Swimming Pools Act 1992

Owners and occupiers bear the primary substantive duties. The “owner” takes the meaning given by the Local Government Act 1993 (s 3); where multiple owners exist, any one may be prosecuted (s 3 definition of “owner”). The “occupier” includes any person in charge of the premises (s 3). Owners must ensure barriers are installed and maintained (ss 7, 12, 15), register the pool (s 30B), and comply with directions (s 23(3)). Occupiers are separately responsible for keeping gates closed (s 16), maintaining signs (s 17) and keeping barriers in repair (s 15(1)), even if the barrier was installed before the Act commenced.

Local authorities—defined to include councils, the Western Division appointee under s 3A, and the Lord Howe Island Board—carry extensive administrative obligations. They must promote awareness, maintain a notification system, investigate complaints within 72 hours (ss 5, 29A), adopt and implement inspection programs (s 22B), and enter pool data on the Register (s 22D(7)). Councils must report inspection statistics annually (s 22F(2)). Non-council local authorities have modified procedural rules (s 22G).

Registered certifiers (defined by reference to the Building and Development Certifiers Act 2018) may perform inspections at an owner’s request (s 22C), issue certificates of compliance (s 22D), and serve non-compliance notices that automatically escalate to the local authority if the pool poses a significant risk or remains unresolved after six weeks (s 22E). They are subject to statutory duties of timeliness and accuracy.

The Secretary of the Department administering the Act maintains the Register (s 30A(2)), may enter into service-delivery agreements (s 30D), issues approved forms, and can certify registration status (s 30C). The Minister may appoint and remunerate a local authority for the Western Division (s 3A).

Authorised officers (appointed under s 27 or holding office as police officers) exercise entry, inspection and investigation powers. Their powers differ depending on whether they are appointed by a council (s 27B) or another local authority (ss 28–29).

The Land and Environment Court hears appeals against refusals of exemptions, conditions on exemptions, refusals of certificates, and compliance directions (s 26), and may grant remedial orders on application by a local authority (s 30).

Developers, builders and pool installers are indirectly affected because construction after the relevant cut-off dates removes eligibility for many exemptions, and new pools must satisfy the full barrier standards before an occupation certificate can issue (linkage via the Environmental Planning and Assessment Act 1979 definition of “relevant occupation certificate”).

Vendors and lessors are practically affected because a valid certificate of compliance or recent occupation certificate is often required for sale or lease transactions; the Act compels an inspection within a reasonable time when a written request tied to a sale or lease is made (s 22C(3)).

Owners’ duties include continuous barrier compliance (ss 7, 12, 15), registration (s 30B), maintenance of signs (s 17), and prompt obedience to s 23 directions. They bear the onus of proving defences under s 25. Owners may apply for exemptions where regulatory requirements are impracticable or unreasonable (s 22(1)) and may choose the location of the barrier where multiple options exist (s 18). They are entitled to receive a certificate of compliance once standards are met (s 22D(2)) and to appeal adverse decisions within 28 days (s 26(2)).

Occupiers’ duties are narrower but strict: keep access points closed (s 16), maintain barriers in effective condition (s 15), and display signs (s 17). The defence in s 25(1) is available only to owners; occupiers who are not owners have no equivalent statutory defence.

Local authorities’ duties are largely public-law obligations: develop inspection programs within six months of the 2012 amendments (s 22B(1)), inspect at the prescribed frequency, investigate complaints expeditiously (s 29A), and maintain the Register. They possess the right to recover costs of works performed under s 23A(6) and to bring Land and Environment Court proceedings (s 30(1)).

Registered certifiers’ duties are to issue notices in a prescribed form when a pool fails inspection (s 22E(2)–(3)), forward those notices to the local authority within prescribed timeframes (s 22E(4)), and refrain from issuing certificates except after physical inspection and satisfaction of both registration and compliance (s 22D(3)).

Rights of entry are carefully calibrated. Authorised officers may enter for inspection, complaint investigation or suspected contravention (s 27A). Council officers rely on Local Government Act 1993 Chapter 8 Part 2 (s 27B). Non-council officers must seek consent, give 24 hours’ notice if consent is refused, and restrict entry to daylight hours and non-residential parts of buildings (s 28(3)–(5)). Search warrants are available only to non-council officers (s 29).

Defences are exhaustively listed in s 25: lack of control plus reasonable steps and absence of knowledge; existence of a current certificate of compliance where the barrier remains substantially unchanged; and pools that are unassembled, under construction with minimal water, or appropriately secured during works.

Most barrier offences carry a maximum penalty of 50 penalty units (ss 7(1), 12, 14, 15(1), 16, 23(3)). The warning-sign offence is 5 penalty units (s 17(1)). Failure to register attracts 20 penalty units (s 30B(1)). Regulations may create offences of up to 5 penalty units (s 38(2)).

Penalty notices are available for prescribed offences (s 35), capped at 5 penalty units. Proceedings are summary before the Local Court (s 36).

Civil enforcement is significant. A local authority may obtain Land and Environment Court orders to remedy or restrain breaches, including mandatory installation of structures (s 30). Compliance directions under s 23 are backed by criminal sanctions and cost-recovery rights (s 23A). Directions bind successors in title (s 23(4)).

Administrative sanctions include refusal of certificates of compliance (s 22D), escalation of certifier notices (s 22E), and deemed refusal after six weeks (s 26(3)), which triggers appeal rights. The Act expressly states that breach of the sign requirement does not create civil liability beyond ordinary negligence (s 17(3)).

The Act is expressed to prevail over any inconsistent Act, law, agreement, covenant or instrument (s 32(1)). It carves out an exemption from Local Government Act 1993 approval requirements for fences erected to comply with the Act on pre-1990 pools (s 32(2)).

Heavy reliance is placed on subordinate legislation: barrier standards, maintenance standards, sign requirements, registration information, and inspection-program content are all prescribed by regulation (ss 7(1)(b), 15(2), 17(1), 30B(1), 22B(5)). The regulations may incorporate external standards by reference (s 38(3)).

The Environmental Planning and Assessment Act 1979 supplies the definition of “relevant occupation certificate” (s 3), which in turn affects the inspection-program exemption (s 22B(3)) and the defence in s 25(2). The Building and Development Certifiers Act 2018 governs who may act as a registered certifier (s 22A).

Entry powers for councils are supplied by Local Government Act 1993 Chapter 8 Part 2 (s 27B). Cost apportionment for dividing fences is overridden by s 33, which places the swimming-pool-related proportion on the pool owner(s). The Dividing Fences Act 1991 is expressly subordinated.

The Fines Act 1996 governs penalty notices (s 35(3)). Search warrants for non-council officers are issued under the Law Enforcement (Powers and Responsibilities) Act 2002 (s 29(3)). The Government Sector Employment Act 2013 affects remuneration of Western Division local authorities (s 3A(3)).

The Crown Land Management Act 2016 defines the Western Division (s 3). The Standard Instrument (Local Environmental Plans) Order 2006 supplies definitions of “tourist and visitor accommodation” and “dwelling” (s 3).

The most significant changes occurred via the Swimming Pools Amendment Act 2009 and the Swimming Pools Amendment Act 2012. The 2009 Act replaced “inspector” with “authorised officer”, abolished the Pool Fencing Advisory Committee, strengthened maintenance obligations (new s 15), introduced complaint-investigation timelines (s 29A), and added cost-recovery powers (s 23A). These reforms responded to coronial recommendations and audit findings that identified inconsistent enforcement and poor barrier maintenance.

The 2012 Act was a root-and-branch overhaul. It inserted the mandatory inspection program (s 22B), registration regime (Part 3A), certificate-of-compliance rules (s 22D), and certifier notice obligations (s 22E). It repealed the former certificate-of-compliance provisions (former s 24) and aligned the legislation with contemporary risk-based regulation. The changes were driven by data showing that a large proportion of backyard pools remained unregistered and uninspected, and by the need to create a central database to support targeted enforcement. Subsequent minor amendments updated cross-references to the Crown Land Management Act 2016, the Government Sector Employment Act 2013, and the Building and Development Certifiers Act 2018.

The 2022 and 2024 amendments were technical, updating departmental titles and definitions.

The Land and Environment Court has considered the Act in appeals against s 23 directions and refusals of certificates. Because the legislation is prescriptive and the defences in s 25 are narrowly drawn, successful challenges are rare. In Council of the City of Sydney v Adams [2013] NSWLEC 1045 the Court upheld a direction where a house wall was used as part of the barrier but failed to meet the regulation’s “no opening” requirement (cf s 19(1)(a)).

Controversies have centred on the cost and administrative burden of the 2012 inspection program, particularly for rural councils with large numbers of exempt pre-2010 pools. The interaction between strata-title common-property pools and the ancillary-building rule in s 3(1A) (inserted 2012) has produced practical difficulties; owners corporations are treated as owners but may lack direct control over individual lots.

The exclusion of tourist and visitor accommodation from certain small-lot exemptions after 2013 (s 13(1A)) generated industry complaint that short-term rental properties faced stricter rules than private dwellings. The deemed-refusal period in s 26(3) has been litigated where councils argued that the six-week clock does not start until all requested information is supplied.

No High Court or Court of Appeal decisions have authoritatively construed the core barrier provisions, leaving regulatory detail to the Swimming Pools Regulation 2018.

Most practitioners miss that a certificate of compliance is not a defence unless the physical barrier remains “substantially the same” as when certified (s 25(2)(c)). A later substitution of a gate or addition of landscaping that creates a climbable object can destroy the defence even though the certificate has not expired.

Section 3(1A) is routinely overlooked: a pool on a separate strata lot but ancillary to a residential building is still “situated on” that building’s premises, triggering the full barrier requirements. This catches body corporates that assume common-property pools are regulated differently.

The exemption in s 8(2) for pre-1990 pools or small-lot pools ceases the moment an interposing barrier is erected (s 8(4)). Many owners inadvertently extinguish their exemption by later adding a courtyard fence.

Local authorities that are not councils (Lord Howe Island Board, Western Division appointee) operate under modified rules (ss 22G, 28, 29); practitioners advising on those jurisdictions must not assume standard Local Government Act entry powers apply.

The Register is not a public document; access is limited to “authorised persons” prescribed by regulation (s 30E). A conveyancing solicitor cannot simply search the Register without establishing authorisation.

Warning-sign offences (s 17) are strict liability and carry no owner/occupier defence equivalent to s 25; the 5-penalty-unit fine is small but appears on criminal records.

Finally, the “in close proximity” rule in s 21 means two pools side-by-side are treated as one for barrier purposes; this can produce unexpected compliance failures when one pool is compliant and the other is not.

1. Determine applicability — Confirm the pool meets the s 3 definition (>300 mm depth, principally for aquatic activity) and is on premises containing a residential building, moveable dwelling or tourist and visitor accommodation (s 4). Check commencement date against exemption cut-offs (pre-1 Aug 1990, pre-1 Jul 2010, pre-1 May 2013 for certain tourist pools).

2. Register the pool — Supply registration information via the approved online portal or local authority within 12 months of the 2012 amendments (transitional) or immediately for new pools (s 30B). Pay any local fee (capped by regulation).

3. Install or upgrade barrier — For post-exemption pools, construct a compliant child-resistant barrier in the location chosen by the owner (s 18), ensuring it separates the pool from the house and adjoining land (s 7) or is located immediately around the pool (s 12). Use only AS 1926-compliant materials; diagrams in Schedule 1 are statutory. For indoor pools, restrict all access points (s 14). Spa pools need only a lockable cover or equivalent when not in use (s 20).

4. Maintain and monitor — Keep gates closed at all times (s 16), maintain the barrier as an effective child-resistant structure (s 15), and display compliant signs (s 17). Annual self-audits against the regulation are advisable.

5. Obtain certification — Engage the local authority or a registered certifier to inspect (s 22C). Provide evidence of registration. If compliant, obtain a certificate valid for three years (s 22D). Keep the physical barrier identical to the inspected state.

6. Manage exemptions and directions — If relying on ss 8–10 or 13, document the qualifying facts and ensure no interposing barrier is erected. Respond to any s 23 direction within the stated time or negotiate an extension; failure triggers cost-recovery under s 23A.

7. Prepare for inspections — Councils must inspect tourist and multi-dwelling sites at least triennially (s 22B(2)). Maintain records of certificates, engineering reports and maintenance logs. For sale or lease transactions, request an inspection in writing at least six weeks in advance (s 22C(3)).

8. Record-keeping and due diligence — Owners should retain copies of certificates, registration confirmations, and any exemption decisions. When purchasing, obtain a current certificate or arrange a pre-purchase inspection; the s 25(2) defence is only as good as the underlying barrier condition.

9. Seek exemptions or appeals — Where topography or heritage constraints make compliance unreasonable, apply under s 22 with evidence of alternative safety measures. Appeal adverse decisions to the Land and Environment Court within 28 days (s 26).

10. Engage specialists — Barrier design should be certified by a pool-safety inspector or engineer familiar with the current Swimming Pools Regulation. Legal advice is prudent before relying on any exemption or defence, given the strict liability nature of most offences and the onus placed on the owner.

Compliance is not a “set and forget” exercise; the combination of registration, periodic re-certification, and council inspection programs requires continuous attention. Practitioners should maintain a checklist cross-referenced to the specific sections and the latest version of the Regulation.