Obligations of owners of properties with swimming pools or spas

Introduction

Recent changes to the Building Regulations 2018 (Vic) impose specific obligations on owners of properties with swimming pools or spas. These include requirements:

  • to register swimming pools and spas in Victoria with their local council; and
  • to ensure that safety barriers are compliant with applicable standards.

Failure to comply with these obligations will expose owners to fines from their local council.

Registering a permanent swimming pool or spa

The changes require all owners of permanent swimming pools and spas capable of holding water to a depth of 300mm or more, to register their swimming pools and spas with their local council.

The registration deadline differs according to the date of completion of construction of the swimming pool or spa. All swimming pools and spas must be registered by 1 June 2020 unless completed on or after 1 May 2020, in which case they must be registered within 30 days after the issue of an occupancy permit, or a certificate of final inspection.

The obligation on owners to register applies regardless of whether their swimming pools or spas are registered under the previous voluntary registration scheme.

Registering a relocatable swimming pool or spa

Relocatable swimming pools, such as movable, portable or inflatable pools and relocatable spas, may be subject to registration requirements.

Relocatable swimming pools and spas must be registered with council if they are capable of holding water to a depth of 300mm or more, and are in place for three or more consecutive days. The registration deadline for relocatable pools or spas is the later of 4 June 2020, or the fourth day after the date on which the relocatable swimming pool or spa was first in place.

However, relocatable pools or spas that are not capable of holding water to a depth of 300mm or more and/or are in place for less than three days, are not subject to registration requirements.

Registration fees

A one-off registration fee applies for registration of all permanent swimming pools and spas, and relocatable swimming pools and spas caught by the scheme.

Unless owners register their swimming pools and spas before the relevant due date, they risk being fined by their local council.

Inspections and compliance

Upon registration of the swimming pool or spa, council will notify owners of the date of completion of the swimming pool or spa, and the relevant safety barrier requirements.

The standard of the safety barriers will be determined having regard to the applicable standards as at the date of completion of the swimming pool or spa, as determined by the local council having regard to its records and other relevant information.

The owner must then consult with a registered building inspector to inspect their safety barriers and ensure they are compliant with council’s requirements. If the inspector is satisfied with the safety barriers, he or she will issue a Certificate of Barrier Compliance.

Certificate of barrier compliance

A Certificate of Barrier Compliance is a notice that approves the installed safety barriers and confirms that it adheres to the requirements of the local council. This certificate must be lodged with the local council within 30 days of receipt.

The deadline for inspecting the safety barriers and lodging a Certificate of Barrier Compliance depends on the date of completion of the swimming pool or spa, as determined by the local council.

Date of Completion of Construction of Swimming Pool or SpaFinal Date for Lodging Certificate of Barrier Compliance
On or before 30 June 19941 June 2021
Between 1 June 1994 and 30 April 20101 June 2022
Between 1 May 2010 and 31 May 20201 June 2023
On or after 1 June 2020Within 30 days of final inspection of the swimming pool or spa

Certificate of barrier non-compliance

If the building inspector is not satisfied with the existing safety barriers, the owner will be issued with a:

  • written notice detailing small alterations required to the barrier; or
  • Certificate of Barrier Non-Compliance.

An owner will only receive a notice for small alterations if the building inspector is confident that the small necessary changes can occur within 60 days of the inspection. The building inspector will then re-inspect the pool to ensure the changes are made, and the barriers are compliant.

If a Certificate of Barrier Non-Compliance is issued, the owner will be issued with a Barrier Improvement Notice that details mandatory alterations to the safety barriers. Failure to undertake these alterations leaves owners exposed to fines from their local council.

Renewal of certificate of barrier compliance

A Certificate of Barrier Compliance must be renewed every four years and lodged with the local council. Owners who fail to comply, risk being fined by their local council.

Tenants and landlords

Tenants are not responsible for registering swimming pools or spas, whether they are permanent or relocatable. This obligation is solely the responsibility of owners of the properties. A large risk for owners/landlords arises when their tenants install a relocatable swimming pool or spa that was required to be registered, and they do not inform their owner/landlord.

Consequently, owners/landlords may face registration and barrier compliance requirements without their knowledge as a result of their tenant’s actions. Owners/landlords are urged to consider including a covenant in their residential leases prohibiting relocatable (and permanent) swimming pools and spas, without the owner/landlord’s prior written consent.

Buying and selling a property with a swimming pool or spa

As yet, there is no requirement in the Section 32 of the Sale of Land Act for vendors to disclose whether their swimming pools and spas are registered and compliant. However, vendors and their legal advisers will need to consider whether such an obligation of disclosure arises elsewhere having regard to the circumstances.

Purchasers should make their own enquiries of local councils as to whether existing swimming pools and spas are registered and compliant. Unless the contract of sale states otherwise, purchasers will become liable for the costs of registration and compliance post settlement.

Ideally, contracts of sale should include a special condition dealing with responsibility for registration and compliance of swimming pools and spas.

Conclusion

Comply with registration requirements.

Comply with safety barrier requirements.

Avoid fines!

Queries

For further information please get in touch with the author or a member of our Property team.

Disclaimer

This information and contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders and is for reference purposes only.  It does not constitute legal or financial advice.  If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.

The Author

Stephen Curtain

PARTNER, MELBOURNE