Questions asked in NSW Parliament over pool barrier variation to BCA

According to the current interpretation by the NSW state government, out of ground pool walls require a 1.2m high fence in front of them, irrespective of how massive the wall itself is — According to the current interpretation by the NSW state government, out-of-ground pool walls require a 1.2m high fence in front of them, irrespective of how massive the wall itself is

The long-running saga in New South Wales over out-of-ground pool walls has reached a new stage, with the Shadow Minister for Local Government Peter Primrose asking questions in Parliament about this issue. At question is the fact that under the previous minister, NSW made a variation to the Building Code of Australia without (to anyone’s knowledge) a regulatory impact statement being prepared – against protocols agreed by the Council of Australian Governments (COAG).

The variation excludes pool walls that are out of the ground as a suitable barrier, despite an estimated 20,000 such pools having been approved in NSW. The pools in question are not aboveground pools, but in-ground pools with one wall or more out of the ground by at least 1.2 metres.

NSW is the only state in Australia to have such a variation. On June 22, the Shadow Minister put forward questions raised with him by respected landscape architect and pool designer, Peter Glass, after an expert legal opinion was prepared on the matter by barrister Bret Walker SC and Faye Ashworth JC.

The questions asked of Minister Paul Toole were:

(1) In May 2013 was the Building Code of Australia amended 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?

(a) Which agency initiated this proposed change?

(b) Was a Regulatory Impact Statement undertaken? If so, by which Agency?

(2) How many swimming pools are there in New South Wales with out-of-ground pool walls as part of the pool barrier?

(a) Were such pools ever legal in New South Wales, if their construction had been approved by a local government authority?

(b) Are they legal now?

The answers are due at the parliamentary sitting on July 27 (today). However, SPLASH! has received some answers to questions put to the Minister, some of which are similar. These answers are reproduced at the bottom of this article.

Long running saga

Glass has been pursuing this matter for more than three years and has spent considerable time and money on this issue and to fund the legal opinion. Several other industry members also contributed monies. SPASA NSW has also been pursuing this matter for a long time, and both parties also provided extensive submissions to the Lambert Review, but despite the review being completed in January this year, it has not as yet been made available to the industry.

The Minister’s office says that the NSW Government’ is actively considering the final report and recommendations of the Lambert Review before making its response.

The Opinion

As well as the questions raised in NSW Parliament, the Walker opinion raises a number of other serious questions.

The opinion states: “The consequence of the Government’s current position, if persisted in, would be that the previous grants of development approval and/or certifications of in excess of 20,000 swimming pools in New South Wales which include at least one out-of-ground pool wall, were erroneous (and potentially negligent) because, according to the Government, they were non-compliant and therefore illegal.”

The Opinion also questions the very efficacy of this variation by NSW to the BCA. In fact, it paints a scenario in which it could be detrimental to the main purpose of the Act – to stop a child gaining access to the pool. For example, if a 1200mm tubular fence was placed in front of an otherwise compliant 1500mm pool wall, the child might step up the first 200mm onto the lower fence railing, then grip the vertical pickets and use his or her feet against the pool wall to “walk up” the one metre section to the top, whereby the last 300mm of the pool wall could be easily breached.

“It is quite clear that child safety is not necessarily enhanced and indeed may even be lessened by the requirement for a barrier in addition to an out-of-ground pool wall that itself fulfils the technical construction requirements of a child-resistant barrier. That position is most clearly demonstrated by the fact that a child-resistant barrier must, in accordance with the Standard, incorporate a non-climbable zone (of) a minimum 900mm, whereas an out-of-ground pool wall will incorporate a non-climbable zone of at least 1.2m,” the Opinion states.

Walker says that in the Second Reading Speech in respect of the Act, the (then) Minister for Local Government stated that the “principal object of this bill is to minimise the tragedy of serious toddler immersions in private swimming pools.”

However, the Office of Local Government (OLG) seems to consider having a separate barrier is the most pertinent factor.

See related article: Pool certifiers confused over BCA variation

Minister’s comments

A spokesperson for the Minister gave this reply to a series of questions from SPLASH! on this issue:

“Ensuring the safety of young children around private (‘backyard’) swimming pools is a key objective for the NSW Government. External walls of pools would not ordinarily satisfy the requirements of section 7 of the Swimming Pools Act 1992. This has been the law of NSW since inception of the Act in 1992.

“Under Section 22 of the Act 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.

“The NSW Government updates swimming pool barrier standards that apply in NSW to maintain its policy objectives and laws. Individual swimming pool barrier compliance is a matter for local councils. Each pool must be assessed on an individual basis. A council may inspect any pool over three years old as part of its swimming pools inspection program and identify areas of non-compliance.

“A pool with an external wall as the barrier that does not have a relevant exemption certificate may be identified as non-compliant, in which case:

the council can require the pool owners to upgrade the barrier to meet the requirements of the Swimming Pools Act 1993 (the Act); OR

the pool owner can apply to the council for an exemption under section 22 of the Act (at a cost of up to $70).

“The Government will continue to work with industry stakeholders to improve pool barrier compliance to reduce the risk to young children.”

Continued communication

As we go online SPLASH! has become aware that SPASA is meeting the Shadow Minister today (July 27), and had earlier this week met with both the OLG and the Fair Trading Commissioner to discuss this issue.