Warning Statements and Compliance Certificate laws for NSW Property Owners
This information has been provided by Australian law firm, ACS, and is applicable in New South Wales only.
This article draws on information contained in Fact Sheets issued by various Local Government Authorities 2016.
From 29 April 2016, properties sold with a pool must have one of: a ‘relevant occupation certificate’; a ‘certificate of compliance’; or a ‘certificate of non-compliance’, issued from the NSW Swimming Pool Register.
This means that from 29 April 2016:
Vendors are now able to transfer the obligation of obtaining a ‘certificate of compliance’ to the purchaser. A ‘certificate of non-compliance with detailed reasons of non-compliance’ can now be attached to the contract of sale.
The buyer of a property with a non-compliant swimming pool has 90 days from the date of settlement to address any issues of pool barrier non-compliance and obtain a certificate of compliance.
Properties with more than two (2) dwellings are exempt from the requirement to provide a compliant pool barrier on sale or lease, as they are already regulated through mandatory three (3)-yearly council inspections.
The owner of a property with two (2) or fewer dwellings and a pool must have a certificate of compliance before entering into a lease.
A relevant occupation certificate means an occupation certificate issued under the Environmental Planning and Assessment Act 1979 that is less than 3 years old and that authorizes the use of the swimming pool.
Allowing the transfer of obligation for swimming pool barrier compliance provides greater flexibility to the sales process, while ensuring that incidents of non-compliance are addressed. However, this flexibility does not extend to the leasing of properties. Landlords are to ensure that the tenant is provided a copy of a valid ‘certificate of compliance’ at the time the lease is entered into because landlords have a responsibility to provide a safe environment for their tenants
Recent amendments to Swimming Pool legislation have been set in place in an effort to reduce the risk of drowning of young children in backyard pools. These changes will affect all property owners, including those that do not have a swimming pool located on the property.
What are the new requirements?
The Swimming Pools Act 1992 dictates that the owner of premises on which a swimming pool is situated must ensure that the swimming pool is surrounded by a child restraint barrier 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 is designed, constructed, installed and maintained in accordance with the standards prescribed by the regulations.
Further it is a requirement that any access to the swimming through this barrier is to remain securely closed at all times.
There may be some exceptions to these rules but the best way to be sure is to make contact with your local council for more details.
The new amendments also require that Warning signs be erected in a prominent position in the immediate vicinity of the swimming pool (it is preferable this be displayed adjoining the shallow end of the pool) containing the words “YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL” together with details of resuscitation techniques associated with infants, children and adults.
Furthermore that in NSW, the owners of properties with a swimming pool and/or a spa pool are required to register their pools and spas on the NSW Swimming Pool Register.
In line with the amendments to the Swimming Pool Act amendments the Conveyancing (Sale of Land) Regulation 2010 requires that all contracts of sale now include a warning statement in the Contract, in the prescribed words.
Failure to attach the correct prescribed Notices from 1 September 2010, may result in the Buyer being able to terminate the Contract, within 14 days of exchange.
It is important that this warning statement included in all contracts for the sale of land, even where the property does not include a swimming pool.
How does this affect Sellers?
Contracts exchanged on or after 1 September 2010 must include the new prescribed warning statement, even where the property does not include a swimming pool. Sellers should ensure that upon collating their contract that this statement is attached.
Additionally, where there is a pool located on the property the Seller is legally required to ensure that the pool is compliant with the new safety requirements. If a compliance certificate is not already issued by Council, the Seller should make arrangements with the local government authority to obtain this certificate prior to marketing the property for sale.
How does this affect Buyers?
First and foremost a Buyer entering into a Contract to purchase a residential property should make sure that the Seller has included a 'Warning Statement' regarding swimming pools in the prescribed form in the Contract (appears in REI standard conditions). This will be the case even where there is no pool located on the property.
Secondly where a Buyer is purchasing a property that has a pool located at the premises should make enquiries with the Seller and the local government authority to ensure that the pool is compliant and that the appropriate Compliance Certificate has been issued for the property. We suggest that this is done prior to exchange of contracts where possible.
In the event that the pool is not compliant the Buyers will become responsible to ensure that the pool is compliant and to obtain this certificate from council.
Penalties for non-compliance
The Swimming Pools Act 1992 includes provisions for fines to be issued, including 'on the spot' fines, for failure to comply with the requirements set down by this Act and the regulations. The purchaser may rescind the contract of sale if the seller does not comply with the new requirements. Additional inspection powers have been granted to local government authorities to enter and inspect swimming pools located on properties to inspect for non-compliance.