On 1 December 2010, the Queensland Government undertook a complete overhaul of the laws for swimming pool safety (including spas), in an effort to reduce incidents of drowning and serious immersion injuries in swimming pools in Queensland.
In very brief terms, the new laws which comprise of a Pool Safety Standard implemented by virtue of the Building Act 1975 (Qld):-
- Define a pool as any structure or excavation that can be filled with water to a depth of 300mm or more, including a pool, spa or wading pool;
- Establish a publically searchable register in which all owners with a pool (including, but not limited to bodies corporate, landlords) must register their pool;
- Prescribe that all pool owners must ensure that their pool complies with the Pool Safety Standard and obtain a Pool Safety Certificate as evidence of compliance by 30 November 2015;
- If any property is sold without a Pool Safety Certificate prior to 30 November 2015, then the Pool Safety Certificate must be obtained by the Buyer within 90 days from settlement;
- Requires Landlords to obtain a Pool Safety Certificate prior to the entry into a lease of a property with a pool; and
- Applies to both private (non-shared) pools and public (shared) pools.
The Pool Safety Standard covers various aspects of pool safety. It prescribes the lawful requirements for pool fencing and gates, designates non-climbable zones in areas that are close proximity to pool fencing, insists on doors that children cannot inadvertently open and requires the placement of cardiopulmonary resuscitation (CPR) signs in a pool area. It is the pool owner’s responsibility to ensure that their pool is compliant with the standard.
It is beyond the scope of this article to provide an entire summary of the Pool Safety Standard or current legislative requirements. Readers are encouraged to view the Pool Safety Standard themselves, which can be found by visiting the link below:-
http://www.hpw.qld.gov.au/construction/BuildingPlumbing/PoolSafety/PoolSafetyLaws/Pages/default.aspx
In addition to ensuring compliance with the Pool Safety Standard, pool owners are also required to ensure that their pools are registered with the Queensland Building and Construction Commission (“QBCC”). It is free to register and you can check to see whether your pool is registered by visiting the link below:-
http://www.qbcc.qld.gov.au/home-building-owners/pool-safety/registering-your-pool
The date of 30 November 2015 was a critical date when it comes to pool safety. The Queensland Government designed the new swimming pool safety laws to come into effect over five (5) years. This gave Queensland pool owners a period of five (5) years to ensure that their pools comply. That period ended on 30 November 2015.
Now, and since 1 December 2015, all pool owners have a legal obligation to ensure that their pool complies with swimming pool safety laws.
Fines of up to $19,437.00 for individual and $97,187.00 for corporations apply for non-compliance and failure to ensure that a pool is registered with the QBCC will incur a fine of $2,356.00.
Since their introduction on 1 December 2010, the pool safety laws have had considerable impact in the sale of property in Queensland. The Real Estate Institute of Queensland (REIQ) has amended its standard form of contracts for the buying and selling of properties in Queensland to accommodate the new laws.
Marino Law has an extensive involvement in the conveyance of properties in Queensland and regularly acts for buyers and sellers alike.
From a seller’s perspective, there are provisions in the standard REIQ Contract which make the contract conditional upon a Pool Safety Inspection being undertaken after entry into the contract and either:-
- The issue of a Pool Safety Certificate, as evidence that the property in question complies with the swimming pool laws; or
- Details of the works that are required before a Pool Safety Certificate can be issued.
There are certain termination rights afforded to the buyers in the event that the property is revealed not to comply and works are required before a Pool Safety Certificate can be issued. These rights depend on the circumstances that exist at a particular time and legal advice should be sought for each individual transaction.
From a buyer’s perspective, if the seller does not supply a Pool Safety Certificate, or instead, supplies a Form 36 – Notice of No Pool Safety Certificate, then if the Buyer proceeds with the Contract, it will be the buyer’s responsibility to obtain a Pool Safety Certificate within 90 days of settlement of the property.
Often the scope of works that is required to make the property compliant and procure a Pool Safety Certificate can be costly and is a point of conjecture or dispute for the parties to the Contract.
Prior to its entry into the Contract of Sale and during any period for which a Pool Inspection is permitted, the buyer should carefully consider what works may be required in order to procure a Pool Safety Certificate and any costs or requirements associated with undertaking such works. It is the responsibility of the buyer to attend to same (including payment of applicable fees) if the buyer elects to proceed to settlement. The costs of any such works should be factored into any negotiations regarding the contract price, prior to entry into the contract.
The ending of the grace period has placed significantly more risks on the parties to conveyancing transactions in circumstances where the property has a pool, but no Pool Safety Certificate exists and it is uncertain as to whether or not it complies with current swimming pool laws.
From 1 December 2015, it is the responsibility of the owner of the property to ensure that the property complies.
Marino Law has seen a significant increase in activity by local Councils, who administer pool safety legislation and who have the power to impose fines for non-compliance. Since 1 December 2015, Council has begun undertaking inspections and audits of various properties to crack down on pool safety requirements and root out instances of non-compliance.
If a particular property is found to be non-compliant, the registered owner will be fined, up to the maximum penalties referred to above.
If the property in question is under a contract of sale, then any fines issued will be imposed on the current owner. In the majority of cases, this will be the seller.
If a Form 36 – Notice of No Pool Safety Certificate has been issued, the buyer will still have 90 days from settlement to obtain a Pool Safety Certificate, however the buyer is no longer protected by the five (5) year grace period which ended on 30 November 2015, in relation to any pre-existing or current non-compliance.
This means that the buyer bears a significantly higher risk of being liable for any non-compliance issues (and the risk of facing hefty fines) immediately on and from the settlement date if the local Council was to conduct an audit once settlement has occurred.
In light of these increased risks, both sellers and buyers of property will need to ensure that they seek legal advice in relation to any pool safety issues for any property that does not have an existing Pool Safety Certificate at the time of entry into the contract and ensure that a Pool Safety Certificate is obtained prior to the completion date.
Marino Law regularly acts for both buyers and sellers in a wide variety of property transactions in Queensland and can provide comprehensive, yet simple and easily understandable advice in this area.
Please do not hesitate to contact one of our experienced property lawyers on (07) 5526 0157 if you wish to obtain further information in relation to the content of this article.
