2012
2012
2012-10-29
act
government
publicspecial
act.reprint
partuncommenced
2012-10-17
2012-10-17
0
2012
none
act-2012-077
aa6e31d7-f45c-4a5f-873a-c49c5fcde390
1a0c3565-3ca3-408d-af24-6c8f6d13a558
Note—
Amending Acts and amending provisions are subject
to automatic repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to amend the Swimming Pools Act 1992 and other
legislation with respect to the registration, inspection and certification of
swimming pools; and for other purposes.
1Name of
Act
This Act is the Swimming Pools
Amendment Act 2012.
2Commencement
(1)
Except as provided in subsections (2) and (3),
this Act commences on the date of assent to this Act.
(2)
Schedule 1 [16] and [26] commences 6 months after
the date of assent to this Act.
(3)
Subschedules 2.2 and 2.3 commence 18 months after
the date of assent to this Act.
Schedule 1Amendment of Swimming Pools Act 1992 No
49
[1]Section 3
Definitions
Insert in alphabetical order in section 3
(1):
certificate of compliance means a
certificate issued under section 22D.
council means the council of an area
within the meaning of the Local Government Act
1993.
Director-General means:
(a)
the Chief Executive of the Division of Local
Government within the Department of Premier and Cabinet,
or
(b)
if there is no such position within that
Department, the Director-General of that
Department.
Register means the Register of
Swimming Pools under section 30A.
relevant
occupation certificate in respect of a swimming pool means
an occupation certificate issued under the Environmental
Planning and Assessment Act 1979 that is less than 3 years
old and that authorises the use of the swimming pool.
Standard
Instrument means the standard local environmental planning
instrument prescribed by the Standard
Instrument (Local Environmental Plans) Order
2006.
tourist
and visitor accommodation has the same meaning as in the
Standard Instrument.
[2]Section 3 (1), definition of
“residential building”
Omit paragraph (b) of the definition. Insert
instead:
(b)
a moveable dwelling, or
(b1)
tourist and visitor accommodation,
or
[3]Section 3 (1), definition of
“swimming pool”
Omit “of 300 millimetres or more”
from paragraph (a) of the definition.
Insert instead “greater than 300
millimetres”.
[4]Section 3
(1A)
Insert after section 3 (1):
(1A)
For the avoidance of doubt, a swimming pool is
situated on premises on which another building is located if the swimming pool
is ancillary to that other building, regardless of whether the swimming pool
is on a separate lot, such as on common property under a strata
scheme.
[5]Section 4 Swimming pools to
which Act applies
Omit “dwelling, a hotel or a
motel”.
Insert instead “dwelling or tourist and
visitor accommodation”.
[6]Section 8 Exemption for
swimming pools constructed before August 1990 and existing swimming pools on
small properties
Insert after section 8 (3):
(4)
This section ceases to apply in respect of a
swimming pool if a barrier is erected on the premises (between the swimming
pool and a residential building) as a barrier to direct access to the swimming
pool from any residential building situated on the
premises.
[7]Section 9 Exemption for
swimming pools on large properties
Insert after section 9 (4):
(5)
This section ceases to apply in respect of a
swimming pool if a barrier is erected on the premises (between the swimming
pool and a residential building) as a barrier to direct access to the swimming
pool from any residential building situated on the
premises.
[8]Section 10 Exemption for
swimming pools on waterfront properties
Insert after section 10 (4):
(5)
This section ceases to apply in respect of a
swimming pool if a barrier is erected on the premises (between the swimming
pool and a residential building) as a barrier to direct access to the swimming
pool from any residential building situated on the
premises.
[9]Part 2, Division 2,
heading
Omit “dwellings, hotels and
motels”.
Insert instead “dwellings and tourist
and visitor accommodation”.
[10]Section 11 Swimming pools to
which Division applies
Omit “dwelling, a hotel or a
motel”.
Insert instead “dwelling or tourist and
visitor accommodation”.
[11]Section 12 General
requirements for outdoor swimming pools
Omit “dwelling, hotel or motel” from
section 12 (a).
Insert instead “dwelling or tourist and
visitor accommodation”.
[12]Section 13 Exemptions for
existing swimming pools
Insert after section 13 (1):
(1A)
This section also applies to swimming
pools:
(a)
that are situated on premises on which there is
tourist and visitor accommodation (but not if there is a moveable dwelling,
hotel or motel on the premises), and
(b)
the construction or installation of which
commenced before 1 May 2013.
[13]Part 2, Division 4,
heading
Omit “General”.
Insert instead “Additional requirements
for swimming pools”.
[14]Section 19 House wall may be
used as part of required child-resistant barrier
Omit “of a residential building, hotel or
motel” from section 19 (1).
Insert instead “of a residential building
or a building used for the purposes of tourist and visitor
accommodation”.
[15]Section 19
(1)
Omit “the residential building, hotel or
motel”. Insert instead “the
building”.
[16]Part 2, Division
5
Insert after section 22:
Division 5Inspections and compliance
with Part
22ADefinition
In this Division:
accredited certifier means an
accredited certifier within the meaning of the Building
Professionals Act 2005 holding:
(a)
category A1, category A2 or category A3
accreditation under that Act, or
(b)
if the regulations prescribe alternative
qualifications, those alternative qualifications.
22BMandatory pool inspection
program by local authority
(1)
A local authority must, within 6 months after the
commencement of this section, develop and adopt a program for the inspection
of swimming pools in its area to ensure compliance with the requirements of
this Part.
(2)
Within 12 months after the commencement of this
section, the program must make provision for the inspection, at least once
every 3 years, of any swimming pool situated on premises on which there is
tourist and visitor accommodation or more than 2
dwellings.
(3)
The program is not to require the inspection of a
swimming pool in respect of which there is a valid certificate of compliance
or a relevant occupation certificate.
(4)
A local authority must inspect swimming pools in
its area in accordance with its program.
(5)
The regulations may make provision for or with
respect to the development and adoption of programs for the inspection of
swimming pools including:
(a)
the form and content of programs,
and
(b)
the manner in which the public is to be consulted
during the development of any such program, and
(c)
the carrying out of inspections under the
program.
(6)
In this section:
dwelling has the same meaning as in
the Standard Instrument.
22COther inspections at request
of owner
(1)
The owner of any premises on which a swimming
pool is situated may, at any time, request the local authority or an
accredited certifier to inspect the swimming pool.
(2)
A local authority or an accredited certifier may
carry out any such inspection if requested to do so.
(3)
A local authority must carry out an inspection
under this section, and must carry out that inspection within a reasonable
time, if the request to the local authority is in writing and states that the
inspection is required to enable the sale or lease of the premises or part of
the premises on which the swimming pool is situated.
(4)
The regulations may make provision for what is a
reasonable time for the purposes of subsection (3).
22DCertificates of
compliance
(1)
The requirements for the issue of a certificate
of compliance in respect of a swimming pool are that:
(a)
the swimming pool is registered under Part 3A,
and
(b)
the swimming pool complies with the requirements
of this Part.
(2)
A local authority or an accredited certifier must
issue a certificate of compliance in respect of a swimming pool if the local
authority or accredited certifier:
(a)
has inspected the swimming pool under this
Division, and
(b)
is satisfied that the requirements for the issue
of a certificate of compliance have been met.
(3)
A local authority or an accredited certifier must
not issue a certificate of compliance except as provided by subsection
(2).
(4)
A local authority or an accredited certifier may
refuse to issue a certificate of compliance until any fee payable for the
inspection has been paid.
(5)
A certificate of compliance in respect of a
swimming pool is to be issued to the owner of the premises on which the pool
is situated in a form approved by the Director-General.
(6)
A certificate of compliance remains valid for a
period of 3 years from the date on which it is issued but ceases to be valid
if a direction is issued under section 23 in respect of the swimming pool to
which the certificate relates.
(7)
A local authority or accredited certifier that
issues a certificate of compliance in respect of a swimming pool must ensure
that details of the certificate are entered on the Register, by providing the
details to the Director-General in a form approved by the
Director-General.
(8)
The regulations may make provision for or with
respect to the time and manner in which any such information is to be entered
on the Register.
22ENotices by accredited
certifier if pool does not comply
(1)
This section applies to an inspection carried out
by an accredited certifier under section 22C.
(2)
An accredited certifier must provide a written
notice to the owner of a swimming pool if the accredited certifier has
inspected the swimming pool and is not satisfied that the requirements for the
issue of a certificate of compliance have been met.
(3)
A notice under this section is to set out the
following:
(a)
the date of the notice,
(b)
the address of the swimming pool to which the
notice relates,
(c)
the date on which the inspection took
place,
(d)
the reasons why the accredited certifier is not
satisfied that the requirements for the issue of a certificate of compliance
have been met and the steps that need to be taken in order to meet those
requirements,
(e)
whether the accredited certifier is of the
opinion that the swimming pool poses a significant risk to public
safety,
(f)
a warning that a copy of the notice will be
forwarded to the local authority for the area in which the swimming pool is
situated:
(i)
immediately, if the accredited certifier is of
the opinion that the swimming pool poses a significant risk to public safety,
or
(ii)
6 weeks after the date of inspection (or such
other time as may be prescribed by the regulations) if a certificate of
compliance is not issued for the swimming pool before that
time,
(g)
such other matters as may be prescribed by the
regulations.
(4)
An accredited certifier who issues a notice under
this section in respect of a swimming pool must forward a copy of the notice
to the local authority for the area in which the swimming pool is
situated:
(a)
immediately, if the accredited certifier is of
the opinion that the swimming pool poses a significant risk to public safety,
or
(b)
within 5 days after the end of the period
specified in subsection (3) (f) (ii) in any other
case.
(5)
An accredited certifier is not required to
forward a copy of any notice to a local authority in respect of a swimming
pool if, at the time at which the notice is due to be sent, the swimming pool
has a valid certificate of compliance.
22FInspections carried out by
local authority
(1)
A local authority may charge the owner of
premises a fee for carrying out an inspection under this Division being a fee
that is no greater than the maximum fee (if any) prescribed by the
regulations, but it may not charge a separate fee for issuing a certificate of
compliance.
(2)
A local authority that is a council must include
in its annual report under section 428 of the Local Government
Act 1993 such information (if any) in relation to
inspections under this Division as is prescribed by the
regulations.
(3)
An inspection by a local authority is to be
conducted by an authorised officer and entry on to premises to carry out such
an inspection is to be in accordance with Part 3.
22GLocal authorities that are not
councils
The regulations may:
(a)
modify the application of the provisions of this
Division with respect to a local authority that is not a council,
and
(b)
provide for any functions of such a local
authority under this Division to be exercised by another person or
body.
[17]Section 24 Local authority
must grant certificate of compliance if swimming pool complies with this
Part
Omit the section.
[18]Part 2, Division 6,
heading
Insert before section 25:
Division 6Defences and
appeals
[19]Section 25 Defences to
offences under Part
Omit section 25 (2) (a) and (b). Insert
instead:
(a)
that there is a valid certificate of compliance
or relevant occupation certificate in respect of the swimming pool that is the
subject of the alleged offence, and
[20]Section 26 Appeals against
decisions of local authority
Omit section 26 (1) (c) and (d). Insert
instead:
(c)
a decision to refuse to grant a certificate of
compliance under section 22D,
(d)
a decision to give a direction under section
23.
[21]Section 26
(3)
Insert after section 26 (2):
(3)
A local authority is taken to have refused to
issue a certificate of compliance in relation to a swimming pool if the local
authority has failed to issue either a certificate of compliance or a
direction under section 23 in respect of the swimming pool, within 6 weeks (or
such other period as may be prescribed by the regulations) after:
(a)
an inspection of the swimming pool is carried out
under section 22B, or
(b)
a written request is made under section 22C to
the local authority that stated that the inspection was required to enable the
sale or lease of the premises or part of the premises on which the swimming
pool is situated.
[22]Sections 27A and
27B
Insert after section 27:
27AGrounds for entering
premises
(1)
An authorised officer may enter premises for any
one or more of the following purposes:
(a)
to carry out an inspection of a swimming pool
under Division 5 of Part 2,
(b)
to investigate a complaint under section
29A,
(c)
to investigate any contravention of this Act or
the regulations that the authorised officer reasonably suspects to have
occurred.
(2)
Nothing in this section prevents an authorised
officer from entering premises with the consent of the owner or occupier of
those premises.
27BPowers of entry and search
warrants—local council
(1)
This section applies to an authorised officer who
has been appointed by a local authority that is a
council.
(2)
Part 2 of Chapter 8 of the Local
Government Act 1993 applies to the entry of premises by an
authorised officer for any purpose specified in section 27A and an authorised
officer is taken to be an authorised person for the purposes of section 201 of
that Act.
(3)
For the avoidance of doubt, the investigation of
any contravention of this Act or the regulations that an authorised officer
reasonably suspects to have occurred is a function of the council that
appointed the authorised officer.
[23]Section 28 Power of
entry—local authority other than local council
Omit section 28 (1). Insert instead:
(1)
This section applies to an authorised officer who
has been appointed by a local authority other than a
council.
(1A)
An authorised officer who enters premises for any
purpose specified in section 27A may examine the premises and, in particular,
any swimming pool, and any barrier or other means of restricting access to any
swimming pool, situated in or on the premises.
[24]Section 29 Search
warrants—local authority other than local council
Insert before section 29 (1):
(1A)
This section applies to an authorised officer who
has been appointed by a local authority other than a
council.
[25]Section 29A Investigation of
complaint
Omit “in accordance with section 28”
from section 29A (4).
Insert instead “in accordance with this
Part”.
[26]Part 3A
Insert after Part 3:
Part 3ARegistration of swimming
pools
30AThe Register of Swimming
Pools
(1)
There is to be a Register of Swimming
Pools.
(2)
The Director-General is responsible for the
keeping and administration of the Register.
(3)
The regulations may make provision for the manner
and form in which the Register is to be kept, the information that is to be
entered on the Register, the fees (if any) payable for entering information on
the Register and any other matter concerning the keeping and administration of
the Register.
30BRegistration of swimming
pools
(1)
The owner of the premises on which a swimming
pool is situated must ensure that any information prescribed by the
regulations in relation to the swimming pool (the registration information) is entered
on the Register.
Maximum penalty: 20 penalty
units.
(2)
A person complies with subsection (1) in respect
of a swimming pool, if the person:
(a)
provides to the Director-General, in a form
approved by the Director-General, the registration information in relation to
the swimming pool, or
(b)
provides to a local authority, in a form approved
by the local authority, the registration information in relation to the
swimming pool and pays to the local authority any fee required by the local
authority (being no more than the maximum fee (if any) prescribed by the
regulations).
(3)
A local authority is required to enter on the
Register, in a form approved by the Director-General, any information provided
to it under subsection (2) (b).
(4)
A swimming pool is registered when the
registration information about the swimming pool is entered on the
Register.
30CEvidence of
registration
(1)
The Director-General may issue a document
certifying as to whether or not a particular swimming pool is or was
registered at a particular time and certifying as to any registration
information for the swimming pool entered on the Register at a particular time
(including whether a certificate of compliance was valid with respect to a
swimming pool at a particular time).
(2)
A document issued under this section is evidence
of the matters certified.
30DDirector-General may enter
into agreements for purposes of Part
(1)
The Director-General may enter into agreements
and other arrangements with a person or body in respect of the exercise of
functions of the Director-General under this Part by the person or body on
behalf of the Director-General.
(2)
An agreement or other arrangement may make
provision for the ownership of information entered on the Register to be
vested in the Director-General.
30EAccess to
Register
(1)
An authorised person is entitled to access
information contained in the Register. The Director-General is required to
provide that access free of charge.
(2)
The regulations may provide for the ways in which
access can or must be given to authorised persons.
(3)
The regulations may require the Director-General
to keep specified records with respect to the access given to the Register
under this section and may provide for the persons who are entitled to have
access to those records.
(4)
The Director-General may give different degrees
of access to the Register to different classes of authorised persons, having
regard to the different functions that they perform.
(5)
The Minister and any person acting with the
Minister’s authority is entitled to full and free access to information
contained in the Register at all times.
(6)
The following persons are authorised persons for
the purposes of this section:
(a)
authorised officers,
(b)
a person who is a member of a class of persons
prescribed by the regulations as authorised persons for the purposes of this
section.
(7)
The regulations may prescribe the circumstances
in which other persons may access information contained in the
Register.
[27]Section 38
Regulations
Insert after section 38 (1) (b):
(b1)
inspections of swimming pools,
and
(b2)
the Register of Swimming Pools,
and
[28]Schedule 3 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Swimming Pools
Amendment Act 2012
[29]Schedule 3, Part
4
Insert after Part 3:
Part 4Provisions consequent on the
enactment of the Swimming Pools Amendment Act
2012
17Definition
In this Part:
amending
Act means the Swimming Pools
Amendment Act 2012.
18Existing certificates of
compliance
(1)
A certificate of compliance issued under section
24 before the repeal of that section by the amending Act is taken to be a
certificate of compliance issued under section 22D and remains valid for a
period of 3 years from the date on which it was issued or until 6 months after
the date of assent to the amending Act (whichever is the
later).
(2)
A certificate of compliance ceases to be valid if
a direction is issued under section 23 in respect of the swimming pool to
which the certificate relates.
19Registration of swimming
pools
The owner of premises on which a swimming pool is
situated is not required to comply with section 30B until 12 months after the
date of assent to the amending Act.
20Local authority not required
to inspect pools
A local authority is not required to carry out an
inspection under section 22C (3) until 18 months after the date of assent to
the amending Act.
Schedule 2Amendment of other
legislation
2.1Building Professionals Act 2005 No
115
Section 3
Definitions
Insert at the end of paragraph (c) of the
definition of certification work in section 3
(1):
, or
(d)
the carrying out of inspections for the purposes
of section 22C of the Swimming Pools Act
1992 and the issuing of certificates of compliance under
that Act.
2.2Conveyancing (Sale of Land) Regulation
2010
Schedule 1 Prescribed
documents
Insert after clause 15:
16
If the contract relates to land on which there is
a swimming pool within the meaning of the Swimming Pools
Act 1992 to which that Act applies, a copy of either of
the following in respect of the swimming pool:
(a)
a valid certificate of compliance issued under
that Act,
(b)
a relevant occupation certificate within the
meaning of that Act and evidence that the swimming pool is registered under
Part 3A of that Act.
Note—
A relevant occupation certificate is an
occupation certificate issued under the Environmental
Planning and Assessment Act 1979 that is less than 3 years
old and that authorises the use of the swimming pool.
2.3Residential Tenancies Regulation
2010
Schedule 1 Standard Form
Agreement
Insert after clause 40:
[Cross out this clause if there is no swimming
pool]
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.
Historical
notes
Table of amending
instruments
Swimming Pools
Amendment Act 2012 No 77. Assented to 29.10.2012. Date of
commencement, Schs 1 [16] and [26] and 2.2 and 2.3 excepted, assent, sec 2
(1); date of commencement of Sch 1 [16] and [26], 6 months after the date of
assent, sec 2 (2); date of commencement of Sch 2.2 and 2.3, 18 months after
the date of assent, sec 2 (3).