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Re the balcony – On what basis is the OC taking you to NCAT about the balcony?
Safety is something that should be the highest priority in a strata scheme. Window safety is a big issue at the moment and this has been reflected in the new legislation. It is quite strange that balcony safety does not have the same priority. Both are equally as important in my view, particularly where children are involved.
Here are some things for to check: (1) Was your balcony compliant at the time that it was built, including the climbable features? NB: Amazingly, many balconies were not! (2) Does your balcony have structural issues e.g. rust? (3) Has the OC ever conducted a building report or WHS report where any defects were noted, and if so what has the OC done about it? (4) Do you have young children or grandchildren or visiting children who may be endangered by the non compliant balcony height, and climbable features, when they use the balcony?(5) Did you undertake a pre-purchase building inspection report and did it reveal any faults with the balcony, and if so did you notify the OC at the time? (6) What arguments did the upstairs owner use when they approached the OC to have their balcony replaced? NB: Perhaps you can replicate their arguments. (7) Do you or your family work from home? NB:Under the WHS Act, a person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.
You appear to have notified the OC about the problem 3 years ago. The OC have obviously decided to ignore you.
If there has not been an expert inspection and report undertaken on your balcony then I would recommend that you obtain one at your own expense as you will need to provide it when you defend yourself at NCAT.
Below is a link to a legal opinion (including some cases) that you might find helpful: https://www.lookupstrata.com.au/balustrades-regulations-strata-liability/
Many strata schemes use the Appearance of a Lot by-law (if they have one) as an argument to retain old balustrades and avoid the cost of replacing the old style balustrades with new, compliant, and modern balustrades.
In QLD there have been Tribunal decisions where the Appearance argument has been thwarted. The Tribunal’s argument has gone something like this …… if the OC wanted to have strict uniformity in the scheme then they have the option to introduce such a by-law. If your scheme has no ‘Uniformity’ by-law then there is no by-law that prohibits one Lot from appearing slightly different from another. Obviously another Lot in your building has a changed appearance of their balcony, therefore it would be inconsistent for the OC to use this tactic against you.