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1960s brick building balcony not up to todays code
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camelot
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22/07/2018 - 12:33 pm
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I live in a l960’s building where the single brick balcony is 28 cm below todays code. The Executive Committee want to spend north of $60,000 of funds to take the brick balcony down and reinstate with cheap glass panels.  As we have not been ordered by an authority to do same I think it is over the top.  They fear someone may fall over (No one has fallen over in the last nearly 6 decades) and say anyone voting against it will be liable.  I thought this would be an insurance issue and not individual owners problems.  Are we legally obliged to change the look of the building in this way…. Privacy and appearance and weather are considerations.  Your thoughts please. Thanks a lot.

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scotlandx
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22/07/2018 - 1:21 pm
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Unless the Committee can produce a soundly based legal opinion to the contrary, you can take their view as incorrect. An owner voting against such a measure would not be liable, that is just nonsense.

There are many buildings out there that do not comply with the current Building Code – that is inevitable because the Building Code has changed in many respects over the years. An obligation to bring an element of a building up to Code usually arises where work is done which involves a change to the specific element of the building where it may not comply with the Code. For example, a few years ago we had to replace the back stairs of our building, and to the extent that it was possible, the replacement stairs had to comply with the current Code.

It may also arise where an expert gives an opinion that that part of the common property is a safety risk, but you could challenge that.

There have been a few cases on this type of issue, have a look at this one which is on point – and it may be worthwhile you reminding the Committee that the work they want to carry out is in all likelihood an upgrade, requiring a special resolution of the OC.

http://lawyerschambers.com.au/…..s-upgrade/

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Cosmo
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22/07/2018 - 1:52 pm
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Scotlandx is correct.  I researched this for our OC a while ago.  Refer here:

https://safetyrisk.net/wp-content/uploads/downloads/2010/06/QLD%2520%2520Balustrade%2520Newsletter%2520No%252011.pdf

If clicking on link doesn’t work try copying and pasting into browser.

Or Google:

Does your balcony balustrade meet the current Building Codes? Body Corporate Manager’s Newletter No. 11 Vol. 4

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22/07/2018 - 9:17 pm
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I suspect that the move to make the balconies “compliant” has more to do with the look rather than safety.

A strip of glass along the top would do the trick and be a lot less expensive.

In any case, there is no need, as Scottie pointed out, unless you are doing other work on the balconies that required planning permission.

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Lady Penelope
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23/07/2018 - 9:47 am
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My 1970’s building is facing the same dilemma. We have had a structural engineer’s report undertaken which has detected structural issues in the existing steel supports on the balustrades so we are going through the process of obtaining designs and quotes to replace the balustrades. We cannot replace ‘like for like’ and need to search for another alternative.

This is a ‘repair’ rather than an ‘improvement’. 

The ‘jury is out’ on whether litigation could occur if someone fell from your existing balustrades.

The greater the foreseeability of risk and probability of harm caused by a defective balustrade, the higher the obligation on the owners corporation to take precautions to address the risk.

With more and more families with children moving into apartment buildings it is better to be safe than sorry. 

If the balustrades are ‘under height’ for the current code but are still in sound condition the Committee should offer the Lot owners the choice between installing a balustrade height extension to increase the height up to 1m or, alternatively, offer a total replacement of the existing balustrades with 1m high balustrades. The pros and cons of the Motion with Alternatives should be clearly outlined.

If balcony extensions are offered then the balcony extensions must meet the stringent stress testing and performance requirements that are required for balustrades. Many bits and pieces that are ‘tacked on’ the top of an older style balustrade would not meet this test.

This is an issue that impacts on both the safety of the building and the appearance of the building. In my opinion these are matters that should be decided by the whole body of owners rather than the Committee. 

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24/07/2018 - 11:20 pm
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Lady Penelope said
This is an issue that impacts on both the safety of the building and the appearance of the building. In my opinion these are matters that should be decided by the whole body of owners rather than the Committee.   

Given that this is not a necessary repair and is in fact an enhancement of common property, Section 108 (below) would apply, meaning a special resolution at a general meeting was required.

 

108   Changes to common property

(1) Procedure for authorising changes to common property.

An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

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Lady Penelope
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25/07/2018 - 10:36 am
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The issue of whether the replacement of a balcony balustrade with a safer type of balustrade is considered ‘maintenance’ or an ‘improvement’ has been considered several times in QCAT.

NB: QCAT is the Queensland equivalent of NCAT. 

I am not sure whether the issue has yet been Adjudicated in NSW under NCAT.

I recognise that Tribunals in different states can make different decisions but it is interesting to be aware of the reasons behind the decisions.

The U. K. Court of Appeal decision is often cited:  Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264

Below is the long held QLD position on the distinction between ‘maintenance’ and ‘repairs’ and how it pertains to balustrades.

The following extract is from a very recent decision ‘The Presidents Lodge [2018] QBCCMCmr 226 (2 May 2018)

“maintenance” rather than “improvements “

 In No 9 Port Douglas Road [2006] QBCCMCmr 674, an adjudicator considered this distinction in the following terms: On a broad view of “maintenance ” a body corporate should be allowed a reasonably wide discretion in the means by which it performs its maintenance obligations[6] and any repair can invoke an element of improvement  but still remain within the general concept of repair.[7] For example, the view has been taken that quite different solutions or methods of repair might be categorised as “maintenance ” if the principal intention of the proposal is to return something to a useable condition or state of repair .[8] For example, replacement of a balcony balustrade with a safer type of balustrade can constitute “maintenance”[9], as can redecorating common property lift landings and replacing the floor coverings[10]…………..

On balance, I prefer a broad view of “maintenance ” that does not classify a change as an improvement ” if the purpose of the proposal is maintenance of existing structures or things, even if the work involves some change or the replacement of something with a modem equivalent.

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scotlandx
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25/07/2018 - 1:44 pm
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Yes there have been NSW decisions, I noted that above.

Here is the link to one, again.

http://lawyerschambers.com.au/…..s-upgrade/

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camelot
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25/07/2018 - 3:13 pm
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Can I thank you all, Scotland X, Jimmy T, Lady Penelope and Cosmo.  May I thank you all for your very informative posts.  Hopefully the issue will be resolved next weekend with the help of your posts.  Cheers to all

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Ziggy
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25/07/2018 - 9:56 pm
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Two years ago I wrote about this, wondering what to do.

I live in a unit that was built in 1983. My balustrade is only 850mm high and includes a wide foothold half way up, between the concrete base of the balustrade and the glass above. Children, and anyone else, can easily climb over the balustrade by using the foothold and fall to the ground below.

Other balustrades in the building appear the right height, but more importantly, have no footholds. One other balustrade has had a height extension placed on it. I have no idea if this is safe.

Five years ago, however, all the balustrades on level one were replaced because, according to the then SC, they were deemed rusty and needed to give the place a more modern look, as the said balustrades faced the street. The SC also wanted them replaced to abide by today’s BCA code. The OC voted by general resolution to approve the new balustrades.

My balustrade remains in its original state.

Funnily, I recently viewed one of the units on level one and discovered that a back balustrade ie not one facing the street has also had its balustrade “maintained” or is that repaired or upgraded.

Any thoughts?

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