Victorian Pool Safety Regulations: What Real Estate Agents Must Know Before Selling a Property

In Victoria, selling a property with a swimming pool or spa without a valid certificate of compliance is a statutory offence under the Building Act 1993. Real estate agents, conveyancers, and vendors all carry obligations. This article sets out the specific requirements.

The Legal Requirement: Certificate of Compliance Required Before Settlement

Under Section 31 of the Building Act 1993 (Vic) and Regulation 610 of the Building Regulations 2018 (Vic), a vendor must not advertise, sell, or enter into a contract for the sale of a property containing a swimming pool or spa (depth > 300mm) without a valid Certificate of Pool and Spa Compliance (Form 23) or a valid Certificate of Pool and Spa Non-Compliance (Form 23A) accompanied by a current building order.

The certificate must be no older than 120 days at the date of the contract.

What Triggers the Requirement

The compliance requirement applies to all properties with:

• Any swimming pool capable of holding water to a depth of 300mm or more
• Any spa pool capable of holding water to a depth of 300mm or more
• Pools associated with tourist and recreational developments (including accommodation)

This includes both in-ground and above-ground pools, indoor pools, and relocatable pools (if capable of holding 300mm+ of water).

The Four Compliance Pathways

1. Certificate of Pool and Spa Compliance (Form 23)

A registered building practitioner (a pool safety inspector) inspects the pool fence and surrounding barriers against AS 1926.1–2012 and AS 1926.2–1995. If all barrier requirements are met, a Form 23 is issued. This certificate is valid for two years from the date of issue for a property being sold; for ongoing occupancy it must be renewed every four years.

2. Certificate of Pool and Spa Non-Compliance (Form 23A)

If the inspector finds non-compliance, they issue Form 23A listing the specific defects. The vendor must obtain a building order from the relevant municipal building surveyor and complete the required works before settlement. The Form 23A is not a permanent solution — it must be accompanied by an active building order and the works must be completed.

3. Existing Exemption

If the pool was constructed before 1 July 1994 and has not been substantially altered since, it may be subject to the transitional provisions under the Building (Swimming Pool and Spa) Regulations 2019. However, barriers must still meet minimum safety standards. An inspection is still required to confirm the exemption applies.

4. Pending Building Permit

If a building permit has been granted and construction is substantially complete but not yet finalised, a temporary certificate may be available. This is assessed on a case-by-case basis by the relevant building surveyor.

Key Standards: What Inspectors Check

The compliance inspection against AS 1926.1–2012 and AS 1926.2–1995 covers:

• Pool barrier height: Minimum 1.2m from finished ground level on the outside of the barrier
• Gap tolerances: No opening greater than 100mm in the barrier that allows a 100mm sphere to pass through
• Non-climbable zones (NCZ): 900mm clearance from the inside of the barrier to any climbable object within 300mm–1200mm of the barrier top
• Boundary fences as pool barriers: Must be at least 1.8m on the pool side, with 900mm NCZ on the non-pool side
• Gates: Must be self-closing from any open position, self-latching, and opening away from the pool area. Gate hinges must not provide a climbable foothold within 450mm of the latch
• Spa pool lids: If a spa has a lockable lid, the lid can satisfy the barrier requirement when locked shut. The lid must be capable of resisting a 20kg child climbing onto it
• Windows: Windows that open into the pool area must have a restrictor to 100mm maximum opening, or be fixed with no opening

Who Can Inspect and Issue the Certificate

Only a registered building practitioner with a pool safety inspector registration issued by the Victorian Building Authority (VBA) can conduct the inspection and issue Form 23 or Form 23A. The VBA maintains a public register of pool safety inspectors on its website.

Inspection fees in the Geelong and Greater Melbourne market typically range from $250–$550 depending on pool size, access complexity, and urgency. Turnaround time is typically 5–15 business days.

Offences and Penalties

• Advertising or selling without a certificate: up to $3,700 for an individual (as at 2024 scales under the Building Act 1993)
• Entering a contract without a certificate: contract is voidable at the purchaser’s option
• Proceeding to settlement without a certificate: the purchaser may withhold settlement funds until compliance is demonstrated
• Failure to comply with a building order: further penalties and potential enforcement action by the municipal building surveyor

Obligations of Real Estate Agents

Real estate agents acting for the vendor must:

1. Request sight of a valid Form 23 or Form 23A before listing a property with a pool or spa
2. Ensure any advertising copy does not imply the property is ready for settlement unless a certificate is in hand
3. Advise vendors of their statutory obligations under Sections 31 and 32 of the Building Act 1993
4. Not proceed to exchange contracts without receiving a copy of the certificate or confirmation of a pending inspection

Failure to carry out these obligations may expose the agent to professional conduct findings by the Victorian Building Authority or the Consumer Affairs Victoria estate agent licensing regime.

Inspection and Certificate Timeline

The following timeline is recommended for a standard sale:

• Listing agreed: Book pool inspection immediately. Do not wait for contract to be drafted.
• Inspection booked: Typically 5–15 business days lead time
• Inspection completed: Inspector issues Form 23 (compliant) or Form 23A (non-compliant) within 5 business days
• Form 23 issued: Valid for 120 days for sale purposes. Valid for 4 years for ongoing occupancy.
• Form 23A issued: Vendor must apply for building order, complete works, and obtain re-inspection before settlement.
• Pre-settlement: Solicitor/conveyancer confirms certificate is on file and current before keys are released

Key Regulatory References

• Building Act 1993 (Vic) — Sections 31, 32, 110
• Building Regulations 2018 (Vic) — Regulation 610, Schedule 8
• Building (Swimming Pool and Spa) Regulations 2019 (Vic)
• AS 1926.1–2012 — Swimming pool safety, Part 1: Barriers for residential pools
• AS 1926.2–1995 — Swimming pool safety, Part 2: Location of barriers for private pools
• Form 23 — Certificate of Pool and Spa Compliance (VBA)
• Form 23A — Certificate of Pool and Spa Non-Compliance (VBA)
• Victorian Building Authority (VBA) — pool safety inspector register: www.vba.vic.gov.au

Frequently Asked Questions

Can a property settle without a pool compliance certificate?

No. Settlement without a valid Form 23 or a Form 23A with an active building order is a breach of the Building Act 1993. The purchaser has the legal right to withhold settlement until compliance is demonstrated.

How long is a pool compliance certificate valid for?

For a property being sold: 120 days from the date of issue. For ongoing occupancy between sales: 4 years from the date of issue. The 4-year cycle applies to all private residential pools regardless of whether the property is sold.

Who pays for the pool inspection?

The vendor. The cost of obtaining a Form 23 or rectifying defects identified on Form 23A is a vendor cost. It cannot be passed to the purchaser through the contract of sale.

Does a portable spa pool need a compliance certificate?

Yes. Any structure capable of holding water to a depth of 300mm or more is classified as a spa pool and requires compliance documentation. Spa pools with lockable lids that can support the weight of a child (20kg+) may satisfy the barrier requirement through the lid alone, but this must be confirmed by a registered pool safety inspector.