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Hello
One owner in our building complained about the glass/aluminium balustrade, not being secure. He was asking the OC to engage a structural engineer to check on the balustrade safety. He apparently only wanted “piece of mind” but it was obvious from beginning that he wanted to have a new balustrade to add value to his property.
The report was done by xxxxxxxxxxx, checking all the balconies in the building, who confirmed that all balconies/balustrades are in good conditions and in no need of any further action. Now the owner came with a idea to get the support of other owners and is requesting all balustrades on the western side of the building (4 units) to be replaced for a new once. His argumentation is that our consultant didn’t state that they are safe.
Consultant’s report follows:
Description
There are a total of twelve balustrades in this building. Their construction is a mix of masonry, reinforced concrete and glazed aluminium.
None of the balustrades appeared to be loose, significantly cracked or otherwise unstable.
Recommendation
No further testing for strength and stability is required.
Recommendation
As far as xxxxxxxxxxxxx is aware, there are no retrospective legal requirements for buildings to modify their balustrades to meet the modern Building Code of Australia (BCA) requirements. Whilst the law may change in the future, no action is currently required.
In the event that the balustrades need to be upgraded in the future, then they will need to comply with the requirements of the BCA of the day.
( date of the Report 9 May 2014)
The owner even went to the Council, asking to inspect his balcony, because the balustrade is apparently not safe. Report from Council enclosed.
The Council didn’t find anything to be wrong, only recommended to upgrade it to the new BCA act.The inspection revealed that the building within the property remains unchanged since it was originally built and current balustrade installed within several units located at the rear of the building no longer complies with current safety standard pursuant to the requirements of the BCA 2013.
Council informs you that it is the responsibility of the property owners to ensure the building is maintained in a safe condition and as such suggest you consider upgrading the building balustrades to meet current safety standards.(Dated 9 April 2014)
The EGM is called in 2 weeks time. 3 owners are against, 3 owners for the replacement and 2 are undecided. Therefore it is very important, if this motion requires a special or a standard resolution.
3.2 Replacement of Balustrades
That the western balustrades of Units 5, 6, 7 & 8 be replaced to make them safe and also compliant with the current BCA standards.
Note: Some owners believe that this work is an Upgrade of Common Property and consequently requires a Special Resolution. If it is proved without reasonable doubt that this is an Upgrade by the time of this EGM, this motion will be not be valid and will be withdrawn.
It is believed that all owners have a copy of the xxxxxxxxxx Report on the balustrades and the letter from xxxxxxxxxxxxx Council. However, if any owner requires a copy of these documents….Our strata manager is saying, this motion requires only a standard resolution, because this is not an upgrade, but a repair. All the reports are saying upgrade, but our strata manager thinks otherwise, even saying, if we don’t replace the balustrade, in case of incident, the OC could be liable. Will the report from the engineering company not protect us?
I am enclosing extraction of an email from our strata manager.
Please let me know how you wish to proceed with this, as a meeting with two separate views about it being an upgrade or not is likely to produce different results (i.e. Upgrade (Special Resolution) – Fail; Bring up to Current Code so a repair (Standard Resolution ) – Pass.
However, we believe that it should be put in as a Standard Resolution.
Can you kindly advise me on this matter please, if a special or standard resolution should decide this matter.
Kind regards
Alinka
This post has been edited to remove references to the Consultant’s business name and to the specific Council involved, and to make quoted extracts from the Reports more obvious by placing them in italics. Alinka submitted another post that was almost identical to this one, and to avoid duplication of responses and confusion, that has been deleted.Whale.
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The reports you have, most specifically from the engineers, do not state that any repairs are required to the balustrades.
[note that an expert will never say something is “safe” because that would leave them open to liability]
From what you have said, it seems that some people want to upgrade the balustrades. That is not a repair. Bringing up to current standards when there is nothing inherently wrong with the balustrades is not a repair, it is an upgrade. Look at it another way – what is being repaired?
If the owners want to upgrade the balustrades then that will require a special resolution.
The strata manager should also be told that they should not be giving advice in relation to liability unless they have a sound basis for doing so.
There is a very simple process that you can employ here. You send a letter which you read out at the meeting and ask to be minuted that:
a) You believe the changes to the balustrades are an upgrade not a repair.
b) If the proposed changes are made without proper authority – i.e. a special resolution – you will challenge this at the NSW Civil Administration Tribunal.
c) Because the Strata Manager and those wanting to make the changes have been told that they require a special resolution, you will seek orders at NCAT that they and those who agree to go ahead with the work in the knowledge that it may be a non-compliant decision be held responsible for all costs.
d) Asking other strata managers for their opinion is not a valid way to resolve this. The strata manager should have consulted a strata lawyer. Considering the expense of the work and the opposition to it, as well as the level of opposition to this, you have to ask why they have not done so.
Now, having said all that and having argued all the ins and outs of who should be doing what, there is a safety issue here. The balustrades would not be compliant if they were being installed today. The regulations are about safety – not rules for their own sake.
So while we are saying you are right to argue this is an upgrade not a repair, and while it may not be legally necessary to change the balustrades, that doesn’t necessarily mean it’s a bad idea.
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.
@alinka said:
I am very happy to be a member of the forum. Finally a place, where I can get clear and straight forward answers. Thank you
You’re very welcome. And, having said that, I think I have belatedly found a definitive answer with which you can counter your strata manager’s very tenuous arguments.
Earlier this year there was an Appeals Court decision which effectively said that Owners Corporations do not have to “maintain and repair” common property to the current whizzbang bells and whistles standards, just to the level that they are functioning effectively.
His Honour J.A. Barrett said in his ruling that “anything amounting to alteration or addition for the purpose of improving or enhancing the common property is beyond the concept of renewal or replacement…” and requires a special resolution.
This is now an established legal precedent and pretty much blows your strata manager and his cronies out of the water.
You’ll find the OCN Newsletter on the case (popularly known as the ‘Thoo Case’) HERE and a transcript of the ruling (which is actually about exhaust fans in a food court) HERE.
So I would send an email to the strata manager and the executive committee along these lines:
With reference to your apparently anecdotal opinion that the proposed upgrades of balconies do not require a special resolution, I draw your attention to The Owners Strata Plan 50276 v Thoo in the New South Wales Court of Appeal, 22 August, 2013.
In his ruling that Section 62 obligations to maintain and repair common property do not imply a requirement to upgrade the CP, His Honour J.A. Barrett said “anything amounting to alteration or addition for the purpose of improving or enhancing the common property is beyond the concept of renewal or replacement…” and requires a special resolution.
As required by the Division 3, Section 35 of the Strata Act, please indicate on the agenda for the upcoming General Meeting that that the motions to upgrade the balconies will require a special resolution.
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.
this is a shot across your Strata Manager’s bows. You are telling them that you know the law.
If they go ahead with the meeting and the motions aren’t presented as special resolutions, and noted as such in the agenda, you could:
a) apply to the chairman at the meeting to have them struck off the agenda as being incompetent
b) before the meeting apply to NCAT for an interim order that they not be considered
c) if the meeting has gone ahead and the motions passed on a simple majority vote, apply to NCAT for an interim order to prevent the work going ahead.
I strongly feel that you are getting very close to the point (if you haven’t already passed it) where you need proper professional advice from a specialist strata lawyer. On that basis, I am closing this correspondence unless someone has something new to bring to the table.
Division 3:
35 Forms of motions
(2) The notice [of a General meeting] must clearly indicate which motions require a special resolution for their passage and which motions require a unanimous resolution for their passage.
(3) A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause …
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 New South Wales Court of Appeal in The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270, has given new guidance on circumstances in which an owners corporation is required to renew or replace common property…..
The important points from the latest Thoo case are these:
1. The Section 62 (2) duty to renew or replace fixtures or fittings connotes no more than the installation of one thing in the place of another to achieve functional equivalence;
2. Anything amounting to improved or enhanced functionality to lot owners requires a special resolution under Section 65 A;There is also another case i will post when i find it where the Supreme Court say renew or replace amounts to like for like – words to that effect. If the replace is “better” than that is an upgrade.
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