This article is about your balcony and balustrade safety standards, balustrades regulations and strata liability.
NSW UPDATE Sept 2021: In a landmark ruling on 23 September 2021 the Appeal Panel of NCAT has ordered an owners corporation to upgrade a balustrade to comply with the Building Code of Australia. This case marks the first time that an owners corporation has been ordered to upgrade an unsafe balustrade to achieve compliance with the Building Code of Australia. The case cuts against the long held view that the provisions of the Building Code of Australia are not retrospective and that an owners corporation does not have to upgrade an unsafe balustrade to comply with the Code. Read the full article here: Upgrade That Balustrade!
Table of Contents:
- QUESTION: We live in a 1980s NSW block of townhouses. Children reside in or visit some of these units and we are updating those balconies to be compliant with current BCA regulations. Should we be updating all balconies, even those in units not visited by children?
- QUESTION: What if our balustrade complied with the relevant standard when it was built, but does not comply with the current BCA?
- QUESTION: What if our balustrade on our balcony does not comply with either the relevant standard when it was built or the current BCA?
- Liability for injuries to children
The safety of a strata scheme’s premises for owners, occupiers and visitors should be one of the primary concerns of an owners corporation. If an owner, occupier or visitor is killed or injured on common property, the owners corporation could be held liable and would need to raise significant levies to cover the costs of any uninsured amount.
Question: We live in a 1980s NSW block of townhouses. Children reside in or visit some of these units and we are updating those balconies to be compliant with current BCA regulations. Should we be updating all balconies, even those in units not visited by children?
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I am the owner of a NSW townhouse in a block of 10 where 7 lots are two stories, constructed in about 1980.
We have recently become aware that, owing to the presence of children residing or visiting in 3 of these units, we need to make the balconies of these units compliant with the current BCA regulations and we are proceeding with this work.
Are we also legally required to make the remaining 4 two-story units compliant at the same time, even though no current risk exists for these units?
To the best of my knowledge, these 4 balconies were compliant with the BCA regulations at the time of construction.
Answer: Balconies, Balustrades Regulations and Strata Liability
The safety of a strata scheme’s premises for both residents and guests should be one of the primary concerns of an owners corporation. If a resident or guest is killed or injured on common property, the owners corporation could be held liable and would need to raise significant levies to cover the costs of any uninsured liability. See section 5.03 of the Guide to ACT Strata Law regarding the obligation of owners corporations to repair and maintain any part of a balcony on a building (which would extend to an obligation to repair and maintain balustrades).
A defective balustrade is one of the biggest risks to safety in a building, and as such, it is of great importance that an owners corporation ensures that any balustrades in their scheme are structurally sound and comply with the relevant building standards. The current Building Code of Australia (BCA) requires that balustrades, among other things, meet a minimum height requirement of one metre and all newly constructed strata plans must adhere to this requirement (if the balcony upon which the balustrade sits is more than one metre above the finished ground level).
However, previous building standards contained less stringent requirements for balustrades which can result in confusion about whether older balustrades need to comply with the current standards in order to avoid liability for the injury or death of residents and guests.
What if our balustrade complied with the relevant standard when it was built, but does not comply with the current BCA?
It is well settled law that safety standards for building design, such as the BCA, do not act retrospectively. This was confirmed in the recent case Hutch v Ryan [2015] WADC 16 where a resident tried to sue the owner of a premises after falling over a balustrade several meters onto the floor below. In determining whether the owner had breached the duty of care owed to the resident, the essential question was whether the owner knew or ought to have known that the balustrade was dangerous and failed to take precautions to address the danger. Although the balustrade did not comply with the current BCA, the fact that it complied with the relevant standard at the time of its construction was an important factor in concluding that the owner was not aware of the risk, thereby absolving them of any liability. Therefore, as a general rule, if your balustrade complied with the relevant standard when it was built, there is no need to upgrade it in order to comply with the current BCA standard.
However, the greater the foreseeability of risk and probability of harm caused by a defective balustrade, the higher the obligation on the owners corporation to take precautions to prevent harm. For example, it is implicit in the decision of Hutch v Ryan that if an owners corporation was aware that a no longer compliant balustrade was also dangerous, they could be liable for any resulting injury. Such knowledge may be imputed from:
- building reports highlighting the safety issues of a balustrade;
- various safety incidents caused by a defect in the balustrade, indicating to the owners corporation that the balustrade is unsafe; or
- the presence of young children living in the scheme, increasing likelihood of potential accidents.
In these circumstances, the owners corporation should rectify the balustrade, and any new works will need to comply with the current BCA standards.
What if our balustrade on our balcony does not comply with either the relevant standard when it was built or the current BCA?
If your balustrade did not comply with the relevant building standards when it was constructed it is likely that the owners corporation will be liable for any resulting injury or death caused by the balustrade. This was demonstrated in the decision of Toomey F. Scolaro’s Concrete Constructions Pty Ltd (in liq) (No 2) [2001] VSC 279 where the plaintiff was awarded damages for injuries suffered after falling over a balustrade that was 66.5mm below the relevant standard, It was held that the owner and builder of an apartment complex owe a duty of care to building users and it is their responsibility to ensure all areas of the building are in compliance with the relevant building standards. Therefore, owners corporations should check whether their balustrades comply with the relevant building standards at the time the scheme was built, and immediately undertake rectification works if the balustrade is found to be non-compliant.
Liability for injuries to children
A question must be raised as to whether or not most owners corporations have sufficient insurance coverage to meet the cost of care for a child who has been injured falling from a window or balcony. Regulation 5 of the Unit Titles (Management) Regulation 2011 provides for a minimum public liability insurance coverage of $10 million. A child who has been severely injured and requires a lifetime of high level care may seek more than $10 million from an owners corporation as compensation. We note that individual owners will be liable in proportion to their unit entitlements if the insurance coverage held is insufficient or unavailable.1
See Annexure 4 of the Guide to ACT Strata Law regarding the responsibility of the owners corporation to repair and maintain windows.
It might be asked how probable such an injury event is, In the years 1998 — 2008, the Children’s Hospital at Westmead admitted on average more than 15 children every year for injuries sustained from falls from windows and balconies.2 These statistics are from only one hospital in Sydney, NSW. Extrapolating on this figure, across Australia every year, it is likely that hundreds of children are admitted to hospital as a result of injuries sustained from falls from windows and balconies.
The risk posed by the above is one that is foreseeable. That is, an owners corporation could not regard the presence of children in an apartment building as being a rare event. Further, children are by nature exploratory and pose a higher than normal risk which should cause consideration as to the best way to manage the risk posed, Indeed, the seriousness of the injuries caused is high relative to the cost of taking precautions. For example, windows may be made safe by retrofitting them with inexpensive locks or window-limiting devices.
In NSW, to prevent children from falling from windows, all strata buildings must be fitted with devices that enable their windows to be locked at 12.5 cm when the devices are engaged. NSW owners corporations must have such devices installed on all common property windows above the ground floor by 13 March 2018.3
When similar laws to those in NSW were enacted in New York, there was a 96% decrease in hospitalisations due to falls from windows.4
- Cathy Sherry, ‘Kids Can’t Fly: The Legal Issues in Children’s Falls from High-rise Buildings’ (2012) Thomson Reuters 22.
- The Children’s Hospital at Westmead, Working Part for the Prevention a-Children Falling from Residential Building Outcomes Report (February 2011).
- Window Safety Device Requirements Factsheet, NSW Office of Fair Trading, September 2015.
- Ibid.
The above information is not and is not intended to be, legal advice. It is a summary and should not be treated as a comprehensive review of the applicable legislation.
Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060
Have a question about balcony and balustrade regulations or something to add to the article? Concerned about whether your balcony is compliant? Leave a comment below.
Read next:
- NSW: My Unit Has Been Leaking for Years And The Owners Corporation Is Doing Nothing – What Can I Do?
- NSW: Q&A Can Installation of Blinds or Sun Shades for Apartment Balconies be refused?
- NSW Fair Trading: Deck and balcony safety – A practical maintenance and safety guide for your home
After more detailed information dealing with Strata Law in the ACT? Chris Kerin’s Guide to ACT Strata Law is now available.
Are you interested in information about balustrades regulations and strata liability, common property or strata legislation for your state or territory? Visit Maintenance and Common Property OR Strata Information by State
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Do we need to pay an Engineer for the below? Is this needed? We have quotes from a QBCC builder and a Glass installing company that are registered with the body corporate community select system?
That the Body Corporate Committee approve the appointment of [a building consultancy company] to undertake the review of foongs, materials and durability, require alterations if needed for both balustrades and steel supporting posts. AND Furthermore that the Committee approve for [the company] to undertake the certification of each system, subject to compliance and completed to engineering specifications.
Thanks for the comment Jody. I can’t give advice in relation to specific situations without knowing more and being engaged. Further, if you are based in Queensland, I suggest a local lawyer be contacted
Hello,
Our balcony balustrade is 620mm high that sits on a concrete that is 470mm high with a total height of over a 1 metre. Is our balcony balustrade compliant with the Australian Standard?
Would very much appreciate your feedback
Kind Regards,
Resi
Thanks for your email Resi. This is more of a technical question than a legal one. Unfortunately I am unable to assist
we rent a penthouse apartment on level 35, we have just been told that some of the balconies are unsafe and they are locking every apartment balcony door so they cannot be used for 6 months while they fix them. Our balcony sits above another unit that actually juts out way past ours and we have a concrete garden bed in front of the balustrade so no one can actually even touch the balustrade, it is not loose and there is not a safety hazard. is it legal for them to lock us off the balcony ?
The issue is really a matter of managing the risk arising from the balustrades in the building and potential property and personal injury which might arise from the balustrades. I really don’t know how the balustrade is “unsafe” however the garden bed may not solve the safety issue and indeed might provide a climbing aid for a child (for example). Further, the fact that one might only fall one storey does not mean no one would be injured in such a fall.
my issue is not that they want to fix it – but they want to lock the balcony for 6 months so no one can use it until they fix it
we signed a lease for an apartment with a balcony the same size as the apartment with a 6 person spa – now we will not be able to use what we have paid for
surely if its unsafe then it has been unsafe for the last 50 years and the next couple of months is not making any difference.
also we just received notice that the rest of the levels will not be done till mid january due to COVID in our area – seems very strange that every other level is now safe till mid january
Is it legal to repair instead of replace balcony balustrades when they do not meet standards , even though when built they did meet the standards of the time
Ultimately the usual thing that forces the replacement of the balustrades is that if development consent is required to do work, Council will make compliance with the BCA and standards a condition of consent. I can’t be more specific as I would need to know more about your particular situation to give specific advice.
Dear Sir, Our Body Corporate have passed a Special Levy to replace the Balcony Balustrades , myself and my wife own the two Ground Floor units. Our combined Special Levy is $6666.00, however our units, being on the Ground Floor, do not have Balconies nor Balustrades, should we be exempt from this Special Levy. The building is an eight storey High Rise., 28 Units[. [NSW]
The short answer is “No”, you should not be exempt from this special levy.
I have an apartment in a multi storey high rise of over 20 levels built some 15 years ago. Only a very small number of apartments appear to have deteriorating balustrades in their balconies. The Owners Corporation has engaged industrial experts to investigate and to give recommendations. For safety and liability reasons the Owners Corporation is not giving owners an option. Rectification works are said to be compulsory for all even though the majority of balconies appear stable and structurally sound with no issues. All building regulations and Codes were fully compliant when built. Suddenly we are told the glass panels are not compliant with today’s building codes, so we need a total replacement. The cost to each owner amount to thousands and thousands of dollars even for those with no safety issues with their balcony balustrades.
As new building compliance codes only apply to new rectification works, my question to the Owners Corporation is Why replace structurally sound balconies which need no works, but we have to have it replaced so as to comply with current BCA glass panel codes. New BCA codes apply only for new rectification works. I do not see this as reasonable sense.
I wonder if Christopher would comment on the obligations of the owners corporation as the PICU under Work Health and Safety legislation which imposes an obligation upon every PICU to take all practicable steps to prevent injury to persons entering or within the undertaking – a strict liability I understand.
Would not a breach of WH&S law give rise to an action in tort for breach of statutory duty?
I also wonder whether the answer to the question is affected by the mandatory agenda item for consideration at every AGM whether a scheme needs to undertake a WH&S investigation and report.
Hi Neil
Responses can only be of a general nature. As your question is detailed and relates to a specific situation, we suggest you seek independent legal advice from a qualified professional.
We recommend you contact Christopher Kerin. Please find his contact details in the article above.
I was referred to a Melbourne lawyer for an answer to my question regarding Vic boundaries . After E mailing her I received no reply. I also contacted another lawyer that advertises in the Docklands News. No answer.
In my email I made it clear that I was happy to pay but they were obviously not interested enough to reply. Too many building cladding customers I assume.
c’est la vie
Hi Niki and Christopher,
I would be happy to pay Christopher to set this out for me. Am I able to Email Chris directly so that I can send the plans etc and Chris can supply me with a cost estimate.
Thanks again,
Tim Coulson
Hi Tim
Certainly. Chris can be contacted on christopher@kerinbensonlawyers.com.au.
All the best,
Nikki
Hi Nikki,
In the reply to your question posed to Christopher Kerin, Kerin Benson Lawyers. Part of their answer was
“Assuming you are the owner of the property, the balustrade is lot property (this is not a given)”.
As balcony balustrades are most often on the external boundaries to a lot and also can be seen from other properties or the street, I would have thought that all balustrades should be the responsibility of the OC.
This would ensure the commonality of build and the adherence to safety standards. Should the lot owner be able to choose to repair / not repair as they see fit and to possibly repair with like materials that are not as safe as the original then this opens up the OC to legal liability if there were to be an accident.
I assume that the OC would not be able to simply say “not our problem”.
Surely all balustrades that on the edge of the lot between the lot owner and common property or public property is the OC responsibility.
Sincerely,
Tim Coulson
Hi Tim
Thanks for your comments. This response from Christopher Kerin:
I would need to know the jurisdiction as well as see the plan. Also there is a bit of an explanation to this which would take 30 minutes to consider and set out. That is, I’d need to charge to set this out.
A completely different subject. An owner in our building is considering having her unit renovated and is considering having her carpets removed and the flooring replaced with a floating timber floor with an approved sound deadening material laid under the floor. Are their any sound level restrictions that this owner has to meet so as to minimise disruption to the residents below her unit ?
Hi Don
To offer a response we would need to know which state the apartment is located in.
Thanks
Nikki
Hi Don
Christopher Kerin confirms he would need to know which state before offering a response.
Our balconies have glass balustrades in 3 sections, question is, is it a requirement to have a metal top rail fitting over the glass panels as has been seen on many buildings more modern then our building to strengthen the glass panels ?
Hi Don
This reply from Christopher Kerin, Kerin Benson Lawyers:
This is not a legal question but a combination of the BCA and structural engineering / building.
It is time that balcony safety is treated the same as fire safety and window safety (compulsory). Theses are accidents waiting to happen and with foresight and expenditure could so easily be fixed. I have the same problem by a body corporate unwilling to fix the balconies on financial grounds. The cost if an accident occurs far outweighs the cost of rectifying the issue now. One is helpless in this situation I have found.
Thanks for the informative article. If you become aware of non compliant balustrades (that were compliant at the time of construction) is there a reasonable amount of time permitted before rectifying the balustrades? Given rectifying the balustrades can not happen instantly I wonder if you could still be held accountable if you were in the process of rectifying (scope of work, quotes etc)?
Thanks
Hi Dominic
We have received the following response back from Christopher Kerin, Kerin Benson Lawyers:
Yes, a reasonable amount of time would be allowed to enable this rectification work to occur. However, what is reasonable will depend upon the circumstances.
For example, if there was a higher risk of injury due to the non-compliance, then a court would construe reasonable time as a shorter time.
But it is possible to be found liable for losses which arose whilst the non-compliances were being rectified. In this regard, consideration should be given to interim steps which temporarily address the non-compliances whilst such rectification work is being carried out.
I live in a block of 5 townhouses built in 1970’s and not sure if the upstairs balcony balustrade complies with BCA. The height of balustrade is 890mm, spacing 185mm x 45mm. The body corporate has installed a light weight steel mesh height 1m, spacing 3m x 3m but the problem is a quarter of the mesh has rusted and broken off leaving a spacing of 185mm x 45mm. I do not allow my grandkids on the balcony as they manage to climb the mesh by pushing the toes through and its dangerous. I have stated that I will replace the balustrade at my own expense but unfortunately one of the home owner will not allow it. Is there anything I can do to rectify my delimer?
Hi Diana
Thanks for your question. We have received the following response back from Christopher Kerin, Kerin Benson Lawyers:
Assuming you are the owner of the property, the balustrade is lot property (this is not a given) and assuming there are no by-laws indicating otherwise, there can be no objection to you repairing the balustrade in a like for like manner.
Thanks
Hi Diana,
In regards to the balustrade compliance, there are several requirements to consider (Clause D2.16 of the NSCC2016).
1. The height needs to be a minimum of 1m.
2. No gaps greater than 125mm (think of a ball with a diameter of 125mm – can that go through any gaps? – it appears that it wouldn’t due to the 45mm)
3. Climbability – if the surface of the balcony is higher than 4m than the balcony cannot facilitate climbing between 150mm – 760mm.
Based on the above requirements, it appears there is a non-compliance due to climbability (depending on how high your balcony is) and possibly the height of the balustrade (the mesh may not extend to a height of 1m in all areas).
You may need someone to do a quick site inspection and provide your strata with a letter/report determining the compliance of the balustrade.
If you need further information, don’t hesitate to contact me.
Vince Graham
Project Guides
Hi Denise,
There are two issues here.
The first relates to BCA compliance. The threshold issue is, do the circumstances surrounding your balustrade and balcony require the replacement of the balustrade? In this regard, instructions would need to be taken in detail as to who lives and visits your apartment, how your apartment is used, etc,
The second issue is whether the strata committee is favouring some owners over others. This is a strata issue not a BCA compliance issue.
My email address is christopher@kerinbensonlawyers.com.au.
I can recommend a Victorian solicitor to assist you further.
Regards
Chris
I have a balustrade that currently does not meet BCA standards. it is 880mm high and has a dangerous foothold that can enable children to climb over. I live on the 5th floor of a 1983 building. My Strata Committee refuses to do anything about it despite have replaced all of level one’s balustrades because they were not safe due to rust and to make the building look more modern. How can I get my SC to agree to replacing the balustrade as they have done to level one?