Chapter 10: Water

Swimming pools

The most common problems for neighbours concerning swimming pools are safety, noise, overflow and leakage of water.

Since 2012 important changes have been made to the Swimming Pools Act 1992 and the Swimming Pools Regulation 2018 to improve the safety of swimming pools in NSW.

An owner of a property with a swimming pool or spa pool must now register the pool on the NSW Swimming Pool Register. Registration can be applied for online. Failure to register the pool can result in a fine of up to $2200 (Swimming Pools Act 1992, section 30B). You can check online if a pool is registered.

Apart from being registered, the pool must also be inspected and certified that it complies with the safety requirements of the Act and Regulations. Inspections are done by local council or by an accredited certifier. A certificate of compliance, usually valid for three years, is then issued and its details are entered on the register (Swimming Pools Act, Part 2 Division 5). For details of the program for inspection and certification in your area or for any queries about changes to the law on swimming pools, contact your local council.

Where the property is to be sold, the contract for sale must now include a copy of a valid certificate of compliance or else a relevant occupation certificate and evidence that the pool is registered. The occupation certificate, issued under the Environmental Planning and Assessment Act 1979 must be less than three years old and authorise the use of the pool (Conveyancing (Sale of Land) Regulation 2017, Schedule 1 clause 15 and Swimming Pools Act 1992, section 3).

Similarly, if the property is to be leased, the landlord must ensure the pool is registered and provide a copy of a valid certificate of compliance or a relevant occupation certificate to the tenant (Residential Tenancies Regulation 2019, Schedule 1 clause 46). Properties with more than two lots and a shared pool in strata complexes or community schemes are exempt from these sale and lease requirements (Conveyancing (Sale of Land) Regulation 2017, Schedule 1 subclause 15 (2) and Residential Tenancies Regulation 2019, Schedule 1 clause 46).

The Swimming Pools Act 1992 and Swimming Pools Regulation 2018 set out detailed safety requirements for indoor and outdoor swimming pools and spa pools in NSW.

An outdoor swimming pool must:

be fenced by a child resistant barrier
have access doors and gates securely closed when not in use
prominently display a safety and warning sign and
have the barrier and sign properly maintained, and replaced if necessary (Swimming Pools Act 1992, Part 2 Access to swimming pools, Division 1, 2 & 4).

The exact specifications are contained in the Regulations and comply with the relevant Australian Standard or Building Code of Australia (Swimming Pools Regulation 2018, clause 4). Requirements vary according to when the pool was built, where it is located and other factors such as whether a boundary fence or wall forms part of the barrier (Swimming Pools Act 1992, Part 2, Division 1, 2 & 4). There are some exceptions and variations to the barrier requirement, for instance, if the property is quite large or quite small, is located on the waterfront, contains a moveable dwelling or is part of tourist and visitor accommodation (Swimming Pools Act 1992, Part 2, Divisions 1 and 2). A local council may also grant an exemption, for example, where compliance would be impracticable or unreasonable (section 22).

An outdoor spa pool is included in the definition of swimming pool under the Act but is not required to have a child resistant barrier. Instead it must be covered and secured when not in use, by a substantial and lockable child-safe structure like a door, lid, grille or mesh (sections 3 and 20 and Swimming Pools Regulation 2018, clause 9).

If you have safety concerns about a neighbour’s pool, contact your local council. Under the Act, they are responsible for investigating complaints. Council inspectors have powers to enter and inspect barriers and can issue directions forcing compliance with the Act within a specified time.

If these measures aren’t successful, the council can take the matter to the Land and Environment Court (Swimming Pools Act 1992, Part 3 Enforcement). The Act also creates various offences and there are penalties of up to $5500 for non-compliance (e.g. section 35 - penalty notice breaches up to $550, section 7- breach of general requirements for outdoor pools, a penalty of up to $5500 and section 23 - failure to comply with direction, a penalty of up to $5500).

In addition, if a pool does not comply with the safety measures set out in the Act and death or injury results, the owner may be held responsible. This can include a charge of manslaughter, even if the victim entered the pool area uninvited.

Various decisions made by a local council under provisions of the Act, for example refusing to grant a certificate of compliance, refusing to grant an exemption, or the issuing of a direction can be appealed to the Land and Environment Court. The appeal must be lodged within 28 days of the council decision (section 26).

Other common neighbourhood problems associated with pools are the noise from poolside parties and from filtration and spa pumps.

Where the noise is from a wild pool party and is not a regular occurrence, contact the police. They can attend the premises and issue a noise abatement direction under section 276 of the Protection of the Environment Operations Act 1997 (POEO Act). It directs the person responsible to cease making the offensive noise and the direction can remain in force for 28 days. A noise abatement direction cannot be appealed.

For more persistent noise problems, for instance from a pool or spa filtration system, contact your local council. Under section 264 of the POEO Act, council can issue a noise control notice setting an acceptable noise level for the pump or filtration system and restricting the noise to certain hours of the day or certain days.

Alternatively, under section 96 of the Act, council may issue a prevention notice requiring that certain action be taken within a specified time to stop the level of noise. For example, the pump may need to be enclosed, acoustic shielding installed or the pump replaced with a quieter model.

These notices can be appealed. Failure to comply with a notice can result in a fine or a prosecution.

You can also apply directly to the Local Court for a noise abatement order. If the court is satisfied that the noise is offensive or is likely to recur, an order can be issued to stop the noise or prevent it recurring. The order can be appealed. Failure to comply with the order can result in a prosecution (POEO Act, Part 8.6, Division 2 Noise abatement orders, sections 268-274).

For overflow or leakage from a swimming pool, see Entry of water below.

Sewerage and drainage

Generally, the property owner is responsible for repairs to the water and sewerage pipes on their property and the water supply and drainage utilities, such as Sydney Water, are responsible for repairs to the water and sewerage mains. Work on plumbing and sewerage pipes that are connected to the mains must comply with the Plumbing Code of Australia. The person doing the work must certify that it complies with the Code and the relevant utility may inspect the work to ensure that it complies.

Before You Dig is a referral service for obtaining up-to-date diagrams of many of the underground pipelines (and cable networks). It can be contacted online. It does not cover all utilities throughout NSW. You may need to contact your local council and fees may apply.

It is now a legal requirement to contact Dial Before You Dig before beginning excavation on public or private land.

Blocked or broken drains and sewers can cause vexing problems for neighbours where the pipes are shared, as it can be costly and difficult to prove who has caused the problem. Talking directly with your neighbours and enlisting their co-operation when there is a problem may help with preventing a recurrence.

If the problem is caused by the roots of a neighbour’s tree and your neighbour refuses to take responsibility, you may wish to apply to the Land and Environment Court for an order under Part 2 of the Trees (Disputes Between Neighbours) Act 2006. See Trees and Plants.

Where the blockage or break results in overflow, see Entry of water below.

Drainage easements

If work is to be done on a property that will affect the natural flow or drainage of water onto another property, a drainage easement is generally required. This is an agreement between neighbours that water can flow from one property onto the other.

A copy of the agreement should be lodged with council for approval and with the Land Property Information (LPI) to be recorded on the land title register and on the property’s Certificate of Title. Check your Certificate of Title for any existing drainage easements.

Entry of water

If damage is being caused or is likely to be caused by the flow of surface water across your land from a neighbouring property and your neighbour is unwilling to address the problem, contact your local council. Under section 124 of the Local Government Act 1993, a local council has the power to issue an order to the owner or occupier of that property to take action to remedy the flow.

Leakage or overflow onto your property from neighbouring drains, sewers or swimming pools can be a source of conflict as well as a health hazard. If the flow of water causes damage you may be able to sue for compensation and/or obtain a court order stopping the activity.

If the flow is caused by a deliberate act of the neighbour, it may be a trespass.

If the flow is unintentional, ongoing and causing damage or affecting the enjoyment of your property, it may constitute a nuisance. If the flow is the result of a neighbour’s carelessness, it may be negligence.

These legal actions can be complex, expensive and may require applications to the Supreme Court. Think carefully before taking such action and get legal advice.

Water pollution

The information contained in Noise, Smells, Smoke and Garbage that relates to pollution generally also applies to water pollution. This includes a range of environment protection remedies such as clean-up notices and directions, prevention, prohibition and compliance cost notices that are available under the Protection of the Environment Operations Act 1997 (POEO Act).

In addition, sections 120-123 of the POEO Act make it a specific offence to pollute water, attracting penalties of up to $1,000,000 for a corporation with an extra $120,000 per day for a continuing offence, and up to $250,000 for an individual with a corresponding $60,000 per day for a continuing offence.

Exceptions to this offence are:

if an existing environmental protection licence regulated the pollution, or
if the pollution occurred from an activity that is dealt with in the Regulations made under the Act, and the relevant regulation was not breached.

Case study - pool fencing

In 2015 the local council in Kogarah, concerned about gaps in the boundary fence, problems with the swimming pool fence, overgrown vegetation at the fence and also the state of the swimming pool at Ms McOnie’s property, issued directions under section 23 of the Swimming Pools Act 1992 and an order under section 124 of the Local Government Act 1993.

From a number of inspections at the property, the council had found that the swimming pool fence did not comply with the safety requirements of the Act, the vegetation was so overgrown that it could easily be climbed, giving dangerous access to the pool, and the pool itself contained stagnant black water and weeds, a breeding ground for mosquitoes.

Ms McOnie received the directions and local government order but did nothing. Finally, in 2016 the council applied to the Land and Environment Court for orders to force Ms McOnie to rectify the problems.

At first, Ms McOnie indicated she would represent herself at the hearing but when the hearing date came, she was nowhere in sight. The court adjourned briefly in case Ms McOnie was just running late but when she did not appear, the court proceeded to hear the matter in her absence.

The council provided evidence of the numerous inspections at the property and photographic evidence of the fence, the vegetation and the contents of the pool as well as evidence of notifying Ms McOnie of the council’s directions and local government order. The court found that the council’s case was established under the both the Swimming Pools Act 1992 and the Local Government Act 1993 and issued orders that, within 30 days of being served personally with the orders, Ms McOnie:

install compliant barriers for the pool
install a compliant resuscitation sign
remove the excess vegetation in the back yard, from the building to the fence line and
treat the water in the swimming pool to restore it to a healthy condition.

Ms McOnie was also ordered to pay the council’s costs of the case.

Kogarah City Council v McOnie (AKA Walker) [2016] NSWLEC 53

Case study - Acid leak

In January 2007 at Nowra Chemicals on the NSW South Coast, 1700 litres of diluted sulphuric acid leaked into a stormwater channel. Thanks to dry weather conditions at the time and a prompt and thorough cleanup by the company, the highly toxic pollutant did not reach and devastate the nearby creek in the Triplarina Nature Reserve.

Nowra Chemicals was prosecuted for the water pollution under section 120 of the Protection of the Environment Operations Act 1997 (POEO Act) and pleaded guilty to the charge.

In light of the company’s previous exemplary record for environmental safety and its full co-operation with the authorities as well as its early guilty plea and thorough clean up operation, (costing $64,000), Nowra Chemicals wasn’t fined but instead, under section 250 of the POEO Act, the Land and Environment Court ordered that:

Nowra Chemicals pay $100,000 over two years to the Southern Rivers Catchment Management Authority to be used by the local landcare group for restoration and erosion control works along the Shoalhaven River
Nowra Chemicals pay for and place a dictated notice of the case in the news section of the South Coast Register and the Sydney Morning Herald
Nowra Chemicals pay the prosecution costs of $28,000.

Environment Protection Authority v Nowra Chemical Manufacturers Pty Ltd [2008] NSWLEC 187

Case study - Mining project

In 2013, within two weeks of starting a new mining project at the Dargues Gold Mine at Majors Creek near Braidwood, something was going wrong. During rain, the nearby waters of Spring Creek and Majors Creek became muddy and orange brown. These creeks flow eventually into the Deua River, which provides 60% of the water supply for the people of the Eurobodalla Shire on NSW’s south coast, as well as providing water to properties along the way.

Big Island Mining Pty Ltd, which operated the mine, held an Environmental Protection Licence that authorised the work but did not allow pollution of the water. The project’s approval had required a number of erosion and sediment control measures to ensure the water quality of Spring Creek and Majors Creek was not impacted.

Environmental Protection Authority (EPA) officers attended and inspected the site and took water samples from the creeks at a number of locations up and downstream. The EPA promptly issued a clean-up notice that was complied with, but as a result of the incident, in 2014, Big Island Mining was charged with three offences of polluting water under section 120 of the Protection of the Environment Operations Act 1997.

The Land and Environment Court hearing the case found that the incomplete installation of sediment and erosion controls at the mine site had resulted in the water pollution. Although the level of harm done was considered to be low and of a short duration (three days), it was nonetheless foreseeable. The heavy rain at the time was also a factor but adequate controls would have reduced the damage.

Big Island Mining pleaded guilty and was convicted of all three offences. In sentencing, the court considered the following mitigating factors:

the early guilty plea
full cooperation with the EPA investigation
no prior convictions for environmental offences
prompt rectification of the deficiencies in the sediment control measures, minimising the risk of a repeat offence
an unreserved apology and evidence of contrition.

Instead of a fine for each offence, the Court ordered, under section 250 of the Act, that Big Island Mining:

pay $103,000 to the local Landcare group for works at Araluen Creek
publish a notice in the Braidwood Times, Sydney Morning Herald and Australian Mining Magazine
pay the EPA’s legal costs of $70,000 and investigation costs of $23,000.

Environmental Protection Authority v Big Island Mining Pty Ltd [2014] NSWLEC 131