Topic: Who is liable for defective pool fence?

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18/10/2016 at 1:06 pm #10681 Reply | Quote
Rochelle168
Hi guys, I’m new here so thanks in advance.

I live in an estate (106 houses – duplex/terrace/stand alone). In 2010, the owners voted to replace the pool fence to prevent trespassing. This year the local council deemed the fence as non compliant. Referring to the company who initially installed it, the condition of sale stated:

“…. Strata Management was responsible for ensuring: ” All council or regulatory permits required or costs incurred are the responsibility of the Customer“

My question is, who is liable? The Strata Manager? Or the committee /owners who knew nothing about these regulations? Or the company who installed the fence knowing they were installing it around the pool?

More importantly, can someone please advice on the necessary steps to rectify this problem? At the moment we have planned for a meeting with the SM and bringing it to the owners attention. I don’t think the residents are going to be happy knowing that they’ll be paying another $20000 to rectify this problem. The current SM just keeps asking the committee for directions and states that he has no legal team to advise him. Please help.
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18/10/2016 at 1:31 pm #25600 Reply
Sir Humphrey
Flatchatter
There are good grounds to be annoyed with the company who installed it if they didn’t advise that the fence was not appropriate for a pool, but they seem to have themselves covered. The responsibility is with the OC to comply with the law on its common property.

Do you know it will cost $20K? Is it possible that only a gate latch is not compliant, not the whole fence?

Has there been a recent change in the standard for a pool fence? Generally it is not required to bring old structures up to current standard, only maintain them to continue to meet the standard that applied when they were installed. That said, it is hard to justify not bringing a pool fence up to scratch, unless the difference between an old standard and a new one is very minor. Eg. I would not replace every balcony rail if the standard changed to 5cm higher than the old standard.

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18/10/2016 at 2:21 pm #25601 Reply
Jimmy-T
Keymaster
You’ll find the pool fencing regulations for NSW here. The location of the fence varies depending on when the pool was installed but the dimensions and structure of the fence are fixed to the latest standards, based on where a small child could conceivably get through, under or over it.

On the question of liability, Peter is right. The owners corp is the management of the building, the strata manager can only act on your instructions.

Whoever did the survey should have indicated where and how the poll was non-compliant and that should be your starting point for modifications.

Luckily, as of April this year, strata schemes were exempted from the law that didn’t allow you to sell or rent a property unless you had a pool safety compliance certificate.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

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27/10/2016 at 10:57 am #25664 Reply
Rochelle168
Thank you for all your replies.

The non compliance issue is the vertical bars. It is fixed at 11-12cm apart. Non compliant with 10cm, as stated in the regulations. When the company who installed the fencing was notified of the issue, they also quoted approximately $20000 to make alterations. The fencing costed the community just as much to install. There is no issue with a child being able to go over or under, and the fence is clear within 90cm radius of any climbable things.

Peter C, do we really need to replace the fence?

The current executive committee is currently looking into alternatives to keep the price down. Grills have been suggested but it takes away from street appeal and lack of visibility is a safety concern. Perspect/Glass has also been suggested but it was said that it gets too hot and doesn’t allow enough airflow. Again, if we were to put in Perspect/glass, we might as well replace the fence to maintain street appeal.

Jimmy T, your comment noted. I honestly don’t know how properties were sold. There has been nil changes to the fence since installation (2010).

Going back to who is liable. The previous EC may have not known about the regulations. And, yes – it was their responsibility to ensure that the fence complied. I understand that. But then again, shouldn’t the SM have flagged this? From the past to the future, in general, EC members are usually made up of people who do not have the expertise in these matters. Contracts and financial statements are so hard to read let alone understand. In the defense of the past EC, how can they make an informed decision if they weren’t fully informed? Isn’t this the role of the SM – to guide and explain? In addition, with a work order of over $20000, should the SM have organised some engineering consultation? The current secretary is rummaging through past invoices and all communications looking for any documentation that depicts this. None have been found so far.

I apologise for all my questions. I am new to all this and I know that I am not aware of all things that run with strata management. Once again, thank you in advance for all the help you can give.

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