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.

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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’ 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.

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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 authorises 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.

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Key points

All properties with a swimming pool or spa pool being sold or leased on or after 29 April 2016 will need a valid certificate of compliance, certificate of non-compliance or a relevant occupation certificate.

A ‘certificate of non-compliance’ will enable the seller to transfer the responsibility to obtain a certificate of compliance to the buyer.

This transfer will be realised through the attachment of a certificate of noncompliance to the contract for sale.

The buyer will have 90 days from the date of settlement to rectify defects listed in the certificate of non-compliance and obtain a certificate of compliance.

If a pool and/or spa is inspected and the barrier is found to be non-compliant with the pool safety requirements, the council inspector or private certifier will provide the owner with written details of any non-compliances found as well as what is required to achieve compliance.

The local council will be notified immediately if your inspector is of the opinion that the swimming pool poses a significant risk to public safety.

A copy of the section 22E written notice will be provided to the relevant local council:

- Immediately where the pool poses a significant risk to public safety; or

- Within five days after the expiry of six weeks from the date of inspection if the owner fails to rectify pool barrier non-compliances.

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NOTE: Home owners should never rely on verbal advice or directions provided by a Council inspector or Private Certifier in relation to alleged non-compliances.

Home owners should demand that any advice be in writing and that the advice properly articulates any non-compliance as well as identifies and lists the relevant clauses within the legislation, Standard and Building Code of Australia they are asking the home owner to comply with.

The owner of the pool and/or spa may be liable for a penalty of up to $5,500 for non-compliance with the pool safety requirements. On-the-spot fines of $550 can also apply.

Enforcement action is taken by local councils, and may be triggered by a complaint or concern raised by a neighbour, or during a routine inspection of the swimming pool as part of the council’s pool safety inspection program.

It is compulsory for all residential pools and spas to be registered.

You can self-register your pool online at the NSW Pool Register. You can also access the site's self assessment checklists to assist with safety questions at the time of registration.