VIC New pool safety laws and risks for owners

All,

I have recently found a little quirk in some incoming legislation which I would be keen to hear how our PM's are going to deal with (Perhaps it will be a section in the tenancy agreement).

As of Dec 1 2019, all pools and outdoor spas will be required to be registered in Victoria. There will also be some ongoing checks of the pool fencing that must be checked every three years (similar to smoke alarm, carbon monoxide checks).

There is an exemption to the above with regards to 'relocatable pools' ,where they do not need to be registered if they are only erected for a short period of time (like 2 days).

The hook in the law is this, the requirement for the owner of the land to comply with the registration and the inspection and certification of any pool barrier which should be erected.

The tenant is the one who will be responsible to ensure that there is a compliant safety fence.

Even then, there is some ambiguity as to which 'relocatable pool' is then a building or not. Basically, if there is an element of construction, it would be a building. However if the entire unit was self contained, then even if the depth of the pool is greater than 300mm - it would be deemed not to be a building. And therefore, the owner is not required to install a barrier.

I guess as a property owner, the clear risk is that we can't always be around to make sure that our tenants are not erecting these sorts of structures, so how can we best protect ourselves from it?

Interesting.

 

Where in the new legislation (or the Bill if not yet law) does it say that temporary pools are now exempt even if over 300mm depth? I couldn’t see this in the new Bill...

The new legislation is related to mandatory inspections, council keeping a register etc

The current regs are very clear about what is in and out - the reference to being a building is in relation to a spa not a pool as detailed on the VBA website - quoted below. The regulations will not have been loosened!

Swimming pools, spas and safety barriers
‘Barrier requirements
All swimming pools and spas containing water greater than 300 mm (30 cm) must have a compliant safety barrier to restrict access to the pool area by young children (under the age of five). Barriers are required for:

• in-ground pools and spas
• above-ground pools and spas, including inflatable pools, holding more than 300 mm (30 cm) of water
• indoor pools and spas
• bathing and wading pools containing more than 300 mm (30 cm) of water.

Barriers aren’t required for:

• bird baths
• fountains
• water supply/storage tanks
• fish ponds
• dams
• baths used for personal hygiene and emptied after each use
• spas inside a building (e.g. in a bathroom) used for personal hygiene and emptied after each use
• pools or spas that cannot contain a water depth of more than 300 mm
• inflatable swimming pools (typically toddler or wading pools) that cannot contain a water depth greater than 300 mm.’ (Copied from VBA website 1 Oct 2019)

 

In practice when you think about it, the Lessor/Agent can't stop a tenant physically erecting a portable pool, in that regard it would appear the legislation places and onus on the Tenant to have the correct barrier etc. With that said, in the special terms and conditions of their lease you can prohibit the Tenant from doing so further insulating yourself from liability:

 

Glad that I don't have to erect a pool fence around my bird bath and supervise the birds using it. At least until the next lot of regulatory changes.

 

@Joynz Sorry about the late delay, but now I have some more time to type a proper response.

The change is a change to a regulation, so it doesn't need to go thru the usual channels that a bill would need to go thru.

The official title is Building Amendment (Swimming Pool and Spa) Regulations 2019

It is not yet passed, but it will be and will start to come into effect as of Dec 1 2019.

As far as the temporary pool bit, it is mentioned in Sec 6.6 of the Regulatory Impact Statement (RIS).

Without going into war and peace all of these regulations hang off the Building Act.

If something does not qualify as a 'building' under the Building Act. Then it is not captured under this bit of legislation.

Again there is some case law referenced if you wanted to delve further into what a structure is, and the case law is Obrien v Shire of Rosedale (1969) VR 112 at 116-7.

However DEWLP have included this part in their RIS.

"However, there are some relocatable pools that don't meet these conditions. For example, an inflatable pool that is entirely self-contained and requires no assemble or construction is unlikely to be considered a 'structure' and therefore the owner is not required to install a safety barrier. This would be the case even if such pool had a depth of 300mm'.

However, the essence of this post was to alert, and plan for the possibility that if a tenant does erect a relocatable pool, for a period longer than a temporary period, the proposed amendments will expose the land owner to being required to ensure that that the pool is registered and to have the barrier independently inspected and certified.

Perish the thought, but at the worst, you would have to wonder what would occur if someone was to drown in a relocatable pool and you (as the land owner), did not register the pool or have the barrier inspected and certified.

Tough when you would have no idea that the relocatable pool even exists.

 

So time to revisit this and provide the actual law - now that it has come into effect.

These offences fall under Part 9A of the Building Regulations 2018
Reg 147N(2) - An owner of land on which a relocatable swimming pool has remained erected for at least 3 consecutive days fails to apply for registration on the fourth day after it was erected.

I am curious to know if this is appearing on the radar of our esteemed PMs?

 

I’ve always had that tenants cannot erect anything that is capable of being deeper than 300mm - but unfortunately you cannot inspect a property every week (or more!) to ensure that the tenant hasn’t erected a pool.

Generally if sighted tenants are notified and the property is reinspected to ensure it’s been removed. I’ve never really had anyone complain about being quite strict on this which is good.

If we’re notified of something like that, it’s the same process. As we don’t typically see water usage bills here it’s not like you can track a spike in water either, but tenants are educated on what can and can’t be done. I really think the onus for those should be on the tenant and not the owner given it’s unreasonable that you’ll know what’s happening 24/7 - we’ve just got to ensure that we’re on top of it as much as possible.

 

@Lil Skater Thanks for your reply.

I agree that it is tough and there is not much that you can do, however by including it as a lease term, I guess you have done what is 'best as possible'

I wonder if it is standard across all PMs, or something just you are doing?

 

I know that there’s a few doing it, but I don’t know what they do to follow up if they’re advised of it. I’ve known some to just issue a verbal warning and nothing else..