The State Government introduced new regulations in December 2019 to make swimming pools and spas safer to prevent young children from drowning.

The regulations apply to pools and spas capable of holding water over 30cm in depth.  If you own such a pool or spa you must register it with your local council by 1 November 2020.

If you do not register your pool or spa by 1 November 2020 you may face an on-the-spot fine of approximately $330, or a penalty of up to $1,652.20.

Once you have registered your pool or spa the council will send you a letter confirming registration and advising you of the barrier standard which is applicable to your pool or spa.  The barrier standard which is applicable to your pool or spa will be the barrier standard that applied at the date your pool or spa was constructed.

After receiving the council’s letter you will need to arrange an inspection of the safety barrier to determine if it is compliant with the applicable barrier standard.  The inspection must be carried out by either –

• a registered building surveyor;
• a registered building inspector; or
• a municipal building surveyor.

If the inspector determines that your safety barrier complies with the applicable barrier standard, they will issue a certificate of barrier compliance.  You must lodge this certificate with council within 30 days of its receipt.  The deadline dates for lodging this certificate depend upon the date the pool or spa was constructed.

For pools and spas constructed before 1 November 2020 the deadline dates are as follows –

Pool/Spa Construction Date                  Compliance Certificate must be lodged by

On or before 30 June 1994                            1 November 2021

From 1 July 1994 until 30 April 2010           1 November 2022

From 1 May 2010 until 31 October 2020     1 November 2023

If the inspector determines that your safety barrier is not compliant, the inspector may issue a certificate of barrier non-compliance or a written notice specifying –

• the matters which must be addressed to bring the barrier into compliance;
• the period in which the barrier must be made compliant (within a maximum of 60 days); and
• the date and time they intend to reinspect the barrier.

A certificate of barrier compliance is only valid for 30 days after it is issued.  It must be lodged with the council within this period.

If the certificate is not lodged within 30 days, a new inspection must be carried out and a new certificate issued and lodged with council.

If you do not lodge a certificate of compliance by the relevant deadline date, you may face an on-the-spot fine of approximately $330 or a penalty of up to $1,652.20.

IMPLICATIONS FOR VENDORS

 The general consensus in the profession is that –

(a)       the registration or non-registration of a pool or spa; or

(b)       the existence or non-existence of a certificate of barrier compliance,

is not the type of matter which requires compulsory disclosure in a section 32 statement.  However, if, having registered your pool or spa, an inspector issues a certificate of barrier non-compliance or a notice specifying the matters which must be addressed to bring the barrier into compliance, any such certificate or notice would have to be disclosed in the section 32 statement.

In addition, you must be aware of the provisions of section 12(d) of the Sale of Land Act.  This section makes it an offence for any person with the intention of inducing any person to buy land to make or publish any statement promise or forecast which he knows to be misleading or deceptive or to knowingly conceal any material facts or recklessly make any statement or forecast which is misleading or deceptive.

The status of the pool or spa may well be a material fact and if your advertising material incorrectly stated, or gave the impression, that the pool or spa was compliant in all respects, this may constitute an offence under section 12(d), exposing you to a penalty of not more than approximately $19,800 or up to 12 months’ imprisonment, and enabling the purchaser to claim compensation for any loss it suffers as a result of the breach of section 12.

If you are selling a property that contains a pool or spa covered by the regulations we recommend that you discuss the status of the pool or spa with us and that a special condition be inserted in the contract dealing with who is responsible for the registration of the pool or spa with council, and who is responsible for obtaining the certificate of barrier compliance.

IMPLICATIONS FOR PURCHASERS

If you are considering purchasing a property with a pool or spa covered by the regulations, we recommend that you discuss the status of the pool or spa with us prior to signing the contract.  We would recommend inserting a special condition in the contract making it conditional upon the vendor registering the pool or spa and providing a certificate of barrier compliance prior to the settlement.  If the certificate cannot be obtained by the settlement, the special condition would require the vendor to pay all costs in obtaining the certificate with an appropriate amount being withheld at settlement to ensure vendor compliance.

A special condition along these lines is extremely important as in the absence of misleading conduct or misleading advertising material, a purchaser will be responsible for obtaining the barrier compliance certificate and for all costs associated with bringing the pool or spa up to a compliant condition.

Article written by Tony McDonough, Law Institute of Victoria Accredited Property Law Specialist

Did you read our previous article on this topic “And it comes with a swimming pool and spa“?