Despite speculation that the already twice delayed new swimming pool certification regime, would be further delayed, it appears more likely that the commencement date for the new swimming pool regime will commence on 29 April 2016 (at the time this story was written). This is because of some recent amendments to the regime outlined below, whose commencement dates coincide with the regime start date.
Summary of key amendments
The regime has recently been amended in the following ways:
- Certificate of non-compliance: A new category of document has been created where the swimming pool barrier does not meet the requisite certification standards. In such cases, a valid certificate of non-compliance must be attached to the Contract for Sale as an additional item 14A has been inserted into Sch 1 of the Prescribed documents under the Conveyancing (Sale of Land) Regulation 2010. The existing item 16 in Sch 1 will be deleted. The two existing alternatives remain:
- – valid certificate of compliance, and
- – occupation certificate.
(See the Conveyancing (Sale of Land) Amendment (Swimming Pools) Regulation 2016, which is due to commence on 29 April 2016.)
- Strata and off the plan contracts exempt: The requirement to attach one of the three prescribed documents (listed above) to the contract for sale does NOT apply to the following:
- – strata or community title schemes with more than two lots, and
- – off the plan contracts with a sunset clause (within the meaning of s 66ZL of the Conveyancing Act 1919 (NSW)).
(See the Conveyancing (Sale of Land) Amendment (Swimming Pools) Regulation 2016, which is due to commence on 29 April 2016.
- Protection of tenants: A landlord must ensure that where a residential tenancy agreement has been entered into after 29 April 2016, that any swimming pool on the residential premises (except strata or community title land comprising of more than two lots) is registered under the Swimming Pools Act 1992 and a certificate of compliance confirming that the swimming pool complies with the Act is provided to the tenant. Importantly, this requirement does not apply to residential tenancy agreements entered into before 29 April 2016. (See the Residential Tenancies amendment (Swimming Pools) Regulation 2016, which is due to commence on 29 April 2016.)
- New inspection requirements: Purchasers of properties with swimming pools where a non-compliance certificate has been attached to the contract of sale have 90 days from the date of acquisition to rectify non-compliant pools to meet child-resistant barrier requirements in the Building Code of Australia. (See the Swimming Pools Amendment (Inspections) Regulation 2016, which commences on the date that it is published on the NSW legislation website:www.legislation.nsw.gov.au.)
- Council reporting obligations: Councils must include in their annual reports the number of inspections of swimming pools that they have carried out. The details of their inspections must include the nature of the properties inspected and the results of those inspections in terms of whether:
- – a certificate of compliance, or
- – a certificate of non-compliance was issued.
(See the Swimming Pools Amendment (Inspections) Regulation 2016, which commences on the date that it is published on the NSW legislation website: www.legislation.nsw.gov.au.)
- Notices and certificates for non-compliance: The nature of the non-compliance is provided to the landowner by the local authority in a notice. Certificates of non-compliance following inspection by a local authority or an accredited certifier must be issued to the landowner within seven days of the inspection. Certificates of non-compliance remain valid for one year (or earlier if a certificate of compliance is issued). See the Swimming Pools Amendment (Inspections) Regulation 2016, which commences on the date that it is published on the NSW legislation website: www.legislation.nsw.gov.au.
Editorial Comment: Conveyancers and practitioners should be aware of these new obligations for vendors with swimming pools on the property, as they will need to attach the relevant documentation to the contract for sale. Relevant commentary already outlining the new swimming pool certification regime in the NSW Conveyancing Law & Practice will be updated to include these changes once they commence.