Swimming Pool Fences

Rosy Sullivan

The NSW government has tightened pool fencing regulations in response to a string of near-drowning incidents in Sydney, as well as inquests into eight backyard swimming pool deaths that occurred across the state between 2006 and 2009. Given that swimming pool accidents are still a leading cause of accidental deaths and brain injuries in young children aged 0-4, these added safety measures should be welcomed. However, the changes will have significant ramifications for the landlords and managing agents of properties with pools. In this newsletter we take a brief look at these changes, and identify the potential implications for property professionals.

In 2012, a comprehensive review of the Swimming Pools Act 1992 was finalised. The resulting Swimming Pools (Amendment) Act 2012 introduced a number of changes designed to enhance the safety of kids under 5 around backyard swimming pools. The main changes are as follows:

  1. The introduction of the Swimming Pools Register: From 29 April 2013 the NSW Swimming Pool Register will be available for public use at www.swimmingpoolregister.nsw.gov.au. Pool owners must register their pools before 29 October 2013. There will be a penalty of $220 for anyone who does not register their pool by this date. Swimming Pool owners will be required to self-assess, and state in the register that, to the best of their knowledge, their swimming pool complies with the applicable standard when registering their pool. Checklists have been provided at the register website to assist you.
  2. Council Inspections of pool barriers: All Councils will now be required to carry out pool fence inspections. Each council will decide upon how their inspection program will operate in consultation with their community. Councils will issue compliance certificates after an inspection which finds a pool barrier compliant with the requirements of the legislation. Compliance certificates are valid for three years. Councils may charge pool owners up to $150 for an inspection.
  3. The requirement that pool owners obtain a compliance certificate before selling or leasing their property: The Conveyancing (Sale of Land) Regulation 2010 and the Residential Tenancies Regulation 2010 have been amended to require that a valid certificate of compliance be attached the contract for sale of land, and provided to residential tenants at the beginning of a lease. These provisions come into force on 23 April 2014.

So what do these changes mean for property managers? Well, to be honest, it’s not 100 per cent clear. Like many laws, these have been enacted without fully considering the implications for all stake holders, in this case property managers. Nonetheless, here’s how we suggest you approach the issue in order to best protect yourself, your agency and your tenants.

When a property manager enters a management agency agreement, the agreement sets out the obligations of both the agent and the principal (the landlord) in the ‘terms of agreement’ section. Importantly, clause 7.1 of the terms of agreement states:

At the start of the tenancy the Principal must ensure:

  • The Property and inclusions are reasonably clean and comply with local and state authority building and environmental planning and assessment legislation.

  • The property is safe and fit for the tenant/s to live in.

Essentially, this means that it is the landlord’s obligation to make sure that their pool complies with the Swimming Pools Act, arrange for an inspection and obtain a compliance certificate from the local council. Your job as property manager is to then make sure that a compliance certificate is in place for the property, and that the tenants receive a copy of that certificate at the start of the tenancy. Fairly straight forward right?

That’s the best case scenario. But what happens when the principal fails to meet their obligations? Or, what about those tenanted properties you already manage that have non-compliant pools? Once these laws are in force, proceeding to manage and lease a property with an uncertified and non-compliant pool will put you and your agency at significant risk. It is very likely that you could be held partially liable for any injuries to tenants as a result of an unsafe pool.Here is a stark warning. A property managed by Century 21 Brough & Sons’s was not fitted with safety glass. The agent and owner became aware of this fact after an attempted burglary on the property, but neither took steps to replace the glass to comply with current building codes. One month later, the tenant tripped and put his arm through the glass causing serious lacerations. In a shock decision, the judge held the agent 75% responsible and ordered him to pay 75% of $843,136 damages

“But isn’t it the landlords obligation to make sure the property is safe and compliant with building laws” I hear you say? Yes, but the agent will always owe a duty of care to the tenant as well. As property managers, we have a duty to make sure our landlords know their obligations and fulfil them. If they do not, then either cease managing the property, or initiate the necessary repairs to the property in accordance with your authorities in the management agency agreement and send them the bill later. But don’t think you can shift the blame entirely to the landlord in the case of an accident.

The new pool fencing laws are not yet in force, but don’t wait! Send a letter to all the pool owners whose properties you manage. Get them to register their pools at www.swimmingpoolregister.nsw.gov.au. Let them know that if they intend to continue leasing their properties come April 29 next year, then they need to arrange for a pool inspection by their local council and get a certificate. If their pool is not compliant, then the options are simple: get it fixed, or don’t lease it. Put in the effort now and prepare yourself for these changes, and avoid a possible disaster down the track.