SPASA NSW CEO Spiros Dassakis says swimming pool certifiers in NSW are confused by the advice they are receiving from the Office of Local Government (OLG) relating to out-of-ground pool walls.
The OLG recently sent an email to NSW pool certifiers saying they had received a number of enquiries about out-of-ground pool walls and the application in NSW of Clause 2.5.3 of AS1926.1 2012 in the BCA.
The email says that while the Standard has a clause stating that out-of-ground walls are acceptable as child resistant barriers, the clause does not have application in NSW. According to the OLG, the New South Wales’ Swimming Pools Act 1992 requirement for the child-resistant barrier to be separate from the pool takes precedence.
They further state that it is the NSW Government’s long-held position that out-of-ground pool walls cannot form part of the pool barrier. However, they say pool owners can apply to the local council to grant an exemption from pool barrier requirements, but anecdotal evidence suggests this is rarely successful.
The communication also says that accredited certifiers should examine the circumstances of the pool being inspected and apply the appropriate provisions of the swimming pool legislation, adding that proper application of the legislation will determine the Standard applicable to the pool.
Dassakis has concerns about the OLG statement.
“If a certifier finds himself on a property with a swimming pool that has previously been approved with an out-of-ground pool wall, how will they treat that? Compliant or non-compliant?” he asks.
“Our understanding is that the OLG position is retrospective. That is, the pool would be non-compliant – however their communication is vague and unclear.”
Dassakis also has a query regarding their statement that it is their long-held position that out-of-ground pool walls cannot form part of the pool barrier. “Does that mean since the 2007 Standard or the 2012 Standard?” he asks. “And if they’ve had that view, how is it that they’ve had up to 20,000 pools approved with an out-of-ground pool wall as a compliant barrier?”
Dassakis wonders how it is that NSW has the only regulator in Australia that deems such pools as non-compliant when they are aware that such pools have been constructed and approved for the past 20 years. He says it is causing considerable confusion in the industry, particularly with certifiers, and says he is aware that some certifiers are certifying them as compliant, while others are deeming them as non-compliant.
“The consumer gets the luck of the draw, depending on which certifier they get. And because the OLG won’t put out a definitive response, we have one class of certifier saying if your pool was approved prior to May 2013 you’re okay, and others saying it’s not okay no matter when it was originally approved. “Is it any wonder that certifiers are confused when we can’t get a very basic direction from the regulator as to what to do?
“We’re not interested in their longheld view; we’re interested in the law, the Act and the Standard. And our reading has always been that out-of-ground pool walls are allowable and there are at least 20,000 pools out there approved by a number of different certifiers.
“So clearly that longheld view was close to someone’s chest, because the councils and private certifiers felt differently.”
He adds that his member’s experience is that councils were reluctant to issue Section 22 exemptions already, and it will be even harder now that the government has made their “longheld view” clear.
A spokesperson for the Minister said that external walls of pools would not ordinarily satisfy the requirements of section 7 of the Swimming Pools Act 1992 and that this has been the law of NSW since the inception of the Act in 1992.
Further, they say that it is up to the local authority to record any exemptions under Section 22 of the Act.
They say that if a pool with an external wall as the barrier that does not have a relevant exemption certificate may be identified as non-compliant, in which case:
• the council can require the pool owners to upgrade the barrier to meet the requirements of the Swimming Pools Act 1993 (the Act); OR
• the pool owner can apply to the council for an exemption under section 22 of the Act (at a cost of up to $70).
As we go online SPLASH! has become aware that SPASA is meeting the Shadow Minister today (July 27), and had earlier this week met with both the OLG and the Fair Trading Commissioner to discuss this issue.