The issue of whether the replacement of a balcony balustrade with a safer type of balustrade is considered ‘maintenance’ or an ‘improvement’ has been considered several times in QCAT.
NB: QCAT is the Queensland equivalent of NCAT.
I am not sure whether the issue has yet been Adjudicated in NSW under NCAT.
I recognise that Tribunals in different states can make different decisions but it is interesting to be aware of the reasons behind the decisions.
The U. K. Court of Appeal decision is often cited: Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264
Below is the long held QLD position on the distinction between ‘maintenance’ and ‘repairs’ and how it pertains to balustrades.
The following extract is from a very recent decision ‘The Presidents Lodge [2018] QBCCMCmr 226 (2 May 2018)
“maintenance” rather than “improvements “
In No 9 Port Douglas Road [2006] QBCCMCmr 674, an adjudicator considered this distinction in the following terms: On a broad view of “maintenance ” a body corporate should be allowed a reasonably wide discretion in the means by which it performs its maintenance obligations[6] and any repair can invoke an element of improvement but still remain within the general concept of repair.[7] For example, the view has been taken that quite different solutions or methods of repair might be categorised as “maintenance ” if the principal intention of the proposal is to return something to a useable condition or state of repair .[8] For example, replacement of a balcony balustrade with a safer type of balustrade can constitute “maintenance”[9], as can redecorating common property lift landings and replacing the floor coverings[10]…………..
On balance, I prefer a broad view of “maintenance ” that does not classify a change as an“ improvement ” if the purpose of the proposal is maintenance of existing structures or things, even if the work involves some change or the replacement of something with a modem equivalent.