NSW: Q&A Older Building Safety and Maintenance Requirements

We received the following questions about older building safety requirements from NSW lot owners. The questions deal with matters such as whether building compliances are retrospective, for example, balustrade heights plus the practicalities of conducting regular walk arounds to ensure there are no items requiring attention.

Table of Contents:

• QUESTION: What can owners do when the vote is tied on a critical issue like an asbestos report in a small strata scheme?
• QUESTION: A common property deck within our lot needs replacing. The new fibre cement surface is a slip hazard when wet. The owners corporation is not listening. What can I do?
• QUESTION: A number of garage doors are affected by circuit breakers which regularly trip. The circuit breaker can only be switched by a committee member or electrician. It’s impractical and doesn’t seem very safe.
• QUESTION: In our ageing strata block, the windows in one unit were modified at some point. Some of these windows now need repairs. Should we replace all windows for uniformity? Is this the responsibility of the owners corporation or the current owner?
• QUESTION: For a building built before 1974, has our strata management company breached their responsibilities by not informing our executive committee that owners of all units are liable for their balcony remedial repairs?
• QUESTION: We are laying new carpet in an old building’s common areas. I am over 70 and want the owners corporation to install treads for the safety of all residents. Are there rules for this?
• QUESTION: An owner in our old apartment block wants to replace their glass sliding door. The balcony does not comply with current regulations. Is compliance with the Building Code of Australia retrospective?
• QUESTION: Our old building has vermiculite ceilings throughout. The ceiling seems to be failing and particles of dust are falling in units and common areas. What do we do?
• QUESTION: We are aware of asbestos in our 12 lot building and have had an asbestos report done. Do we need to keep a register on-site? Where should the asbestos report be kept and should it be available to contractors?
• QUESTION: What is an asbestos risk category for older buildings? If an older building is not aware whether they have asbestos in the building or not, should they have an asbestos report carried out?
• QUESTION: Our Community Association has had a petition from residents to make our community pool accessible by providing a handrail in the shallow end to get in and out of the pool easily. Is there a company that provides an assessment of the strata/community accessibility and can advise on the best solution?
• QUESTION: Can our owners corporation deny the installation of some sort of safety on a fifth-floor balcony? There will be a 2-year-old child living in the unit.
• QUESTION: The balustrades on our 1983 built apartment building as no longer compliant. What do we have to do to make sure the building compiles with the current building code?
• QUESTION: We are deciding on refurbishing or replacing original windows in a 1970s apartment building. What should we take into consideration?
• QUESTION: The Owners Corporation have recently upgraded the hatch providing access to the roof. Are we legally required to provide a fall barrier for when the ladder is being used?
• QUESTION: Do new units have certain requirements older smaller block units may be exempt from? What do we need to know about older building safety requirements?
• QUESTION: Should my uneven courtyard pavers be repaired quickly? Who is responsible for the cost to ensure building safety within my courtyard?

Question: What can owners do when the vote is tied on a critical issue like an asbestos report in a small strata scheme?

Our 100-year-old self-managed strata has four units. Two owners suspect bonded asbestos might be present. Despite the information provided, the other two owners refuse an inspection, citing the lack of legal requirements. What can we do when the vote is tied on such a critical issue?

Answer: This is a really important item that can’t be ignored.

I agree with your concerns. I think this is a really important item that can’t be ignored.

If you have put the motion to the meeting and it is voted down, I suggest applying against the owners corporation to NSW Fair Trading to try and resolve this issue. It is really important that you are aware of your safety obligations and have a suitable management plan in place for your strata.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
P: 02 9879 3547

This post appears in the November 2024 edition of The NSW Strata Magazine.

Question: A common property deck within our lot needs replacing. The new fibre cement surface is a slip hazard when wet. The owners corporation is not listening. What can I do?

A common property deck within our lot must be replaced because it is in a Flame Zone, and no combustible material is allowed. The owners corporation has gone for the cheapest quote. The new fibre cement decking surface is a slip hazard when wet.

At AGM, I asked what would be done about the safety concern. The strata manager and owners corporation said they would address the issues once the deck was built. As the strata manager and owners corporation are not listening, who do I talk to?

Answer: I recommend that a suitable designer is engaged (architect/engineer).

It’s a complex one and not something with a defined answer.

Ultimately, the owners corporation needs to maintain common property with an expectation that it is done in a compliant and complementary fashion.

I am unsure of the obligations under planning and DBP for the specific nature query and site (due to lack of available information). I recommend that a suitable designer is engaged (architect/engineer) to review and provide recommendation on the design and material to be used to ensure compliance with BCA (slip rating/combustibility, etc) and with this, the design can provide options based on the cost for various material/aesthetic options for selection by the lot owner(s).

As part of this design process, it is worth reviewing the planning pathway requirements as if, for example, the building is within a heritage conservation area they may require planning consent to progress the works. The designer engaged should be able to provide basic advice on this and refer to town planners as necessary.

Dominic Dodwell
Valen Projects
E: dominic@valenprojects.com.au
P: 0488 666 682

This post appears in the July 2024 edition of The NSW Strata Magazine.

Question: A number of garage doors are affected by circuit breakers which regularly trip. The circuit breaker can only be switched by a committee member or electrician. It’s impractical and doesn’t seem very safe.

An Electricity Meter Room in our building houses breaker switches for each unit’s locked-up garage roller doors. For the 12 doors, two breaker switches each cover six doors. When one switch trips due to, perhaps, overload, six garage doors cannot be opened with a remote. Some of the EC Members had keys to the Electricity Meter Room, and a member would enter the room and flip the switch.

Now, only the strata manager or a qualified electrician can access the room to rectify the situation, irrespective of the time. This will create hardship for residents who cannot manually open the door, which seems impractical. What are the safety or insurance coverage issues with this solution?

Answer: The circuit should be tagged out until this is resolved.

Tripping is a sign of an undersized or faulty circuit, which should be investigated and rectified by a qualified electrician to ensure no further trips or faults occur when using that infrastructure. In theory, the circuit should be tagged out until this is resolved. Consciously overloading circuits is a potential hazard from a fire and electrical perspective.

Dominic Dodwell
Valen Projects
E: dominic@valenprojects.com.au
P: 0488 666 682

This post appears in Strata News #655.

Question: In our ageing strata block, the windows in one unit were modified at some point. Some of these windows now need repairs. Should we replace all windows for uniformity? Is this the responsibility of the owners corporation or the current owner?

Our small strata block was formed shortly after the strata law was passed in the 1960s. At some point, the original timber windows were removed from one of the units. We have no record of the change. Four of these windows need repairing or replacing. Our strata management insists we replace all 11 windows in the flat with the original timber sash windows. This will be costly as the windows must be specially made.

Is the owners corporation required to retrofit windows that have been in place for up to 50 years, or can we replace the damaged windows with similar ones to what is currently in place? Our building is not heritage listed.

Answer: If you cannot ascertain who replaced the windows after registration of the strata plan, the responsibility for their repair or replacement likely will fall on the owners corporation.

The owners corporation has a strict duty to repair and maintain the common property under section 106 of the Strata Schemes Management Act 2015. I assume no by-laws relate to the repair and maintenance of the windows in question.

If it cannot be ascertained who (lot owner or owners corporation) replaced the windows after registration of the strata plan, the responsibility for their repair or replacement likely will fall on the owners corporation. This is particularly so, given the length of time they have been in situ.

The duty to repair and maintain (including replacement) is just that. The owners corporation is not required to repair and maintain (or replace) common property that is not in disrepair. However, I can understand why the owners corporation would want to replace all of the windows if it is due to appearance and uniformity.

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

This post appears in the October 2023 edition of The NSW Strata Magazine.

Question: For a building built before 1974, has our strata management company breached their responsibilities by not informing our executive committee that owners of all units are liable for their balcony remedial repairs?

Our nine unit apartment recently had remedial works done for concrete spalling and painting balconies and external/internal common areas. The block was registered in 1968.

As the building was built before July 1974, are balconies the responsibility of each owner? Our capital works fund paid for all repairs.

Should our strata management have advised us of this? If balconies are the owners’ responsibility, can we seek compensation from our strata managers for their failure to highlight NSW strata legislation?

What action can the executive committee take with our strata management company?

Has our strata management company breached their responsibilities by not informing our executive committee that owners of all units are liable for their balcony remedial repairs?

Answer: The ‘centre-line’ rule does not make balconies the responsibility of lot owners.

The ‘centre-line’ rule applies to strata plans registered prior to 1 July 1974.

It does not make balconies the responsibility of lot owners. It only applies to structures shown on the strata plan that adjoin two parts of the same lot.

The most common occurrence of this is the doors, walls and windows separating a lot and the balcony of the same lot. Provided that this structure is shown on the strata plan and provided that the strata plan does not have any contrary notations, the walls, doors and windows that separate the lot from the balcony would be lot property and the responsibility of the lot owner to repair and maintain.

This rule works up and down as well. For instance, the slab between a two level unit is part of the lot as it is a structure that adjoins two parts of the same lot.

To determine whether the balcony structure, such as the balcony slab, balustrade and ceiling, is lot or common property, it would be determined in the usual way and would most likely be common property.

Therefore, if the concrete spalling occurred in the balcony slab or balustrade, it would most likely still be the responsibility of the owners corporation to repair and maintain.

This is a very tricky area. Your owners corporation may wish to seek specific legal advice.

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

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: We are laying new carpet in an old building’s common areas. I am over 70 and want the owners corporation to install treads for the safety of all residents. Are there rules for this?

Answer: The walking surfaces in the building must meet certain safety requirements.

Based on the information provided, it is crucial the walking surfaces in the building meet certain safety requirements, including safe gradients, suitable handrails, and slip-resistant surfaces. Please note that the information provided below is not legal advice and should not be construed as such.

The National Construction Code (NCC) establishes the minimum necessary requirements for safety, health, amenity, and sustainability in the design and construction of new buildings (and new building work in existing buildings) throughout Australia. Clause H5P1 of the NCC mandates that walking surfaces have safe gradients and that any stairway or ramp must have appropriate handrails, if necessary, to provide stability to users. Moreover, the stairway or ramp must be suitable for safe passage based on the nature, volume, and frequency of likely usage. Since this is new building work, H5P1 would likely apply.

Under common law, the owners corporation (OC) also has a duty to take reasonable care not to cause harm to another person. The OC owes a duty of care to ensure that their premises are reasonably safe for anyone who enters their property. Therefore, if the OC knew about the risk (such as slippery stairs), which is very reasonable and foreseeable, and chose not to manage that risk adequately, it could prove hazardous, particularly if there is a high density of older people in the building.

Dakota Panetta
Solutions in Engineering
E: dakotap@solutionsinengineering.com
P: 1300 136 036

This post appears in Strata News #655.

Question: An owner in our old apartment block wants to replace their glass sliding door. The balcony does not comply with current regulations. Is compliance with the Building Code of Australia retrospective?

Our block of 36 units was built c1960. An owner wishes to replace their glass balcony door. The balcony door currently does not have a hob. To meet current regulations, we need to install a hob. The work will require waterproofing the entire balcony, at approx $20,000. If the owner replaces the door, does a hob have to be installed? Is compliance with the Building Code of Australia retrospective?

Answer: Building elements that do not meet current standards are not required to be removed and replaced if they have not failed or are not subject to mandatory upgrades.

If an existing building element that does not meet the current NCC/BCA standards has not failed and it’s not the subject of a mandatory upgrade (example: Council Development Control Order of Fire Order), then the building element is not required to be removed and replaced. It can be retained in its current form which may not meet the current NCC/BCA standards.

If, however, an existing building element has failed and/or is proposed to be voluntarily upgraded, those upgrades are required to be completed in accordance with the current NCC/BCA standards. Additionally, if secondary building elements are affected by the upgrade of the primary building element, those elements also need to be upgraded in accordance with the current NCC/BCA standards.

An example of this is a balcony balustrade upgrade which intersects with a balcony waterproofing system that terminates under a balcony door. The result of upgrading the balcony balustrade is that the existing balcony door may be required to be removed and replaced, a new compliant hob installed under the balcony door (assuming there isn’t one currently), a new compliant waterproofing system installed to the entire balcony and finally new floor finishes to complete the works. All proposed upgrade works, both voluntary and mandatory, require Design Declarations and Regulated Design in accordance with the Design & Building Practitioners Act 2020, with the exemption of a limited list of exempt works as defined under the Act.

Michael Hopwood
Valen Projects
E: m.hopwood@valenprojects.com.au
P: 0488 666 682

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: Our old building has vermiculite ceilings throughout. The ceiling seems to be failing and particles of dust are falling in units and common areas. What do we do?

I am on the committee of a NSW strata titled unit block. All units and common areas have vermiculite ceilings. They were in vogue when the block was built about 40 years ago.

Tenants in one unit have raised a safety concern with the vermiculite ceiling regarding the asbestos content. The ceiling seems to be failing and particles of dust are falling from the ceiling.

Is the maintenance of the vermiculite ceiling the responsibility of the lot owner or the owners corporation?

In 2015, we had an asbestos report but no specific testing of the vermiculite in the common areas was done. At the time it was low concern.

No testing has been done in individual units. As part of the report, are we required to have the individual units tested for asbestos?

Answer: In some cases the presence of asbestos may be deemed low risk and should not be tampered with, however, only a qualified asbestos consultant can make this determination.

I recommend the owners corporation contact NSW Fair Trading as they may be able to assist with any asbestos testing. It is known that strata premises built before 1980 may contain loose-fill asbestos insulation. If there is concern that the property contains loose-fill asbestos insulation, the scheme should arrange for a licensed asbestos assessor to conduct a sample test at their own expense. The scheme as a whole will be impacted should testing confirm the presence of loose-fill asbestos insulation.

Should the test confirm the presence of loose-fill asbestos insulation, Service NSW should be contacted immediately to find out about the options available.

I would suggest that they be contacted first. Given the concerns, Fair Trading may be able to undertake testing.

In some cases the presence of asbestos may be deemed low risk and should not be tampered with, however, only a qualified asbestos consultant can make this determination.

Pierrette Khoury
Khoury Lawyers
E: pierrette@khourylawyers.com.au
P: 0415 459 486

This post appears in the June 2023 edition of The NSW Strata Magazine.

Question: We are aware of asbestos in our 12 lot building and have had an asbestos report done. Do we need to keep a register on-site? Where should the asbestos report be kept and should it be available to contractors?

Answer: Yes and so should the Asbestos Management Plan!

The concept around the onsite register is to help protect a person from exposing themselves and others to airborne asbestos fibres. If your scheme has been inspected and it was deemed to have ACM in the common property areas, the committee have a duty of care to show where the ACM is located. They would do this by having a register located in a place that is easily accessed by contractors or other person undertaking works in the areas where ACM has been identified.

Before commencing work, the person undertaking the task would view the register and undertake their own WHS assessment of the area. They would then access the AMP (Asbestos Management Plan) and follow the prescribed instructions e.g. if fitting an air-con unit to a wall deemed to contain ACM, the contractor would fit their PPE gear and use a wetting agent before drilling. Any waste would be placed in the appropriate bag and then disposed of using the correct place for ACM waste. A record of this job would be recorded in the AMP so the next contractor on site can see what work was done previously and assess what action they may need to take.

Sidenote: An example of why ACM must be disposed of properly. Little Bay Beach in Sydney’s eastern suburbs was closed recently for two weeks after more than 1000 pieces of asbestos-containing materials were discovered in the past eight months.

Where to store the Register/AMP?

The Register/AMP should be stored where it would be relatively convenient to access e.g. in a Document Compliance/Essential Services Box with a 003 key installed on the common property. This is the most common storage option, especially where a scheme has no other obvious storage location such as a cabinet in a foyer. The cost installed would be between $300-$400 and most contractors carry a 003 key for access so no need for a committee member to have to be home to provide the Onsite Register/AMP.

How often must the Onsite Register/AMP be updated?

Where Asbestos Containing Material has been identified, it is a requirement that the Onsite Register and Asbestos Management Plan (AMP) be reviewed and revised at least every five years. This is the case if nothing prompts an earlier inspection.

Review of asbestos management plan

Work Health and Safety Regulation 2017 – REG 430

1. A person with management or control of a workplace that has an asbestos management plan must ensure that the plan is reviewed and as necessary revised in the following circumstances:
   
   1. There is a review of the asbestos register or a control measure,
   2. Asbestos is removed from, or disturbed, sealed or enclosed at, the workplace,
   3. The plan is no longer adequate for managing ACM at the workplace,
   4. (d) A health and safety representative requests a review under subclause (2),
   5. (e) At least once every 5 years if nothing has prompted a reinspection.

Maximum penalty:

1. (a) In the case of an individual—$3,600, or
2. (b) In the case of a corporation —$18,000.

2. (2) A health and safety representative for workers at a workplace may request a review of an asbestos management plan if the representative reasonably believes that:
   
   1. (a) A circumstance referred to in subclause (1) (a), (b) or (c) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and
   2. (b) The person with management and control of the workplace has not adequately reviewed the asbestos management plan in response to the circumstance.

Asbestos management plan

Work Health and Safety Regulation 2011 – REG 429 requires a person conducting a business or undertaking (PCBU) to engage a competent person to identify all Asbestos Containing Materials (ACM) within their building.

Where Asbestos has been found, the PCBU is to keep an onsite asbestos register, which is to be available for employees, contractors and volunteers when working onsite, as well as having an Asbestos Management Plan prepared for the property. The maximum penalty for breach of these requirements is $30 000 for an individual or $3 000 000 for a Corporation.

The How to Manage and Control Asbestos in the Workplace Code of Practice requires that the date of construction is taken into account as buildings built prior to 31 December 2003 were not subject to the current ban on the use of chrysotile (white) asbestos. As such, it is required that all pre-2004 buildings have asbestos surveys conducted per regulation 422 of the Work Health and Safety Regulation 2011.

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

This post appears in Strata News #645.

Question: What is an asbestos risk category for older buildings? If an older building is not aware of whether they have asbestos in the building or not, should they have an asbestos report carried out?

Answer: If you live in an older-style building and asbestos has been identified at a property, there would be an asbestos register on site.

Asbestos was predominantly used up to about 1985, give or take. After that time it started to be phased out and they stopped using asbestos in products. Some older properties have had renovations. Sometimes asbestos has been removed during the renovations, and other times it has not.

If you live in an older-style building and asbestos has been identified at a property, there would be an asbestos register on-site for contractors to refer to. This register will clearly identify where in the building the asbestos is located. If there is any work that needs to be done, contractors can refer to this register?

If no asbestos register exists and you suspect there may be asbestos present, the best thing is to call in a hygienist to have a sample tested at a lab to confirm whether asbestos is present. This will also help inform whether it needs to be removed or rectified.

Ryan Richards
Sedgwick
E: Ryan.Richards@au.sedgwick.com
P: 1300 735 720

This post appears in the November 2022 edition of The NSW Strata Magazine.

Question: Our Community Association has had a petition from residents to make our community pool accessible by providing a handrail in the shallow end to get in and out of the pool easily. Is there a company that provides an assessment of the strata/community accessibility and can advise on the best solution?

Answer: If you clearly have the support of owners, organise for it to be a motion at the AGM and have it voted on.

Firstly, I think this is a great initiative and really shows and alludes to the power of a community’s spirit when they have a collective topic or passion they are working towards.

Accessibility in strata is vast and varying! Many older style schemes, particularly those of heritage buildings converted to strata have not been constructed to today’s standards or norms and we find staircases narrower and steeper, doorways smaller and not a lift in sight for most mid-1900s buildings.

Accessibility really began to be considered in the Disability Discrimination Act 1992 and was clearly defined in the national Disability (Access to Premises- Buildings) Standards 2010.

These standards came into effect in May 2011 and set out a number of requirements for new buildings (built or designed from May 2011) and their subsequent facilities e.g. pools.

Pools, other than sole occupancy type pools for class 1b, 2 or 3 buildings, have a series of requirements around accessible entry and exit but again this is factoring in pools built 2011 onwards that are of use to more than one sole occupancy dwelling. This is not a retrospective requirement for schemes with pools built prior to this period in time.

What you can argue though is that this is today’s standard and it is best practice to upgrade your facilities to this standard. If you clearly have the support of owners, organise for it to be a motion at the AGM and have it voted on.

In terms of a specialist report, you can look to consult with a disability access specialist, of which there are many or even a reputable builder depending on how large your accessibility project would be.

If it is simply installing a balustrade in the pool, a combination of reading through the standards and current building codes and working with your local pool contractor would likely be sufficient.

Dakota Panetta
Solutions in Engineering
E: dakotap@solutionsinengineering.com
P: 1300 136 036

This post appears in Strata News #579.

Question: Can our owners corporation deny the installation of some sort of safety on a fifth-floor balcony? There will be a 2-year-old child living in the unit.

Answer: It will be the occupier of the lot’s responsibility to ensure there is no furniture or items stored up against the edge of the balcony to present a climbable hazard as for providing supervision to children.

This question often arises in the strata world, particularly when new parents move into a high-rise building and concern for their children is fresh and abundant. In NSW, the government enacted legislation that required all windows within a strata complex whereby the windows were above 2 meters from the ground below, to be fitted with window restriction devices. In 2013 the National Building Code introduced changes requiring all schemes approved for construction with openable windows above 2 metres, be restricted so that a child couldn’t open them. Due to the high number of falling instances in greater Sydney, NSW became the only state or Territory to make this retrospective to all strata buildings. These devices are designed as you may have guessed, to stop children falling from high-rise apartment windows.

Regarding balconies however, this is another issue. Balcony railings, balustrades and walls are built in accordance with the building code at time of construction. For example many buildings built in the 1980s likely do not have the balustrade heights we see today as the Building Code has been consistently updated. Regardless, unless unstable or a clear safety hazard, balustrades certified at time of build are compliant today and not required to be updated a significant number of these balustrades in the scheme are being updated.

With this information it is therefore likely that the building is already compliant if it has window restrictive devices and certified balustrades on balconies. This is the minimum requirement that the strata committee are responsible to ensure from a safety point of view.

On this basis, the strata committee may reject any other alterations to the appearance of the lot or scheme such as increasing the height of the balustrade, adding netting or panels to the balcony edge etc.

Whilst falling from a balcony is a danger, especially with children, it will be the occupier of the lot’s responsibility to ensure there is no furniture or items stored up against the edge of the balcony to present a climbable hazard as for providing supervision to children. With no climbable objects near the balcony edge, the design and building codes of balustrades should be adequate to prevent an accidental fall.

This being said, if there is a clear fault or defect with the current balconies, balustrade or windows, the Strata Scheme must have these rectified and made safe immediately.

Dakota Panetta
Solutions in Engineering
E: dakotap@solutionsinengineering.com
P: 1300 136 036

This post appears in Strata News #571.

Question: The balustrades on our 1983 built apartment building as no longer compliant. What do we have to do to make sure the building complies with the current building code?

Our apartment building in Wahroonga, NSW was built in 1983. Although the balcony balustrades met the regulations at the time they were built, they are deficient in two ways:

1. they are three feet high
2. they are made up of crossed members that would allow a small child to crawl through, or a bigger child to use in order to climb over.

If we add panels of Plexiglass to cover the cross-sections and also raise the level of the balustrades to one metre, would we be compliant with the current Code?

Answer: We recommend that the Owners engage a private certifier to review their proposed upgrades and ask the certifier to provide advice as to compliance requirements

An owners corporation can make changes to their building within certain parameters and in this instance, the Owners would need to consider:

The National Construction Code, Building Code requirements where a substantial change or replacement in respect of a building element is proposed.

Any upgrade of the balustrading would also need to meet requirements in terms of strength, rigidity and durability, particularly with respect to loading and wind loading.

We understand that this type of improvement may also require approval from the local authority and if the overall cost of the work exceeds $5000 a contract in the prescribed form will need to be entered into by the Owners.

Given the above we recommend that the Owners engage a private certifier to review their proposed upgrades and ask the certifier to provide advice as to compliance requirements for both the proposed upgrades and as to the lodgement of an application for approval with the local authority.

This will ensure that the proposed upgrades are certified and will meet the legislative requirements of the Home Building Act, National Construction Code and local authority.

QIA Group
E: info@qiagroup.com.au
P: 1300 309 201

This post appears in the November 2021 edition of The NSW Strata Magazine.

Question: We are deciding on refurbishing or replacing original windows in a 1970s apartment building. What should we take into consideration?

I own an apartment in an old 1970s brick block in Sydney. The windows are original and aluminium framed. They are in need of seal replacement as they are starting to rattle and whistle in the wind. 

The owners corporation is reviewing two options:

1. Replacing the old window seals with new one at a cost of approximately $12,000.
2. Replacing all the windows at a cost of $110,000. 

The company quoting for the window replacement told me that just replacing the existing window seals is illegal under current government laws. I’m not convinced that this is the case.

Are you aware of any such government regulation prohibiting the owners corporation from replacing the existing window seals? Any assistance in this matter would be greatly appreciated. 

Answer: There may be other issues that need to be addressed for the windows to comply with the current requirements.

In relation to replacing windows seals in a residential apartment building in NSW there is no specific regulation that would prohibit this.

However there may be other issues that need to be addressed for the windows to comply with the current requirements under the NSW Strata Management Act and possibly AS1288 – Glass in buildings—Selection and installation. This is the Australian glazing standard.

NSW Strata Management Act – It is a requirement under the child safety provisions of the act, that windows must be fitted with a complying restrictor and many older window frames can’t be restricted and therefore must be replaced.

AS1288 – If the glass has to be completely removed to install the new seals it could be argued that the glass should comply with the current glazing standards resulting in thicker glass being required that may not fit into the existing frames.

There are other compliance requirements that may need to be addressed if the windows where to be completely replaced depending on the height of the windows from the finished floor level, but this would only apply if the frames were to be completely replaced.

Gary Stevenson
E: info@windowline.com.au
Windowline
P: 02 8304 6400

This post appears in the February 2021 edition of The NSW Strata Magazine.

Question: The Owners Corporation have recently upgraded the hatch providing access to the roof. Are we legally required to provide a fall barrier for when the ladder is being used?

The Owners Corporation have recently upgraded the hatch providing access to the roof. Are we legally required to provide a fall barrier for when the ladder is being used?

The hatch is by a stairwell in an old building.  

Answer: The answer will depend on a few things.

The answer to the question will depend on a few things:

• Is the ladder a fixed ladder?
• If the ladder to the roof is fixed and original and there was no fall prevention guarding, then we would assume that it was passed in accordance with the requirements of the day – which did not specify any guarding.
• If just the hatch was being upgraded and the ladder was as per Item 2 above, then we are not aware of any retrospective requirement to upgrade the ladder.
• If the ladder is only to be used by contractors and access to it is limited to authorised persons only, we would recommend that signage be erected to advise that contractors require fall arrest equipment when using the ladder to access the roof via the new hatch – particularly if the rails of the ladder do not extend up past the open hatch.

If we were asked to perform a risk assessment we would consider:

• If the ladder was fixed and original; and
• The location of the ladder and its proximity to a stairwell void with a fall of over 2m; and
• Whether the ladder could be accessed by any person with access to the stairwell: and
• If such a void existed and any person could access the ladder this would substantially impact upon the level of risk the ladder represented. Depending upon the level of risk determined we may view the ladder as a substantial risk and recommend that the ladder be guarded via a lockable cage to ensure access by authorised persons only and to mitigate the risk of a person falling.

Given that there are potentially many matters to consider that we are not aware of, particularly with respect to the ladder and the circumstances of its location and height or the configuration of the stairwell, the above should serve to highlight matters that need to be considered and that adhering strictly to the legal requirements may not be in the best interests of the Owners.

I trust that the above is of some assistance, however if further information is required please do not hesitate to contact the undersigned.

QIA Group
E: info@qiagroup.com.au
P: 1300 309 201
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This post appears in the November 2020 edition of The NSW Strata Magazine.

Question: Do new units have certain requirements older smaller block units may be exempt from? What do we need to know about older building safety requirements?

We have a 40-year-old unit block in NSW with only 3 units. Self-managed. Ideally, I would like to get independent advice on building safety requirements for windows, glass, balcony railings and (fire) doors. We don’t wish to upgrade these items unless it is essential. We think new units have certain requirements older smaller block units may be exempt from. What do we need to know about older building safety requirements?

Answer: There are no differential building safety standards for buildings on the basis of when they were constructed, or how many units they contain.

There are no differential building safety standards for buildings on the basis of when they were constructed, or how many units they contain. However, compliance with the Building Code of Australia is not retrospective. Under the Environmental Planning and Assessment Act 1979, a building only has to comply with the Building Code of Australia at the time of construction. As a result, the Building Code of Australia does not require you to continually update your windows, balcony railings and fire doors etc.

That said, part of your duty of care to residents and visitors includes ensuring that they are safe on the property. If a balcony railing (for example) is unstable and unsafe, there can be substantial consequences for not upgrading or repairing the balustrade. Even if the railing is structurally sound, we recommend that balustrades are updated as a matter of safety. Forty years ago the height requirements for balustrades were very lax. These are simply not safe by modern standards.

When considering the safety aspects of your scheme, common‐sense should prevail. I have been included in emails from Executive Committee members regarding the safety aspects of their schemes. I can tell you that some owners take the wrong approach regarding building safety i.e. apathy, associated costs, short‐sightedness, and/or have an axe to grind with another owner.

Conduct a Walk Around and Look For Building Safety Issues

Start with a walk around with the Executive Committee members, but first check your egos and issues at the gate. Reframe your mindset and look at things logically and from that of a visitor to your strata scheme. If a potential trip hazard is pointed out, consider the likelihood of someone “unfamiliar” with your property tripping over it. Think about an elderly person or a child. Don’t just say “oh I’ve been walking past that for years and never tripped”. That is exactly what we are trying to avoid here, familiarity.

Once you have completed your inspection, consider the variety of items you’ve noticed and then consider getting a professional company to quote on conducting an expert inspection. Most common property claims are based on trips, slips and falls. For around about $348, the cost verse a potential lawsuit represents good value. Your insurer will also appreciate the fact that your Owner Corporation has a proactive Executive Committee to work with as opposed to those that have a closer resemblance to a flightless African bird.

Fire Safety Doors

Items that you may have come across, depending on the design and the type of construction, could also include Fire Safety Doors. Asbestos (being a good fire retardant) was used in Fire Doors up until 1987. There should be a tag on the inside spine of the door (hopefully it hasn’t been painted over) that may tell you the year it was made and if it (not all tags will) contains Asbestos Material. Doors manufactured after 1988 generally are Asbestos free.

If the Fire Door hardware has failed e.g. the handles, closers, latches, pivot points you should have the doors replaced. However, if the doors have been kept in good condition then there is no need to do anything other than keep up the good maintenance work!

Asbestos

When I’m conducting Sinking Fund Plan seminars I always recommend to unit owners that if you have Asbestos (anywhere in the strata), have the inspector put an allowance in the SFP to have it removed by a professional, licensed Asbestos contractor. For example, consider I have 3 unit building and there is Asbestos in the Fire safety Doors and the Soffits (eaves).

If in the short‐term it isn’t considered dangerous e.g. it is tightly bound and in good condition, I would have a line item in my SFP to replace the Fire Safety Doors when funds become available. When work is due to be done on the roof or gutters e.g. Work at Heights I would have the Soffits replaced then. Now you have an Asbestos free building, one less thing to worry about and you’ve increased the resale value of your asset.

Common Property Glass

The same concepts for building safety can apply for common property glass. We’ve all seen the amber coloured glass that looks like beer bottle glass but is a lighter shade. This glass is dangerous. If someone was to fall through or into this glass, it will shatter and the shards can be lethal.

Once again, older buildings don’t have to replace amber coloured glass, but it is highly recommended. Use your SFP as it was intended. Put funds away to have the dangerous glass replaced when the OC can afford to. I’ve seen instances of an electrical contractor falling from a ladder and receiving serious lacerations to his arms. He sued the Owners Corporation for not providing him with a safe workplace.

Balcony Rails/Balustrades

Regarding balcony rails/balustrades, from 1997 to now the current BCA requirements apply. Height not less than 1 metre for balustrades, handrails/stairwell balustrades to be not less than 865mm. However, older buildings have a much greater range of installed heights and configurations. This is because they were approved by local Council or other governing bodies at the time of construction.

Therefore the correct heights can be almost impossible to determine. Older Balustrades are often much lower than the later structures. These balustrades pose safety risks that were not considered at the time of construction. It’s not uncommon to see balustrades above 3 stories less than 700mm in height and constructed of horizontal rails. However, the codes used to meet compliance at the time of construction are not retrospective.

Let Common Sense Prevail with Building Safety

In keeping with the tone of this article, let common sense prevail. Look at your building safety subjectively. Would you feel safe allowing your child on the balcony of an older building? What about an elderly person that looks for items to support them when sitting down or attempting to stand? Keep in mind, if any alterations or major reports to existing balustrade occurs or you’re about to do this type of work, the Building Code of Australia requires that the balustrade MUST meet the current requirements.

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

Question: Should my uneven courtyard pavers be repaired quickly? Who is responsible for the cost to ensure building safety within my courtyard?

I have a courtyard outside my unit. The building was completed in 1980. The pavers in the courtyard are now very uneven and could be considered a trip hazard. What priority should be given to this repair? Who is responsible for the cost of repairing and relaying the area to ensure building safety?

Answer: The responsibility of maintaining the courtyard depends on a few circumstances, but regardless this trip hazard should be tended to quickly.

From the information supplied, it is not clear who has to maintain the courtyard. If it is an exclusive use area then that is the responsibility of the person benefiting from having exclusive use.

If it’s not exclusive use and is common property then it is definitely a safety and maintenance issue of the Owners Corporation which also would be affected by common law duty of care.

If it’s a mixed-use scheme, then the Work Health and Safety Act 2011 has broad implications so it is vital that an Owners Corporation undertakes measures to ensure their property comply with these requirements.

In my opinion, the pavers should be re-laid to make them even and eliminate the trip hazard. As a chairperson of a strata scheme, I undertake a quarterly visual safety inspection of the common property to check building safety and any maintenance and/or building safety matters are discussed at the next 6 weekly committee meeting.

We then appoint a committee person to oversee the rectification of the issue e.g. seeking quotes to have the matter resolved, choosing the contractor after having first checked their licences and insurances are valid and up to date, delivering a flyer in each mailbox so residences know what the hazard is, when is it being repaired, what effect (if any) this may have on their access or noise or any WHS matters that they need to be aware of when in the vicinity of the work being undertaken and then we request that the strata manager send the contractor the work order.

The first step should be to inform the Strata Committee in writing. Ask the chairperson for a date when this matter will be discussed with the other committee members and make note of the date and follow up the day after.

If you have a strata managing agent, they should be included in all correspondence. If a serious building safety incident were to occur and compensation sought, the strata management company and the Owners Corporations insurers would be dragged into it. This will have a twofold effect on your strata insurance:

• your insurance premiums will go up and
• some insurers may not wish to quote to insure your property as they consider the risk greater than the reward.

I hope this helps answer your query and if the courtyard is exclusive use, you best rectify the trip hazard and relay the pavers………. ASAP!

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

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

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

Read next:

• NSW: Pre 1974 Schemes and the Centre Line Rule

Are you interested in more information about older building safety requirements or information particular to strata legislation in NSW? Visit Maintenance and Common Property OR NSW Strata Legislation pages.

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