"Don't Fence Me In"
In 1990 the Local Government Act was amended to provide for the progressive and mandatory fencing of swimming pools on residential land. After considerable public debate further amendments were provided by the Local Government (Swimming Pool Fencing) Amendment Act 1991 and the law then required such fences to comply in every respect by April Fools Day 1992. A prescribed Australian Standard applied as a minimum.
The Government continued to wrestle with this controversial subject and after a variety of further amendments to the law, the requirements for swimming pool safety as from 1 December 2010 found itself in the Building Act 1975 and the Building Regulations 2006. Swimming pools are required to comply with the pool safety standards for otherwise there is a large penalty. As a Buyer you will inherit any liability and for that reason the new REIQ Contract now imposes obligations upon both parties.
The Seller is to provide a Pool Safety Certificate. If one does not exist then a notice to that effect is to be given and then the Buyer must obtain a Pool Safety Certificate within 90 days of settlement. The Seller’s failure to provide the Pool Safety Certificate is not a ground for termination of the Contract, but the Seller could be prosecuted.
A swimming pool is an excavation or structure designed solely or principally for some human aquatic activity and is capable of being filled to a depth of at least 300mm. Spa baths are caught by this description.
The law relates to non-shared pools at private homes, and shared pools both at Apartments and Resorts.
Previously some Council Local Laws contained powers to require swimming pool fencing but as there were no specific requirements, fences constructed then may not now comply. In some cases no fencing at all was required. A Register of all swimming pools is kept by the Chief Executive Officer, Department of Infrastructure and Planning and whether a Pool Safety Certificate (they are valid for two years) does or does not exist can be checked by searching the Pool Safety Register .
Should you buy or sell real property, even a Lot in an Apartment, upon which there is a swimming pool then you must ensure compliance with the law. A copy of the Pool Safety Certificate or Notice of No Pool Safety Certificate must be given to the Buyer and the Chief Executive Officer, and in the case of a shared pool also to the owner, i.e. the Secretary of the Body Corporate. Owners of shared pools have longer to comply with the law.
Non-compliance is of course an offence carrying severe penalties. If you are a concerned Buyer and there is no Pool Safety Certificate, then perhaps the Contract should address the issue, e.g. a clause requiring the Seller to obtain one prior to settlement and comply with any requirements and expenses to achieve this.
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