Introduction
One would expect that obtaining the correct advice on Pool
Barrier (Fencing) Laws in Australia would be as simple as searching via
Google….or asking your local Council, which will soon be responsible for
enforcing these laws…..or asking a Landscape Architect, Private Certifier or
your State’s Pool and Spa Association.
Unfortunately however, the complexity of the legislation and the
confusion over ‘hierarchy’, together with the frequent number of modifications
of late, makes it highly unlikely that you will readily locate someone who is
completely familiar with all of the relevant rules and regulations.
There is no argument - one drowning death is one too many - but
to keep things in perspective it is worth noting that the Royal Life Saving
Society Australia’s ‘National Drowning Report 2012’ notes that less than 8% of
drownings occur in swimming pools ….with many of these being alcohol-related.
It further notes that the drowning of children aged 0-4 (being the most
vulnerable group) has reduced over the last 12 months by 34% on the five year
average, whilst there has been a 75% increase in bathtub/spa bath drownings in
the same age group over the same period.
Currently there is no Australia-wide pool fencing law, with many
components differing widely between the various states and territories. Rather
than trying to explore the differences and anomalies on a national basis, we
have concentrated in this article on providing a concise overview of pool
barrier/fencing legislation in NSW.
Current Swimming Pool Legislation in NSW
(i) The current swimming pool legislation in NSW is currently
covered by a combination of –
The Building Code of Australia (BCA). Whilst the BCA is
considered to be the dominant legislation with regard to construction in
general in Australia, and pool fencing in particular, ‘any provision of the BCA
may be overridden by, or subject to, State or Territory
legislation’, requiring that the BCA be read in conjunction with any such
legislation.
Changes in pool fencing legislation seem to be occurring with
great regularity, including a recent controversial change in NSW on 01 May 2013
to ‘Part 3.9.3 - Swimming Pool Access’ of the BCA. This change restricts access
to out-of-ground pools in a manner that is in direct contravention of the
recent and well-considered AS1926.1 – 2012.
This ‘overnight’ change, which has meant that it is now illegal
to design swimming pools such as the four typical pools designed by my company
and used to illustrate this article, was a complete surprise to the Pool
industry and a complete contradiction of the recently released 2012 Australian
Standard. In relation to this latter item, submissions to the Premier and
relevant Ministers, seeking clarification of how this could have occurred, have
been made by the author and others. Despite following this matter up on a
near-daily basis for the past 6 weeks or so, we are still seeking a
satisfactory response.
The Swimming Pools Act 1992 (as amended by the Swimming
Pools Amendment Act 2012) regulates the circumstances in which a pool
‘fence’ (more correctly known as a pool ‘barrier’) is required.
The Swimming Pools Regulation 2008 (as
amended) similarly regulates the circumstances in which a pool barrier is
required.
The Australian Standard AS1926.1 – 2007 (Part 1: Safety
barriers for swimming pools)
The Australian Standard AS1926.1 – 2012 (Part 1: Safety
barriers for swimming pools). This revision was published in November 2012.
The Australian Standard AS1926.2 – 2007 (Part 2: Location
of safety barriers for swimming pools).
The ‘hierarchy’ of the pool and spa fencing legislation is as
indicated above, with a) being dominant over b), and so on.
In addition to the above, we understand that yet another piece
of legislation, namely the Swimming Pools Regulation 2013, is currently being
drafted by the NSW Department of Local Government.
New Powers for Local Councils
The power of Council Officers to enter private premises to
inspect pools has been greatly enhanced by the Swimming Pools Amendment Bill
2012, which contains a number of amendments to the Swimming Pools Act 1992,
including -
Pool owners to register their pools with Department of Local
Government.
Councils to organise mandatory inspection programs for pools,
cost of which will be charged to pool owner.
Pool owners to register pool within six month timeframe
commencing 29 April 2013. Owners who don’t register their pool within that
timeframe can be fined $220.00, which can increase to $2,200.00 if matter is
determined in Court.
Pool owners to obtain Compliance Certificate for pool fencing
prior to sale or lease of property from 29 April 2014 onwards.
Pool owners to ‘self-certify’ their pool at time of
registration, however we question how an average pool owner can possibly have
the knowledge to ‘self-certify’ when so much confusion exists in the
legislation.
‘Authorised’ Council Officer to be empowered to enter any
private premises and undertake inspection of a pool. This could be in response
to impending sale or lease of the property, or at owner’s request, or as part
of forthcoming inspection program, or to investigate complaint or
‘contravention’ that is reasonably suspected to have occurred.
Conclusion
A simple, ‘plain English’ Australia-wide pool barrier/fencing
code, based on the well-considered and well-respected Australian Standards for
Swimming Pool Barriers, is long overdue. Unfortunately the numerous ‘add-on’
documents that currently comprise pool fencing legislation in NSW (and
elsewhere in Australia) have ensured that pool barrier legislation remains
cumbersome, confusing and still too open to interpretation.
[Peter Glass has assisted in expert opinion matters in relation
to swimming pool and general external access matters, and assessment of
construction, planning, horticultural and landscape maintenance matters.]
References
Krimmer and Stoner PowerPoint presentation entitled AIBS 2013 –
Changes to Swimming Pool Legislation in NSW
‘National Drowning Report 2012’ published by
RLSSA
Disclaimer
This article is intended as an overview of current pool fencing
legislation in NSW. It is general in detail and should not be relied upon for
legal or other purposes