Minister says out-of-ground pool walls not "ordinarily" acceptable

One of the estimated 20,000 pools built with an out-of-ground pool wall.. Image: Peter Glass and Associates — One of the estimated 20,000 pools built with an out-of-ground pool wall actinga as a safety barrier. Image: Peter Glass and Associates

The New South Wales Minister for Local Government, Paul Toole, has responded to questions raised by Shadow Minister Peter Primrose in a budget estimates committee relating to out-of-ground pool walls.

His reply is not what many industry members have been hoping for, as he says an out-of-ground pool wall would only be acceptable as a barrier if the council found it impractical or unreasonable to do otherwise, and a section 22 exemption had been granted and filed with the relevant local authority. It is understood this interpretation would apply even for existing pools.

It is estimated there are 20,000 swimming pools in New South Wales which include at least one out-of-ground pool wall, and it has been common practice to include such walls as part of the protective barrier.

This practice was brought into question in May 2013 via a Building Code of Australia (BCA) amendment to provide that, in New South Wales only, the external walls of swimming pools⁄out-of-ground pool walls could no longer be used as part of the swimming pool barrier, even if they were a minimum of 1200mm in height and fully compliant with all relevant Australian Standards. This alternate reading of the BCA only applied in NSW - out-of-ground pool walls, as described in the BCA, are accepted as part of the barrier in all other states.

It is not known how many of the 20,000 projects in question have section 22 exemptions.

Pool certifiers have reportedly been confused by the NSW variation.

On Friday, 2 September 2016, as part of the General Purpose Standing Committee for the examination of proposed expenditure for the portfolio area of Local Government, Shadow Minister Peter Primrose asked the following questions:

a) Are out of ground pool wall legal now? If not what action has been taken by you to alert the owners of such pools that their pools are illegal?

b) Were pools with out of ground pool walls ever legal?

c) How are the owners of such non-complying pools being notified?

d) How is the rectification being monitored and by whom?

e) What penalties apply for non-compliance?

The questions were taken on notice by the Minister, and at he returned with the following combined answer to the committee in late September:

External walls of out of ground pool walls would not ordinarily satisfy the requirements of section 7 of the Swimming Pools Act 1992. This has been the law of NSW since the inception of the Act. Provisions introduced into the Building Code of Australia by AS1926.1-2012 preserve the law of NSW.

Under section 22 of the Swimming Pools Act 1992, a local authority may grant exemptions from barrier requirements that are impractical or unreasonable in particular cases. Recording such exemptions is a matter for the relevant local authority.

Pool owners are responsible for maintaining a compliant barrier. Local authorities have inspection and enforcement responsibilities to ensure compliance with the Act and Regulations. A list of penalties can be found under section 22 of the Swimming Pools Regulation 2008.

The Shadow Minister is considering holding a Swimming Pool Stakeholder Meeting with the view of appraising the current swimming pool barrier inspection program and listening to suggestions put forward that seek to improve safety and certification outcomes.

As reported previously, the government says the Lambert Review recommendations into pool safety are likely to be made available to the industry by the end of the year.