New Rules for Swimming Pools

From today, there are some potentially significant changes to the rules around renting a house with a swimming pool. If you are entering into a new tenancy agreement for a house from today, this information will apply to you.

Landlords who enter into a new residential tenancy agreement from 29th April will need to take extra steps to ensure that the swimming pool complies with the Swimming Pools Act 1992. It is a breach of the tenancy agreement if these obligations are not followed, as well as potentially attracting fines.

The physical requirements that most people are familiar with like ensuring a fenced off area around the pool, have not changed. The changes are all about ensuring that pools comply with those previous requirements, through a system of certification.

These new rules do not apply to properties with a pool shared between more than two lots - mostly because those properties already had a stricter inspection and compliance regime in place.

A swimming pool register has been created, and it is intended that over time all swimming pools will be registered. The way this is enforced is that properties cannot be bought or leased without getting the required paperwork from the register.

What does my landlord need to do?

Most landlords of homes with private pools (meaning only one or two dwellings share the pool), will need to obtain a Certificate of Compliance from the NSW Swimming Pool Register. This means that the landlord has had the pool inspected by either the Local Council, or an accredited inspector, and the pool passed the inspection.

At the time you sign the agreement, the landlord will need to provide a current Certificate of Compliance (one issued within the last three years). A new building (built within the last 3 years) doesn't need a Certificate of Compliance, instead you need to be given the Certificate of Occupancy issued by the Local Council, and a Certificate of Registration, issued by the Swimming Pool Register.

You can also check if a property has been registered and inspected- both a Registration Certificate and a Certificate of Compliance need to show up for the landlord to be complying with these new requirements. We tested this out- see our results here.

If the pool did not pass the inspection, the owner will be informed by the inspector what work is required to bring the pool up to scratch and can be ordered to do the work by the Local Council if necessary.

What if my landlord doesn't supply a certificate?

The landlord will be in breach of the tenancy agreement if a current certificate is not be supplied at the time the tenancy agreement is entered into.

You can:

• First, get some advice from your local Tenants Advice and Advocacy Service;
• You may be able to seek orders that they comply through the Civil and Administrative Tribunal;
• You might make a complaint to your Local Council;
• Or, you might make a complaint to NSW Fair Trading

For further reading, we recommend checking out other sources of information that have been published for different purposes, such as info from the official sources such as the  Swimming Pool Register, and Fair Trading NSW's swimming pool page.

Pool Rules- Going for a Lucky Dip.

Today, 29th April 2016, new rules for landlords leasing out properties with a pool started. Read our Tenants' guide to the changes here.

These laws have had a long lead in time. They were first intended to apply in April of 2014, but due to property owners across the state all but ignoring them, the requirements were delayed first to 2015 and again to 2016. The Department of Local Government should be congratulated for finally biting the bullet and bringing them into force.

We wondered if two years was long enough for property owners to organise an inspection of their pool. So we picked 15 houses with pools being advertised today from around the state, and in a range of rent prices- from $270 per week up to $2000 per week. All the properties were being managed by real estate agents, though that wasn't a criterion.

The answer was a resounding NO. 2 years warning is apparently not long enough. Just 3 of the 15 properties complied with the certification rules and would be able to produce the correct documents to the tenant.

There is hope though. Of the three that did pass, all three have registered in the last 6 weeks- one of them just two days ago. While it is obviously just a tiny sample, it suggests people are starting to get the message and compliance may well pick up now that the rules are actually in effect. In the meantime, if you have concerns that your new landlord has not complied- give your local Tenants' Advice and Advocacy Service a ring.

Please check if your blind cords are safe

This week two children – two girls, 15 and 16 months – have died after being strangled by blind cords.

As we said a few months ago, after another child – an 18-month old boy – died the same way, please:

Keep cots, beds and other furniture away from blind cords.

Keep cords out of reach, by winding them on a hook or clipping them to the blind.

Look out especially for older cords that are looped, or knotted or otherwise joined at the tassels. In most cases these can be made less dangerous by cutting the loop or the join, and fixing new tassels on the cut ends.

In some cases a blind might require a continuous loop of cord to work. These cords can be made less dangerous by keeping the loop taut through a cleat fixed to the floor or wall.

Cutting through cords and fixing cleats like this are alterations to the property, for which you should properly seek your landlord's consent. As minor alterations, your landlord cannot refuse consent unreasonably. And it is hard to think of any good reason for refusing consent for you to do these very simple things to make your home safer for children.

Blind cord safety

Last month a little boy, Jack Mackay, aged 18 months, died after being strangled by the cords of a blind near his cot.

Now his parents and the NSW Fair Trading Commissioner are warning other parents to look out for dangerous cords, especially when staying in holiday accommodation during the upcoming school holidays.

Their advice is just as valid in relation to your own home.

Keep cots, beds and other furniture away from blind cords.

Keep cords out of reach, by winding them on a hook or clipping them to the blind.

Look out especially for older cords that are looped, or knotted or otherwise joined at the tassels. In most cases these can be made less dangerous by cutting the loop or the join, and fixing new tassels on the cut ends.

In some cases a blind might require a continuous loop of cord to work. These cords can be made less dangerous by keeping the loop taut through a cleat fixed to the floor or wall.

Cutting through cords and fixing cleats like this are alterations to the property, for which you should properly seek your landlord's consent. As minor alterations, your landlord cannot refuse consent unreasonably. And it is hard to think of any good reason for refusing consent for you to do these very simple things to make your home safer for children.

On average one or two Australian children die from strangulation by blind cords each year.

Bright sparks and smoke alarms

I was talking recently with a fellow from the Real Estate Institute about smoke alarms, which since 2005 have been required in all homes in New South Wales.

The fellow from the REI recounted that soon after the requirement came in, agents began to get a bit suss that tenants were removing the batteries to put in their TV remotes. So the agents started installing alarms that took nine volt batteries – won't fit in remotes. Problem fixed. Ha ha!

My only thought in response to this was... that's pretty clever, actually.

It's a foolish tenant who leaves a smoke alarm without a battery. If the battery's dead, change it – and if you can't change it (eg you can't reach the alarm), get the landlord to change it. If it's giving false alarms, get the landlord to fix it.

NSW State Government to act on window safety

The NSW State Government has today promised that it will implement the recommendations of the Children's Hospital at Westmead and enact legislation to address window safety – and in particular, the awful problem of children falling from windows in apartments.

This is great news – congratulations to the NSW State Government and to Fair Trading Minister Anthony Roberts, who will be responsible for the legislation.

In particular, the Government says the new laws will require the installation of window safety devices on windows in residential strata schemes, and include a new item about window safety devices in the standard condition report for residential tenancies. The Government is asking for public comment on the precise details of the reforms.

The TU supports the measures proposed, and will be suggesting a few more changes to ensure there are no gaps in the reforms. For example, while most tall residential buildings are in strata schemes, some are not: there's blocks of flats that have a single owner – notably, social housing owned by the NSW Land and Housing Corporation – and blocks that are in a company title scheme. These sorts of buildings should be subject to the new laws too.

Window safety: more action needed

A two-year old boy has fallen 13 metres from a flat in Eastwood, in suburban Sydney. He's now in a stable condition with possible internal injuries, in the intensive care unit at Westmead Children's Hospital. We're crossing our fingers for him and thinking of his family.

As the linked article reports, changes to the Building Code of Australia mean that from May this year new buildings must have window-limiting devices installed on windows more than two metres above a surface: that is, locks that can lock open the window at not more than 12.5 centimetres, or bars, or reinforced screens (not flyscreens).

These changes are good, as far as they go – and they go nowhere to addressing window hazards in existing buildings.

Back in 2005, the NSW State Parliament addressed a different threat to life and limb when it passed legislation requiring smoke alarms to be installed in all residences – new and old.  This important safety measure has been implemented throughout the State without any serious hassles.

For the sake of the 40 or so children who fall from residential buildings each year, we should take the same approach to window safety. 

UPDATE 27/3/2013. Jeremy, the boy who fell, is reported to be doing remarkably well. We wish him continued good luck!

Bankstown fire flat: a 'mini-boarding house'?

Like many people, we've been disturbed and saddened by the reports of the recent fire at the Euro Terrace apartment block in Bankstown, where a young woman died after she and a friend leapt from a fifth floor flat to escape the flames.

Our thoughts go to the family and friends of the young woman who died, and the other young woman who survived with serious injuries. We feel too for all those residents made temporarily homeless while awaiting repairs.

According to early reports, there were defects in the way the whole block was built: in particular, it had allegedly had an unauthorised roofed atrium added, which trapped heat and smoke in building.

Lately it has been reported that there were problems within the flat itself: in particular, that part of the dining room had been walled off to create an additional (fourth) bedroom, and locks had been installed on the bedroom doors. The implication is that the flat was being operated as a 'mini-boarding house'.

We make no comment here as to the liability of the builders or certifiers of the block, or of the owner or managing agents of the flat. We will also not go here into the question of the adequacy of current laws about building certification or fire safety.

What we will we consider here is how the NSW State Government's proposed boarding house law reform might operate in relation to a flat operating as a 'mini-boarding house', on the facts as reported by the Herald. We stress: this is conjecture – the Government's draft Boarding Houses Bill is not law, and if and when it becomes law, there may be differences between its terms and those of the current draft Bill.

First there is the question of whether a flat, operating as a 'mini-boarding house', would be covered by the legislation. The physical form of the premises isn't the issue here: the draft Bill provides that even a 'vehicle, vessel or aircraft' could be boarding premises, so a flat certainly could be. The key question is whether the premises provides beds for five or more persons (not counting the proprietor, if they reside there too). If it does (and a four-bedroom flat could do, because sharing a room in these situations is common), the flat would be covered as a tier 1 registrable boarding house. But if it's for four persons or fewer: no, it would not be covered. (And we leave aside the question of tier 2 boarding houses; these are residential centres for vulnerable persons, and the sort of flats we're discussing are not these.)

Before we leave the question of coverage: under the current terms of the draft Bill, the flat would not be covered – even if five or more persons lived there – if the flat is subject to a residential tenancy agreement (ie between the owner and one of the residents, or between the owner and an absent head-tenant who rents out the rooms). We've previously called this a fatal loophole in the draft Bill, and we understand that the Government sees the problem and will fix it in the final version of the Bill.

Secondly, there is the issue of registration. If a flat is a tier 1 boarding house, the draft Bill says the proprietor (either the owner or the head-tenant, whoever is letting the rooms) must register the flat on the Boarding Houses Register (which would be established by the legislation).

Registration has nothing to do whether the premises are approved for use as a boarding house by the local council – that's a separate process. For the purposes of the Boarding Houses Bill, if the premises  fit the definition of a registrable boarding house under the Bill, they've got to be registered (whether approved for use as a boarding house or not); if they're not registered, the proprietor is guilty of an offence.

If the flat is registered as a boarding house, the draft Bill states that the local council must inspect it within 12 months. The purpose of the inspection is to determine whether the flat complies with requirements relating to building and fire safety, and with standards for shared accommodation. (More on this in a moment.)

Of course, if the proprietor knows that the flat is not approved by the council for use as a boarding house, or that it does not comply with building and fire safety requirements, they'll probably not register. If that's the case, the Boarding Houses Register might still help the local council catch up with them. Say a neighbour is suspicious about the fact that what looks form the outside to be a three-bedroom flat is home to several adults. The neighbour would be able to search the Register (it will be online) for the premises and, finding no match, then report their suspicions to the local council. They might also report their suspicions to NSW Fair Trading, as the keeper of the Register, which might then prosecute the proprietor's breach of the registration requirement.

Thirdly, there is the issue of building and fire safety requirements and standards. This is what the council will consider when it inspects or investigates the premises. For the council, there's also the question of whether the use of the premises as a boarding house is approved and what to do about it in the very likely event that it is not approved.

In considering these questions, the council will be looking at what the Environmental Planning and Assessment Act and Regulation, its own Development Control Plans, and the Building Code of Australia say about boarding houses. What these things say generally proceeds from the BCA's classification of boarding houses into two classes: Class 1b buildings and Class 3 buildings.

Class 1b boarding houses are typical small-medium sized boarding houses (not more than 300 square meters in area, and accommodating not more than 12 persons), but because they are defined as being 'not located about or below another dwelling or another Class of building', a flat in a strata scheme won't fit the definition.

Class 3 applies to boarding houses other than Class 1b boarding houses... but the assumption in the BCA and elsewhere is that these will be large boarding houses (not 'mini' ones, like a single flat), capable of complying with relatively onerous requirements in relation to shared facilities, such as kitchens and bathrooms, and fire safety (for example, sprinkler systems). It's difficult to see how a typical flat could comply with the requirements of a Class 3 building, but that's for the council to determine.

There's also the issue of the number of persons residing in the flat – and the question of overcrowding. This is addressed in the standards for 'places of shared accommodation' in Part 2 of Schedule 2 of the Local Government (General) Regulation, which provides (at clause 1) that councils can determine a maximum number of boarders or lodgers for each bedroom or dormitory, and for the whole of the premises, for premises that are 'places of shared accommodation'. Under the draft Boarding Houses Bill, these standards would apply to all registrable boarding houses. The council might consider any limits on numbers of occupants it may have provided for in its own development approval for the strata scheme.

A further note on the standards for places of shared accommodation under the Reg – it is hard to see a flat complying with some these: for example, the requirement at clause 2(2) that 'a schedule showing the numeral designating each bedroom and dormitory and the number of persons permitted to be accommodated in each must be conspicuously displayed on the premises'.

So, there are many ways in which a flat operating as a 'mini-boarding house' might contravene the requirements and standards applied by councils.

As for what the council might do – depending on the circumstances, it can order that:

• the proprietor stop using the flat for a purpose that has not been approved; 
• the proprietor reverse any unlawful work done to the premises;
• the proprietor stop carrying on an activity that constitutes a life-threatening hazard or threat to public health;
• the proprietor do things to ensure adequate fire safety;
• everyone leave the premises, because the proprietor has failed to comply with a public health or fire safety order; and
• that the proprietor take action to bring the premises into compliance with the standards for places of shared accommodation.

The power to make these orders already exists (the first five are from section 121B of the Environmental Planning and Assessment Act 1979; the last is from section 124 of the Local Government Act 1993) – but it seems to us that the reforms in the Boarding Houses Bill would help in the identification of premises that councils should be looking at, including 'mini-boarding houses' operating from blocks of flats, and usefully direct councils get in and make orders where necessary.

When it comes to learning from and responding to the terrible event at the Euro Terrace, it may be that changes to the law about building design and certification will be the key to safer flats and buildings, but the changes to the law already pending in the Boarding Houses Bill can also be seen as contributing to the same end.

Think child safety

We've had a few warm days, and there's more to come as summer rolls around. For the Children's Hospital at Westmead, it's also peak season for kids being injured from falls from buildings, as people open up their windows and balconies.



With that in mind, the NSW State Government has recently launched a public education campaign to make people aware of the dangers of windows and balconies and what you can do to make them safer.

The first thing is just that: be aware. Go and have a look at your windows and balcony now. When you enter a room with a child, make it a habit to do a quick scan of the windows. When you're visiting friends and relatives over the holidays, make a check of the windows and balconies the first thing you do when you arrive.

In particular, the things to look out for are:

• Windows that can be opened more than 10 cm. You'll want to put a lock or some other barrier on these. For ordinary aluminium sliding windows, this is usually pretty straightforward: one or two of these clamp-style locks should do the trick.

For other types of windows, you may have to consider something more permanent, like a lockable bolt or a lockable winding chain, or some form of barrier, like bars (not more than 10 cm apart). An ordinary flyscreen is not a safety barrier - they keep flies out, not kids in.

• Balconies that have a balustrade less than 1 m high, or that has horizontal elements. The danger of a low balustrade is obvious (it's easy for adult to overbalance over these, too). What is surprising is just how many balustrades - including new ones, as pictured below - have horizontal elements, which essentially serve as a handy ladder for children.

You'll want at least some kind of barrier - glass, perspex or even a heavy mesh - covering the inside of this sort of balustrade. And, in any case, a proper lock on the door to the balcony.

• Furniture and fixtures near windows and on balconies. Chairs, beds, tables, toilets, baths, toy boxes, planter boxes... you can find any number of things, both moveable and fixed, that kids can use to boost themselves up and over a window sill or balustrade. And keep a look out for things that aren't near a window - but which a child could drag over to one.

Whether you own or rent, there's a lot you can do yourself to make kids safer around windows and balconies. Watch them. Arrange the furniture away from the windows and balconies. Use those clamp locks, if that suits your windows. If your windows already have locks that allow them to be locked open, lock them open to 10 cm, no more, if kids are about.

If you're a tenant and more needs to be done to make your windows and balconies safer, consider asking your landlord to install some new locks, or a barrier, or a better balustrade. Unfortunately, there is nothing in the Residential Tenancies Act 2010 that you can point to that specifically requires window limiting devices that can be set to no more than 10 cm.... but the premises do have to be in a reasonable state of repair, and fitted with locks and other devices to make the premises reasonably secure. You can point to these to get defects fixed, and you might suggest that if they're doing work anyway, they might as well do it so that you can lock the windows open to 10 cm, etc.

Alternatively, you can ask if you can get the work done at your own expense. Because fitting locks or barriers will invariably be a minor alteration, your landlord cannot refuse consent unreasonably. Depending on the work, this can be expensive, but you might also think it is a small price to pay to prevent an awful injury - or worse.

(But - and this is our own education campaign directed at politicians and policymakers - how easy it is for tenants to think, 'getting windows locks fitted is expensive... and we don't know how long the landlord will let us stay here... we could spend several hundred dollars getting work done and then have to move out in three months... I'll just try to keep an eye on the kids all the time....' Far better to amend the Act to specifically require that landlords install window limiting devices, and make a safer rental housing sector for everyone.)

Kids Still Can't Fly

We posted recently about children falling from windows. It's happened again – this time, fortunately, the four-year old girl who fell is recovering in hospital.

The Daily Telegraph reports that the State Government is considering what actions it might take to address this problem. It need look no further than the report of the Children's Hospital at Westmead.



Now, if you follow the link to the Tele's article (here it is again) you'll see some reader comments at the bottom – many of them from landlords who don't at all mind giving their industry a very bad look. Tidied up a bit, they disclose two main objections – both readily answered.

Objection 1: how about parents exercising some personal responsibility?

Parental care and responsibility will always be the best assurance of a child's safety. Surely the goal is making parents' exercise of responsibility work to best effect. What the Children's Hospital's proposed reforms would do is put window-limiting devices into the hands of parents and tell them 'now, exercise your responsibility and use them – make them work to keep your children safe.'

Objection 2: but what if there's a fire?

The Children's Hospital anticipated this one in their report, and asked Fire and Rescue NSW (formerly NSW Fire Brigades) for its view. It had no conclusive data as to how many people escape fires by exiting through a window – whereas the Hospital's data shows that kids falling from windows is a clear and present hazard. Fire and Rescue NSW's own recommendation is that people should plan to have multiple escape routes in the event of fire, and that window-limiting devices should be able to be unlatched, unlocked or removed by adults.

The Tele editorialises on the issue:

Shut legal window

IT isn't the biggest state project of all time, but it is deeply urgent. A simple change in state housing laws will possibly save many children from serious injury or death resulting from second-floor (and above) window falls.

As things stand, there are relatively few regulations mandating safety for windows in NSW houses. As we've lately seen, these sort of conditions can easily result in terrifying falls for young children.

A basic legal requirement to limit the amount that a window can open, therefore preventing any falls, is all that is needed.

In the meantime, there are extremely simple steps that parents of little children can take in order to make their houses secure.

Any person who is competent with basic tools should be able to stop windows being opened dangerously.

Why wait for the Government to act?

Well said.

Kids Can't Fly

A couple of years ago Dr Danny Cass, head of Emergency and Trauma at the Children's Hospital, Westmead, noticed something: an increasing number of his tiny patients had sustained their injuries from falls from residential windows and balconies.




Looking over his records, Dr Cass found that over the ten years to 2008, 169 children had been admitted for this reason – and that's just at the Children's Hospital at Westmead.

Last month the Children's Hospital at Westmead released the report of its Working Party for the Prevention of Children Falling from Residential Buildings. Its recommendations include making amendments to residential tenancies and strata legislation to require landlords and owners corporations to provide safety devices (window guards, durable and sturdy mesh screens, locks, winow opening limiters) or other permanently affixed devices on openable windows more than three metres above an external surface, such that occupants could limit the window opening to 100 millimetres.

The same month yet another child, a boy two years old, fell from a window at home and died.

The issue of window safety was not specifically considered in the review of residential tenancies law that led to the recently commenced Residential Tenancies Act 2010. The relevant provisions of the Act – that premises must be provided and mainatained in a state of reasonable repair, and must comply with health and safety legislation – do not go so far as to specifically require the window safety devices described by the Children's Hosital's report. This means that tenants who ask their landlords to install such devices might be told 'no, the windows in reasonable repair/safe enough as is'. And of course there are many more tenants and landlords who, in the absence of a specific requirement for window safety devices, may not turn their minds to the issue at all – until it's too late.

The Tenants' Union strongly supports the Children's Hospital's proposals. They can and should be implemented now – and there could be no more worthwhile first item of business for a new Fair Trading Minister.