1 May 2016 saw the introduction of the Building Amendment Regulations (No 2) 2016 (WA) (the Amendments) that amend the existing Building Regulations 2012 (WA).
The Amendments see the adoption of new specifications that safeguard people, particularly young people, from drowning or injury in a swimming pool by restricting access.
The Amendments contain a new definition for “swimming pool” adopting the definition contained in Section A1 of the Building Code as “any excavation or structure containing water and principally used, or designed, manufactured or adapted to be principally used for swimming, wading, paddling or the like, including a bathing or wading pool or spa”.
BUILDING CODE POOL BARRIER REQUIREMENTS
One significant change throughout, is the removal of the word “enclosure” and the adoption of the word “barrier”. The term “barrier” is not defined in the Amendments nor in the Building Code itself. However, the phrase “Building Code pool barrier requirements” is newly adopted and has two definitions, although in similar terms, depending on the classification of the building. An exhaustive discussion on the classification of building types is beyond the scope of this paper  and we refer readers to Part A3 of the Building Code for more information.
Class 1 & Class 10 Buildings
The first applies in relation to Class 1 or Class 10 buildings. In summary, a Class 1a building includes a single dwelling being a detached house; or one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit. A class 1b buildings include non-habitable buildings and structures. Where so classified, the performance requirements of P2.5.3 of the Building Code must be satisfied. This requires that a barrier be provided to a swimming pool which:
- Is continuous for the full extent of the hazard;
- Is of a strength and rigidity to withstand the foreseeable impact of people;
- Restricts the access of young children to the pool and the immediate pool surrounds;
- Has any gates and doors fitted with latching devices not readily operated by young children, and constructed to automatically close and latch.
Class 2 to Class 9 Buildings
In relation to the remaining classes of buildings, performance requirement GP1.2 of the Building Code must be satisfied, and has the same requirements as outlined above.
PRIVATE SWIMMING POOL
The Amendments also contain a new definition of “Private Swimming Pool”. The definition applies to swimming pools (as newly defined) that are associated with Class 1a buildings, some Class 2 buildings and Class 4 dwellings which have capacity to contain water that is more than 300 mm deep.
A significant aspect of this new definition, is that element of exclusivity is no longer a feature so both public and private pools will need to comply.
PRE-MAY 2016 PRIVATE SWIMMING POOLS
The Amendments seek to impose various building standards depending on period of installation or approval.
“Pre-May 2016 private swimming pool” is a new definition, and means:
“a private swimming pool:
(a) Installed before 1 May 2016; or
(b) Installed on or after 1 May 2016 in accordance with plans, drawings and specifications submitted to a permit authority for approval before that day.”
We are of the opinion that to fall within this definition, the private swimming pool must have either been installed before 1 May 2016, or approval given by way of building permit for the installation on or before 1 May 2016.
All applications for private swimming pools after 1 May 2016 will need to comply with the applicable building standards set out in the edition of the Building Code that is or was in effect at the time the application for the building permit is made (see regulation 31C).
In relation to pre 1 May 2016 private swimming pools, the applicable building standard may be satisfied by opting either those specified in new Regulation 50 or may be substituted for those specified in the Building Code pool barrier requirements, as outlined above (also see Regulation 31C).
REGULATION 50 – BARRIER TO PRIVATE SWIMMING POOL
Regulation 50 has been completely replaced and contains specific requirements for pre-May 2016 private swimming pools.
In relation to pre-May 2016 private swimming pools, a suitable barrier may consist of a fence, wall, gate or combination, provided the barrier meets the requirements of AS 1926.1 – which establishes safety design requirements for swimming pools normally installed for private use.
Regulation 50(1) retains the offence provision, applicable to owners and occupiers who fail to provide a barrier that restricts access to the pool and its immediate surrounds. The penalty remains at $5,000.00.
In relation to private swimming pools generally, regulation 50(1A) provides that a suitable barrier will be one that satisfies the Building Code pool barrier requirement that as in effect either at the time of application for a building permit, or otherwise at the time construction of the pool commenced.
ALTERNATIVES TO THE BUILDING CODE POOL BARRIER REQUIREMENT
Regulation 50(1B) provides that an alternative solution cannot be used to comply with the Building Code pool barrier requirements unless it is an approved barrier solution. The phrase “alternative barrier solution” is defined in Regulation 3 “in relation to a swimming pool, means an alternative solution used to comply with a Building Code barrier requirement that has been approved in accordance with Regulation 51 by the permit authority for the swimming pool”.
Regulation 51 remains largely unchanged. However the addition of Regulation 51(5) enables a permit authority to approve an alternative solution, if the permit authority is satisfied that the alternative solution complies with the relevant performance requirement.
“Alternative Solution” is defined in Section A1 of the Building Code as to mean “Performance Solution” which in turn means “a method of complying with the Performance Requirements other than by a Deemed-to-Satisfy Solution.
Part 3.9.3(a) of the Building code specifies that where an alternative swimming pool safety barrier is proposed, as a Performance Solution, the proposal must comply with the performance requirements of P2.5.3, as discussed above, and in addition, comply with relevant performance requirements determined in accordance with 1.0.7.
Regulation 28 has been deleted and replaced, requiring that an inspection be carried out upon completion of the building work for a barrier to a private swimming pool to assess whether the barrier complies with the applicable building standards as set out in Regulation 31.
For private swimming pools approved or seeking approval after 1 May 2016, the requirements of the Building Code performance requirement P2.5.3, as outlined above must be satisfied. Seeking an alternative solution imposes a greater burden than simply complying with the requirements of the Building Code in the first place.
For those private swimming pools approved before or on 1 May 2016, compliance with the Building Code performance requirement P2.5.3 is optional, and may be satisfied by either complying with P2.5.3 or by complying with the requirements outlined in Regulation 50.
This has particular ramifications for owners and those named as builder on a building permit. S.37(1) of the Building Act 2012 requires the person who is named as the builder on a building permit to ensure compliance with each applicable building standard. S.37(2) of the Building Act 2012 imposes the same obligation on Owners. Failure to ensure compliance can attract significant penalties, in the sum of $50,000 for a first offence.
For further advice on this matter, or other local government related matters, please contact our local government team on 9321 3755
For more information about this Update please contact partner Anne Wood on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
 The classification of buildings is referred to at Part A3 of the Building Code