June 2013

I thought cleaning the pool was hard work ? new chores for pool owners

Background

A “swimming pool” is a structure which is capable of being filled with 300mm of water or more and is used for swimming and other human water activities.  It includes spas and portable/inflatable pools, but would not include fish ponds, rainwater tanks and spa baths.

The Swimming Pools Amendment Act 2012 introduced various changes to the Swimming Pool Act 1992 (“Act”).  The Swimming Pools Regulation 2008 (“Regulation”) has also been amended.  The changes place additional obligations on all pool owners and add more costs on vendors and landlords of properties which contain swimming pools.

The implementation of the changes is to be staged as follows:

1.   The NSW Swimming Pools Register will be available for use from 29 April 2013.

2.   All swimming pools in NSW are to be registered by owners by 29 October 2013.

3.   From 29 April 2014, pool owners will be required to provide a certificate of compliance before selling or leasing their property.

Registration

Starting from 29 April 2013, an owner of property which has a swimming pool located on it must register their swimming pool on the NSW Swimming Pools Register (“Register”).

Owners may access the Register online at http://www.swimmingpoolregister.nsw.gov.au/ and register their pool for free.  Alternatively, they can fill out the form which is available from their local council and lodge the form at the council for a $10 fee.

In order to register their pool, owners will need to know the following:

  • The address of the pool and the type of pool?
  • The type of property it is located on (e.g. private residence, multi-occupancy or tourist and visitor accommodation)?
  • Whether the property is on a waterfront, on land greater than 2 hectares, or on land which is less than 230 square metres?
  • When the pool was built (i.e. prior to 1 August 1990, after 1 August 1990 but before 1 July 2010, or after 1 July 2010)?
  • Whether the pool barrier has been substantially modified or rebuilt and when that took place?

Owners will be required to complete the relevant self-assessment checklist, with each checklist being different depending on the answers to the questions about the location and when the pool was built.  An owner must state that, to the best of their knowledge, their swimming pool complies with the standard which is applicable to their pool.

Owners will not incur a fine if they get their self-assessment wrong, but it could be possible that the usual penalties associated with providing a false statutory declaration are applicable if an owner knowingly makes a false declaration.

If an owner does not register their swimming pool by 29 October 2013, they may incur a fine of up to $220.

The Register is searchable, but only authorised officers (defined below) may access information contained in the Register at this stage.  The Regulations do not currently, but may provide access to other classes of persons.

Inspections

Pools may be inspected by a private accredited certifier for inspections initiated by the pool owner – for example, to obtain a certificate of compliance (which will be required if the property is to be sold or leased after 29 April 2014).  An accredited certifier can be located using the Building Professionals Board website – http://www.bpb.nsw.gov.au/.

Pools may be inspected by an “authorised officer” (which includes employees of a local council, police officers and other persons approved under the Act) in the following circumstances:

1.   Under the council’s swimming pool barrier inspection program - local councils are required to develop and implement a swimming pool barrier inspection program by 29 October 2013.  Each local council’s inspection program will describe when council will send out its authorised officers to inspect pools to ensure general compliance with the swimming pool laws, and councils must report on the number of inspections they perform and the level of compliance.

A swimming pool within a property where an occupation certificate has been issued is exempt from a local council’s inspection program for 3 years from the date the certificate was issued.  Pools associated with tourist, visitor or multi-occupancy properties (including strata units) must be inspected by council every 3 years.

2.   When requested by the pool owner in order to obtain a certificate of compliance - the local council must inspect a property within 10 business days of receiving such a request.

3.   If the pool is the subject of a complaint – the council must commence investigation within 72 hours of receiving a complaint, unless council considers it to be vexatious, misconceived, frivolous or lacking in substance.

4.   To otherwise investigate any contravention of the Act or the Regulation.

Councils may charge a maximum of $150 for an initial inspection and $100 for a second inspection.  Private certifiers will set their own schedule of fees.

Details of the various safety requirements which apply to swimming pools are in the Regulation, which refers to Australian Standard AS1926 (a copy of which must be made available for viewing at each local council).  The specific requirements which apply to each pool will depend on the location, the type of property and when the pool was built, due to changes in the Regulation and the Australian Standard over the years.  Generally, the pool must be surrounded by a child-resistant barrier (which includes suitable pool fencing and latches, child-proof doors and windows, boundary fences and non-climbable zones, or a lockable lid for spas) and a CPR guide must be clearly visible.

Pool owners should ensure that:

1.   the child-resistant barrier is compliant;

2.   the child-resistant barrier is in good repair; and

3.   all doors and gates providing access to the pool are kept securely closed at all times,

or they risk incurring fines of up to $550 for each of these offences.  If the required warning notices (e.g. CPR guide) are not maintained and clearly visible a fine of up to $110 may be incurred.

A professional inspector will use a more comprehensive and technical checklist than the self-assessment checklist which the owner completes when registering their pool, so it may be possible that the owner and inspector come to different outcomes.

Local councils may grant exemptions from pool barrier requirements that are impractical or unreasonable in particular cases (for example, if an adult occupier of the premises would be significantly impeded in gaining access to the pool because of a physical disability or impairment), or where alternative arrangements which are no less effective than the prescribed requirements exist for restricting access to the pool.  However, any exemption may be conditional and the owner will be guilty of an offence if the conditions are not complied with.  Councils may charge an application for exemption fee of up to $70.

Compliance Certificates

If a pool is found to be both registered on the Register and compliant with the relevant requirements, the inspector must issue a certificate of compliance.  Details of the certificate must be entered into the Register within 3 business days of it being issued.

A certificate of compliance is valid for 3 years from the date it is issued, unless a subsequent inspection (such as the checks completed under a council’s inspection program) finds the pool barrier to be non-compliant.

Only tourist, visitor and multi-occupancy properties (such as hotels, caravan parks and residential unit blocks) need to have a current compliance certificate at all times.  Owners of other properties only need to update their compliance certificate if they are selling or leasing their property after 29 April 2014.

If an accredited certifier refuses to issue a certificate of compliance, it must issue a notice to the owner which provides reasons for the decision and steps that must be taken to make the pool compliant.  The owner then has up to 6 weeks within which to rectify the non-compliance issues.  The accredited certifier must forward a copy of the notice to the local council 6 weeks after the inspection date (if the pool is still non-compliant), or immediately if the pool poses a significant risk to public safety.

The local council may order an owner to take measures to ensure that a swimming pool complies with the requirements, and the owner must comply within the time specified in the notice.  The council’s order does not cease to have effect simply if there is a change in ownership.  If an owner fails to comply, they may incur a fine of up to $550 and the council may give notice that it intends to enter the premises and arrange for the required works to be completed (at the owner’s cost).

The landowner may appeal the local council’s decision in the Land & Environment Court – for example, where council refuses to grant an exemption or issue a compliance certificate, or in relation to any order given by council to complete works – and certain defences are described in the Act.  Likewise, a local council may commence proceedings against a landowner in the Land & Environment Court seeking an order to remedy or restrain a breach of the Act.

Implications when selling or leasing property

The standard contract for the sale of land already contains the following warning:

An owner of a property on which a swimming pool is situated must ensure that the pool complies with the requirements of the Swimming Pools Act 1992. Penalties apply. Before purchasing a property on which a swimming pool is situated, a purchaser is strongly advised to ensure that the swimming pool complies with the requirements of that Act”.

From 29 April 2014, if a certificate of compliance (or occupation certificate together with evidence that the pool has been registered) cannot be provided when the property is to be sold, then the owner will not be able to comply with the vendor disclosure requirements set out in s.52A of the Conveyancing Act 1919.  This is because the Conveyancing (Sale of Land) Regulation 2010 will be amended on that date so that the swimming pool compliance certificate will become a prescribed document which must be attached to the contract for sale.  Contracts which are exchanged prior to 29 April 2014 will not be affected.

A vendor cannot simply contract out of its mandatory disclosure requirements, and if such requirements are not met the potential purchaser has the right to rescind the contract (at any time within 14 days after exchange) and seek compensation from the vendor.  Therefore, putting a property which does not comply with the swimming pool laws on the market would be risky and could end up costing the vendor additional time and money.

A purchaser may choose not to exercise the rights that it has if the vendor cannot provide a compliance certificate, but a purchaser that does so takes the property knowing there is a risk that they may be required to complete works in order to make the swimming pool area compliant and is liable to incur the various fines outlined above.

Landlords are required to ensure they comply with their statutory obligations relating to the health or safety of residential premises that has been leased, including compliance with the swimming pool laws.

From 29 April 2014, a new clause will be inserted into the standard form lease agreement for residential properties as follows (which a landlord cannot contract out of):

40A.   The landlord agrees to ensure that at the time that this residential tenancy agreement is entered into:

40A.1   the swimming pool on the residential premises is registered under the Swimming Pools Act 1992 and has a valid certificate of compliance under that Act or a relevant occupation certificate within the meaning of that Act, and

40A.2   a copy of that valid certificate of compliance or relevant occupation certificate is provided to the tenant”.

For single-occupancy properties, the certificate of compliance must be valid at the time the lease is entered into.

For multi-occupancy properties, the body corporate or strata manager should obtain and hold a compliance certificate on behalf of all unit owners and make it available when required.  The certificate of compliance must always be current and local councils must inspect pools associated with multi-occupancy developments every 3 years.

When inspecting a property, landlords should ensure that their tenants have not made any substantial alterations to the swimming pool area which would impact on the landlord’s compliance with the Act.

Likewise, tenants should immediately notify their landlord if they detect any damage to the swimming pool barrier.  Tenants may have urgent repairs up to the value of $1000 performed at the premises (which the landlord must reimburse), if the premises is unsafe and the landlord/agent cannot be contacted or does not carry out the urgent repairs within a reasonable time.

 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice. 

Author: Kristie Carlile, Lawyer

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