NSW INTRODUCES NEW SWIMMING POOL LAWS

Spasa-Awards-2014-Sales-Rep-Retail_3_opt-1_2In late 2012, the Swimming Pool Amendment Act 2012 (NSW) came into force, a measure in reducing drowning deaths priority. This amendment saw changes to the following NSW laws:

  • Swimming Pool Act 1992;
  • Swimming Pool Regulations 2010
  • Conveyancing (Sale of Land) Regulation 2010
  • Rental Tenancies Regulation 2010.

The key changes are:

  • 1. Pool Registration Mandatory pool registration by 29th October 2013.
  • 2. Owner’s Responsibility – codifies responsibility for compliance on pool owners.
  • 3. Compliance Certificates – From 29 April 2014 a pool compliance certificate is required to sell or lease a property.
  • 4. Penalties apply for non-compliance. These range from $220 to $5,500 per offence.
  • 5. Exemptions – Previous pool exemptions that applied; do not from 29th October 2012.
  • 6. Monitoring Councils to implement compliance monitoring program. Inspections to commence from 29th October 2013.
  • 7. Cost Recovery – Council can charge up to $150 for initial inspection and $100 for the second and then nil thereafter. If after two inspections your pool is not compliant, then it’s probable you’ll be issued an infringement notice.
  • 8. Multiple Pool Standards Three pool standards apply, dependent on the year of your pool’s construction. There are also variations depending on whether your land size is ≤230sqm, > 2 hectares or a water front.
  • 9. Mandatory Whistleblowing – Where a private certifier is used to assess your pool, they must notify your local council of the non-compliance if they are not rectified within the 6 weeks. They have 5 business days to notify the council.

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STATE INFORMATION

Australia is a country that has a strong affinity with water, and it is natural for children to be drawn to water. With all its beauty and fun a swimming pool has a deadly side, especially with young children. Children in the age group ‘0 to 4 years’ unfortunately account for the majority of drowning or near drowning each year. With a majority of deaths occurring in backyard swimming pools.

State governments throughout Australia have or are introducing state legislation requiring swimming pool (including spas) registration and a minimum compliance standard for swimming pool barriers (ie fence).

New South Wales

29 April 2013 – Pool registration opens (a swimming pool includes a spa)
19th November 2013 – Pool registration 29 October deadline extension expires – Fines may apply for non-registration
The registration period has now closed, but you can still register your pool or spa.  So register NOW, if you have not already done so.

30 October 2013 – councils commence swimming pool compliance inspections
29 April 2016– The mandated Compliance Certificate (or Occupancy Certificate) for all properties sold or leased has been extended from 29 April 2014 to 2016.

Relevant Legislation

Swimming Pool Act 1992;
Swimming Pool Regulations 2008
Conveyancing (Sale of Land) Regulation 2010
Rental Tenancies Regulation 2010.

Updates

From 1 May 2013 Volume Two of the Building Code of Australia (BCA) will reference AS1926.1–2012 (Safety barriers for swimming pools), AS1926.2–2007 (Location of safety barriers for swimming pools) and AS1926.3-2010. For pools constructed or installed on or after 1 May 2013, they will need to be constructed / installed in accordance to these standards.

Queensland

“Key Dates
Relevant Legislation
Updates”

South Australia

Relevant Legislation

South Australia has multiple pieces of legislation governing swimming pool barrier compliance.  They are:

Swimming Pools (Safety) Act 1972 (SA)

Development Act 1993 (SA) section 71AA

Development Regulations 2008 (SA) regulation 76D

Minister’s Specification SA 76D

In addition to this, the Australian Building Code and the Australian Standard on swimming pool barriers, AS 1926, also prescribe minimum  swimming pool barrier compliance standards that must also be met.

The standard that is applicable to your swimming pool barrier is dependent on the date of approval, construction or installation of the swimming pool. Should the swimming pool barrier be modified at a later date, then the barrier will need to meet the swimming pool barrier compliance and building code standards applicable at the time of modification.

Legal obligations when selling a house with a swimming pool

Pre 1 July 1993 built swimming pools

If you are selling your property with a swimming pool, the pool owner is responsible for making sure that current safety requirements for swimming pool safety are met. This may mean you may have to upgrade fencing or barriers.

If the property where a swimming pool is located is not for sale, the swimming pool can continue to comply with the old Swimming Pools (Safety) Act 1972.  The Act requires a swimming pool owner to ensure that the swimming pool is enclosed by a fence, wall or building to restrict access by young children.

If the property is sold after 1 October 2008, the child-safety barriers must comply with Minister’s Specification SA 76D before settlement. That is, the barriers must be installed to separate the pool area from the house, except where exemptions apply and to the specifications of the current edition of the Australian Standard on swimming pool barriers, AS 1926.1.  The current edition is 2012.

The revised Minister’s Specification SA 76D took effect on 15 May 2014  and only applies to swimming pools and spa pools that were approved, constructed or installed before 1 July 1993 and were subject to the Swimming Pools (Safety) Act 1972

1 July 1993 or post built swimming pools

Swimming pools built on or after 1 July 1993 must comply with the rules that were current when the application for construction was submitted. This includes the provisions of the Development Act 1993 and the Building Code of Australia to restrict access to the swimming pool from the house, garage, street and any adjoining properties.

Western Australia

“Key Dates
Relevant Legislation
Updates”

Victoria

“Key Dates
Relevant Legislation
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Northern Territory

“Key Dates
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Tasmania

“Key Dates
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Under the new NSW laws, a council:

  • Must implement a Swimming Pool Inspection Program by 29th October 2013. Inspections will commence thereafter.
  • Can charge up to $150 for the initial inspection and up to $100 for the second. Any subsequent inspections are free.
  • Can charge up to $70 for a compliance certificate.
  • Ensure that at the time of modifying or altering an existing pool fence, it meets the relevant standards.
  • Will be notified, by certain classes of certifiers, of non-compliant pool fences if the owner does not rectify the deficiencies within a 6 week period or immediate if the pool fence is considered a significant public hazard.

A pool owner must:

  • Register their pool with the NSW State Government by 29th October 2013.
  • Have a child resistant barrier (ie pool fence) and maintain the pool fence.
  • Continue to comply with the Australian Standard AS 1926 relevant at the time of the pool fence’s construction.
  • Ensure that at the time of modifying or altering an existing pool fence, it meets the relevant standards.
  • Have a compliance certificate if the property is for sale or lease. Certification is required from 29th April 2014.
  • Bear 100% of construction/maintenance costs of a dividing fence, where it is used as a pool fence. Unless you neighbour also has a pool.