If you are selling your property this spring or summer and you have a swimming pool or a spa then you need to read on:
As a pool owner, you are responsible for ensuring your pool is enclosed and access to it by children is restricted at all times. You are also responsible for ensuring that it complies with relevant Australian Standards and laws.
Under the Swimming Pools Amendment Act 2012 (NSW) (the Act), new obligations were imposed on owners of properties with swimming pools. The Act applies to any excavation, structure or vessel - including swimming pools and spa pools - that are:
- capable of being filled with water to a depth greater than 30cm, and
- used, designed, manufactured or adapted for swimming, wading, paddling or any other human aquatic activity.
Under the Act, from 29 October 2013 owners are required to have registered their pool on the Swimming Pools Register. Failure to register your pool may give rise to a $220.00 fine. To register, click here.
The Act also amends the Conveyancing (Sale of Land) Regulation 2010 (NSW). From 29 April 2016 a vendor must attach one of the following to the Contract for Sale of Land (Contract):
- an "Occupation Certificate", being a 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;
- a "Certificate of Compliance"; or
- a "Certificate of Non Compliance" (each a Certificate).
A Certificate is issued by either the local council or a private certifier and has a life of 3 years. Failure to annex a Certificate to the Contract could give the buyer a right to rescind the Contract within 14 days of exchange.
What if your pool is not compliant?
Under a Contract, vendors can transfer the obligation of complying with a Certificate of Non Compliance to the purchaser. This means that as long as the vendor attaches the Certificate of Non Compliance to the Contract, the purchaser has 90 days from the date of settlement of the Contract to address any issues of non-compliance and obtain a Certificate of Compliance. The new regulations give greater flexibility to the sales process by allowing the transfer of obligation for swimming pool barrier compliance, by ensuring that incidents of non-compliance are addressed. However, the vendor's ability to transfer these obligations does not extend to the leasing of properties. Landlords are to ensure that the tenant is provided a copy of the a valid "Certificate of Compliance" at the time of entering into the lease. Pool owners can face penalties of up to $5,500.00 for non-compliance with the pool safety requirements, and an on the spot fine of $550.00
Where do you obtain these Certificates?
Your local council or accredited certifier under the Building Professionals Act 2005 (NSW) can provide you with a Certificate of Compliance. You can find a private certifier online at www.bpb.nsw.gov.au and click on "Find a Certifier".
How much will it cost?
Local councils may charge a maximum of $150.00 for the initial inspection and $100.00 for the re-inspection resulting from the first inspection.
How can I check if a pool and/or spa has a certificate of compliance?
You can check if a property with a swimming pool has a current Certificate of Compliance by:
- select “Lookup pool”;
- enter the street number, street name (do not type in road, street, lane etc.) and the suburb; and
- select “Find property".
The address will appear if the property has a current Certificate of Compliance.
Are there any exceptions?
These requirements do not apply to a Contract in relation to a lot in a strata scheme or in a community scheme, if that strata or community scheme has more than two lots, or if the Contract is for an off-the-plan property.