Water

Swimming pools

Changes to the Swimming Pools Act 1992

In 2012, changes were made to the Swimming Pools Act 1992 with the aim of improving the safety of swimming pools. The amendments require all swimming pools to be registered, inspected and certified to ensure they meet the safety requirements of the Act.

A state-wide register of swimming pools has been established and swimming pool owners are required to enter details of the pool on this register. Failure to do so may result in a fine of up to $2200. (Swimming Pools Act 1992, section 38B).

Once issued, a certificate of compliance will generally remain valid for three years. (Swimming Pools Act 1992, section 22D).

From 29 April 2016 it will also be a legal requirement that a contract for the sale of land must include a copy of a valid certificate of compliance (or relevant occupation certificate issued under the Environmental Planning and Assessment Act 1979). A copy of a valid certificate of compliance must also be attached to a new residential tenancy agreement. These requirement do not apply to a lot in a strata or community schemes with more than two lots.

For details of the program for inspection and certification in your area or if you have any queries about the changes to the law for swimming pools, contact your local council. You can also check the registraion of a pool on the NSW Government Swimming Pool Register.

The most common problems for neighbours concerning swimming pools are safety, noise, overflow and leakage of water.

The Swimming Pools Act 1992 and Swimming Pools Regulation 2008 set out the safety requirements for swimming pools and spa pools in NSW.

An outdoor swimming pool must:

The exact specifications are contained in the Regulations and comply with the relevant Australian Standard or Building Code of Australia (Swimming Pools Regulation 2008, clause 4). Requirements vary according to when the pool was built, where it is located and other factors such as whether a boundary fence or wall forms part of the barrier (Swimming Pools Act 1992, Part 2, Division 1, 2 & 4).

There are some exceptions to the barrier requirement, for example if the property is quite small or located on the waterfront or if the pool is on council land (Part 2, Division 1 General requirements for outdoor swimming pools). A local council may also grant an exemption, for example, where compliance would be impracticable or unreasonable (section 22).

An outdoor spa pool is included in the definition of swimming pool under the Act but is not required to have a child resistant barrier. Instead it must be covered and secured when not in use, by a substantial and lockable child-safe structure like a door, lid, grille or mesh (section 20 and Swimming Pools Regulation 2008, clause 9).

If you have safety concerns about a neighbour’s pool, contact your local council. Under the Act, they are responsible for investigating complaints. Council inspectors have powers to enter and inspect barriers and can issue directions forcing compliance with the Act within a specified time. The Act also creates various offences and there are penalties of up to $5500 for non-­compliance (section 35 - penalty notice breaches up to $550 and section 23 - failure to comply with directions, a penalty of up to $5500).

In addition, if a pool does not comply with the safety measures set out in the Act and death or injury results, the owner may be held responsible. This can include a charge of manslaughter, even if the victim entered the pool area uninvited.

As an owner, you can apply to the local council for a Certificate of Compliance that shows that the swimming pool or spa pool meets the requirements of the Act. If the Certificate is refused or is not granted within six weeks of the application, you can then appeal, within 28 days, to the Land and Environment Court (section 26).

Other common neighbourhood problems associated with pools are the noise from poolside parties and from filtration and spa pumps.

Where the noise is from a wild pool party and is not a regular occurrence, contact the police. They can attend the premises and issue a noise abatement direction under section 276 of the Protection of the Environment Operations Act 1997 (POEO Act). It directs the person responsible to cease making the offensive noise and the direction can remain in force for 28 days. A noise abatement direction cannot be appealed.

For more persistent noise problems, for instance from a pool or spa filtration system, contact your local council. Under section 264 of the POEO Act, council can issue a noise control notice setting an acceptable noise level for the pump or filtration system and restricting the noise to certain hours of the day or certain days.

Alternatively, under section 96 of the Act, council may issue a prevention notice requiring that certain action be taken within a specified time to stop the level of noise. For example, the pump may need to be enclosed, acoustic shielding installed or the pump replaced with a quieter model.

These notices can be appealed. Failure to comply with a notice can result in a fine or a prosecution.

You can also apply directly to the Local Court for a noise abatement order. If the court is satisfied that the noise is offensive or is likely to recur, an order can be issued to stop the noise or prevent it recurring. The order can be appealed. Failure to comply with the order can result in a prosecution (POEO Act, Part 8.6, Division 2 Noise abatement orders, sections 268-274).

For overflow or leakage from a swimming pool, see Entry of water below.

Sewerage and drainage

Generally, the property owner is responsible for repairs to the water and sewerage pipes on their property and the water supply and drainage utilities, such as Sydney Water, are responsible for repairs to the water and sewerage mains. Work on plumbing and sewerage pipes that are connected to the mains must comply with the NSW Code of Plumbing and Drainage. The person doing the work must certify that it complies with the Code and the relevant utility may inspect the work to ensure that it complies.

Dial Before You Dig is a referral service for obtaining up-to-date diagrams of many of the underground pipelines (and cable networks). It can be contacted on www.1100.com.au or Tel: 1100. It does not cover all utilities throughout NSW. You may need to contact your local council and fees may apply.

It is now a legal requirement to contact Dial Before You Dig before beginning excavation on public or private land.

Blocked or broken drains and sewers can cause vexing problems for neighbours where the pipes are shared, as it can be costly and difficult to prove who has caused the problem. Talking directly with your neighbours and enlisting their co-operation when there is a problem may help with preventing a recurrence.

If the problem is caused by the roots of a neighbour’s tree and your neighbour refuses to take responsibility, you may wish to apply to the Land and Environment Court for an order under Part 2 of the Trees (Disputes Between Neighbours) Act 2006. See Trees and Plants.

Where the blockage or break results in overflow, see Entry of water below.

Drainage easements

If work is to be done on a property that will affect the natural flow or drainage of water onto another property, a drainage easement is generally required. This is an agreement between neighbours that water can flow from one property onto the other.

A copy of the agreement should be lodged with council for approval and with the Land & Property Information (LPI) to be recorded on the land title register and on the property’s Certificate of title. Check your Certificate of title for any existing drainage easements.

Entry of water

If damage is being caused or is likely to be caused by the flow of surface water across your land from a neighbouring property and your neighbour is unwilling to address the problem, contact your local council. Under section 124 of the Local Government Act 1993, a local council has the power to issue an order to the owner or occupier of that property to take action to remedy the flow.

Leakage or overflow onto your property from neighbouring drains, sewers or swimming pools can be a source of conflict as well as a health hazard. If the flow of water causes damage you may be able to sue for compensation and/or obtain a court order stopping the activity.

If the flow is caused by a deliberate act of the neighbour, it may be a trespass.

If the flow is unintentional, ongoing and causing damage or affecting the enjoyment of your property, it may constitute a nuisance. If the flow is the result of a neighbour’s carelessness, it may be negligence.

These legal actions can be complex, expensive and may require applications to the Supreme Court. Think carefully before taking such action and get legal advice.

Water pollution

The information contained in Noise, Smells, Smoke and Garbage that relates to pollution generally, also applies to water pollution. This includes a range of environment protection remedies such as clean-up notices and directions, prevention, prohibition and compliance cost notices that are available under the Protection of the Environment Operations Act 1997 (POEO Act).

In addition, sections 120-123 of the POEO Act make it a specific offence to pollute water, attracting penalties of up to $1,000,000 for a corporation with an extra $120,000 per day for a continuing offence, and up to $250,000 for an individual with a corresponding $60,000 per day for a continuing offence.

Exceptions to this offence are:

Case study - Acid leak

In January 2007 at Nowra Chemicals on the NSW South Coast, 1700 litres of diluted sulphuric acid leaked into a stormwater channel. Thanks to dry weather conditions at the time and a prompt and thorough cleanup by the company, the highly toxic pollutant did not reach and devastate the nearby creek in the Triplarina Nature Reserve.

Nowra Chemicals was prosecuted for the water pollution under section 120 of the Protection of the Environment Operations Act 1997 (POEO Act) and pleaded guilty to the charge.

In light of the company’s previous exemplary record for environmental safety and its full co-operation with the authorities as well as its early guilty plea and thorough clean up operation, (costing $64,000), Nowra Chemicals wasn’t fined but instead, under section 250 of the POEO Act, the Land and Environment Court ordered that:

  • Nowra Chemicals pay $100,000 over two years to the Southern Rivers Catchment Management Authority to be used by the local landcare group for restoration and erosion control works along the Shoalhaven River
  • Nowra Chemicals pay for and place a dictated notice of the case in the news section of the South Coast Register and the Sydney Morning Herald
  • Nowra Chemicals pay the prosecution costs of $28,000.

Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187

Neighbours and the law by Nadine Behan. Published by the Legal Information Access Centre (LIAC), State Library of New South Wales.

© Library Council of New South Wales, 2012. Material contained herein may be copied for the non-commercial purpose of study or research subject to the provisions of the Copyright Act 1969 (Cth).

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