This case note has been taken from the recently published second-edition of a Guide to ACT Strata Law. A physical copy of the full text can be purchased here.
An old high rise apartment building had numerous balcony balustrades which were common property. The balustrades complied with the applicable ordinances at the time they were built. However, the balustrades did not comply with contemporary safety standards expressed in the Building Code of Australia. For example, the balustrades were less than 1 meter high, contained climbing elements and also had gaps greater than 125mm that could allow an infant to fall through them. There were a group of owners in the building who wanted to replace the balustrades to make them compliant with the Building Code. However, there was another group of owners who did not want to replace the balustrades.
In this case, the lot owner (Doherty) claimed that certain outdoor balustrades were unsafe because they were not high enough, contained climbing elements and large gaps and did not comply with the current Building Code. The owners corporation argued that it was not responsible for upgrading the balustrades to ensure that they met contemporary safety standards expressed in the Building Code.
Ultimately, the NCAT Appeal Panel concluded that the balustrades were unsafe and that the owners corporation knew or should have known that they were unsafe. This was because the owners corporation had obtained several expert reports and advice from the local council verifying that the balustrades were unsafe. For that reason, the Appeal Panel said that the duty of the owners corporation to repair and replace common property required the owners corporation to act to replace an unsafe balustrade on common property. It would not matter that an old balustrade would be replaced by a new and superior one.
The balustrade needed to be replaced to make it safe to ensure the common property was in good repair, not to improve or enhance the common property.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Christopher Kerin