Selling a Property with a Swimming Pool or Spa in South Australia?

Selling a property with a swimming pool or spa

The purpose of this article is to provide an update with respect to legislation regarding swimming pools/spas and the obligations of a vendor who owns a pool/spa when selling his or her property. A new planning and development system is currently being implemented across the State. The Planning, Development and Infrastructure Act 2016 (SA) (PDI) is the legislation that underpins the new system. Section 156 of the PDI Act is titled ‘Designated Safety Requirements’ and it addresses swimming pool safety. New Regulations, the Planning Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (SA) have been made pursuant to this section of the PDI Act.

 These Regulations commenced operation on 1 July 2019 and as a result s. 71AA of the Development Act 1993 (SA) was repealed. The commencement of s. 156 of the PDI Act affected the regulation of swimming pool safety across the state. Supporting documentation Ministerial Building Standard On 1 July 2019 Ministerial Building Standard 004 (MBS 004), Swimming Pool Safety – Designated Safety Features for Pools Build before 1 July 1993 was published to apply across the State. The standard establishes the requirements for pools built before 1 July 1993. The owner of such a pool/spa must ensure the pool/spa has safety features installed and maintained in accordance with the requirements of the (now repealed) Swimming Pool (Safety) Act 1972 (SA). MBS 004 details the safety features required.   For pools and spas built on or after 1 July 1993, they must comply with the rules that were current when the application for construction was submitted. This includes the provisions of the Development Act 1993 (SA) and the Building Code of Australia to restrict access to the pool from the house, garage, street and adjoining properties.

Since 1 April 2014 new swimming pools and spas must be inspected by the relevant council within two months of completion of permanent, approved child‐safety barriers. Since 1 May 2016, new swimming pools and spas must have prominent and visible signage that assists persons to provide first aid and to perform cardiopulmonary resuscitation on your children.

Practice Direction  – The State Planning Commission on 29 July 2019, issued the State Planning Commission Practice Direction (Swimming Pool Inspection Policy) pursuant to s. 156(5) of the PDI Act. This policy sets outswimming pool inspection requirements that apply across all council controlled areas of the State. Changes

There are no significant changes to the key issues of upgrade and inspection requirements. New swimming pools in South Australia continue to be assessed and inspected in accordance with the Building Code of Australia (2019 Ed) and Australian Standard 1926 The new Regulations refer to a prescribed event in s. 156(1) of the Act as including, ‘a transfer of title to land where a swimming pool is situated’. If a prescribed event occurs then s. 156(2) and (3)(a) of the Act prescribe the requirements regarding safety features for swimming pools/spas. The Regulations require that the owner of a swimming pool/spa must ensure designated safety features are installed in accordance with the requirements under the Regulations before the occurrence of a prescribed event. Such an event is defined as the transfer of title to land where a swimming pool is situated i.e. settlement of a contract for the sale of land on which a pool is situated.

Notification of compliance  – There is no legislative requirement for a vendor selling a property with a swimming pool/spa to have the pool/spa inspected or to notify a purchaser that a swimming pool/spa has compliant safety features. However, the law imposes an obligation on the vendor to ensure that current safety requirements are met. This may mean that the vendor has to erect or modify fencing or barriers in order to comply. It is arguable that the vendor should notify a purchaser that current safety requirement have been met with respect to the pool/spa that is on the property they are selling. This could be done by having the pool inspected by a private certifier as they have the appropriate qualifications, experience and professional indemnity insurance to perform this function. The certificate that the pool certifier issues can be sent to the purchaser’s conveyancer.

Summary – The best way to satisfy the purchaser that the safety requirements have been met is to obtain an inspection and a certificate from a private pool certifier. It may be necessary for the vendor to carry out remedial work before the certifier will issue the certificate. Note most contracts now address the requirement as a condition of the contract and to ensure that a Vendor has satisfied their obligations we at Four Points Conveyancing require our clients to obtain and provide a Pool Compliance Certificate to a Purchaser as part of our standard Conveyancing Practise.

 Note, only council officers have legislative authority to enforce requirements for swimming pool and spa safety.