New Pool Rules for Councils
The Swimming Pools Amendment Act 2012 (the Amending Act) sets out a number of significant changes to the Swimming Pools Act 1992 (the Act) concerning the regulation of swimming pool safety in NSW.
The changes involve an increased role for councils in ensuring that swimming pools in their area are compliant with the requirements of the Act, principally through a program of inspections and the issue of certificates of compliance.
The Amending Act also introduces a new ‘Register of Swimming Pools’ to be administered by the Director-General.
Register of Swimming Pools
A pool owner must ensure that prescribed information about their pool is entered on the Register of Swimming Pools.
A pool owner may do this by providing the information directly to the Director-General, or to the council. Where the information is provided to a council, the council is required to enter the information on the Register in a form approved by the Director-General.
Pool owners will not be required to comply with the registration requirements until 12 months after the Act comes into force.
Mandatory program of inspection of swimming pools
Under the changes, provisions requiring mandatory pool inspections by a council have been inserted into the Act (s22B). Councils are required to develop and adopt a program for inspection of swimming pools in their area, to ensure that pools are compliant with the Act.
Councils will need to adopt their inspection program within 6 months after the commencement of the section 22B. Section 22B commences 6 months after the date
of assent of the Act, so in effect, councils will have a period of 12 months in which to develop and adopt their program.
For any pool situated on premises where there are more than 2 dwellings, or tourist or visitor accommodation, council’s program must make provision for the inspection of the pool at least once every 3 years. This must be included in the program within 12 months after the commencement of the section.
Council’s inspection program is not required to include inspection of a swimming pool for which a certificate of compliance or occupation certificate has been issued.
The regulations may provide further detail about the form and content of the programs, public consultation and carrying out of inspections.
Under the changes to the Act, an owner will be able to voluntarily request an inspection from a council or accredited certifier (s22C).
Where a council is requested in writing to carry out an inspection required for the sale or lease of premises on which the pool is situated, council must do so within a reasonable time, which may be set out by the regulations.
Council will be able to charge a fee for inspection (s22F). An inspection by council can only be carried by an authorised officer, (s22F(3)).
Certificates of compliance
Councils can already issue a certificate of compliance under s24 of the Act. Under the changes certificates of compliance issued under s24 of the Act are deemed to be a certificate under s22D of the amended Act, and are valid for three years from the date of issue, or six months after the date of assent, whichever is later.
A council or accredited certifier may issue a certificate of compliance following an inspection, where satisfied that the pool is compliant with the requirements of the Act, and has been registered under Part 3A of the Act.
A certificate of compliance is valid for 3 years, but ceases to be valid if council issues a direction under s23 of the Act.
Where a certificate of compliance is issued, it is the responsibility of the council or certifier to ensure that details are entered on the Register by forwarding details to the Director-General in an approved form (22D(7)).
For the purposes of appealing to the Land and Environment Court, a council is deemed to have refused to issue a certificate of compliance if it fails to issue a certificate, or a direction under s23 of the Act within 6 weeks of an inspection under s22B, or a written request for an inspection under s23C.
Non-compliance
Where an accredited certifier carries out an inspection but is not satisfied that the pool complies, the certifier may issue a notice to the pool owner. Among other things, the notice must provide an opinion on whether the pool poses a significant risk to public safety and must inform the pool owner that a copy of the notice will be sent to the council, either immediately where a significant public risk exists, or in other cases, 6 weeks.
The certifier is under a duty to forward the notice to council either immediately, or 5 days after the 6 week period has ended if a certificate of compliance is not issued in that time.
In the event that a private certifier issues a notice of non-compliance to the pool owner and subsequently notifies council, it is envisaged that council will use its existing powers under the Act to secure compliance.
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