Swimming Pool Safety

In 2012, a comprehensive review of the Swimming Pools Act 1992 (NSW) 2 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 new laws include:

Online Pool Register

Pool owners must register their swimming pool and/or spa pool in a State-wide pool register. Penalties will apply for failing to register.

Registrations are free of charge at Swimming Pool Registrations.

If unable to access the internet, Mosman pool owners can visit Council during business hours and Council can assist in registering their pool.

Selling or Leasing a Property with a Pool

From 29 April 2016, a pool owner must obtain a swimming pool certificate of compliance or a relevant occupation certificate before they can sell or lease their property.

All contracts for sale that are exchanged after 29 April 2016 must have either a swimming pool certificate of compliance or a certificate of non-compliance.

Vendors are now able to transfer the obligation of obtaining a certificate of compliance to the purchaser. The transfer of obligation will be realised through the attachment of a certificate of non-compliance to the contract for sale.

The buyer will have 90 days from the date of settlement to rectify defects listed in the certificate of non-compliance and obtain a certificate of compliance.

How to obtain a Certificate of Compliance

A Certificate of compliance or non-compliance is required before selling a property. A certificate of compliance is valid for three years.

Visit the NSW Swimming Pool Register to check is a certificate of compliance has been issued for a particular property.

A list of swimming pool inspectors (private certifiers) who are authorised to conduct inspections and issue certificates is available on the NSW Swimming Pool Register.

Tourist and Visitor Accommodation

From 29 April 2014, a Swimming Pool Certificate of Compliance is required for properties on which there is tourist and visitor accommodation or more than 2 dwellings at least once every 3 years.

Owners may request an inspection at any time

Pool owners can make an application to Council for a Swimming Pool Certificate of Compliance at any time, regardless of whether they intend on selling or leasing their property.

The Certificate will be valid for 3 years, so long as the fencing remains compliant in that time.

Council’s Mandatory Inspection Program

Council has developed a swimming pool barrier inspection program which was implemented following the conclusion of the 2013 online pool registration period.

Report annually (via Council‘s Annual Report) on the number of pool inspections undertaken and the level of compliance with the requirement.

Related Links:

• Office of Local Government
• Swimming Pools Act
• Cardiopulmonary Resuscitation Council

Under the Swimming Pools Act 1992 (NSW) the owner of a swimming pool has the responsibility to ensure that the pool is at all times surrounded by a complying child resistant pool fence or safety barrier. This legislation provides that owners may be fined if the pool fence or other appropriate child resistant barrier does not meet the legal requirements. Pool fences must be maintained in a good state of repair as an effective and safe barrier restricting access to the pool. A swimming pool is defined under the Act as an excavation, structure or vessel:

• that is capable of being filled with water to a depth greater than 300 mm; and
• that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity, and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act.

General Requirements

• Pools must be separated from residential buildings and adjoining public or private properties by child-resistant barriers in accordance with the Swimming Pools Act 1992 (NSW), Swimming Pools Regulation 2008 and the Building Code of Australia.
• Gates must be self-closing and self-latching and open outwards from the pool.
• No door access from a residential building into an outdoor pool is permitted.
• Walls of above-ground pools or self-installed prefabricated pools are not accepted as a child-resistant barrier.
• Only structures associated with the pool (filter housing, etc.) are permitted within the enclosed pool area.

Fencing and Gates

Legislative requirements for Child Resistant barriers around pools:

Pool Gates

• Barrier Gates must be self-closing and self-latching and must be closed at all times.
• Gates must open outwards from the pool area.
• No double gates are permitted.
• Latch release mechanism must be 1.5 metres above the ground, except where a shield is used. If a shield is used the latch is positioned on the pool side near the top of the gate. The shield makes it necessary to reach over the gate to release the latch mechanism.
• The latch release must be positioned a minimum 1.5 metres above ground level & 1.4 metres from highest lower horizontal barrier member.

Pool Fencing

Pool fencing must comply with AS1926.1-2012. The requirements in general are:

• Minimum height 1200mm.
• Minimum 900mm separation between the upper and lower horizontal members to maintain non-climbable zone.
• Maximum 100mm gap under the fence.
• Maximum 100mm gap in vertical members including any flex in material.
• Non-climbable zone extends from the barrier 300mm into pool area and 900mm outside pool area.
• Boundary fence to be 1800mm in height measured inside the pool area.

Resuscitation Warning Sign

All pools require a resuscitation chart or warning notice to be displayed in a prominent position in the immediate vicinity of the pool.

The following warning statements must be contained within the resuscitation sign:

• Young children should be supervised when using this swimming pool.
• Pool gates must be kept closed at all times.
• Keep articles, objects and structures at least 900 mm clear of the pool fence at all times.

The resuscitation sign must be:

• legible from a distance of at least three metres
• maintained in a clearly legible condition.

Resuscitation/warning signs are available for purchase from the Council‘s Customer Service Centre.

It is recommended that signs more than three years old be replaced, due to changes in best practice resuscitation techniques.

Spa Pools

Spa pools are required to meet safety regulations including fencing or lockable covers.

Spa pools are also covered by the legislation and should be separated by a child-resistant pool safety barrier in accordance with the Building Code of Australia.

Alternatively, the spa pool must be covered and secured by a lockable child-safe structure (such as a door, lid, grille or mesh). Such lockable structure must be able to be removed/installed and locked by a single person.

Pool Exemptions

Exemptions currently exist for some pools based on the age and location of the pool, provided such exemption barriers were in place at the time of the exemption and continue to be maintained as such.

Council recommends all pools be upgraded to comply with current requirements.

Between 1 August 1992 to 30 June 2010 the Swimming Pools Act 1992 provided an alternative to the general requirements as to the location of pool child-resistant barriers. These are referred to as Exemptions. This is different to site specific exemptions granted under section 22 of the Swimming Pools Act 1992.

These exemptions apply to the following pools so long as the means of access to the pool are at all times restricted in accordance with the exemption.

• Pools constructed prior to 1 August 1990
• Pools on waterfront properties constructed before 1 July 2010.
• Pools on properties having an area less than 230 m² constructed before 1 July 2010.
• Pools on properties having an area of 2 hectares or more constructed before 1 July 2010.

The exemption provisions and standards vary depending on the type of exemption and date of works.

Exempt Barriers Retained

To retain the exemption that was available to the pool at the time of construction requires that such pool barriers / means of access continue to comply with the standard applicable at the time of their installation. These exemptions primarily relate to the use of child-safe/child-resistant doors as an outdoor pool barrier which the current standards do not allow.

Some pool owners are of the opinion that an exemption applies for the life of their pool. This is not correct.

Exempt barrier no longer applies and is removed where:

• Access to a pool or pool barrier is substantially altered or rebuilt – the means of access/ pool barrier is to comply with the standards applicable at the time when it was altered/ rebuilt.
• Restricted access to a pool or pool barrier is not provided – then the exemption no longer applies and the means of access/ pool barrier is required to comply with current standards.
• Restricted access to a pool or pool barrier is not maintained or does not comply – then the exemption no longer applies and the means of access/ pool barrier is required to comply with current standards.
• Pool fenced voluntarily, once fenced the exemption can not be reinstated – where an existing swimming pool that is exempt from the Act’s fencing requirements is fenced voluntarily, such fencing must meet the Act’s requirements for a compliant, four-sided barrier (effectively ‘disapplying’ or removing the exemption). Once in place the fence can not be removed or altered to a lesser (older) standard.

Exemptions are no longer valid when…

• Exempt barrier was not provided/ not in place.
• Exempt barrier is not maintained or does not comply.
• Exempt barrier is removed e.g. dwelling is demolished. If the existing pool is being retained, it no longer retains the exemption and therefore requires a child-resistant barrier separating the pool from the new residence and adjoining properties, both public and private. The pool is required to be fenced prior to demolition of dwelling.
• Exempt barrier is removed/ replaced e.g. pool owner voluntarily fences the pool.
• Means of access/ pool barrier is substantially altered or rebuilt. (This includes where an existing child-safe/ child-resistant door is removed or replaced). Additions/ alterations to an existing residence removing exemption barriers or where such works provide opening that are a means of access to the pool area. Any existing pool barrier exemptions being altered/ rebuilt/ removed are lost and can not be reinstated. Thus the pool is to be provided with child-resistant barriers separating the pool from the residence and adjoining properties, both public and private.

If the above applies, child-resistant barriers are required to be upgraded to comply with current pool safety standards.

New Structures

New structures such as a garage, carport, shed, boatshed, pergola or the like are required to be outside the enclosed pool area child-resistant barriers. Child-resistant doors are no longer permitted thus door exemptions do not apply for new structures even though the property may have a complying existing barrier exemption.

Cardiopulmonary Resuscitation Guideline

The Swimming Pools Regulation 2008 requires that the Cardiopulmonary Resuscitation Guideline be available for viewing on Council’s website. A paper copy of the Cardiopulmonary Resuscitation Guideline will be made available for public inspection on request at the Civic Centre.

• Cardiopulmonary Resuscitation Guideline
• Cardiopulmonary Resuscitation Council

Paper copies of Building Code of Australia will be made available for public inspection on request at the Civic Centre

More information

More information regarding swimming pool safety is available at:

• Office of Local Government
• Swimming Pools Act 1992 (NSW)
• Cardiopulmonary Resuscitation Council

This inspection program is relevant to all swimming pools regulated under the Swimming Pools Act 1992. A reference to a swimming pool in this article also includes a spa pool.

The inspection program is designed to provide measures to identify non-compliant swimming pools, ensure upgrade works are carried out and in the process raise swimming pool safety awareness.

An inspection of a swimming pool is to be carried out by Council, where any of the following circumstances exist:

1. Customer Requests

On receipt of a Customer Request from a member of the public or other authority concerning an alleged defective swimming pool barrier, a written request will be  forwarded to the owner of the swimming pool to arrange access for an inspection.

Should the inspection confirm the swimming pool barrier does not comply with the Swimming Pools Act 1992 then a Direction may be issued to the owner outlining works to make the barrier compliant or other enforcement action.

2. Exemption Applications

Section 22 of the Act provides for a swimming pool owner to make application to Council for an Exemption from all or any of the requirements of Part 2 of the Act, in certain circumstances. On receipt of an application and the appropriate fee, Council will undertake an inspection of the swimming pool. After determination of the Exemption Application, where further works are necessary to make the swimming pool barrier compliant, Council will issue a Direction to the swimming pool owner.

3. Other inspections at request of owner

Section 22C of the Act provides for a swimming pool owner to make application to Council for an inspection, which includes advice about swimming pool compliance. On receipt of an application and payment of the inspection fee, an inspection of the swimming pool will be undertaken. Where a defective barrier is identified, a Direction will be issued to the swimming pool owner.

4. Notices issued by an Accredited Certifier

Section 22E of the Act requires that an Accredited Certifier must provide a Notice to the owner of a swimming pool after inspection, if not satisfied that the swimming pool is compliant. A copy of the Notice is required to be provided to Council. On receipt of a notification from an Accredited Certifier, a written request will be forwarded to the owner of the swimming pool to arrange access for an inspection to be undertaken and payment of the inspection fee in accordance with Section 22F of the Act. Where a defective barrier is identified, a Direction will be issued to the swimming pool owner.

5. The development certification role and Building Certificate applications

Where Council is engaged as a Certifier and/or on receipt of an application for a Building Information Certificate for a property which has a swimming pool, arrangements will be made with the swimming pool owner for an inspection to be undertaken of the swimming pool. Where a defective barrier is identified, a Direction will be issued to the swimming pool owner.

6. Tourist and visitor accommodation or premises with more than two dwellings

‘Tourist and visitor accommodation’ means a building or place that provides temporary or short-term accommodation on a commercial basis and includes any of the following: backpacker’s accommodation, bed and breakfast accommodation, farm stay accommodation, hotel or motel accommodation, serviced departments, but does not include camping grounds, caravan parks or eco tourist facilities.

‘Dwelling’ means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. Premises containing more than two dwellings would include a residential flat building, town houses, villas or the like.

These categories of premises are to be inspected at least once every three years. A written request will be forwarded to the owner of the swimming pool to arrange access for an inspection to be undertaken and payment of the inspection fee in accordance with Section 22F of the Act. Where a defective barrier is identified, a Direction will be issued to the swimming pool owner.

7. Council audit

Where inspection resources permit, the swimming pool register will be reviewed to identify swimming pools where there is not a valid Certificate of Compliance or a relevant Occupation Certificate in existence and Council has not carried out an inspection of the swimming pool in the past 5 years. A written request will be forwarded to the owner of the swimming pool to arrange access for an inspection to be undertaken and payment of the inspection fee in accordance with Section 22F of the Act. Where a defective barrier is identified, a Direction will be issued to the owner of the swimming pool.

Enforcement Actions and Fees

Inspections and re-inspection fees

Section 22F of the Act allows Council to charge an inspection fee for all inspections carried out under Division 5 of the Act.

An initial inspection fee will be payable by the swimming pool owner at the time of making an application or request to Council for an inspection of a swimming pool. An application will not be taken as being lodged until payment of the application fee has been received by Council.

Where Council has initiated the need for an inspection in accordance with this program, other than for a complaint, a request for payment will be forwarded to the owner of the swimming pool.

Where a re-inspection is necessary, a re-inspection fee will be payable by the swimming pool owner. In such cases, Council will request payment from the swimming pool owner prior to re- inspection.

All inspection fees will be charged in accordance with Council’s schedule of fees and charges.

Directions

Where a defective swimming pool barrier has been identified, the non-compliant aspects will be notified to the swimming pool owner as a Direction. The Direction is a legally enforceable document and provides the swimming pool owner with a right of appeal to the Land and Environment Court.

After the time period for compliance with the Direction has expired, a reinspection of the swimming pool will be carried out by Council to determine if compliance has been achieved. Given the safety issues, any failures to comply would result in Council seeking legal enforcement of the Direction through an application to the Land and Environment Court.

Penalty Infringement Notices

There are a range of Penalty Infringement Notices (on the spot fines) that will be issued by Council for non-compliance with the requirements of the Act. Such penalties are not used as an initial response by Council but rather as a deterrent for continued failure to comply.