Swimming Pool Safety
Commencement of new regime
On 1 July 2019, Section 71AA of the Development Act 1993 (DA) was repealed. Section 156 of the Planning, Development & Infrastructure Act 2016 (PDI Act) has commenced and applies in relation to all swimming pools throughout the State.
The Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (Pool Safety Regs) are also now operational, which provide the details of the prescribed requirements for designated safety features for swimming pools. In addition, the 2019 Ministerial building standard SA 004 – swimming pool safety – upgrading safety barriers (originally published in July 2019 but subsequently amended in August 2019 and only recently made available on line) (Standard) is operational and must be read in conjunction with s156 of the PDI Act and Pool Safety Regs, where relevant. The Standard is similar in part to the Minister’s Specification SA 76D (Repealed Specification), but it has been updated to align with the new format for building standards, and contains both performance requirements and deemed to satisfy provisions.
The prescribed requirements:
The new regime is concerned with two types of pools, those which were approved, constructed or installed before 1 July 1993 (Pre-1993 pool), and to any other swimming pool, i.e. post 1 July 1993 pools (Post-1993 pool).
The prescribed requirements for each of these pools are now set out in clause 6(1) of the Pool Safety Regs. In relation to a Pre-1993 pool, the requirements are those which are set out in the Standard, which contains performance requirements and deemed to satisfy provisions. In relation to a Post-1993 pool, the requirements relating to the construction and safety of swimming pools under the Building Code which were in force at the time the application for a consent or approval was made (relating to the pool or some other form of building work where designated safety features were relevant) are prescribed.
Pre-1993 Pools
Under the Standard, the performance requirements and deemed to satisfy provisions for a Pre-1993 Pool differ depending on whether or not the land is being sold (a prescribed event). The Standard provides that the performance requirements which must be installed and maintained for a Pre-1993 Pool that is located on land which is not being sold, are the requirements of the (now repealed) Swimming Pool (Safety) Act 1972. The deemed to satisfy provisions for such pools effectively mirror the requirements of the (now repealed) Swimming Pool (Safety) Act 1972.
Where the land is being sold (and before the occurrence of the transfer of title to the land) the performance requirements are set out in the Standard together with the deemed to satisfy provisions which includes compliance with Australian Standard 1926 Part 1 & 2.
A child-resistant door set may still form part of a barrier for an existing outdoor swimming pool in limited circumstances (as was the case under the Repealed Specification).
Post-1993 Pools
In relation to a Post-1993 pool, the requirements remain unchanged, namely, the provisions of the BCA which were in force at the time a consent or approval was made in relation to the pool itself or some other form of building work where designated safety features were relevant.
We have raised a concern with DPTI that the new regime appears to arguably only require Post-1993 pool owners to comply with their prescribed requirements before the occurrence of a prescribed event. If that is so, then arguably an owner of a Post-1993 may not be required to comply with any requirements unless and until such time as they sell their property. It would clearly be contrary to the spirit and intent of a swimming pool safety regime if owners of a Post-1993 pool did not have obligations which are of an ongoing nature, which are not dependent on the occurrence of a prescribed event. It would be beneficial in our view for the Pool Safety Regs to be amended to make this position absolutely clear.
Timing of completion of designated features
It remains a requirement that a licensed building work contractor who is carrying out building work that involves the construction of a swimming pool must ensure (or where there is no such contractor – the owner of the swimming pool) that all relevant designated features are completed within two months of the completion of the construction of the swimming pool (clause 7 of the Pool Safety Regs).
Authorised officer powers to enter and inspect and to now issue expiation notices
Authorised officer powers can now be found in section 211 of the PDI Act. They are virtually identical to the powers set out in section 19 of the DA. On 1 July 2019, Schedule 8, clause 35 of the PDI Act came into operation. That clause provides that a person who held an appointment as an authorised officer under the DA will be taken to have been appointed as an authorised officer under section 210 of the PDI Act. That being so, there is no need for authorised officers to be reappointed to be able to exercise their statutory powers and functions under the PDI Act. They may enter and inspect any land or building for the purposes of determining whether swimming pool safety features are installed and are being maintained accordingly. They may also now issue an expiation notice for a breach of the PDI Act and Pool Safety Regs (see below).
Contraventions and enforcement generally
A person who contravenes or fails to comply with a requirement under s156 of the PDI Act, including the requirements prescribed in the Pool Safety Regs, is guilty of an offence. While there has been no change to the maximum penalty that may be imposed for such an offence (the maximum fine remains set at $15,000), the Pool Safety Regs now fixes an expiation fee of $750 in respect of any offence against s156(4) of the PDI Act. Authorised officers under the PDI Act (see below) are authorised to give expiation notices with respect to the expiation of an offence against s156(4) of the PDI Act pursuant to clause 8(2) of the Pool Safety Regs.
If it is discovered that a swimming pool doesn’t comply with the requirements under the PDI Act and Pool Safety Regs, then this would constitute a breach of s156(4) of the PDI Act. It would not be a breach of section 71AA(6) of the DA (because that section has been repealed). That being so, a council cannot take enforcement action under the DA in relation to such matters, and it would need to take action under the PDI Act. A council could prosecute for such an offence in the usual way. It could also issue an enforcement notice requiring the breach of the PDI Act to be made good. The enforcement provisions of the PDI Act, namely Part 18 also became operational on 1 July 2019. This means that a council, being a designated authority for the purposes of the PDI Act (and any person who falls within the ambit of the definition of designated authority (see Regulation 112(2)(b) of the PDI (General) Regulations 2017) could issue an enforcement notice pursuant to section 213 of the PDI Act.
A council (or its duly authorise delegate) could still also issue an emergency order pursuant to section 69 of the DA if it formed the view that there is a threat to safety arising out of the condition or use of a building or an excavation (which would likely extend to include an unfenced swimming pool or non-compliant swimming pool safety fence). Section 69 is not concerned with breaches of the DA rather, it is concerned with threats to safety that may exist.
Inspection policies
Previously, the regulations required a council to establish a swimming pool inspection policy. The requirements of such policies were also set out in 76D(4b) of the Development Regulations 2008. The repeal of s71AA of the DA has the effect of revoking the associated regulations (i.e. 76D and 76E) and any swimming pool inspection policy made pursuant to it. Section 156(5) of the PDI Act provides that the Commission may issue a practice direction that requires councils to carry out inspections of swimming pools and buildings to ascertain compliance with that section of the PDI Act. On 5 September 2019, the Commission issued Practice Direction 8 – Swimming Pool Inspection Policy 2019, which has application throughout the whole of the State, which all councils must now comply with.