Site icon LookUpStrata

NSW: The Guide to Child Safety Window Locks Legislation

The LookUpStrata Team
window locks legislation nsw

This article addresses common FAQs regarding child safety window locks legislation in NSW.

Table of Contents:

CLICK HERE TO BE NOTIFIED WHEN WE PUBLISH CONTENT TO THE SITE

Question: Is it legal for owners to remove child safety window devices on common property windows and replace them with restrictors that can be easily disengaged?

Two units in our complex have removed the child lock safety window devices and replaced them with a restrictor mechanism that can be disengaged anytime. The owners said they had made the change for cleaning and escape purposes, but the windows are opened all the time, effectively bypassing the legislation. The lots are on the second and eighth floors. As the windows are common property, is this legal, and if not, what can we do?

Answer: On the basis that the lot owner(s) have made alterations to common property without the OC’s consent, the OC is effectively obligated to repair same.

The owners corporation (OC) has an ongoing obligation to ‘ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies’ in accordance with Section 118(1) of the Strata Schemes Management Act 2015.

While the legislative requirements for window child locks appear clear, their interpretation has caused headaches.

It boils down to the compliance requirements under s30(3) of the Strata Schemes Management Regulation 2016 being satisfied, in particular:

  1. A screen, lock or any other device is a complying window safety device for the purposes of section 118 of the Act if it—

    1. has a child resistant release mechanism, in the case of a device that can be removed, overridden or unlocked.

This stems from the speech of Mr Chris Holstein in the Second Reading of the Strata Schemes Management Amendment (Child Window Safety Devices) Bill 2013;

“if the (window safety) device can be removed, overridden or unlocked it must have a child-resistant release mechanism.”

The 2020 National Construction Code Advisory Note indicates the purpose/use of a child resistant release mechanism is to enable the ‘release’ of a window safety device or screen (where required) to allow for its opening for say cleaning, or when children are not present; as follows:

“The NCC allows a screen or window opening restricting device which protects an openable window to be installed in a manner that allows it to be removed, unlocked or overridden. This would be useful, for example, in the event of a fire or other emergency or to allow for cleaning. In these situations, the unlocking device must be child resistant.”

On the basis that the restrictor mechanism is distinct from the window safety device, there should be no issue with it in principle provided that the means to disengage it can be considered a ‘child-resistant release mechanism’. The following extract from the NCC Advisory Note provides some guidance in this respect:

“A child resistant release mechanism could include a device which requires a key to unlock; a coordinated two handed operation to release; or the use of a tool such as a screwdriver, spanner, or Allen key to remove the screen or shift the window to the fully open position. The ABCB considers that a block which is screw fixed to the window track to restrict the opening of a window is a device with a child resistant mechanism and not a fixture.

There are a number of hardware solutions available, such as short chain winders and barrier screens, which will allow windows to comply with the requirements. Sliding window locks which key lock the sash so a 125 mm sphere cannot pass through, but allow the sash to open fully when unlocked, meet the requirements. The screen or opening restricting device must be able to resist a force of 250 N.”

If the restrictor mechanism is purported to be a child-resistant release mechanism and also the window safety device, it is grey whether this would satisfy the legislative requirements. One of our clients considered a keyed lock to satisfy both, noting that a ‘device unlockable by key’ is considered child resistant. Our view is that it is a matter for the OC whether to take a conservative approach to ensure compliance, and we suggested that in this instance they drafted a by-law to the effect that ‘owners and occupants must ensure that keys are not left within window locks to the extent they would no longer be child resistant’.

Noting the purpose/use of a child-resistant release mechanism, if a lot owner elects to use it to disable the window safety device or screen (after it has been installed to the satisfaction of the OC), it would be a matter for that lot owner.

On the basis that the lot owner(s) have made alterations to common property without the OC’s consent, the OC is effectively obligated to repair same. Therefore, the OC should serve a notice on the lot owners to reinstall the child safety locks. If the lot owners do not reinstall the child safety locks, the OC should seek to undertake the works and seek recovery of their expenses from the lot owners.

Any such recovery may require mediation in the Office of Fair Trading and/or orders from the New South Wales Civil and Administrative Tribunal.

In the alternative, the OC may wish to consider, say, an exclusive use by-law over the window area in favour of the lot owner, or a general by-law to ensure some form of compliance as per our above suggestion regarding the keeping keys separate from locks.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #723.

Question: Does the NSW child safety window lock legislation apply if a window opens onto the balcony of a unit?

Answer: If the balcony balustrade is compliant with the requirements at the time of construction, then the window restriction won’t come into play.

The requirements are that the window is above 2m from the ground and the windowsill is less than 1.7m from the internal unit floor. If the window is openable great than 125mm then it must be restricted when children are present. If the balcony balustrade is compliant with the requirements at the time of construction, then the window restriction won’t come into play. I hope this answers your query.

Peter Berney Solutions in Engineering E: peter@solutionsinengineering.com P: 1300 136 036

This post appears in Strata News #629.

NSW: Annual Window Safety Compliance Reinspection – Minimising the Risk of Non-Compliance

Owners Corporations and Strata Managers have a number of responsibilities when it comes to ensuring the safety of others, one of which is Window Safety Compliance.

Designed to reduce the number of injuries and fatalities that occur as a result of children falling out of high-rise windows, certified window safety devices must now be fitted to openable windows sitting 2m or higher above the ground, with an internal height of 1.7m or less. Once engaged, mandatory child window safety locks should only allow windows to open up to 12.5cm.

Introduced in 2013, NSW Window Safety Legislation states that Owners Corporations must have had these approved child safety devices installed on all applicable common property windows from the 13th of March 2018 or be at ‘risk of non-compliance’.

GET NOTIFIED WHEN WE PUBLISH NEW Q&AS, NEWS AND ARTICLES TO THE SITE

Why are children at risk if windows are non-compliant?

Alarming statistics from the Children’s Hospital at Westmead say that on average, each year, up to 10 children are admitted after falling from a window. These falls often happen in the child’s own home, over the summer months, when windows and balcony doors are left open. With many of these injuries being serious in nature, the likelihood of a child requiring long-term medical care and assistance following a fall is significant.

Why are Owners Corporations at risk if windows are non-compliant?

When it comes to window safety, Strata Owners are often unaware that their building presents a continual risk of personal liability. It is the Owners Corporations responsibility to ensure all openable windows are compliant with NSW Child Window Safety Legislation, as windows are considered common property for maintenance purposes. Penalties now apply for non-compliant Owners Corporations and Lot Owners, who also face fines, depending on the window’s position and the reason for the breach.

The potential for liability, as a result of a window related accident, can be devastating; most importantly from a child safety standpoint, but also from a financial perspective. If reasonable care is not shown to have been taken by the Owners Corporations to satisfy child safety window locks legislative requirements, Strata Insurance coverage could become void. Further to this, third party action could even result in individual Strata Committee members being sued for damages, into the millions.

How do Owners Corporations minimise ongoing risks associated with non-compliance?

Once installed and certified, as per NSW Child Window Safety Device Legislation, the Window Safety obligations of Owners’ Corporations remain ongoing. To ensure compliance all year round, Owners Corporations are advised to complete an Annual Window Safety Compliance Reinspection by qualified, industry professionals.

How Often do Windows Safety Locks Need to be Inspected?

Over time, window safety devices can fail to work, resulting in non-compliant windows. This can be due to device misuse, removal, damage or lost keys. Annual Window Safety Compliance Reinspection can remove any risk of non-compliance for Owners’ Corporations and their Strata Managers, ensuring all Child Window Safety Locks are maintained and certified to be in good working order.

What is an Annual Window Safety Compliance Reinspection?

Annual Window Safety Compliance Reinspection must be performed by certified experts, who test all windows and safety devices in accordance with Section 118 Window safety devices–child safety of the Strata Schemes Management Act 2015. Once checked, they should repair and/or replace non-compliant window safety devices on the spot, where possible, completing the job with an updated certification for each unit.

What are the benefits of an Annual Window Safety Compliance Reinspection?

It’s not always easy for Owners Corporations to monitor the way in which fall prevention devices are being used by the occupants of individual dwellings. By organising annual audits, any child safety window lock problems can be nipped in the bud, eliminating higher maintenance and repair costs down the track. Annual Window Safety Compliance Reinspection will highlight, repair and certify all window safety locks, with minimum disruption to residents. This, in turn, gives peace of mind to Strata Managers and Owners Corporations throughout the year.

With compulsory safety window devices assisting Strata Owners to keep their children safe, Window Safety Compliance Reinspection is helping Owners Corporations minimise the risk of liability associated with window-related accidents on common property. With more children living in NSW apartments than ever before, keeping our children safe is a responsibility for us all.

Anthony Shakar ASQB E: anthony@asqbwindowsafety.com.au T: 02 9785 7893

This post appears in Strata News #219.

Q: What types of window locking devices are being installed in strata buildings to comply with child safety window locks legislation in NSW?

The following responses have been received from members of the strata community. If you have any information to add, please include your thoughts in the comments below.

Clare Dominello, on behalf of Mr Dieb P. Khoury of Benjamin & Khoury Solicitors has supplied an introduction to the topic – window locks legislation NSW.

NSW Fair Trading say: ‘Each year, around 50 children fall from windows or balconies in Australia. Many suffer serious injuries. Sometimes these falls are fatal….’

Have we done enough with the new reforms with our windows and balconies? By 13 March 2018 By-laws had to be compliant. Owners Corporations in NSW are required by law to have window safety devices installed on all above ground windows, both inside windows eg: within your apartment or outside windows eg: Common Areas, gym areas, etc.

Requirements for Window safety and devices for the news window locks legislation NSW

As from March 2018, to help keep our families and friends safe, all Strata Buildings in NSW were required to have fitted, MUST have had fitted as per the new requirements, window devices that allow the window to be locked at 12.5cm when the device is engaged.

The device when activated will not allow the window to open fully. When the device is not activated your window can still open and close fully.

Owners Corporations are responsible for the Common Property they must have safety window devices installed on all common property windows after 13 March 2018. These are windows that are above the ground floor. They must stop the window opening more than 12.5 cm. The safety devices must be child proof and withstand wear and tear.

With the child safety window locks, can I open my window fully?

Yes.

You can still open your windows fully and leave your windows open. As an aid to stop children from falling from windows you have the peace of mind to know that when the window locks are engaged, children are protected from falling out of the window.

Please ensure that your window device is fitted properly. If the window device is loose and not doing the job it should be doing, you and or your strata could be facing non-compliance issues. This is a serious issue and not to be taken lightly. Penalties will be imposed for breaches if the new reforms have not been met.

Do the child safety window locks have to be on the window? Are there any alternatives?

Alternatively, it is possible to consider security screens, bars or grills on the windows. They must not have a gap bigger than 12.5cm. This is the alternative to not having the safety devices installed on the windows.

Remember: Flyscreens are not security screens.

How do I know which window this applies to?

A window within a child’s reach which is less than 1.7 m above the floor and the floor is more than 2 m above the outside ground must have child safety window devices.

Is there a time frame for when the locks must be installed?

The deadline for child safety window locks legislation in NSW was 13 March 2018.

If the window safety requirements have not been met, there is a penalty.

The Owners Corporation in the first instance will face fines, then lot owners will face fines depending on the window’s position and the reason for the breach.

Do CrimSafe screens comply with the window locks legislation NSW for apartments.

Anthony Shakar, ASQB Window Safety provides the following information:

Answer: Fly screens are not security screens and would not pass this pressure test, however to date, we have not had a security grill screen product such as the brand mentioned fail this test.

Window Child Safety Compliance requires that an openable window 2 metres above ground level and then, with a sill located 1.7 metres or less from the internal floor of the unit, be restricted to a maximum opening of 1.25MM whilst children are in the apartment and with a standard outward pressure test of 250 Newton force.

If a window should have a security grill attached then we would apply the same pressure force test on the security grill. It stands to reason (even though it is not the actual window) if it passes the same pressure test as applied to the window restrictive locking devise, a child could not force the security screen open.

Pete Berney, Solutions In Engineering provides the following information:

Solutions in Engineering have been fitting Window Child Safety Devises for over 2 years now. We researched the legislation, purchased and tested many varieties of devices and consulted child services and the Fire department before settling on the keyed lockable devices we currently use.

The issue is not so much the device as is the logistics of organising and gaining access and then obtaining proof that the device was fitted and tested to 250 newtons. We take a photo of every window when it reaches the prescribed newton force. And we came up with providing a certificate of compliance for the building once every open-able window had been tested.

A word of advice to Strata Managers and Executive Committees – do not leave this up to the individual unit owners to do. You will get varying degrees of competency and quality with no record of compliance. It is the Owners Corporations responsibility that all open-able windows be compliant as windows are considered common property for maintenance purposes.

Strata Lawyers have talked about writing By-laws to circumvent this but to no avail as you cannot contract out of a legislative requirement.

Also consider your insurance, what would happen on the advent of a disaster where the owners fitted the lockable devices themselves, ask your insurer what the likely ramifications would be verse having all devices fitted by a reputable firm for the whole building and signed off on as being compliant.

Unfortunately, a child will fall from an “alleged compliant window” in the years to come and the proceeding court case will set a precedent for the cases that follow. An Executive Committee member should greatly consider their exposure to this risk when choosing the method for which to aim to mitigate Window Child Safety Compliance.

You may also be interested in watching this Strata SnapShot series interview featuring Peter Berney, Solutions in Engineering – NSW Strata Window Safety

Lia de Sousa, Whitbread Insurance Brokers has responded regarding the insurance issues raised by Peter Berney above:

We would suggest that the comments from Solutions in Engineering represent an appropriate risk mitigation approach to the matter of complying with NSW Window and Balcony Safety regulations.

The most important factor to consider in relation to the Strata Insurance coverage is that all reasonable care is taken either by the Owners Corporation or Lot Owners, to satisfy the relevant window locks legislation NSW regulations.

Although there are no minimum standards as to the type of locks being installed, we recommend you refer to the following guides provided by the NSW State Government:

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of personal advice. Please contact Whitbread Associates Pty Ltd ABN 69 005 490 228 Licence Number: 229092 trading as Whitbread Insurance Brokers for further information or refer to our website – www.whitbread.com.au or contact us on 1300 424 627.

I live by myself and don’t ever have small children inside my townhouse. Why has the body corporate contacted me about installing child proof window locks on my windows?

Pete Berney, Solutions In Engineering provides the following response to this question:

All strata schemes that contain residential lots where there are openable windows above 2 metres from the ground and then, if less than 1.7m from the internal floor must comply with the window locks legislation NSW. If your Townhouse is part of a Strata Scheme and has openable windows as I’ve described, then the answer is ‘yes, your townhouse must comply’.

If you have good quality security screens such as Amplimesh or Crimsafe already fitted on your windows, they will suffice as we have not had any fail our pressure test (250 newton force). You have mentioned that your windows already have locks and keys fitted. This could mean your Townhouse doesn’t require new devices; however, first you must ensure that the windows are restricted to less than 125mm openings and for best practice, the window won’t open when a force of 250 newtons (equivalent to 25.5kgs) is applied.

The fact that no children live in or even visit your Townhouse is not relevant, as it’s not about the individual owner, it’s about the Owners Corporation’s responsibilities. This is because windows in a strata scheme are considered common property. Once your locks have been confirmed as being compliant, or you’ve had a new device fitted then the good news is that when children are not present, you can have the windows unlocked to allow for ventilation. However, if children are present they must be locked again.

As for allowing a stranger to access your strata home – Under section 122 of the Strata Schemes Management Act 2015 (NSW), ‘An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out… work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11)’. In saying that, your Strata Manager and/or Strata Committee should have sent you information about the contractor including their experience, expertise, insurances, licenses, etc.

In summary – First, check to see if your existing locks will be compliant with window locks legislation NSW. If so, inform your Strata Manager straight away. The manager should then request that the contractor check the locks are compliant. Failure to do so puts the management company at risk in the advent of a fall.

Secondly, ask for the contractor’s details and insurance certificates and inquire about what happens and who pays in the advent of an accident within your Townhouse.

Finally, be happy that you need do nothing more and you’ve helped ensure your Strata Scheme is complaint with the with this piece of legislation, therefore minimising the risk of litigation down the track and helping to protect the lives of children living in or visiting your Strata Scheme.

Jeff Schultz, Express Glass warns there are a lot of cheap devices on the market (although being compliant with child safety window locks legislation for NSW) they are removable and can cause long-term compliance issues. Express Glass have a Handy Guide on Locks Available in the Market. If you are interested in obtaining a copy of the booklet, just email Jeff at jeffs@expressglass.com.au.

Andrew Webster, Australian Child Window Safety sent in the following information about child safety window locks legislation for NSW:

As you are aware, the NSW laws have changed in regards to windows on strata and rented properties. The law states that if you fall into the bracket of their definitions, windows in NSW need to be restricted with window restrictors so a 125mm sphere cannot be passed through the opening at a force of 25Kg, or if correct screens are installed they must withstand the 25Kg force.

There are many products out there to overcome this issue.

We use some of the following products:

Venlock, Remsafe Window Restrictor, Whitco Vent Lock, Whitco Restricted Winders, Kidscreen.

These products can be supplied and installed starting from $45 per window.

For NSW, the window restrictors can be installed by residents, but be warned. They need to be correctly installed and tested.

ACWS can perform a test with a calibrated digital force meter and supply an installation and testing certificate to provide to your insurance company.

A lot of the “fly by nighters” are installing these products and not performing the testing which can leave you a little bit vulnerable with insurance companies in the event of something happening. As the new laws state the window must withhold the 25Kg force.

We are more than happy to provide a free quote to those who still need to comply with the window locks legislation for NSW.

Anthony Montibeler, Director at Norwest Strata Management has contributed this information from a Strata Management point of view:

We can proudly state that 99% of our Owners Corporations are now fully compliant with the new legislation thanks to the efforts of ASQB Window Safety.

Anthony and his team have been fantastic and fully understand the requirements of the window locks legislation NSW. They issue an installation certificate for each lot to state that it complies along with another certificate to state that the Scheme complies once they have installed every lock required.

They have been able to cater for every window they have encountered. Different windows have different requirements so it is best to get the professionals onsite first to check the windows so they can provide the right product for the application.

As Strata Managers we found a benefit to having the Owners Corporation agree to do the whole complex rather than leaving it up to the individual owners to carry out & provide a compliance certificate for their lot only.

Question: Two lots in our building have not cooperated with the fitting of child window safety devices. Can our building still get a compliance certificate for the window locks legislation NSW, excluding these lots or are we able to enter and fit without their permission?

Leanne Habib, Premium Strata answers with the following:

It is arguable whether Section 122 may be used, as the entry required is not really an emergency per se. We feel you would need to obtain orders for access from NCAT instead.

Usually, we would have advised the scheme to implement a by-law regarding the requirement for access, liability, prohibition on malicious damage, tampering etc. prior to having engaged a contract to fulfil the requirements for complying with child safety window locks legislation in NSW.

Is the installation of window locks an admin or capital works fund expense?

Leanne Habib, Premium Strata response with the following information:

The window lock installation would NOT be a recurrent expense but rather a one-off expenditure:

Section 79 Estimates to be prepared of contributions to administrative and capital works funds

  1. An owners corporation must, not later than 14 days after the constitution of the owners corporation and at each annual general meeting after that, estimate how much money it will need to credit to its administrative fund for actual and expected expenditure:
    1. to maintain in good condition on a day-to-day basis the common property and any personal property vested in the owners corporation, and
    2. to provide for insurance premiums, and
    3. to meet other recurrent expenses.

Recurrent expenses would include such regular expenses as insurance, water charges, electricity charges, carpet cleaning, lawn mowing services and the like and minor expenses relating to maintenance of the common property.

  1.  An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its capital works fund for actual and expected expenditure:
    1. for painting or repainting any part of the common property which is a building or other structure, and
    2. to acquire personal property, and
    3. to renew or replace personal property, and
    4. to renew or replace fixtures and fittings that are part of the common property, and
    5. to replace or repair the common property, and
    6. to meet other expenses of a capital nature.

Expenses of a capital nature would include expenses in relation to major repairs or improvements to the common property or personal property of the owners corporation, such as replacement of roofing, guttering or fences and the like.

Jeff Gough, Liverpool Glass Company gives you an idea on how much installation costs:

We supply & install window locks for $110 for the first one (per tradesman) as part of the travelling component. $55 for every lock installed whilst onsite after the first on the same day.

E.g. 10 units with 5 windows each = 50 windows x 2 tradesmen 2 @ $110 48 @ $55 Total = $2860.00 (inc GST)

This is the window lock they recommend, which comes in both white and black.

Once fitted, why is the maintenance of window locks important for continued compliance with child safety window locks legislation in NSW

Anthony Shakar, ASQB points out why Annual Compliance Checks are important:

Once a fall prevention device is attached to a window, it becomes a fixture and part of common property. As a result, the owners’ corporation is responsible for maintaining all fall prevention devices to a standard required by legislation.

Over time, child window safety devices can fail to work effectively causing a window to become non-compliant. The most efficient and effective way to ensure all devices remain in good working order is to carry out an annual compliance check. This will enable any faulty devices to be regularly identified, and rectified, whilst also maintaining a detailed record for the building, thereby minimising any risk.

Maintaining a safe environment for young children is paramount, so it is important that devices are regularly tested and maintained to ensure their effectiveness. Doing so will prevent any serious injuries from occurring, and will ultimately save lives.

How Can a Window Become Non-compliant?

It can be hard to monitor the way in which fall prevention devices are being used by the occupants of individual dwellings, therefore highlighting the importance of carrying out a regular audit. The following are some of the most common ways a window may become non-compliant:

What Does a Window Compliance Check Involve

Have a question or something to add to the article? Leave a comment below.

Embed

Read next:

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Visit Maintenance and Common Property OR NSW Strata Legislation pages.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.

Exit mobile version