Deadline delivers questions for PSIs on forms 26 and 36

The pool barrier compliance deadline does not change the role of the PSI, but PSIs can expect pool owners to have a lot of new questions about how the deadline affects forms 26 and 36.

Anyone who is the owner of a pool is responsible from 1 December for ensuring the fence complies. A form 26 and 36 does not change this.

There are no changes to pool safety certificates.  Certificates are still only needed in the event of sale or lease, and the time allowed for getting a certificate won't change.

A pool can still be compliant even without a certificate.  A certificate is just confirmation that a PSI  has inspected the pool and found it to be compliant.

A PSI conducting a formal inspection must always issue either a nonconformity notice (form 26) or a pool safety certificate.

If the PSI issues a form 26, they must still give a copy to the local government after three months if the pool owner has not requested a re-inspection.

For the owner, receiving a form 26 does not change their obligation to make sure the pool fence complies from 1 December.

A pool owner who is selling can still sell without a certificate, provided they give a form 36 (Notice of no certificate) to the buyer, the QBCC and, if selling a unit, the body corporate.  This also applies to leasing a property with a shared pool. 

The form 36 does not change the fact that while the seller still owns the property, they are responsible for ensuring the fence complies from 1 December. 

A buyer who receives a form 36 has 90 days after settlement to obtain a certificate, but from 1 December, as the new pool owner, the buyer is responsible for ensuring the pool fence itself complies at all times.

The owner of a non-shared pool continues to require a certificate at the time of entering any new lease.

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Comments (6)

Thank you for the most recent newsletter. I note all pools are required to be compliant with the Pool Safety Standard by December 1, 2015. You also advise that an Inspector must issue a Form 26 or a Pool Safety Certificate after the completion of an inspection. My question is, if the pool barrier is non-compliant at the inspection date of 24 November 2015, and I issue a Form 26 then the pool owner has up to three months to comply with that Notice. So the form 26 in effect gives the Pool owner until 23February, 2016 to achieve compliance. Yet you have stated that the December 1, 2015 date is when pool barriers must comply. So which date takes precedent?? The form 26 clearly states the pool owner has three months. How can a form 26 be issued and compliance required within three months, as per the legislation, if you are enforcing compliance by December 1 2015, also as per the legislation?? I personally believe that if the pool owner has instigated the inspection process then they should be afforded the three month rectification time frame, thereby giving them past December 1 to become compliant. This is a major issue and one that requires urgent clarification and opinion.

Hi Ben, thanks for getting in touch. To clarify the issue: The three month ‘reinspection period’ in the form 26 nonconformity notice is for one purpose only. It is only for determining if and when the inspector must give a copy of the notice to the local council. Specifically, if the owner hasn’t requested a reinspection within the reinspection period, the PSI must give a copy of the notice to the local council. Every pool owner is responsible for ensuring their barrier is compliant from 1 December. Issuing a form 26 does not ‘extend’ this. If the property has been sold or leased, issuing a form 26 won’t ‘extend’ the 90 day period within which a certificate must be obtained. Local government is responsible for enforcing compliance with the pool safety standard. Feel free to get in touch with any further questions. Kind Regards, Kate

What is going to be happening after December 1, 2015? If an Inspector inspects a pool barrier and identifies areas of non-compliance after the 1st of December 2015, the pool owner must still receive a Form 26 which contains the time frame of providing the Pool owner with up to three months to rectify their barrier. Q) Does a pool owner still have up to three months to achieve compliance post 1 December 2015, or do Pool Inspectors have to provide advice to council immediately that they have identified an offence occurring, and that the pool barrier is not at the required Pool Safety Standard at the time of their first inspection?? Q) Does the Form 26 with the three months take precedent over the requirement to be compliant as at December 1, 2015?

Nothing will change for an inspector from 1 December 2015. If they formally inspect a pool and find it noncompliant, they must issue a nonconformity notice. Issuing a nonconformity notice does not ‘extend’ the deadline. The inspector does not have to give the notice to the local council, unless the three month reinspection period has passed and the pool owner has not requested a reinspection. No – the nonconformity notice does not change the 1 December compliance date. Hope this helps, Kind Regards, Kate

Hi Kate, Thank you for your reply. I have further questions about it unfortunately. I believed that the intent of the legislation, found in the Building Act 1975 (the Act) namely section 246AB Non conformity Notice, was that the Pool owner had up to three months to rectify the issues identified in the initial inspection. I believe this too be the intent of the legislation due to the following section within the Act. S 246AB 1) This section applies if a pool safety inspector inspects a regulated pool (an initial inspection) and the inspector is not satisfied the pool is a complying pool. (2) Subject to subsections (3) and (4), the pool safety inspector must, within 2 business days after the inspection, given the owner of the pool a non conformity notice stating: (a) the pool is not a complying pool; and (b) how the pool is not a complying pool; and (c) what must be done to make the pool a complying pool; and (d) that the owner may ask the pool safety inspector to reinspect the pool within 3 months after the giving of the nonconformity notice (reinspection period); I believe that the intent of this section of legislation is that the pool owner is provided a timeframe of up to three months in which to rectify their barrier through the wording of the following. - the PSI tell the Pool owner the barrier is not complying, - how its not complying, - what needs to be done to make it complying, and - they have three months to arrange for a re-inspection and that they have three months to rectify I am aware that the requirement for me to advise council within 5 business days after the re-inspection period has concluded The issue that you mentioned, that being advising the council after the three month period, is identified in another area of legislation namely section 246 AC "Steps after nonconformity notice" is within this section that the Pool owner is provided

QBCC can confirm that the intention of the legislation is that every pool owner is responsible for ensuring their fence complies from 1 December regardless whether they have a form 26. The form 26 serves the purpose of advising the owner how they can make their fence compliant, if it is currently noncompliant. You're welcome to call us on 139 333 if you're interested to discuss in further detail. Alternatively you can send through your phone number and someone from our pools team can give you a call. Kind Regards, Kate