Swimming Pools Regulation 2018

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Swimming Pools Regulation 2018.

2 Commencement

This Regulation commences on 1 September 2018 and is required to be published on the NSW legislation website.

Note—

This Regulation replaces the Swimming Pools Regulation 2008, which is repealed on 1 September 2018 by section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation:

AS 1926.1—2007 means the provisions of AS 1926.1—2007, Swimming pool safety, Part 1: Safety barriers for swimming pools as published by Standards Australia on 12 July 2007, other than clause 2.10.

Building Code of Australia means the document published by or on behalf of the Australian Building Codes Board under the title Building Code of Australia, as in force from time to time.

testing apparatus means a cylindrical test object having a diameter of 105 millimetres, plus or minus 1 millimetre, and having at least one solid flat-faced end.

the Act means the Swimming Pools Act 1992.

the Cardiopulmonary Resuscitation Guideline means the document entitled ANZCOR Guideline 8: Cardiopulmonary Resuscitation published in January 2016 by the Australian Resuscitation Council.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2)  Notes included in this Regulation do not form part of this Regulation.

4 References to compliance with AS 1926.1—2007 or Building Code of Australia

For the purposes of this Regulation, a child-resistant barrier, window or doorway is taken to comply with AS 1926.1—2007 or the Building Code of Australia where applicable so long as it complies with the minimum requirements of the standard or the code.

Part 2 Restriction of access to swimming pools

Note—

Clause 31 deals with swimming pools completed before 1 September 2008.

Division 1 Outdoor swimming pools

5 General requirements for outdoor swimming pools

(1)  For the purposes of sections 7 (1) (b) and 12 (d) of the Act, the prescribed standards in accordance with which a child-resistant barrier surrounding a swimming pool is to be designed, constructed, installed and maintained are the requirements set out in the Building Code of Australia.

Note—

The Act and this Regulation prevail to the extent of any inconsistency with the Building Code of Australia.

(2)  This clause is subject to clause 22.

6 Standards required for certain swimming pools to be exempt from requirement to separate swimming pool from residential building

(1)  For the purposes of section 8 (2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are that:

(a)  each doorway, and each opening portion of a window, that gives access to the swimming pool is to be designed, constructed, installed and maintained in accordance with the standards set out in AS 1926.1—2007, and

(b)  in relation to each opening portion of a window giving access to the swimming pool—there must not be any footholds wider than 10 millimetres between the bottom of the lowest opening panel of the window and any point within 1.1 metres below the bottom of that panel.

(2)  Subclause (1) (b) does not apply to a window that is:

(a)  of substantial construction and is so fixed (by means of a keyed locking device or other child-resistant device) that it has no opening through which it is possible to pass a testing apparatus, or

(b)  totally enclosed by a grille (including a fixed grille) that is of substantial construction and is so fixed (by means of a keyed locking device or other child-resistant device) that it has no opening through which it is possible to pass a testing apparatus.

7 Standards required for swimming pools on large or waterfront properties to be exempt from requirement to surround swimming pool

For the purposes of sections 9 (2) and 10 (2) of the Act, the prescribed standards in accordance with which the means of access to a swimming pool from a residential building are to be restricted are the standards set out in AS 1926.1—2007.

Division 2 Indoor swimming pools and spa pools

8 General requirements for indoor swimming pools

(1)  For the purposes of section 14 of the Act, the prescribed standards in accordance with which the means of access to an indoor swimming pool are to be restricted are that each doorway, and each opening portion of a window, that gives access to the swimming pool must be designed, constructed, installed and maintained in accordance with the requirements as set out in the Building Code of Australia.

(2)  This clause is subject to clause 22.

9 Standards required to be exempt from requirement to surround spa pool

For the purposes of section 20 of the Act, the prescribed standards in accordance with which access to the water contained in a spa pool is to be restricted are that the spa pool must be covered and secured by a lockable child-resistant structure (such as a door, lid, grille or mesh) that:

(a)  is of substantial construction and having no opening through which it is possible to pass a testing apparatus, and

(b)  is securely fastened by a device that is itself of substantial construction and having no opening through which it is possible to pass a testing apparatus.

Part 3 Warning notices

10 Contents of warning notices

(1)  For the purposes of section 17 (1) of the Act, the sign referred to in that subsection must bear a notice that contains all of the following:

(a)  the words:

(i)  “Young children should be actively supervised when using this swimming pool”, and

(ii)  “Pool gates must be kept closed at all times”, and

(iii)  “Keep articles, objects and structures clear of the pool fence at all times”,

(b)  a simple flow chart (which may be the flow chart depicted in the Cardiopulmonary Resuscitation Guideline) containing details of resuscitation techniques:

(i)  that are set out in accordance with the relevant provisions of that Guideline, and

(ii)  that comply with the other relevant guidelines of the Australian Resuscitation Council,

(c)  a statement to the effect that formal instruction in resuscitation is essential,

(d)  the name of the teaching organisation or other body that published the sign and the date of its publication.

(2)  However, any sign erected on or before 31 August 2019 that bears a notice in accordance with clause 10 (1) of the Swimming Pools Regulation 2008 (as in force immediately before its repeal) is taken to comply with subclause (1) of this clause, unless the swimming pool to which the sign relates is substantially altered or rebuilt.

(3)  The occupier of any premises in or on which a swimming pool (not including a spa pool) is being constructed must ensure that a sign is erected and maintained that:

(a)  bears a notice containing the words “This swimming pool is not to be occupied or used”, and

(b)  is located in a prominent position in the immediate vicinity of that swimming pool, and

(c)  continues to be erected and maintained until a relevant occupation certificate or a certificate of compliance has been issued for that swimming pool.

Maximum penalty: 5 penalty units.

Note—

The signage requirements in subclause (3) are in addition to any signage that may be required under the Environmental Planning and Assessment Act 1979 or any other Act.

(4)  Subclause (3) does not have effect before 1 March 2019.

Note—

Words or statements required to be included on signs by this clause may be in upper or lower case.

11 Legibility of warning notices

For the purposes of section 17 (1) and (2) of the Act, the signs referred to in section 17 (1) of the Act and clause 10 (3) of this Regulation must be:

(a)  legible from a distance of at least 3 metres, and

(b)  maintained in a clearly legible condition.

Part 4 Exemptions from barrier requirements granted by local authorities

12 Application for exemption

(1)  An application made to a local authority for an exemption under section 22 of the Act is to be in the form approved by that authority.

(2)  That form must contain statements to the effect that:

(a)  the local authority is taken, for the purposes of any appeal proceedings, to have refused the application if the local authority fails to finally determine the application within 6 weeks after it is made, and

(b)  the owner of the premises on which the relevant swimming pool is situated is entitled to appeal to the Land and Environment Court if the local authority:

(i)  refuses the application (or is taken to have refused the application), or

(ii)  grants the application but imposes a condition on the exemption granted.

13 Fee for determining whether to grant exemption

(1)  A local authority may impose a fee of no more than $250 for determining an application for an exemption under section 22 of the Act (which includes the conduct of any inspections for the purposes of determining the application).

(2)  An application made to a local authority that has imposed a fee must be accompanied by that fee.

14 Circumstances that justify an exemption

For the purposes of section 22 (1) (a) of the Act, the fact that an adult occupier of the premises in or on which a swimming pool is situated would (because of a physical disability or impairment of the occupier) be significantly impeded in gaining access to the swimming pool if the requirements of Part 2 of the Act were complied with is a special circumstance that justifies the granting of an exemption from those requirements.

15 Notice concerning certain decisions on exemptions

(1)  A local authority:

(a)  that refuses to grant an exemption under section 22 of the Act in respect of a swimming pool, or

(b)  that imposes conditions on an exemption under section 22 of the Act in respect of a swimming pool,

must cause notice of the decision to be served on the owner of the premises in or on which the swimming pool is situated.

(2)  Such a notice:

(a)  must give reasons for the decision, and

(b)  must state that the owner of the premises is entitled to appeal to the Land and Environment Court from the decision of the local authority.

Part 5 Inspections and certificates

16 Community engagement

(1)  For the purposes of section 22B (5) of the Act, a local authority must establish and implement a strategy for engagement with the local community when developing a program for the inspection of swimming pools in its area.

(2)  The strategy must be based on social justice principles of equity, access, participation and rights.

(3)  The local community is to be consulted in accordance with the strategy in relation to the development of the inspection program (including in relation to any review of such a program).

17 Time for carrying out inspections

For the purposes of section 22C (3) of the Act, a reasonable time within which a local authority must carry out an inspection is 10 business days after receiving a request for the inspection in accordance with section 22C of the Act.

18 Time for entering information on Register

(1)  For the purposes of section 22D (8) of the Act, if a local authority or an accredited certifier has inspected a swimming pool under Division 5 of Part 2 of the Act and is satisfied that the requirements for the issue of a certificate of compliance have been met, the information must be entered on the Register within 3 business days after the inspection.

(2)  For the purposes of section 30A (3) of the Act, if a local authority or an accredited certifier has inspected a swimming pool under Division 5 of Part 2 of the Act and is satisfied that the requirements for the issue of a certificate of compliance have not been met, the information must be entered on the Register within 3 business days after the inspection, by providing the details to the Secretary in a form approved by the Secretary.

19 Fee for inspection

For the purposes of section 22F (1) of the Act, the maximum fee that a local authority may charge the owner of premises in or on which a swimming pool is situated for carrying out an inspection of the swimming pool is:

(a)  if it is the first inspection since the person became the owner—$150, or

(b)  any or all subsequent inspections after the first inspection since the person became the owner—$100, or

(c)  if it is the first inspection since a certificate of compliance in relation to the premises ceased to be valid—$150, or

(d)  any or all subsequent inspections after the first inspection since a certificate of compliance in relation to the premises ceased to be valid—$100.

Note—

Certificates of compliance for a swimming pool are valid for a period of 3 years from the date of issue, in accordance with section 22D (6) of the Act. After a certificate of compliance has ceased to be valid, the local authority may charge a fee in accordance with this clause for an inspection carried out for the purpose of issuing a new certificate of compliance.

20 Notices by local authority if pool does not comply

(1)  This clause applies to an inspection carried out by the local authority under section 22C of the Act.

(2)  The local authority must provide a written notice to the owner of premises in or on which a swimming pool is situated if the local authority 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 clause 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 local authority 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 local authority is of the opinion that the swimming pool poses a significant risk to public safety.

21 Certificates of non-compliance if pool does not comply

Note—

A local authority may, under section 23 of the Act, order compliance with Part 2 of the Act.

(1)  This clause applies to an inspection carried out by the local authority, or an accredited certifier, under section 22C of the Act.

(2)  The local authority or accredited certifier must issue a certificate of non-compliance to the owner in respect of a swimming pool if the local authority or accredited certifier (as the case requires):

(a)  has inspected the pool under section 22C of the Act, and

(b)  is satisfied that the requirements for the issue of a certificate of compliance have not been met.

(3)  A certificate of non-compliance must be in the form approved by the Secretary and must include the following:

(a)  the address of the swimming pool to which the certificate relates,

(b)  the date of the inspection,

(c)  whether the local authority or accredited certifier is of the opinion that the swimming pool poses a significant risk to public safety,

(d)  if the certificate of non-compliance is issued by a local authority—a statement that the owner of the premises on which the swimming pool is situated is entitled, under section 26 of the Act, to appeal the decision of the local authority to refuse to issue a certificate of compliance under section 22D of the Act.

(4)  A certificate of non-compliance must be issued within 7 days from the date of the inspection of the pool. However, failure to issue a certificate of non-compliance within that period does not affect the validity of the certificate.

(5)  The requirement under subclause (4) to issue a certificate of non-compliance within the 7-day period applies whether or not a notice under clause 20 has been provided.

(6)  A certificate of non-compliance must not be issued in respect of a swimming pool on common property in a strata scheme (within the meaning of the Strata Schemes Management Act 2015) or association property in a community scheme (within the meaning of the Community Land Development Act 1989) if that strata or community scheme comprises more than 2 lots.

(7)  A certificate of non-compliance in respect of a swimming pool remains valid for a period of 1 year from the date on which it is issued but ceases to be valid if a certificate of compliance is subsequently issued under section 22D of the Act for that swimming pool.

(8)  A certificate of non-compliance is not valid at any time during which the premises on which the swimming pool is located are subject to a residential tenancy agreement under the Residential Tenancies Act 2010.

Note—

A non-compliance certificate must be entered on the Register. See clause 18 (2).

22 Special provision relating to acquired premises

(1)  This clause applies to a swimming pool situated in or on premises acquired after 24 March 2016 if the contract of sale for the premises contained a certificate of non-compliance under clause 21, unless the certificate states that the swimming pool poses a significant risk to public safety.

(2)  For the purposes of sections 7 (1) (b), 12 (d) and 14 of the Act, the prescribed standard in the case of a swimming pool to which this clause applies is the condition of the child-resistant barrier or means of access as at the acquisition of the premises, but only until:

(a)  90 days after the acquisition of the premises, or

(b)  the completion of work after the acquisition of the premises to ensure the child-resistant barrier or means of access complies with the standards that would apply but for this clause,

whichever is earlier.

Note—

See clauses 5 (1) and 8 (1) for the standards prescribed for sections 7 (1) (b), 12 (d) and 14 of the Act that would apply but for this clause. Non-compliance with sections 7, 12 and 14 of the Act may be an offence that carries a maximum penalty of 50 penalty units.

(3)  In this clause:

acquisition of the premises means the date on which the sale of the premises is completed.

23 Council reporting requirements for inspections

For the purposes of section 22F (2) of the Act, a local authority that is a council must include in its annual report under section 428 of the Local Government Act 1993 the number of inspections that it carried out under Division 5 of Part 2 of the Act that:

(a)  were of tourist and visitor accommodation, or

(b)  were of premises on which there were more than 2 dwellings, or

(c)  resulted in the council issuing the following:

(i)  a certificate of compliance under section 22D of the Act,

(ii)  a certificate of non-compliance under clause 21 of this Regulation.

Part 6 Registration of swimming pools

24 Registration information

For the purposes of section 30B (1) of the Act, the following information is required to be entered on the Register in relation to a swimming pool:

(a)  the address of the premises,

(b)  the type of swimming pool (for example, whether the pool is in-ground or above-ground, or indoor or outdoor, or a spa pool),

(c)  the type of premises (for example, premises on which a residential building is located, premises on which tourist and visitor accommodation is located or premises on which more than 2 dwellings are located).

25 Fee for provision of registration information

For the purposes of section 30B (2) (b) of the Act, the maximum fee that a local authority may require for the provision of registration information within the meaning of section 30B of the Act is $10.

26 Authorised persons who may access Register

Accredited certifiers within the meaning of Division 5 of Part 2 of the Act are prescribed as authorised persons for the purposes of section 30E of the Act.

Note—

Section 22A of the Act defines accredited certifier in Division 5 of Part 2 of the Act as 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.

Clause 27 prescribes each category of accreditation under the Building Professionals Act 2005 that authorises the carrying out of inspections under the Swimming Pools Act 1992 as an alternative qualification for the purposes of paragraph (b) of the definition of accredited certifier in section 22A of the Act.

Part 7 Miscellaneous

27 Alternative qualifications for accredited certifiers

For the purposes of paragraph (b) of the definition of accredited certifier in section 22A of the Act, an accredited certifier holding a category of accreditation under the Building Professionals Act 2005 that authorises the exercise of a function under the Swimming Pools Act 1992 is prescribed as an alternative qualification for an accredited certifier in respect of the exercise of that function.

28 Directions by local authorities

A local authority that gives a direction under section 23 of the Act to the owner of any premises in or on which a swimming pool is situated must include in the direction:

(a)  the reasons for its decision to give the direction, and

(b)  a statement to the effect that the owner of the premises is entitled to appeal to the Land and Environment Court from the decision of the local authority.

29 Public access to Australian Standards, Building Code of Australia and Cardiopulmonary Resuscitation Guideline

(1)  Each local authority must ensure that an electronic version, and if requested a paper copy of a relevant extract of the applicable Australian standards, the Building Code of Australia and the Cardiopulmonary Resuscitation Guideline are made available for public inspection at no cost at each public office of the local authority during ordinary business hours.

(2)  Each local authority must ensure that the Cardiopulmonary Resuscitation Guideline is available for viewing on its website.

(3)  In this clause:

applicable Australian standards means all of the following:

(a)  AS 1926—1986, Fences and gates for private swimming pools as published by Standards Australia on 4 August 1986,

(b)  AS 1926.1—2007,

(c)  AS 1926.1—2012, Swimming pool safety, Part 1: Safety barriers for swimming pools as published by Standards Australia on 6 November 2012, including any subsequent editions,

(d)  AS 1926.2—2007, Swimming pool safety, Part 2: Location of safety barriers for swimming pools as published by Standards Australia on 12 July 2007, including any subsequent editions.

30 Effect of changes to prescribed standards for existing complying swimming pool barriers and means of access

(1)  In this clause, relevant amendment means:

(a)  an amendment to this Regulation that amends or substitutes a standard prescribed for the purposes of a provision of Part 2 of the Act, or

(b)  an amendment to a standard (including a code) that is prescribed, as in force from time to time, for the purposes of a provision of Part 2 of the Act.

(2)  If a child-resistant barrier for a swimming pool is required to comply with a standard prescribed under a provision of Part 2 of the Act and the standard is amended or substituted by a relevant amendment, the barrier is taken to comply with the amended or substituted standard so long as:

(a)  immediately before the relevant amendment took effect, the barrier complied with the standard that applied to the barrier at that time and the barrier continues to comply with that standard, or

(b)  if the barrier has been substantially altered or rebuilt, the barrier complied with the standard that applied to the barrier when it was so altered or rebuilt and the barrier continues to comply with that standard.

(3)  If the means of access to a swimming pool are required to comply with a standard prescribed under a provision of Part 2 of the Act and the standard is amended or substituted by a relevant amendment, the means of access are taken to comply with the amended or substituted standard so long as:

(a)  immediately before the relevant amendment took effect, the means of access complied with the standard that applied to the means of access at that time and the means of access continues to comply with that standard, or

(b)  if the means of access have been substantially altered or rebuilt, the means of access complied with the standard that applied to the means of access when they were so altered or rebuilt and they continue to comply with that standard.

Note—

Subclause (3) applies to standards prescribed under provisions of Part 2 of the Act that relate to indoor swimming pools, outdoor swimming pools or both.

31 Existing complying swimming pools may continue to comply with earlier standards

(1)  This clause applies to a swimming pool the construction or installation of which was completed before 1 September 2008 and that complied with Part 2 of the Swimming Pools Regulation 1998 as in force immediately before the repeal of that Regulation.

(2)  It is sufficient compliance with Part 2 of the Act for a swimming pool to comply with that Part on the basis of the requirements of Part 2 of the Swimming Pools Regulation 1998 (as an alternative to compliance on the basis of the requirements of Part 2 of this Regulation).

(3)  However, this clause does not apply to:

(a)  an outdoor swimming pool—if the child-resistant barrier by which access to the swimming pool is restricted is substantially altered or rebuilt, and

(b)  an indoor swimming pool—if the premises in or on which the swimming pool is situated are substantially altered or rebuilt in a way that affects the means of access to the swimming pool.

32 Savings

(1)  Any act, matter or thing that, immediately before the repeal of the Swimming Pools Regulation 2008, had effect under that Regulation is taken to have effect under this Regulation.

(2)  A certificate of non-compliance that was valid immediately before the repeal of the Swimming Pools Regulation 2008 is not affected by that repeal and this Regulation applies to the certificate in the same way that it applies to a certificate of non-compliance issued under this Regulation.

Schedule 1 Penalty notice offences

For the purposes of section 35 of the Act:

(a)  each offence specified in this Schedule is an offence for which a penalty notice may be issued, and

(b)  the amount payable under any such penalty notice is the amount specified in this Schedule for the offence.

Column 1	Column 2
Provision	Penalty
Offences under the Act
Section 7 (1)	$550
Section 12	$550
Section 14	$550
Section 15 (1)	$550
Section 16	$550
Section 17 (1)	$110
Section 23 (3)	$550
Section 30B (1)	$220
Offences under the Regulation
Clause 10 (3)	$110