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I live in a unit that was built in 1983. My balustrade is only 850mm high and has a large foothold half way up. Is the Executive Committee/Owners Corporation responsible for fixing this? All other balustrades on the 36 other units are legal, with new balustrades on level one having been replaced three years ago because they were “dangerous”.
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Generally, building features only have to comply with the standards that applied when they were constructed. However, renovation or substantial maintenance has to comply with current standards. I don’t know if this balcony is original or whether it would have complied in 1983.
Is it possible that all other 36 balustrades have been replaced? Or, is it possible this one balustrade was replaced but not to the standard?
Perhaps balustrades were replaced because they were dangerous in some way other than not meeting the standard (say, rusted or rotten or loose or whatever). Then the replacements would have had to meet the standard even though that was not the reason for replacing them.
I have had a similar discussion with a Work Health and Safety inspector regarding this topic. He assured me that if a safety assessment of the strata plan were carried out by an independent consultant, and it was identified in a report that the railings were too low, and that a climbing aid existed (like a foot hold), it was necessary for the owners corporation to attend to the risk.
His argument was that although the Building Code of Australia is not retrospective, the Work, Health & Safety Act is unconcerned with time of construction. Instead, the WHS Act concerns itself with ensuring the current place of work is safe, and identified risks have been managed, regardless of any other Act or regulation. For instance, if a trade attended to fix a light or perform work on the balcony for the owners corporation, they are obliged to work in a safe environment. If an injury or a death were to occur due to the balcony being too low, and the owners corporation knew a safety issue existed, then liability issues may arise.
May seem far fetched, but an owner has fallen over the balcony railing while tending to plants resulting in death. This issue has been of major concern as an owner and a committee member, particularly with young kids about.
I agree. Ask the owners corp to bring the balustrade up to code. If they refuse, and do nothing within two months hit them with a section 232 (in the new Act) for failure to fulfil their duties. Let NCAT decide whether the lettter of the law is more important than personal safety of residents and workers.
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.
The balcony this person is writing about is original and the balconies she talks about that were replaced were not “dangerous”. Other owners in this building have put capping on their balconies at their cost. This owner just wants others to pay.
Newlsie – It should not be the responsibility of the Lot owner to ensure that a common property balustrade is safe and meets various Codes including Work Place Safety by placing capping on the common property balustrade. It is the responsibility of the Strata scheme to ensure that the common property balustrades meet these standards.
There is no guarantee that an owner installed balcony extension on top of a common property balustrade has been installed correctly. To remove all doubt the strata scheme should implement these safety measures to ensure conformity in standards.
The Strata scheme will be responsible if any accidents occur as a result of their negligence.
Just as window locks are now essential items within a strata scheme so should balustrades that are the correct height to prevent accident and injury.
The height of railings has been lifted for safety reasons. Regardless of whether the building complies with older building codes the duty of care of a strata scheme to residents and visitors is to ensure that they are safe on the property. If it has been determined that people are only safe with balustrades at a height of 100 cm is it unreasonable for a strata scheme to ignore that standard.
The Strata Scheme needs to step up to the plate and face their responsibilities. Don’t wait for a catastrophe to occur in your unit complex before implementing change. Cost cutting should not override common sense.
Having been built in 1983, Ordnance 70 would have been applicable at that time – 860mm. We have a similar problem and construction, with a garden planter (with NO protection) belonging to the lot on the other side of one of these balustrades. there is a 2 storey drop. The OC has agreed by special resolution to instal balustrades to comply with the current regulations, but one disgruntled owner has persuaded the compliance department of our local council to overrule the DA planning department’s advice that no DA was required as “Balustrades for safety purposes are exempt development.” Currently trying to avoid the costs and additional time delay of submitting a DA.
Olivian – Unfortunately you may have been given some initial incorrect advice regarding the lack of requirement for a DA for balustrade replacement. It appears that balustrade replacement where the floor height is more than 1 metre above the existing ground level is not an exempt or complying development. If not exempt then you would need local council approval.
See Part 2: Subdivision 6: Section 2.11 and 2.12 Balconies, decks, patios, pergolas, terraces and verandahs of the following legislation:
https://www.legislation.nsw.gov.au/inforce/6041d1ad-eb39-45a7-f7a2-9e3acb4f2f73/2008-572.pdf
A useful article to highlight the fact that safety over rides cost is here:
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