bars spaced no more than 3.8 centimetres (1.5 ) apart, or 10 centimetres (4 ) apart where the Enclosure is at least 1.5 metres (5 feet) in height; and (iv) have vertical bars supported by a top and bottom rail a minimum of 12.5 mm (1/2 ) by 12.5 mm(1/2 ) square, or 12.5 mm(1/2 ) diameter round; and (v) have top and bottom rails supported by posts which are a minimum of 25 mm (1 ) by 25 mm (1 ) and which are spaced a maximum of 2.44 metres (8 ) apart. d) Gates Any gate in the fence or wall shall meet the following requirements: (iii) (iv) (v) shall have an equivalent degree strength and safety as the supporting Enclosure; and shall comply with the height requirements for the Enclosure; and shall be supported by hinges and be equipped with self-closing selflatching devices on the inside of the gate at the top; and where there is a double swimming pool fence gate, one of the two gates shall have a self-closing, self latching device. The gate of the double gate access without a self-closing, self-latching device must have a device permanently affixed to the ground or other non movable object that prevents access through this gate without lifting or moving this device; and shall not abut Town owned property except with the approval of Council. e) Alternative Materials Fence Enclosures may be constructed of materials other than those specified in sub-section 3.2 provided that an equivalent degree of safety is maintained, the Enclosure complies with all other provisions of this Bylaw and is approved by the Chief Building Official. 3.3 Above-Ground Pools Above-ground Pools of a minimum height of 1.5 metres (5 feet) above ground level will not be required to be surrounded by an Enclosure, provided the sides of the Pool are smooth-faced and non-climbable and the step/ladder shall: a) be easily removable, designed to be removed when the Pool is unattended; or b) be swung upwards and locked in the upright position; or c) be enclosed by a fence and gate in accordance with subsection 3.2 of this By-law. 3.4 Exclusions 6
a) Hot tubs, whirlpools, and spas are not required to comply with sub-sections 3.1, 3.2 and 3.5 of this By-law, if covered, when not in use, by a cover of rigid material and secured so as to prevent access. For the purposes of this subsection a rigid cover manufactured for the purpose by a reputable manufacturer or dealer shall be deemed to comply. b) The definition of a Pool does not include: (iii) (iv) (v) Irrigation ponds on farms used for watering livestock or for use in irrigation; or Irrigation ponds on golf course operations used for irrigation; or Naturally formed depressions in the ground s surface; or A natural body of water; or Garden ponds, fish ponds, decorative ponds or similar such ponds used as landscaping features; or (vi) Public Pools as defined and regulated by the Building Code Act, 1992, S.O. 1992, c. 23 as may be amended from time to time; or (vii) Storm water management facilities. 3.5 Decks Decks higher than 0.6 m (24 ) above the adjacent grade at all points shall have a guard constructed in conformance with the Ontario Building Code and such guard shall be deemed in conformance with the Permanent Enclosure Provisions of this By-law provided: a) no part of the deck substructure would facilitate climbing; and, b) the underside of the deck shall be enclosed with a fence constructed in accordance with subsection 3.2 of this By-law; and c) the stairs from a deck shall be contained within the Pool Enclosure area. 4. TEMPORARY ENCLOSURE PROVISIONS 4.1 Every Owner shall erect and maintain a Temporary Enclosure during all phases of the construction of a Pool that meets the following criteria: a) a Temporary Enclosure shall be in place prior to commencement of the Pool excavation and must be replaced with a permanent Enclosure before the Pool is used; b) a Temporary Enclosure may be permitted for a reasonable amount of time during the construction of a Pool, and must be replaced with a permanent fence before the Pool is used. A Temporary Enclosure shall consist of plastic mesh 1.2 metres (4 feet) 7
high, having a mesh of not greater than 50mm (2 inches) attached to the steel T-bar posts firmly planted at intervals of no more than 2.44 metres (8 feet). The fence shall be attached to each T-bar post at vertical intervals of no more than 450mm (18 inches). Nine gauge galvanized steel wire shall be woven along the length of the top and the bottom of the fence; c) a Temporary Enclosure may be constructed of materials other than those specified in this section so long as an equivalent degree of safety is maintained and the Enclosure is approved by the Chief Building Official or the Municipal Law Enforcement Officer. 5. ADMINISTRATIVE PROCEDURES RELATING TO PERMITS 5.1 Application Requirements Every person applying for a Pool Enclosure Permit shall provide and ensure that: a) an application is completed in its entirety; b) an application submitted shall be accompanied by a site plan in conformity with Schedule A to this By-law, and the Chief Building Official may require the site plan to be referenced to a current plan of survey certified by an Ontario Land Surveyor or a copy of such a survey, to enable the Chief Building Official to be satisfied that the proposed work conforms to applicable law; c) a lot grading approval from the Town Engineer as may be required by the Chief Building Official is received prior to the issuance of a Permit; and d) all required permit fees are paid as provided in the Town s Consolidated Fees By-law as may be amended from time to time. 5.2 Posting of Permits Every Owner shall post conspicuously on the work site, the Pool Enclosure Permit placard that is issued with the permit and shall be responsible for the maintaining of the placard in a legible condition until the work allowed by the permit is complete. 5.3 Revision to Permit After the issuance of a Pool Enclosure Permit, notice of any material change to a plan, specification, document or other information on the basis of which the permit was issued, must be given in writing, to the Chief Building Official together with the details of such change, which is not to be made without the Chief Buiilding Official s written authorization. 5.4 Revocation of Applications and Permits a) The Town has the authority to revoke an application or a Pool Enclosure Permit issued under this By-law where: 8
(iii) the application is incomplete and remains incomplete three (3) months after it was submitted; the application is complete, a permit is available to be issued, and three (3) months has elapsed from the date upon which the Owner was notified that the permit was available; after three months (3) after its issuance, the construction in respect of which it was issued has not, in the opinion of the Chief Building Official, been seriously commenced. b) Where an application or Pool Enclosure Permit is revoked, any monies deposited towards the payment of permit fees are not subject to the refund and all plans and documents may be destroyed in accordance with the Record Retention By-law. 6. SEVERABILITY AND RESTRICTIVE PROVISIONS 6.1 If a court of competent jurisdiction should declare any section or part of a section of this By-law to be invalid such section or part of a section shall not be construed as having persuaded or influenced Council to pass the remainder of this By-law and it is hereby declared that the remainder of this By-law shall be valid and shall remain in force. 6.2 Where the provisions of this By-law conflict with the provisions of any other by-law or Act, the more restrictive provisions shall apply. 7. POWERS OF ENTRY 7.1 An Officer may enter on a lot at any reasonable time for the purpose of carrying out an inspection to determine whether or not the following are being complied with: a) the provisions of this By-law; b) a direction or order issued under this By-law; c) an order made under Section 431 of the Act. 7.2 Where an inspection is conducted by the Town, an Officer may: a) require the production for inspection of documents or things relevant to the inspection; b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts; c) require information from any person concerning a matter related to the inspection including their name, address, phone number and identification; 9
d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection. 7.3 If a sample is taken under clause 4.1 (d) and the sample has not been divided into two parts, a copy of any report on the sample shall be given to the person from whom the sample was taken. 7.4 A receipt shall be provided for any document or thing removed under clause 4.1 (d) and the document or thing shall be promptly returned after the copies or extracts are made. 7.5 Copies of or extracts from documents and things removed under this Section 4 and certified as being true copies of or extracts from the originals by the person who made them are admissible in evidence to the same extent as, and have the same evidentiary value as, the originals. 7.6 Every occupier shall permit an Officer to inspect any land for the purposes as set out in Section 3.1 of this By-law. An Officer may be accompanied by a person under his or her direction. 7.7 The Town may undertake an inspection pursuant to an order issued under s. 438 of the Act. 7.8 Power of entry may be exercised by an Officer as defined in this By-law. 8. NOTICE OF NON-COMPLIANCE 8.1 An Officer may issue a notice of non-compliance to any person who has contravened a provision of this By-law. 9. OBSTRUCTION 9.1 No person shall hinder or obstruct, or attempt to hinder or obstruct, an Officer who is exercising a power or performing a duty under the Act or under a by-law passed under the Act. 9.2 Any person who has been alleged to have contravened any of the provisions of a By-law passed under the Act, shall identify themselves to the Officer upon request. Failure to do so shall be deemed to have obstructed or hindered the Officer in the execution of the Officer s duties, 10. PENALTY PROVISIONS 10.1 Any person who contravenes any provisions of this By-law is guilty of an offence and upon conviction is liable to a fine as provided in the Provincial Offences Act R.S.O. 1990, c. P.33, as may be amended from time to time. 11. SHORT TITLE 11.1 This By-law may be cited as the Pool Fence By-law. 10
12. SCHEDULES 12.1 That Schedule A, being the Required Supporting Documents & Drawings to an Application for a Pool Enclosure Permit, is attached hereto and forms part of this By-law. 13. REPEAL 13.1 That By-law 1973-28, as amended by By-law 2004-47 and By-law 2005-27 are hereby deemed repealed. 14. FORCE AND EFFECT 14.1 That this By-law shall come into force and effect on the date of passing. BY-LAW read a first, second and third time and finally passed by Council on the 10 th day of June, 2009. MAYOR ACTING CLERK 11
THE CORPORATION OF THE TOWN OF PENETANGUISHENE - SCHEDULE A TO BY-LAW NUMBER 2009-42 Required Supporting Documents & Drawings to an Application for a Pool Enclosure Permit The Owner shall provide with a completed application form, the following supporting documents and drawings: Site Plan: a) showing the location of all existing structures (including septic system where applicable) on the property in relation to the lot line; b) showing the location of all existing easements, right-of-ways and swales; c) showing the location of the adjoining street(s); d) showing the location of the proposed Pool and Enclosure including setbacks to all the lot lines; e) showing the location and size of proposed structures (sheds, decks, retaining walls, etc..) including setbacks to all the lot lines; f) showing the location of all gates, labelled as self-closing and self-latching ; g) showing the location of all of doors, windows, and other openings within walls of building or structure proposed to form part of the Pool Enclosure. h) construction specifications and/or drawings of all permanent Enclosure fences and walls; showing all materials proposed to be used and their orientation showing all proposed openings, with dimension (iii) indicating overall height(s) of Enclosure fences or walls If applicable, specification documents of protective covers proposed for use on hot tubs, whirlpools, and spas. 12