Building Codes of Australia for Balustrade in Apartment Buildings
Written on the 25 October 2021
The owners corporation is expected to comply with the Building Code of Australia (BCA) for balustrade in apartment buildings. The requirements were made on 1 July 1997 and are listed in clause D2.16 to promote safety for all residents. This is made to prevent any accident caused by falling over or climbing over the balustrade. The government requires balustrade in apartment buildings to satisfy the following requirements:
* Balustrade has to have a height of at least 1 metre.
* Balustrade is not allowed to have openings between rails for more than 460mm.
* Balustrade is not allowed to have 125mm sphere openings between the surface floor and the lowest trail.
* Balustrade is not allowed to have 150 mm-760mm horizontal climbing elements above the surface floor.
The balustrade building code has been enforced since 1997. However, there are many balustrade constructed before 1997. It raises the question of whether the owners corporation is subject to upgrading the balustrade to comply with the BCA requirements.
If we take a look at the previous law decision of Ridis v. SP10308 (2005) NSWCA 246, the court held that owners corporation is not required to replace an old annealed glass that might pose an injury risk to its residents. The court concluded the decision, claiming that the owners corporation did not know that the old glass has posed injury risks. Looking at this previous law case, we may assume that the owners corporation is not liable to upgrade the balustrade. However, the decision was overturned by the Doherty v. SP36613 case ruling on 22 September 2021.
Doherty v. SP36613 lawsuit
Ms. Doherty’s apartment is located on the seventh floor of an apartment building in Surry Hills, Sydney. Ms. Doherty’s rooftop courtyard is surrounded by a balustrade that was constructed in 1990. Hence, the balustrade does not comply with the requirements of BCA. Ms. Doherty is concerned that the balustrade may pose a risk since it can be easily climbed over. As a result, Ms. Doherty requests the owners corporation to upgrade the balustrade to comply with the requirements of BCA. But, the owners corporation refuses to make her request. Ms. Doherty proceeds to file a lawsuit to the Appeal Panel of NCAT, ordering the owners corporation to upgrade the balustrade to ensure the safety of residents. The decision of this case has overturned the ruling of Ridis v. SP10308 (2005) NSWCA 246.
The court concludes that the owners corporation knew about the injury risks posed by the balustrade. The Appeal Panel reaches this decision based on several reasons.
* Firstly, the owners corporation has received a report from its engineer, stating that the balustrade does not comply with the safety requirements of BCA. But yet, the owners corporation take no action about this matter.
* Secondly, the owners corporation has previously received a safety report from an expert. The report points out that the balustrade is identified to have a significant falling hazard. But yet again, the owners corporation does not consider replacing the non-compliant balustrade.
These are the reasons why the Appeal Panel conclude that the owners corporation knew or should have known that the balustrade risks.
Owners Corporation Duty to Replace Common Property
Under section 106 of the Strata Schemes Management Act 2015, owners corporation have a duty to repair and replace common property. The Appeal Panel claims that the balustrade risks are obvious, and therefore, owners corporations knew or should have known that the balustrade posed injury risks.
JS Mueller & Co Lawyers