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We fitted child safety nets to our high rise balcony 10 months ago, using a licensed builder to install them, who was recommended by the supplier. We understood that as this was a child safety devise we did not have to seek permission to install them, although we did send an email to the strata manager beforehand stating our intention and the relevant by-law ( in our case 7b- usually 5b: Our building has the new strata laws and is a new building) This email was acknowledged by the strata manager, as was the bylaw. Now with no other mediation or discussion we have been given a failure to comply stating we have damaged common property. (penetration through membranes and structure of the building) and breached the architectual code. According to the supplier this is the first time a failure to comply notice has been issued in NSW since they began supplying nets in 2011.
At no stage has anyone seen or inspected the safety nets in any way. The child safety nets can only been seen if the sun is strong and the netting shimmers. I have taken photos in all light and angles and cannot see the nets from the street in these photos.
We offered many times to provide photos of where it is attached, installation drawings and offered to have a building inspector look at it as we are sure they are attached with minimum surface damage that can easily be returned to pristine condition when the nets are removed finally. The supplier has assured us the nets have been designed to create no permanent damage. The supplier also provided a letter explaining the product, the installation process, the installers qualifications and the number of nets fitted so far in NSW with no damage and with no long term strata issues. . We were also given advise that the strata law regarding fitting a child safety devise overrules the other strata laws regarding common property, appearance and damage.
However we still have our failure to comply notice.
What are our rights? Should we just take this to the tribunal or wait until the Strata committee does so or should we continue to try to mediate with the strata manager. Has anyone had similar experiences?
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@Nettie said:
1. The product is attached by screws to the inside of the ledge ( not the floor) and columns of the balcony. These screws are no bigger than those used to hold a pot plant.
2. It has been specifically designed to cause no permanent damage.
The screws that have been used to attach to the inside ledge, what are these made of? Are the drilled into the structure? Will these remain when you move out? By referring to the inside ledge, do you mean the balcony hob? Who will have to fix them when they go rusty and damage the concrete or render? When I checked my balcony the waterproofing turns up this lip… is this the same on your balcony?
Lady Penelope it still seems to me that Nettie has affixed the screws into common property and the netting has an appearance different to the rest of the building. Last time I checked standard By-laws and the Act, there are particular approvals needed for this.
I agree mediation is a great mechanism for resolving strata disputes, though both parties need to be open and willing to find a solution.
It would appear to me that Nettie has not had a willingness to consider the rest of the other owners of the building and may benefit from first meeting with them. If the matter is to go further, these types of matters then impact on fellow owners and not help promote the community mindedness that is an important part of being a good strata citizen.
What does either party have to loose from meeting, reviewing the installation and trying to discuss mutually acceptable solutions.
At the end of the day for the strata manager, they have no interest in making any problems for their clients
I am the owner of the net business in question.
I would just like to say that we have been operating in Australia since 2011. We have sold hundreds of our net kits to clients all over Australia and we never have had one complaint. There has never been any issues with the waterproofing of any building new or old. Not one issue, ever. I am sure the buyers would have contacted us if there had been.
This product is sold worldwide and to my knowledge, there has never been an issue with waterproofing or damaging to a building apart from the holes on concrete.
The system was installed by an Australian licensed builder and he is very competent at his job.
The screws used are stainless steel 6G 1 1/4″. Once the system is removed, after a few years, the screws are removed and the area in patched up.
I think a comment from Lady Penelope gives a lot of food for thought for this Strata. If this goes to the tribunal, your names will forever be remembered as the people who think the aesthetics of a concrete block should be put before the safety of young children. It is not a great way to be remembered….
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.
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