Swimming pool safety and the PDI Act

18 July 2019

The repeal of section 71AA of the Development Act 1993 (“the Development Act”) and the operation of section 156 of the Planning, Development and Infrastructure Act 2016 (“the PDI Act”) occurred with little prior warning from DPTI and has caught some councils and building surveyors ‘by surprise’.

While the Development Act remains operational, the transitional provisions become relevant stating that section 156 of the PDI Act is incorporated into the Development Act as if it forms part of that Act. This section must also be read together with the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019.

So, the question is – what is the new swimming pool safety ‘regime’ and what is the impact on councils?

1.           Similar to the position under the Development Act, regulations 5 and 6 provide that:

1.1          the owners of swimming pools approved, constructed or installed before 1 July 1993 must upgrade swimming pool safety features in accordance with  Ministerial Building Standard SA 004 prior to transferring title in the relevant land to another person;

1.2        the owners of other swimming pools must maintain their swimming pool safety features in accordance with the requirements of the Building Code which applied to the development application for the pool.

2.          Section 156(4) provides that it is an offence, punishable by a maximum fine of $15,000 for a person to contravene or fail to comply with a requirement of that section or the Regulations. This is similar to the offence provision under the (now repealed) section 71AA of the Development Act.

3.          Regulation 8 provides an expiation fee of $750 for offences under section 156(4) of the PDI Act. This Regulation provides that expiation notices may be issued by authorised persons appointed under section 260 of the Local Government Act 1999 or authorised officers appointed under the PDI Act. This is a new expiation fee and one which should assist councils in their enforcement of swimming pool safety requirements.

4.          As the PDI Act and the Regulations form part of the Development Act, this means that authorised officers appointed under the Development Act may investigate offences under section 156 of the PDI Act. There is no need to appoint authorised officers under the PDI Act for this purpose.

5.          If your councils’ building inspectors are appointed as authorised officers under the Development Act and as authorised persons under the LG Act, they may now investigate and issue expiations for offences under section 156(4) of the PDI Act – again, there is no need for new authorised officer appointments under the PDI Act (and related delegations) at this stage.

6.          Every council should consider their existing Development Act delegations to check if they are sufficient to cover prosecutions under section 156(4) of the PDI Act. Depending on the wording of existing delegations, they may be sufficient to cover prosecutions under section 156(4) of the PDI Act given the effect of the transitional provisions.

7.          We confirm that there is not, as yet, a prescribed swimming pool inspection policy which applies to councils. We expect swimming pool inspections will be addressed by the anticipated Building Inspection Policy which is yet to be released by the State Planning Commission. Until time as a practice direction concerning swimming pool inspections is issued, we recommend that councils adhere to their existing inspection policies.

Please contact Victoria Shute with any questions on (08) 8113 7104 or vshute@kelledyjones.com.au.