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Property: Regulations on pools to impact practitioners

Property: Regulations on pools to impact practitioners

By Anne Nielsen

Real Property 

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There are new requirements and issues to consider when acting for a vendor or purchaser of real estate that includes a swimming pool or spa.

Snapshot
  • Pool or spa owners must apply to register it with their local council by 1 November 2020.
  • If there is a pool on the property, you must warn purchasers to inquire about compliant safety barriers.
  • Lawyers should check whether vendors have received communication from their council that should be disclosed.

Further obligations regarding fencing of swimming pools and spas in Victoria were imposed in the Building Amendment (Swimming Pool and Spa) Regulations 2019 (Regulations) to reduce or prevent drownings of young children. The Regulations introduced requirements for swimming pools and spas to be registered with the local council and brought into compliance with Victoria’s pool safety barrier standards.

Although the Regulations may not seem relevant to standard conveyancing practice, they raise issues which lawyers should be aware of to avoid potential allegations of negligence. 

How does the new regime work?

Owners of land with a swimming pool or spa must apply to register it with their local council by 1 November 2020. Originally this date was 1 June 2020 but time frames were extended owing to the potential difficulty of undertaking works and inspections during the COVID-19 pandemic restrictions. Where construction has not been completed by 1 November, the application date is extended to 30 days after the Occupancy Permit or Certificate of Final Inspection is issued. 

If the owner fails to apply for registration, the council can enter the pool or spa on its register and give written notice requiring the owner to apply for registration within a specified period of no less than 14 days. 

If the pool or spa no longer exists or is incapable of holding 300mm of water, the owner should contact the council to ascertain the process required to prove this. If a decommissioned pool or spa has already been registered, the owner can apply to have it removed from the register.

When the pool or spa has been registered, the council must give the owner a written notice under Reg 147R that includes:

  • the date of construction determined by council and the barrier standard that applies according to the construction date
  • the date by which the first certificate of pool and spa barrier compliance is required to be lodged with council. 

The owner must then arrange for a building inspector (pool safety) to inspect the pool or spa and issue a certificate of either compliance or non-compliance. If there is non-compliance, division 6 of the Regulations sets out a process to make the pool or spa compliant or what must be done if the pool or spa cannot satisfy the applicable safety standard.

Separate provisions apply to “relocatable” pools and spas.

What are the potential impacts on conveyancing?

If you are acting for purchasers, particularly before the date of the contract, you should ask if there is a pool or spa at the property. If there is, you must warn the purchasers to inquire about compliant safety barriers. If the pool or spa does not have its first certificate of compliance, bringing it into compliance could be very expensive or impossible. Giving appropriate written advice to purchasers to make inquiries should prevent them blaming you if they fail to inquire. 

A vendor’s failure to disclose a material fact under s12(d) of the Sale of Land Act 1962 (SLA) does not create a right under the SLA for the purchaser to rescind the contract. Also, there is no potential right to rescind the contract for failure to comply with s32 of the SLA unless the vendor’s statement is actually defective or incomplete. Most communications from councils would need to be disclosed as notices or orders under s32D(a) of the SLA. However, it is unlikely that there would be anything to disclose in the period prior to issue of the notice under Regulation 147R or if the vendor has not applied to register the pool or spa and this has not been picked up by the council. Nevertheless, purchasers who have suffered loss arising from a breach of the SLA may seek compensation based on a combination of s48A of the SLA and s217 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).1

Regulation 51(1) of the Building Regulations 2018 has not, so far, been amended to require councils to provide details of a certificate of pool and spa barrier compliance, although Reg 51(1)(c) does allow requests for “details of any current notice or order issued by the relevant building surveyor”.

Apart from complying with ss12(d) and 32 of the SLA, vendors are not obliged to advise purchasers whether or not any pool or spa complies with the applicable safety barrier standards. However, because some information that must be included in a vendor statement will not be covered by Reg 51(1)(c) and does not have to be included in a Land Information Certificate, lawyers should check whether vendors have received communications from their council that should be disclosed. ■


Anne Nielsen is a part time consultant with Russell Kennedy and an LIV Property Law Committee member.

  1. In Wagner v Usatov [2014] VCAT 1198 purchasers were awarded damages arising from a breach of s32 SLA.

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