1.3.1 Page 1 of 6

KEMPSEY SHIRE COUNCIL

SWIMMING POOL INSPECTION PROGRAM Procedure 1.3.1 Policy No. and title 1.3 Enforcement and Compliance Policy

Procedure 1.3.1 Swimming Pool Inspection Program

Version 1

Date Adopted 23 October 2013

1 OBJECTIVES

The objectives of the swimming pool inspection program are to:

i) Increase public awareness of swimming pool safety. ii) Reduce the potential for infant drowning and near drowning events in backyard

swimming pools as a result of non-compliant pool safety barriers within Kempsey Shire.

iii) Implement an inspection program that effectively meets Council’s obligations

under the Swimming Pools Act and Regulations.

2 BACKGROUND

In 2013 the NSW Government implemented a number of changes to swimming pool legislation relating to the operation of swimming pools on private property. These changes were prompted by ongoing significant numbers of preventable drowning’s and near drowning incidents associated with privately owned swimming pools throughout NSW. Such incidents have been associated with a relatively high rate of non-compliant swimming pool barriers. The recent amendments to the Swimming Pools Act require, in part, that NSW councils develop and implement a locally appropriate swimming pool barrier inspection program for privately owned swimming pools within their Local Government area. 2.1 Application of Procedure This procedure applies to swimming pools (both outdoor and indoor) and spas that are situated or installed, on premises on which a residential building, a moveable dwelling or tourist and visitor accommodation is located, but does not apply to swimming pools and spas that are situated, or proposed to be constructed or installed, on any premises occupied by the Crown or by a public authority. 2.2 Pool Registration Under the Swimming Pools Amendment Act 2012, the owner of the premises on which a swimming pool is situated must register their pool on an online register provided by the Division of Local Government at www.swimmingpoolregister.nsw.gov.au.

2.3 Pool ‘Certificate of Compliance’ An application form and payment of the associated fees must be submitted to Council prior to arranging a Certificate of Compliance inspection. A Certificate of Compliance is issued once a pool has been inspected and found to be compliant with the relevant

1.3.1 Page 2 of 6

pool safety barrier requirements. The certificate is valid for a period of three (3) years from the date of issue. Swimming pools may be inspected more frequently if a complaint has been received with respect to pool safety or there is good reason to suspect the pool no longer complies with the pool safety requirements. 2.4 Non-issue of ‘Certificate of Compliance’ A pool ‘Certificate of Compliance’ cannot be issued if the pool fails to meet the various requirements under the applicable standards and/or is not registered. Under such circumstances Council may issue a Notice specifying the works required. If the works are not undertaken or the pool cannot pass a subsequent inspection then a Direction or Penalty Infringement Notice may be issued. Failure to achieve compliance could result in Council pursuing further legal action. 2.5 Relevant Legislation and Standards The legislation, regulation and standards that apply to this Swimming Pool Inspection Program include: • Swimming Pools Act 1992 • Swimming Pools Regulation 2008 • Swimming Pools Amendment Act 2012 • Swimming Pools Amendment (Consequential Amendments) Regulation 2013 • Building Code of Australia • Australian Standards AS1926.1 • Australian Standards AS1926.2

3 PROGRAM ELEMENTS

3.1 Swimming Pool Inspection Regime

a) Council staff will inspect properties with swimming pools under the following circumstances: i) Inspection as a result of a complaint (Section 29A) Section 29A of the Swimming Pools Act requires Council to commence an investigation within three (72 hours) working days of a written complaint being made. ii) Inspection at the request of a pool owner – General (section 22C (1)) Section 22C (1) of the Swimming Pools Act requires Council or an accredited certifier to carry out an inspection of swimming pool upon request of a pool owner. The inspection must be carried out within a reasonable time. iii) Inspection at the request of a pool owner – sale or lease (Section 22C (3)) Section 22C (3) of the Swimming Pools Act requires Council to carry out an inspection of a swimming pool that is being sold or leased where a valid certificate of compliance or a relevant occupation certificate has not been issued within the last three years. Such an inspection is to be undertaken within ten working days of a written request.

iv) Inspection of tourist, visitor, multi-occupancy development (Section 22B(2)) Section 22B (2) requires that council must make provision for the inspection, at least once every three years, of a swimming pool situated on a premise on which there is a tourist or visitor accommodation or more than two dwellings.

1.3.1 Page 3 of 6

Pools included within this section include backpacker accommodation, bed and breakfast, hotels, motels, serviced apartments and residences of more than two occupancies. v) Non-mandatory inspections

b) Where staff resources permit other non-mandatory residential properties that contain swimming pools will be inspected as part of a proactive program to improve the level of compliance of pool safety barriers and reduce the incidence of infant drowning’s or near drowning’s within the Kempsey Shire. The proactive inspection program will incorporate a risk based approach involving the following: i) Inspections of unauthorised swimming pools Periodically, Council obtains recent aerial photography of urban and rural areas within the Kempsey Shire. This can be utilised to determine whether there is a swimming pool present on private property. Council will review new aerial photography to check for any unauthorised pools. Appropriate regulatory compliance action will be undertaken once it is established that a pool has been installed on private property without the prior consent of Council. ii) Inspection of Development Applications which have not been finalised Inspection of swimming pools where development consent has been granted but there is no record of an occupation certificate being issued. iii) Inspection of registered and unregistered swimming pools Council will compare its records with the public register held by the Division of Local Government to identify swimming pools which have not been registered. Council will contact the owners of unregistered pools in writing to arrange a suitable time for an inspection. If no contact is made Council will then utilise its entry powers under the Swimming Pools Act and Local Government Act to inspect these swimming pools and the surrounding child resistant barrier. In addition to the above and where resources permit, Council will undertake random inspections of child resistant barriers surrounding swimming pools. Pool owners who have been identified for inspection will be notified in writing prior to the inspection.

4 ENFORCEMENT PROCEDURES The Swimming Pools Act 1992 has very specific provisions in terms of pool safety compliance. Specifically for taking action after investigations, the Notices, Directions, Penalty Infringement Notices and Offences provisions under the Act are applicable. In addition, the following procedures will generally apply:

i) Where required Council will give notice to the owner of a swimming pool of an

impending inspection of the premises ii) Swimming pools and barriers will be inspected by Council’s officer in the

presence of owners or their representatives (if requested) iii) Photos and/or videos may be taken of the pool fence for record purposes and/or

evidence gathering

1.3.1 Page 4 of 6

iv) Where it is identified there are outstanding pool safety matters, Council will issue a Notice of Intention, followed by a Direction under Section 23 of the Swimming Pools Act. Where there is an immediate safety threat a Direction will be served without a preceding Notice of Intention

v) The Direction will outline what works are required and give a prescribed period

of time for the works to be completed. Council may review the time period for completion where it is considered reasonable to do so. All requests for extension in time are to be in writing and must provide reasons for such a request, including a schedule for completion of the works if appropriate

vi) An owner who is the recipient of a Direction has a right of appeal to the Land

and Environment Court vii) Failure to carry out the works within the prescribed period may result in the

issue of penalty infringement notices and/or the instigation of legal proceedings to enforce Council’s Direction

viii) Inspection fees will be charged in accordance with Council’s Schedule of Fees

and Charges and the requirements of the Swimming Pools Act and Regulations thereunder.

Council will view pool safety offences as serious and issue Notices and Directions as standard procedure. Penalty notices will be issued at the discretion of the authorised officer. Prosecution may also be considered where deemed to be appropriate. A minimal tolerance approach is considered appropriate and is consistent with other enforcement policies by Council.

5 FEES AND CHARGES A registration fee is payable for those pool owners unable to register their pool themselves on the NSW Swimming Pools Register. An inspection fee applies in the conducting of inspections under the pool inspection program. The fee is limited under the legislation. The initial fee is payable within twenty-one (21) days of the inspection with a subsequent inspection fee payable at the time of booking the first reinspection. 5.1 Registration fee Where a pool owner requests council to update the register on his/her behalf the maximum fee in accordance with the Swimming Pool Regulation will be payable. 5.2 Inspection fee The maximum fees prescribed by the Swimming Pools Act and Regulation will be charged for initial inspections and subsequent inspections as required.

5.3 Penalties There are a number of offences under the Act which attract fines, as follows: i) Failure to comply with general requirements for outdoor pools associated with

dwelling (Section 7(1)) ii) Failure to comply with general requirements for outdoor pools associated with

movable dwelling and tourist and visitor accommodation (Section 12) iii) Failure to comply with general requirements for indoor pools (Section 14)

1.3.1 Page 5 of 6

iv) Failure to maintain child-resistant barrier (Section 15(1)) v) Failure of occupier to keep access to pool securely closed (Section 16) vi) Failure to display or maintain prescribed warning notice near pool (Section

17(1)) vii) Failure to comply with direction (pool safety order) (Section 23 (3)) viii) Failure to register a pool (Section 38B (1))

This program does not prevent council from issuing penalty infringement notices for a breach of the Swimming Pools Act and Regulation. 6 DEFINITIONS

Barrier: means a fence or a wall, and includes:

a) Any gate or door set in the fence or wall, and b) Any other structure or thing declared by the regulations to be a barrier for the

purposes of the Swimming Pools Act. Certificate of Compliance: means a certificate issued under section 22D of the Swimming Pools Act. Direction - The local authority may, by order in writing served on the owner of any premises in or on which a swimming pool is situated, direct the owner to take, within such reasonable time as is specified in the direction, such measures as are so specified to ensure that the swimming pool or premises comply with the requirements of Part 2 of the Swimming Pools Act. Emergency Direction - A direction given where there is serious risk to safety. An emergency direction can require immediate action without service of a notice of intention beforehand. Notice of intention – Before giving a direction, the local authority who gives the direction must give notice to the person to whom the direction is proposed to be given of the intention to give the direction. Occupation certificate in respect of a swimming pool 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. Residential building means a building (such as a dwelling-house, residential flat building or boarding-house) that is solely or principally used for residential purposes, and includes any structure (such as a garage or shed) that is ancillary to any such building, but does not include:

a) A building that merely forms part of a complex of buildings (such as a school or

recreational centre) that is principally used for non-residential purposes, or b) A moveable dwelling, or c) Tourist and visitor accommodation, or

1.3.1 Page 6 of 6

d) A shed that is ancillary to a swimming pool and the primary purpose of which is to store equipment that is used in connection with the swimming pool (but not a shed of a kind prescribed by the regulations), or

e) A building or structure of a kind prescribed by the regulations.

Spa pool includes any excavation, structure or vessel in the nature of a spa pool, flotation tank, tub or the like. Swimming pool means an excavation, structure or vessel:

a) That is capable of being filled with water to a depth greater than 300

millimetres, and b) That is solely or principally used, or that is designed, manufactured or adapted

to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity, and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of the Swimming Pools Act.

VARIATION Council reserves the right to review, vary or revoke this procedure which will be reviewed periodically to ensure it is relevant and appropriate.