Swimming Pools Act 1992 (NSW)

Swimming Pools Act 1992 No 49 An Act to require access to private swimming pools to be effectively restricted; to repeal the Swimming Pools Act 1990; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Swimming Pools Act 1992. 2 Commencement This Act commences on 1 August 1992 or on such earlier day as may be appointed by proclamation. 3 Definitions (1) In this Act— area means— (a) the area of a council within the meaning of the Local Government Act 1993, or (b) an area within the Western Division that is not within the area of a council within the meaning of the Local Government Act 1993, or (c) Lord Howe Island. authorised officer means an authorised officer appointed under section 27. barrier means a fence or a wall, and includes— (a) any gate or door set in the fence or wall, and (b) any other structure or thing declared by the regulations to be a barrier for the purposes of this Act. certificate of compliance means a certificate issued under section 22D. council means the council of an area within the meaning of the Local Government Act 1993. Department means the department in which this Act is administered. dividing fence has the same meaning as it has in the Dividing Fences Act 1991. exercise a function includes perform a duty. function includes a power, authority and duty. local authority means— (a) in relation to premises that are situated within an area within the meaning of the Local Government Act 1993—the council of that area, or (b) in relation to premises that are situated within an area within the Western Division that is not within the area of a council within the meaning of the Local Government Act 1993—the person appointed under section 3A, or (c) in relation to premises situated on Lord Howe Island—the Lord Howe Island Board. moveable dwelling has the same meaning as it has in the Local Government Act 1993. occupier of premises includes any person who is for the time being in charge of the premises and, if there are 2 or more occupiers of the premises, includes any one of the occupiers. owner of premises has the same meaning as "owner" has in relation to land in the Local Government Act 1993 and, if there are 2 or more owners of the premises, includes any one of the owners. public authority means a public authority constituted by or under an Act, a local authority, a Government Department or a statutory body representing the Crown. Register means the Register of Swimming Pools under section 30A. relevant occupation certificate in respect of a swimming pool means an occupation 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. residential building means a building (such as a dwelling-house, residential flat building or boarding-house) that is solely or principally used for residential purposes, and includes any structure (such as a garage or shed) that is ancillary to any such building, but does not include— (a) a building that merely forms part of a complex of buildings (such as a school or recreational centre) that is principally used for non-residential purposes, or (b) a moveable dwelling, or (b1) tourist and visitor accommodation, or (c) a shed that is ancillary to a swimming pool and the primary purpose of which is to store equipment that is used in connection with the swimming pool (but not a shed of a kind prescribed by the regulations), or (d) a building or structure of a kind prescribed by the regulations. Secretary means the Secretary of the Department. spa pool includes any excavation, structure or vessel in the nature of a spa pool, flotation tank, tub or the like. Standard Instrument means the standard local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006. swimming pool means an excavation, structure or vessel— (a) that is capable of being filled with water to a depth greater than 300 millimetres, and (b) that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity, and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act. tourist and visitor accommodation has the same meaning as in the Standard Instrument. Western Division means that part of the State that is the Western Division within the meaning of the Crown Land Management Act 2016. (1A) For the avoidance of doubt, a swimming pool is situated on premises on which another building is located if the swimming pool is ancillary to that other building, regardless of whether the swimming pool is on a separate lot, such as on common property under a strata scheme. (2) Diagrams included in Schedule 1 form part of this Act. (3) Notes included in this Act do not form part of this Act. 3A Local authority for Western Division (1) The Minister may appoint a person to be the local authority for the purposes of this Act for land within the Western Division that is not the area of a council. (2) The Minister may revoke an appointment under this section at any time or for any reason. (3) A person appointed under this section (except a person who is an employee of a government sector agency within the meaning of the Government Sector Employment Act 2013) is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine in respect of the person. 4 Swimming pools to which Act applies This Act applies to swimming pools (both outdoor and indoor) that are situated, or proposed to be constructed or installed, on premises on which a residential building, a moveable dwelling or tourist and visitor accommodation is located, but does not apply to swimming pools that are situated, or proposed to be constructed or installed, on any premises occupied by the Crown or by a public authority. 5 General duties of local authorities regarding swimming pools Each local authority is required— (a) to take such steps as are appropriate to ensure that it is notified of the existence of all swimming pools to which this Act applies that are within its area, and (b) to promote awareness within its area of the requirements of this Act in relation to swimming pools, and (c) to investigate complaints about breaches of this Act in accordance with section 29A. Part 2 Access to swimming pools Division 1 Outdoor swimming pools for dwelling-houses etc 6 To which swimming pools does this Division apply? This Division applies to outdoor swimming pools that are situated, or proposed to be constructed or installed, on premises on which a residential building is located. 7 General requirements for outdoor swimming pools (1) The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is at all times surrounded by a child-resistant barrier— (a) that separates the swimming pool from any residential building situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Maximum penalty—50 penalty units. (2) The diagrams in Part 1 of Schedule 1 illustrate the provisions of this section. Note— Section 7 should be read in conjunction with the other provisions of this Part, in particular sections 8, 9, 10, 18, 19 and 22. 8 Exemption for swimming pools constructed before August 1990 and existing swimming pools on small properties (1) This section applies to the following swimming pools— (a) swimming pools the construction or installation of which commenced before 1 August 1990, (b) swimming pools the construction or installation of which commenced before 1 July 2010 and that are situated on premises having an area of less than 230 square metres. Note— 230 square metres is the smallest area on which a dwelling-house may currently be erected. (2) The child-resistant barrier surrounding the swimming pool is not required to separate the swimming pool from any residential building situated on the premises so long as the means of access to the swimming pool from the building are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagrams in Part 2 of Schedule 1 illustrate the provisions of this section. (4) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises. 9 Exemption for swimming pools on large properties (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (2) A swimming pool that is situated on premises having an area of 2 hectares or more is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagram in Part 3 of Schedule 1 illustrates the provisions of this section. (4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes. (5) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises. 10 Exemption for swimming pools on waterfront properties (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (2) A swimming pool that is situated on premises having frontage to any large body of water (such as a permanently flowing creek, a river, a canal, a pond, a lake, a reservoir, an estuary, the sea or any other body of water, whether natural or artificial) is not required to be surrounded by a child-resistant barrier so long as the means of access to the swimming pool from any residential building situated on the premises are at all times restricted in accordance with the standards prescribed by the regulations. (3) The diagram in Part 4 of Schedule 1 illustrates the provisions of this section. (4) A reference in this section to a residential building does not include a reference to a structure (such as a garage or shed) that is ancillary to the building if the structure is not itself used for residential purposes. (5) This section ceases to apply in respect of a swimming pool if a barrier is erected on the premises (between the swimming pool and a residential building) as a barrier to direct access to the swimming pool from any residential building situated on the premises. Division 2 Outdoor swimming pools for moveable dwellings and tourist and visitor accommodation 11 Swimming pools to which Division applies This Division applies to outdoor swimming pools that are situated, or proposed to be constructed or installed, on premises on which a moveable dwelling or tourist and visitor accommodation is located. 12 General requirements for outdoor swimming pools The owner of the premises on which a swimming pool is situated must ensure that the swimming pool is surrounded at all times by a child-resistant barrier— (a) that separates the swimming pool from any moveable dwelling or tourist and visitor accommodation situated on the premises and from any place (whether public or private) adjoining the premises, and (b) that is located immediately around the swimming pool, and (c) that contains within its bounds no structure apart from the swimming pool and such other structures (such as diving boards and pool filtration plants) as are wholly ancillary to the swimming pool, and (d) that is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations. Maximum penalty—50 penalty units. Note— Section 12 should be read in conjunction with the other provisions of this Part, in particular sections 13, 18, 19 and 22. 13 Exemptions for existing swimming pools (1) This section applies to swimming pools the construction or installation of which commenced before 1 July 2010. (1A) This section also applies to swimming pools— (a) that are situated on premises on which there is tourist and visitor accommodation (but not if there is a moveable dwelling, hotel or motel on the premises), and (b) the construction or installation of which commenced before 1 May 2013. (2) The child-resistant barrier surrounding the swimming pool— (a) is not required to be located immediately around the swimming pool, and (b) may contain within its bounds structures of the kind that, but for this section, would be required to be excluded by section 12 (c). Division 3 Indoor swimming pools 14 General requirements for indoor swimming pools The owner of any premises in which an indoor swimming pool is situated must ensure that the means of access to the swimming pool are at all times restricted in accordance with the standards prescribed by the regulations. Maximum penalty—50 penalty units. Division 4 Additional requirements for swimming pools 15 Child-resistant barrier must be in good repair (1) Despite any other provision of this Act, the occupier of any premises on which a child-resistant barrier— (a) is required by this Act to be installed in relation to a swimming pool, or (b) is, at the commencement of this Act or at any later time, installed in relation to a swimming pool, whether or not it is required by this Act to be installed, must, so long as the swimming pool exists, maintain the barrier in existence and in a good state of repair as an effective and safe child-resistant barrier. Maximum penalty—50 penalty units. (2) The regulations may prescribe standards of maintenance for the purposes of this section. (3) A person who complies with the standards prescribed by the regulations is taken to have complied with this section. 16 Access to swimming pools must be kept securely closed The occupier of any premises in or on which a swimming pool is situated must ensure that all doors and gates providing access to the swimming pool are kept securely closed at all times when they are not in actual use. Maximum penalty—50 penalty units. 17 Warning notices must be erected near swimming pools (1) The occupier of any premises in or on which a swimming pool is situated must ensure that there is at all times maintained, in a prominent position in the immediate vicinity of the swimming pool, a sign erected in accordance with the regulations and bearing the notice required by the regulations. Maximum penalty—5 penalty units. (2) The regulations may make provision for or with respect to the erection, display and maintenance of other signs, and the notices to be borne by those signs, by the occupier of any premises in or on which a swimming pool is situated. (3) Failure to comply with the requirements of this section or of a regulation which is expressed to be made for the purposes of this section does not give rise to any civil liability that would not exist apart from this section. 18 Owner may decide where required child-resistant barrier is to be located The owner of any premises in or on which an outdoor swimming pool is situated may, subject to the other provisions of this Part, determine where any child-resistant barrier required by this Part is to be located. 19 House wall may be used as part of required child-resistant barrier (1) A child-resistant barrier that is formed by, or that includes, a wall of a residential building or a building used for the purposes of tourist and visitor accommodation is regarded, for the purposes of sections 7 and 12, as separating any outdoor swimming pool from the building so long as— (a) the wall contains no opening through which access may at any time be gained to the swimming pool, and (b) the wall is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations, and (c) the remainder of the barrier complies with section 7 or 12, as the case requires. (2) The regulations may prescribe circumstances in which an opening in a wall is or is not to be regarded as an opening through which access may at any time be gained to a swimming pool for the purposes of subsection (1) (a). 20 Exemption for spa pools A spa pool is not required to be surrounded by a child-resistant barrier so long as access to the water contained in the spa pool is restricted, in accordance with the standards prescribed by the regulations, at all times when the spa pool is not in actual use. 21 Multiple swimming pools in close proximity For the purposes of this Part, 2 or more swimming pools that are situated on the same premises and in close proximity to each other are taken to be one swimming pool. 22 Local authority may grant exemptions from barrier requirements that are impracticable or unreasonable in particular cases (1) The local authority may, on application made by the owner of any premises in or on which a swimming pool is situated, or proposed to be constructed or installed, exempt the swimming pool from all or any of the requirements of this Part if it is satisfied, in the particular circumstances of the case— (a) that it is impracticable or unreasonable (because of the physical nature of the premises, because of the design or construction of the swimming pool or because of special circumstances of a kind recognised by the regulations as justifying the granting of an exemption) for the swimming pool to comply with those requirements, or (b) that alternative provision, no less effective than those requirements, exists for restricting access to the swimming pool. (2) An exemption may be granted unconditionally or subject to such conditions as the local authority considers appropriate to ensure that effective provision is made for restricting access to the swimming pool concerned or the water contained in it. (3) A person is not guilty of an offence under this Part— (a) if the swimming pool concerned is the subject of an exemption under this section, and (b) if the conditions (if any) to which the exemption is subject are being complied with. (4) For the purposes only of any appeal proceedings arising in connection with an application under this section, the local authority is taken to have refused the application if it has not finally determined the application within 6 weeks after the application was made. Division 5 Inspections and compliance with Part 22A Definition In this Division— registered certifier means a person registered under the Building and Development Certifiers Act 2018 acting in respect of matters to which the registration applies. 22B Mandatory pool inspection program by local authority (1) A local authority must, within 6 months after the commencement of this section, develop and adopt a program for the inspection of swimming pools in its area to ensure compliance with the requirements of this Part. (2) Within 12 months after the commencement of this section, the program must make provision for the inspection, at least once every 3 years, of any swimming pool situated on premises on which there is tourist and visitor accommodation or more than 2 dwellings. (3) The program is not to require the inspection of a swimming pool in respect of which there is a valid certificate of compliance or a relevant occupation certificate. (4) A local authority must inspect swimming pools in its area in accordance with its program. (5) The regulations may make provision for or with respect to the development and adoption of programs for the inspection of swimming pools including— (a) the form and content of programs, and (b) the manner in which the public is to be consulted during the development of any such program, and (c) the carrying out of inspections under the program. (6) In this section— dwelling has the same meaning as in the Standard Instrument. 22C Other inspections at request of owner (1) The owner of any premises on which a swimming pool is situated may, at any time, request the local authority or a registered certifier to inspect the swimming pool. (2) A local authority or a registered certifier may carry out any such inspection if requested to do so. (3) A local authority must carry out an inspection under this section, and must carry out that inspection within a reasonable time, if the request to the local authority is in writing and states that the inspection is required to enable the sale or lease of the premises or part of the premises on which the swimming pool is situated. (4) The regulations may make provision for what is a reasonable time for the purposes of subsection (3). 22D Certificates of compliance (1) The requirements for the issue of a certificate of compliance in respect of a swimming pool are that— (a) the swimming pool is registered under Part 3A, and (b) the swimming pool complies with the requirements of this Part. (2) A local authority or a registered certifier must issue a certificate of compliance in respect of a swimming pool if the local authority or registered certifier— (a) has inspected the swimming pool under this Division, and (b) is satisfied that the requirements for the issue of a certificate of compliance have been met. (3) A local authority or a registered certifier must not issue a certificate of compliance except as provided by subsection (2). (4) A local authority or a registered certifier may refuse to issue a certificate of compliance until any fee payable for the inspection has been paid. (5) A certificate of compliance in respect of a swimming pool is to be issued to the owner of the premises on which the pool is situated in a form approved by the Secretary. (6) A certificate of compliance remains valid for a period of 3 years from the date on which it is issued but ceases to be valid if a direction is issued under section 23 in respect of the swimming pool to which the certificate relates. (7) A local authority or registered certifier that issues a certificate of compliance in respect of a swimming pool must ensure that details of the certificate are entered on the Register, by providing the details to the Secretary in a form approved by the Secretary. (8) The regulations may make provision for or with respect to the time and manner in which any such information is to be entered on the Register. 22E Notices by registered certifier if pool does not comply (1) This section applies to an inspection carried out by a registered certifier under section 22C. (2) A registered certifier must provide a written notice to the owner of a swimming pool if the registered certifier has inspected the swimming pool and is not satisfied that the requirements for the issue of a certificate of compliance have been met. (3) A notice under this section is to set out the following— (a) the date of the notice, (b) the address of the swimming pool to which the notice relates, (c) the date on which the inspection took place, (d) the reasons why the registered certifier is not satisfied that the requirements for the issue of a certificate of compliance have been met and the steps that need to be taken in order to meet those requirements, (e) whether the registered certifier is of the opinion that the swimming pool poses a significant risk to public safety, (f) a warning that a copy of the notice will be forwarded to the local authority for the area in which the swimming pool is situated— (i) immediately, if the registered certifier is of the opinion that the swimming pool poses a significant risk to public safety, or (ii) 6 weeks after the date of inspection (or such other time as may be prescribed by the regulations) if a certificate of compliance is not issued for the swimming pool before that time, (g) such other matters as may be prescribed by the regulations. (4) A registered certifier who issues a notice under this section in respect of a swimming pool must forward a copy of the notice to the local authority for the area in which the swimming pool is situated— (a) immediately, if the registered certifier is of the opinion that the swimming pool poses a significant risk to public safety, or (b) within 5 days after the end of the period specified in subsection (3) (f) (ii) in any other case. (5) A registered certifier is not required to forward a copy of any notice to a local authority in respect of a swimming pool if, at the time at which the notice is due to be sent, the swimming pool has a valid certificate of compliance. 22F Inspections carried out by local authority (1) A local authority may charge the owner of premises a fee for carrying out an inspection under this Division being a fee that is no greater than the maximum fee (if any) prescribed by the regulations, but it may not charge a separate fee for issuing a certificate of compliance. (2) A local authority that is a council must include in its annual report under section 428 of the Local Government Act 1993 such information (if any) in relation to inspections under this Division as is prescribed by the regulations. (3) An inspection by a local authority is to be conducted by an authorised officer and entry on to premises to carry out such an inspection is to be in accordance with Part 3. 22G Local authorities that are not councils The regulations may— (a) modify the application of the provisions of this Division with respect to a local authority that is not a council, and (b) provide for any functions of such a local authority under this Division to be exercised by another person or body. 23 Local authority may order compliance with Part (1) The local authority may, by order in writing served on the owner of any premises in or on which a swimming pool is situated, direct the owner to take, within such reasonable time as is specified in the direction, such measures as are so specified to ensure that the swimming pool or premises comply with the requirements of this Part or of a condition of an exemption granted under section 22. (2) Such a direction is of no effect to the extent to which it purports to impose requirements more onerous than the requirements of this Part or of a condition of an exemption granted under section 22. (3) A person on whom a direction is served must not fail to comply with the requirements of the direction. Maximum penalty—50 penalty units. (4) A direction does not cease to have effect merely because there is a change in the ownership of the premises to which the direction relates, but applies to the new owner in the same way as it applied to the old. (5) A direction may not be served under this section unless the local authority has, at least 14 days before, served on the owner of the premises a notice of intention to serve the direction. (6) A local authority may serve a direction under this section without serving a notice under subsection (5) if it considers that the safety of a person would be at risk if the requirements of the direction were not carried out as soon as possible. 23A Compliance with direction of local authority (1) An authorised officer, or a person acting under the direction of a local authority, may carry out some or all of the requirements of a direction given by the local authority under section 23 if— (a) the person to whom the direction is given fails to comply with the direction within the time specified in the direction, or (b) the local authority considers that the requirements of the direction need to be carried out urgently as there is a significant risk to public safety. (2) Before any requirement of a direction is carried out under this section, a local authority or authorised officer must serve on the occupier of the premises a notice of intention to carry out the requirement. (3) An authorised officer, or a person acting under the direction of a local authority, may enter any premises (other than part of any building, or moveable dwelling, used for residential purposes) in order to exercise functions under this section. (4) Before entering premises under this section, a local authority or authorised officer must seek the consent of the occupier of the premises to the entry. (5) If the consent of the occupier of the premises is not able to be obtained, the authorised officer or person acting under the direction of the local authority may only enter the premises— (a) after 24 hours have elapsed since the consent of the occupier was sought, and (b) between 9.00 am and sunset. (6) If an authorised officer, or a person acting under the direction of a local authority, carries out some or all of the requirements of a direction in accordance with this section, the reasonable costs of carrying out those requirements may be recovered as a debt by the local authority in a court of competent jurisdiction from the person to whom the direction was given. 24 (Repealed) Division 6 Defences and appeals 25 Defences to offences under Part (1) In any proceedings for an offence under this Part, it is a sufficient defence if the owner of the premises concerned establishes— (a) that the owner was not the occupier of the premises when the alleged offence occurred, and (b) that the owner had taken all reasonable steps to ensure that the alleged offence would not occur, and (c) that the owner was not aware of, and could not reasonably be expected to have been aware of, the facts giving rise to the alleged offence. (2) In any proceedings for an offence under this Part, it is a sufficient defence if the owner of the premises concerned establishes— (a) that there is a valid certificate of compliance or relevant occupation certificate in respect of the swimming pool that is the subject of the alleged offence, and (b) (Repealed) (c) that the child-resistant barrier or other means of restricting access to the swimming pool is the same, and is in substantially the same condition, as that in respect of which the certificate was issued. (3) In any proceedings for an offence under this Part, it is a sufficient defence if the owner of the premises concerned establishes that, when the alleged offence occurred— (a) the swimming pool was unassembled, or (b) the swimming pool was in the course of construction, installation, alteration or renovation and— (i) the swimming pool was empty of water or was filled with water to a depth of less than 300 millimetres, or (ii) appropriate measures had, in the circumstances, been taken f