Swimming pools (backyard)

DESCRIPTION

Includes information to assist councils implement their responsibilities under the Swimming Pools Act 1992 and Swimming Pools Regulation 2008.

In NSW, private or ‘backyard’ swimming pool safety is legislated by the Swimming Pools Act 1992 (the Act) and the Swimming Pools Regulation 2008 (the Regulation). The legislation also applies to moveable dwellings, hotels and motels.

In 2012, a comprehensive review of the Swimming Pools Act 1992 was finalised. This review identified a number of amendments designed to enhance the safety of children under the age of five years around private (‘backyard’) swimming pools in NSW.

The Swimming Pools (Amendment) Act 2012

NSW Swimming Pools Register available for use by 29 April 2013
NSW Swimming pools to be registered by owners by 29 October 2013
Pool owners require a compliance certificate before sale or lease of their property from 29 April 2014

The Swimming Pools Amendment Act 2012 commenced on 29 October 2012 and makes a number of amendments to the Swimming Pools Act 1992: Information is provided below regarding the impact of these legislative amendments for pool owners and councils. Additional information about the staged implementation provisions is also provided below.

Pool Owners:

Swimming pool owners are required to register their swimming pools on an online register to be provided by the NSW State Government.
Swimming Pool owners will be required to self-assess, and state in the register that, to the best of their knowledge, their swimming pool complies with the applicable standard when registering their pool.
There is a penalty for owners who fail to register a swimming pool (penalty notice amount of $220).
Swimming pool owners will be required to provide a valid swimming pool compliance certificate before being able to sell or lease a property with a pool.
Accredited certifiers under the Building Professional Act 2005 may conduct swimming pool inspections initiated by the pool owner.

Councils:

Councils are required to:

develop and implement a swimming pool barrier inspection program in consultation with their communities
report annually on the number of pool inspections undertaken and the level of compliance with the requirements
inspect pools associated with tourist and visitor accommodation and multi-occupancy developments at three year intervals
at the request of a pool owner, inspect pools prior to sale or lease
issue compliance certificates after an inspection which finds a pool barrier compliant with the requirements of the legislation. Compliance certificates are valid for three years.

A swimming pool subject to an occupation certificate is exempt from an inspection program for three years from the date of issue of the occupation certificate.
Councils may inspect any swimming pool that is the subject of a complaint to the council.
Council powers of entry will be consistent with the Local Government Act 1993.
Councils may charge a fee for each inspection undertaken (up to a maximum of $150 for the first inspection and $100 for one re-inspection resulting from the first inspection).

Staged implementation provisions:

The Act includes a staged implementation process to facilitate:

the development and implementation of the Swimming Pools Register (to commence by no later than 29 April 2013)
registration by pool owners of pools (after the register commences and by no later than 29 October 2013)
councils’ inspection programs (to be developed in consultation with the community, adopted and commenced by no later than 29 October 2013)
mandatory inspections by councils of tourist, visitor and multi-occupancy developments, and pools associated with property sale and lease (to commence by no later than 29 April 2014).

Further information will be available as the legislative amendments are implemented.

GUIDELINES AND CIRCULARS

Conveyancing and Residential Tenancies Impacts.

The legislative amendments require that pool owners obtain a pool compliance certificate before sale or lease of their properties. This aspect of the amendments commences from 29 April 2014. In the meantime, the following applies:

(Sale of Land) Regulation 2010

Amendments made to the Conveyancing (Sale of Land) Regulation 2010 mean that from 1 September 2010 contracts for the sale of land must include a warning in relation to a land owner's obligations under the Swimming Pools Act 1992 which states that:

"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."

Councils are advised that they may be requested by land owners or conveyancers to issue a Certificate of Compliance under the Swimming Pools Act to satisfy the new legislation.

For information about public swimming pools, please see Water safety (except backyard swimming pools). Further information will be available as the legislative amendments are implemented.

Residential Tenancies Act 2010

Section 52 of the Residential Tenancies Act provides that a landlord must comply with a landlord’s statutory obligations relating to the health or safety of the residential premises. Section 52 includes the following note:

“Note. Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992.”

This note makes it explicit that, in accordance with the Swimming Pools Act, a landlord must ensure that a swimming pool situated on a tenanted premises must be at all times surrounded by a child-resistant barrier that separates it from any residential building on the premises and from any public or private place adjoining the premises. The barrier must be designed, constructed, installed and maintained to the standards prescribed in the swimming pools legislation applicable at the time the pool was constructed or installed, unless it has been substantially altered. In this case, the standard applicable at the time the barrier was altered applies. Landlords should contact their local council in relation to the appropriate barrier standard that applies to their rental property pool.

Tenants are urged to notify landlords immediately of any damage they detect to any barrier surrounding a pool on a residential property that they are renting. Tenants are also reminded that section 64 of the Act enables tenants to carry out urgent repairs and be reimbursed up to $1,000 for any fault or damage that causes the premises to be unsafe under certain circumstances, including if the landlord or agent cannot be contacted or does not carry out urgent repairs within a reasonable time.

Further information will be available as the legislative amendments are implemented.

FREQUENTLY ASKED QUESTIONS

Where do I find Guideline 8 Cardiopulmonary Resuscitation and AS1926-2007, Australian Standard Swimming Pool Safety Part 1: Safety barriers for swimming pools?

Guideline 8 Cardiopulmonary Resuscitation - This Guideline is available at the Australian Resuscitation Council website at www.resus.org.au. By registering at the website visitors can access and print the guideline free of charge. Councils and others should consider subscribing as this will allow them to access an extensive range of related material.

AS1926.1-2007, Australian Standard Swimming Pool Safety Part 1: Safety barriers for swimming pools - This Standard (as amended 5 May 2008) is available for purchase at www.saiglobal.com. For copyright reasons, the Department cannot make copies of the Standard available to councils or other persons or bodies.

While the Regulation refers to AS1926.1-2007 as published on 12 July 2007 as the relevant Standard, the 5 May 2008 version may also be used as this version only corrects typographical errors in, and makes minor clarification of, the 12 July 2007 version of the Standard.

Clause 21 of the Regulation requires the Department and councils to allow the public and cost-free inspection of the Standard.

It is important to note that the maximum requirement of the clause as it relates to the Standard is that the Department and councils allow members of the public to attend any of their respective offices, libraries or outlets to look at (but not print or take any copy away of) the Standard during ordinary business hours.

If any body or agency exceeds this maximum standard, this may raise serious copyright implications for that agency or body.

If councils or others wish to allow public inspection of the Standard in any way other than by personal inspection at offices, branches or outlets, they must first contact SAI Global’s copyright section for further information to ensure that copyright of the Standard is not breached.

SAI Global may be contacted on (02) 82066355.

For any general inquiries or guidance on the Act or Regulation, councils or others may contact the Department on (02) 4428 4100.

OTHER RESOURCES

General information for the public and other resources is also available under ‘Backyard Swimming Pools’.

Children's Hospital at Westmead - provides a Protect your Pool, Protect your Kids video produced by the Children's Hospital at Westmead which visually demonstrates the basic pool fencing requirements in the Swimming Pools Act and provides other key water safety messages. Viewers may choose to view part or all of the 25 minute video depending on need. The website also contains other resources on pool safety.

The findings and recommendations of coronial inquests into the drowning of Amarni Dirani and other tragic drowning incidents are publicly available on the NSW Coroner’s Court webpage on the NSW Lawlink website.

The link to these coronial findings and recommendations is provided below to better assist councils to exercise their water safety responsibilities.

http://www.lawlink.nsw.gov.au/lawlink/Coroners_Court/ll_coroners.nsf/pages/coroners_findings

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