Mr Strata – Your scheme’s by-laws are slightly different (and slightly more strict) than the Model By-laws that I mentioned in an earlier comment, but the intent is still the same and the outcome is still the same with regard to child safety.
In your scheme the Committee may have needed to have provided written approval for Nettie’s safety netting prior to installation (whereas the Model By-laws do not) however the Committee cannot refuse a request for such an installation. This is due to the fact that it is a child safety device. Approval is automatic as per By-law 7(3)(c).
Your by-law states:
7(3) This by-law does not prevent an owner or person authorised by an owner from installing:
(a) any locking or other safety device for protection of the owner’s lot against intruders, or
(b) any screen or other device to prevent entry of animals or insects on the lot, or
(c) any structure or device to prevent harm to children.
The Committee’s attempt to force Nettie to remove the child safety netting through the use of the second part of By-law 7(4):
Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building.
is further weakened by the new Act’s restriction on by-laws.
Section 139 (1) states:
“By-laws cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”
The child safety campaign “Kids Don’t Fly” has drawn attention to the number of fatalities and serious injuries suffered by children from falls from buildings. Child safety is an issue that must be top of mind. Is a by-law harsh, unconscionable, and oppressive if it is used to over ride the installation of a safety device that is temporary and barely visible? My answer would be YES.
Australia has a hot climate where children are encouraged to be outdoors, and children are encouraged to exercise and play. Often the only outdoor experiences children have in on a balcony. Owners purchase a Lot so that they and the occupants can use ALL parts of their Lot (including the balcony), and not be restricted from using portions of their Lot.
BCA balcony heights are 1m, however that is a minimum height rather than a maximum height. Internal windows must have window locks on windows up to 1.7m from the floor level. There is a 70 cm difference between what is acceptable for a ‘safe’ window and what is minimum for a ‘safe’ balcony. Clearly there is a discrepancy between the two heights regarding child safety. Without raising all balcony railings by 70 cm isn’t it more feasible to allow an occupant to temporarily install safety netting?
What does the phrase “in keeping with the appearance of the rest of the building” mean?
In Dupont v Hughes (Strata & Community Schemes) [2003] NSWCTTT 786 (8 December 2003)
where the colour of the permanently installed steel security grilles of a Lot was changed from brown to cream, the Adjudicator determined that this change did not offend the by-law regarding the appearance of the building.
Being that the Dupont v Hughes decision was a 2003 decision, and the 2015 Act has introduced [s139(1)], it is even less likely that Nettie’s minor and temporary change would trigger a breach of the ‘appearance’ by-law.