Despite an increase in public awareness campaigns concerning pool safety and changes in swimming pool safety compliance laws, 45 people lost their lives as a result of a swimming pool drowning in 2015-2016. For children under five, swimming pools remain the primary location for drowning deaths. Tragically, the majority of these deaths are preventable; in 55 per cent of all under-five drowning deaths in a backyard swimming pool or spa, the child gained access to the pool or spa through a faulty gate or a gate that was inappropriately propped open. 

As the owner of a property (occupier or investment) that has a pool, you have certain legal obligations and responsibilities. Notably, you must ensure that your pool meets the minimum safety requirements. This is the case even if you own the property as an investment and are not the occupier of the home.  

What are the pool safety requirements? 

As a property owner with a pool, you should carefully consider and review the relevant regulations that are applicable - the minimum safety requirements differ depending on the type of pool and the year that it was built.

Some of the most important pool safety compliance requirements for a home owner are as follows:

1. Register your pool online with the NSW Government’s Swimming Pool register;
2. Ensure that the pool fence is at least 1200mm high, with the gap between the bottom of the fence and the ground being no more than 100 mm;
3. The pool gate must be self closing and latch by itself in any position. It should never be propped open;
4. The gate must open outwards, away from the pool;
5. From 29 April 2016, if you are leasing the property to someone else, the Residential Tenancy Agreement must include a copy of a Certificate of Compliance. 

What happens if the pool does not meet the minimum safety requirements?

It is now a requirement that if you are intending to lease or sell your property in NSW, you must obtain a Certificate of Compliance and provide a copy to the tenant or purchaser. 

Apart from the above situations, it is not a legal requirement that the owner of a property obtain a Certificate of Compliance, although it is highly recommended. A Certificate of Compliance is valid for three years and certifies that, at the time of the assessment, the pool complied with the minimum safety requirements. 

Although a Certificate of Compliance provides the pool owner with some legal protection, there is a continuing legal obligation on the owner to ensure that the pool meets the minimum safety standards. The failure of a property owner to ensure that the pool meets these standards could have severe and significant financial ramifications. If, for example, a tragic accident eventuates such as the drowning of a small child, as the owner of the property, you could be liable to pay significant compensation. This will be the case even if the child was on your property and gained access to your pool unbeknownst to you. If that child gains access to the pool for example through a faulty gate and you are or should have been aware of that fault, you could be required to pay damages to a member or members of the child’s family if they develop a psychiatric condition arising out of the loss of their child.

Such a claim for compensation would include a monetary sum for the following:

• The pain and suffering caused as a result of losing their child in such circumstances;
• Loss of income, both since the accident and into the future as a result of their psychiatric condition;
• Ongoing medical expenses;
• Assistance with domestic duties such as cleaning and maintenance.

It is not difficult to see that such compensation entitlements could see you, as the home owner, paying a significant amount in compensation. It is therefore critical that you ensure that the pool meets, at all times, the minimum safety requirements.

It is also important that you check your home and contents policy. Often, your insurer will include a clause within the policy that negates insurance cover if the minimum safety requirements were not in place at the time of the accident. This would mean that you would be personally liable to pay damages to the person or persons making a claim against you. As indicated above, this amount could be significant, potentially in the range of hundreds of thousands or millions of dollars. 

What should you do?

If you do not already have a Certificate of Compliance, you should make obtaining one a priority. If you are leasing the property, as the home owner, you have the authority to, at any time, request that the Local Council or an accredited certifier carry out an inspection for the purposes of obtaining a Certificate of Compliance.

If you have already obtained a valid Certificate of Compliance, you should put in place a maintenance schedule which would see regular checks to ensure that the pool is continuing to meet the relevant safety standards. This is particularly important for investment home owners who have leased the property to someone else. 

Check with your home and contents insurer to ensure that you are covered should such a tragedy occur on your premises.

For further information in respect of pool safety standards, you can visit any of the following sites:

• Fair Trading NSW:  provides an easy to read summary of the NSW pool regulations 
• NSW Government Swimming Pool Register:  provides further information in respect of registering your pool and the steps to obtain a compliance certificate
• Local Council websites also often have helpful publications in relation to pool safety standards.  

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