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When is a pool safety certificate required?

Recently, the Pool Safety Council received complaints about pool safety inspectors incorrectly informing pool owners that
they need to obtain a pool safety certificate by 30 November 2015, even if they do not sell or lease the property.
A pool safety certificate is generally only required if there is a sale or lease of a property with a regulated swimming pool. The only other situation where a pool safety certificate is required is when the owner of a class 1a property (single dwelling) is constructing a pool fence and obtains a pool safety certificate in place of applying for a building development application under schedule 2C of the Building Regulation 2006.

What is required after 30 November 2015?

By 30 November 2015, all regulated swimming pools in Queensland will be required to have barriers that comply with
the pool safety standard. This does not mean that all properties require a pool safety certificate by this date. Put simply, if a local government inspects a regulated swimming pool today (where no sale or lease has occurred), it will assess the barriers on the standard that was in effect at the time of construction. After 30 November 2015, any local government that inspects a regulated swimming pool in Queensland will assess the barriers against the current pool safety standard. Many people have questioned how a pool owner is expected to have the knowledge to undertake a self-assessment of their pool barriers by 30 November 2015. The Department of Housing and Public Works has published a number of documents to assist pool owners with this. Fact sheets are available at www.hpw.qld.gov.au. The department also advises owners to engage a pool safety inspector in a consultancy capacity for site-specific advice. 

Relying on photographs or video footage as evidence to issue pool safety certificates

In order to issue a pool safety certificate, a pool safety inspector must have inspected the pool and be reasonably satisfied that it complies with the pool safety standard. The Pool Safety Council is aware of instances where pool safety inspectors have failed to re-inspect a property prior to issuing a pool safety certificate because they have relied on photographs or video footage as evidence of compliance. This is not an acceptable practice and should not be undertaken by a pool safety inspector. Unless a regulated pool is located within a prescribed remote local government area (listed under schedule 2A of the Building Regulation 2006) and that local government has, by resolution, declared the area to be remote, a pool safety inspector must personally inspect the pool before issuing a pool safety certificate.

Giving pool safety certificates to owners

Section 246AA of the Building Act 1975 requires that, if a pool safety inspector inspects a regulated pool and is reasonably satisfied the pool is compliant, they must, within two business days after the inspection, give the owner a pool safety certificate. The Pool Safety Council has received a number of complaints from pool owners regarding pool safety inspectors not giving a pool safety certificate until the fee for the inspection or reinspection is paid to the pool safety inspector. If a pool safety inspector finds that the pool owner will not pay for the services that the pool safety inspector has performed,  then the pool safety inspector should seek legal advice to recover any debts owed. A pool safety inspector must also not refuse to issue a pool safety certificate only on the grounds that there is no  development approval to carry out building work that is the construction of, or alteration to, the pool (the pool work) or the pool work does not comply.

Fire exits

There will be some situations where compliance with the pool safety standard may impact on fire safety measures. In these cases, more detailed analysis is required to develop a solution that accommodates the separate laws. For example, if a fire exit for a building provides direct access to an outdoor pool area, a barrier may be required between the pool area and fire exit to satisfy the pool safety standard. Fire doors and exits must be clearly marked in accordance with the National Construction Code. Under no circumstances should a fire door or exit be locked or blocked in order to meet the pool safety requirements. If a pool safety inspector is unsure whether the pool safety requirements will interfere with fire
safety measures, they should contact a building certifier for specific advice. In certain cases where it is impossible to meet the requirements of both the pool safety laws and the fire safety laws, the pool owner may make an application to their local government for an impracticality exemption.

Prescribed minor repairs

A pool safety inspector and pool owner can agree for the pool safety inspector to carry out minor repairs to make the pool comply with the pool safety standard. However, a pool safety inspector can carry out minor repairs only if they hold an unconditional licence. If a pool safety inspector is unclear about whether their licence is unconditional, they should check the back of their licence. If nothing is written on the back of the licence, they have been issued with an unconditional licence. If the licence states ‘Not permitted to carry out minor repairs on regulated pools’ then the pool safety inspector cannot perform any work on a pool barrier. In this situation their functions are restricted to inspecting the barrier and issuing either a pool safety certificate or nonconformity notice. Schedule 2B of the Building Regulation 2006 (Appendix 2) defines minor repairs and limits the repairs a pool safety inspector can carry out. Minor repairs can be undertaken over the monetary value of $3,300 only if the pool safety inspector also holds the relevant licence issued by the Queensland Building and Construction Commission (formerly the Queensland Building Services Authority). The Pool Safety Council has recently finalised an investigation relating to a pool safety inspector performing unsatisfactory minor repairs. This is a timely reminder that when carrying out minor repairs to a pool barrier, the work must be performed in accordance with industry best practice, in a professional manner and using good quality materials. Failure to perform work in this manner is a breach of section 7 of the Code of Conduct. 

Partial inspection of a swimming pool barrier

There have been instances where pool safety inspectors have been asked to leave a property part way through an inspection. If this occurs and the pool safety inspector has already identified nonconformities, a nonconformity notice should still be issued to the pool owner. In this instance, it is recommended that the pool safety inspector list any nonconformities that they have identified during their inspection and also outline that they were requested to leave the property and that a full inspection was not undertaken. If not called back to re-inspect within the reinspection period,
the pool safety inspector is then required to forward a copy of the nonconformity notice to the relevant local government. This referral mechanism will ensure that the local government is made aware of noncompliant pools in their area and will enable them to take the appropriate enforcement action. 

Consultancy work

A pool safety inspector may be engaged to consult or provide general advice to a pool owner about their pool’s compliance with the pool safety standard, as opposed to being engaged to give a pool safety certificate or a nonconformity notice. For example, a pool owner may not be selling or leasing the  property but wants to know if the pool complies with the current standard. A pool safety inspector who is only engaged to provide advice should consider their duty to act in the public interest. This may involve notifying the local government of a noncompliant pool where the circumstances pose a serious safety risk. A pool safety inspector should take care to ensure the scope of their engagement is always clearly documented. It is not appropriate for a pool safety inspector to agree to provide an  advisory or consulting service (a ‘pre-inspection inspection’) and subsequently agree to give either a pool safety certificate or a nonconformity notice for the same pool. They should advise the pool owner that another pool safety inspector ought to be engaged to complete this function. By following this practice, the pool safety inspector will avoid any allegation that they were engaged to carry out a pool safety inspection function and failed to give a pool safety certificate or a nonconformity notice within the required time after the inspection, which would leave them at risk of disciplinary action.

Pool latches that are able to be locked in the open position

The Australian Standard stipulates that the latching device for a pool gate shall not be able to be:
• inadvertently adjusted during operation
• locked in the ‘open’ position, or
• adjusted without the use of tools.
The Pool Safety Council has received information that some  older pool latches are able to be locked in the open position.
Please ensure that you test for this when assessing a pool gate.

Glass pool fence panels

When inspecting pool barriers with glass panels, pool safety inspectors should be aware that as the ground (or other foundations) expand and contract with weather conditions,  the glass panels may move out of position or be dislodged.   When inspecting, each of the joins should be inspected, and the panel shaken, to ensure that foundation movement has not created a situation where the panel may fall out or break. If the panels are secure and all other sections of the barrier are compliant, a pool safety certificate should be issued. However, as a matter of good business practice, the pool safety inspector may also advise pool owners to regularly check the joins in case of any movement.

Barriers and ground clearance

When assessing gaps between the bottom of a barrier and the finished ground level, a pool safety inspector (PSI) must ensure that the finished ground is solid and unlikely to be disturbed by a young child. The Pool Safety Council (PSC) recently considered a case where a pool safety certificate was given for a pool with gaps exceeding 100 millimetres between the bottom of the barrier and the finished ground level, in breach of section 2.4 of Australian Standard 1926.1-2007 (AS1926.1). The aluminium barrier was located over a bed of pebbles parallel to the pool coping. The gap exceeding 100 millimetres was located between the pebbles and the lower part of the aluminium fencing panel. While the inspector added more pebbles to the existing bed of pebbles to reduce the gap, this is not considered an acceptable solution.
The purpose of section 2.4 of AS 1926.1 is to prevent a young child from squeezing under a fence barrier and gaining access to the pool  area. When applying this section, inspectors should consider this intention. Section 2.4 of AS 1926.1 includes a note stating that “the  surrounding area of the pool shall be stable and remain intact  at all times. Loose sand is not acceptable”. This note can be applied to all loose surfaces, including leaf or garden mulch, pine bark, loose pebbles, loose soil or decorative gravel or similar moveable materials. A young child can easily remove such materials to create
a gap exceeding 100 millimetres and for this reason, they are  generally not considered a stable surface that will remain intact.  This nonconformity can be rectified by affixing some form of appropriate ‘hard standing material’ under the pool fence, for example concrete (mower/whipper snipper type) edge, pavers laid on concrete bed, rocks cemented firmly into place, decorative pebbles set into concrete beam. It could also be achieved by a timber sleeper, a Koppers log or timber board secured with pins, stakes or hoops that are secured to prevent removal by a child. However, depending on the configuration of the barrier, pool and surrounding structures, moveable materials may be acceptable in some instances. For example, if the moveable material is located in a narrow channel for decorative purposes it may be acceptable if the gap diagonally is less than 100 millimetres.

Cardiopulmonary resuscitation (CPR) signs

The Pool Safety Council (PSC) has received a number of telephone enquiries about current Queensland Ambulance Service (QAS) CPR signs. In December 2010, the Australian Resuscitation Council (ARC) amended its CPR guideline to reverse the order of giving breaths and compressions during CPR. The current QAS CPR signs reflect this version of the guideline. However, the PSC continues to support the practice outlined in section 13A of the Building Regulation 2006. The PSC believes that Guideline 7—cardiopulmonary resuscitation, published by the ARC in February 2006, provides guidelines specific to immersion incidents. Newer QAS CPR signs that do not reflect Guideline 7 are therefore not supported for immersion incidents. Pool safety inspectors should be aware that the December 2010 changes to the CPR guidelines have not affected the standard applied in Queensland. Inspectors should therefore check that CPR signs reflect the giving of breaths before compressions are administered.

Engaging a second pool safety inspector within the reinspection period

The Building Act 1975 provides that during the reinspection period a pool owner may only ask the pool safety inspector (PSI) who performed the initial inspection to reinspect. This requirement aims to prevent pool owners from ‘shopping around’ for a PSI who may provide a more favourable assessment. Using the same PSI also ensures that a pool owner receives consistent advice and interpretation of the standard. However, in some cases it may be not be possible for the initial PSI to conduct a reinspection. When this occurs, it is not appropriate for the PSI to nominate another inspector to reinspect the pool on their behalf. The PSI should instead advise the pool owner to apply in writing to the Pool Safety Council (PSC) for a change of PSI. The PSC will assess the application and advise the pool owner and the initial PSI of its decision. 

Meaning of ‘effective height’

The term ‘effective height’ is referred to in the Pool Safety Standard. For example, section 2.1 of Australian Standard 1926-2007 part 1 (AS1926.1) provides that ‘the effective height shall not be less than 1200 millimetres...’. The Queensland Development Code Mandatory Part 3.4 also requires that if the barrier is less than 1800 millimetres high and the non-climbable zone is located on the outside of a barrier, an additional clear area must exist immediately adjacent to the fence to maintain the effective height of the fence. The Pool Safety Council has been asked to clarify the applicability of the term ‘effective height’ in the context of an 1800 millimetre high barrier, where the non-climbable zone may be on the inside of the barrier. The barrier acts as a deterrent for a young child trying to gain access to the pool area and serves two purposes depending upon the location and height of the barrier and the location of the nonclimable zone on the barrier.
When the non-climbable zone is located on the:
• outside of the barrier, the effective height of the barrier and the non-climbable zone act as a deterrent for a young child to climb into the pool area by being difficult to climb and, in some instances, due to the height of the barrier
• inside of the barrier, the effective height and the non-climbable zone deter a young child from wanting to jump or climb down into the pool area.

Non-climbable zone on the outside of barrier

Generally, the effective height of a barrier is the measurement from the finished ground level to the top of the barrier. The ground surface can often be uneven or rough and minor irregularities should not compromise the height of a barrier.
However, where there are objects adjacent to the barrier which could compromise the barrier’s effective height (for example a deck) then the effective height of the barrier may need to be measured from the top of the object rather than the ground level. When assessing whether an object could compromise the effective height of a barrier, a pool safety inspector should consider the following two criteria:
1. Will the object carry the weight of the child?
2. Is the object a hard, stable, even surface which would allow a young child to stand on, and thereby reduce the height of, the barrier?
If the object is unable to carry the weight of a young child (approximately 25 kilograms) or is a sufficient deterrent (for
example vegetation with thorns) then the pool safety inspector can be satisfied it will not reduce the effective height of the barrier. For example, tree branches and bushes that crush easily are unlikely to reduce the effective height and the pool safety inspector will not need to assess the second criteria.

Non-climbable zone on the inside of barrier

Where a barrier is 1800 millimetres or higher, the non-climbable zone can be located on the inside of the fence measured from the top of the barrier. The Queensland Development Code Mandatory Part 3.4 and the Australian Standard clearly show that to measure the height, the distance from the top of the barrier to the ground surface immediately inside the enclosure must be used. However, apart from showing a blank space adjacent to the barrier, the Queensland Development Code Mandatory Part 3.4 and the Australian Standard provide no further guidance about how objects may encroach into the space immediately adjacent to the fence. Therefore further guidance is required. Research and experience have indicated that both the height of the fence and, particularly the prospect of a fall, is considered to be a significant deterrent and provide an adequate level of safety for a young child.Where the non-climbable zone is located on the inside of the barrier, the fence height may not measure 1800 millimetres on the outside–for example where a retaining wall separates properties. It may also be the case that objects are placed against the barrier that compromise the height on the outside of the fence–for example a ladder. It is for these reasons that the falling disincentive is maintained on the side of the non-climbable zone. Where an object is attached or adjacent to the barrier and underneath the nonclimbable zone, a pool safety inspector should assess the object’s ability to reduce this deterrent element. If the object’s surface is flat, stable and sufficiently large that a young child could confidently jump on to the top of it, then it will reduce the deterrent element. For example, if a small shed, pool equipment enclosure or similar object is placed next to the barrier (under the non-climbable zone), a child is more likely to jump down onto the shed and then into the pool area. For objects that do not present a flat and substantial horizontal surface such as a pool pump, the deterrent effect for a young child is likely to be maintained due to the prospect of injury from jumping because of the complex and uneven surface. For example, a pool filter which is not covered with an enclosure and which has pipes, valves and other deterring surfaces would be acceptable. The standard also allows bushes that are not easily climbable by young children to be located next to a barrier and within the nonclimbable zone as they can create an additional barrier for young children. Bushes with dense, spiked, thorned, rough or otherwise irritating or hindering foliage that would deter a young child from climbing or jumping onto it are acceptable. Bushes or shrubs that are fragile or crush easily or are so weak that a child could not climb them are also acceptable. They are acceptable even where the bushes conceal or contain thick branches that could hold a young child’s weight provided the branches are impractical for a young child to reach or use to climb down or jump onto the barrier. Pool safety inspectors should take a practical approach when assessing the height of a 1800 millimetre barrier and where they consider an object will be sufficient to reduce the height of a barrier and reduce the deterrent element they should provide options for compliance. For example, if a small shed is adjacent to the fence (under the non-climbable zone) then a pool safety inspector may suggest moving or isolating the shed from the pool area or alternatively placing an 1800 millimetres high corral around the shed.Pool safety inspectors should consider the following factors when determining whether an object will reduce the deterrent element for a young child:
• the size of the surface
• the space between the barrier and the object
• whether the surface is flat or uneven
• the drop between the top of the barrier and the top of the object
• whether the height of the barrier is a full 1800 millimetres on the outside of the enclosure (for example the ground surface on the outside if the barrier may be much higher than the ground surface on the inside, thereby comprising the other aspect of the barrier that contributes to safety).

Pool safety latches

It has come to the attention of the Pool Safety Council that some pool gate latches have been designed to permit the gate to be locked in the ‘open’ position. The Pool Safety Council is aware of two different types of gate latching devices where the gate can be locked open by opening the gate and turning the key to lock the latch. Section 2.5.4.1 of Australian Standard 1926-2007 (part 1) states the following: Gates shall be fitted with a latching device that will automatically operate on the closing of the gate and will prevent the gate from being re-opened without being manually released. The latching device shall not be able to be:
• inadvertently adjusted during operation
• locked in the ‘open’ position
• adjusted without the use of tools.
When in the closed position, the latching mechanism shall not be able to be released by inserting any implement in the 10 millimetre gap shown in Figure 2.6(a) in the Standard. Pool safety inspectors should be aware when testing a latching
device that there may be a need to check that the device cannot be locked in the open position.