In 2012, the State Government introduced new laws as part of its home pool safety measures that will require vendors (and landlords) to include a certificate of compliance or occupation certificate for any contracts for sale of land (or residential tenancy agreements) on which there is a swimming pool to improve pool safety.

Owners of properties with a swimming pool and/or spa are further required to register their pools or spa on the NSW Swimming Pool Register.

Under The Swimming Pools (Amendment) Act 2012 (NSW) the new compliance regime was expected to commence on 29 April 2014. However, due to the excessive demand on pool inspectors, the State Government extended the compliance requirements for 12 months to April 2015. By April 2015, the government appeared to be in no better position and acceded to the concerns of industry stakeholders by extending the compliance requirements for a further 12 months to 29 April 2016.

It appears that the State Government has finally addressed these concerns. On 29 April 2016 the Government will implement the new compliance requirements, avoiding a 3rd embarrassing delay. The new compliance requirements will include an additional ‘non-compliance certificate’ as an alternative compliance certificate.

Obtaining a Swimming Pool Compliance Certificate

A compliance certificate can be obtained by arranging for an inspection by the local council or a private certifier. Council can sometimes take up to 90 days to issue a certificate of compliance due to the limited number of certifiers and the need for owners to bring the pool up to standard after an initial inspection. Alternatively, if the pool is less than three years old, an occupation certificate can be provided in lieu of a compliance certificate.

Compliance Requirements

From 29 April 2016, vendors and landlords may only sell a property with a swimming pool if the contract for the sale includes a ‘relevant occupation certificate’; a ‘certificate of compliance’; or a ‘certificate of non-compliance’ that has been issued by the NSW Swimming Pool Register.

A ‘certificate of non-compliance’ enables a vendor to transfer the obligation of obtaining a ‘certificate of compliance’ to the purchaser. The purchaser then has 90 days from the date of settlement to address any issues of pool barrier non-compliance and obtain a certificate of compliance. However, this transfer of obligation does not apply to leases.

Exemptions

Exemptions now apply for off-the-plan contracts and the sale of a lot in a strata or community scheme where the scheme comprises of more than 2 lots.

Properties with more than 2 dwellings are exempt from the compliance requirements on sale or lease as they are subject to mandatory council inspections every 3 years. The exemption seems to address the previous lack of certainty facing Strata Schemes. However, properties with a pool and two or less dwellings must have a certificate of compliance before entering into a lease.

Conclusion

On 29 April 2016 the NSW Government will finally deliver on their twice-failed promise to introduce strict compliance requirements on pool barriers. It is unfortunate that for the past 2 years the NSW Government has prioritized other policies such the unpopular lockout laws over the implementation of swimming pool compliance certification which the Government believes will end drowning as the leading cause of preventable death in children under the age of 5[1].

Given that the NSW Government has received relatively little criticism from the general public over their 2 year delay, it seems that the third time really is a charm.