The Strata Schemes Management Act 2015 establishes in section 118(1) that it is the owners corporation’s responsibility to ensure that there are complying window safety devices for all windows of each building in the strata scheme. This provision is applicable to all schemes where the internal floor is more than two metres above the external surface outside and within a child’s reach (less than 1.7 metres above the internal floor), to ensure the maximum window opening is less than 12.5 centimetres (s 30 Strata Schemes Management Regulation 2016 (SSMR)).
Furthermore, section 118(2) states that the owners corporation is to carry out work related to its functions under this section at its own expense. The owners corporation’s responsibility, therefore, is not limited to supervising that all windows comply with these standards, but it extends to covering the expenses and arranging the necessary works involved in the installation and maintenance of the child safety locks.
The allocation of responsibility on this matter was deliberately placed on owners corporations. The ‘Report on the statutory review of the Strata Schemes Development Act 2015 and Strata Schemes Management Act 2015’, which led to the Strata Schemes Management Amendment (Child Window Safety Devices) Regulation 2013 [NSW], considered that it was necessary to “clarify the provisions on window safety devices in the Management Act to make it clear that it is an owners corporation responsibility to ensure that the devices are maintained” (Recommendation 113).
According to section 136 Strata Schemes Management Act 2015 (SSMA), by-laws can provide for matters related to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme. Subsection (2) states that a by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
In this scenario, a by-law that is inconsistent with section 118 would have no force or effect.
It is relevant to mention that s 118 (3) SSMA allows lot owners to install a complying window safety device on a window to which this section applies (other than a window on another owner’s lot). This subsection does not have the effect of placing the responsibility on lot owners, on the contrary, the use of the word ‘may’ reinforces the idea that it is ultimately an owners corporation’s burden. The same can be said about the requirement for lot owners to give written notice of the installation of these devises to the owners corporation within 7 days after completion of the installation (s 31 SSMR), as to allow the owners corporation to comply with its obligation.
Owners corporations can share the burden only to an extent by creating a guide requiring lot owners to carry the work of installing child safety locks for their windows. However, owners corporations cannot escape their statutory responsibility and therefore must not rely on lot owners: they must make sure to implement a system for checking that the locks have been installed by the lot owners and that these meet the required standards, or otherwise carry out the necessary works to fulfil their responsibility.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Authors: Paulina Mena & Gemma Lumley