Upgrade That Balustrade

UPGRADE THAT BALUSTRADE

WHAT IMPACT WILL THE NEW AUSTRALIAN STANDARD FOR GLASS IN BUILDINGS HAVE ON THE SAFETY OF BALUSTRADES IN APARTMENT BUILDINGS?

Adrian Mueller Partner JS Mueller & Co Lawyers

AS 1288: 2021 Glass in Buildings: Selection and Installation was introduced in 2021 to overcome the confusion created by a lack of clarity in AS 1288: 2006. The provisions of AS 1288: 2021 are expected to be incorporated by reference into the National Construction Code (NCC) later this year. But what impact does the introduction of AS 1288: 2021, and its incorporation into the NCC, have on industry professionals who assess and report on the safety of balustrade glazing in apartment buildings?

INTRODUCTION

Since 1 July 1997, clause D2.16 of the NCC has set out requirements for balustrades in apartment buildings to promote safety and prevent falling through or over or climbing over. The clause requires a balustrade to be at least 1 m high, when measured vertically from the surface beneath; not have openings that allow a 125 mm sphere to pass between rails or between the lowest rail and floor beneath the balustrade; and not have horizontal climbing elements between 150 mm and 760 mm above the floor.

NCC IS NOT RETROSPECTIVE

Many balustrades, constructed before the commencement of the NCC, do not meet current safety requirements. What does this mean for building owners corporations with non-compliant balustrades? Are they required to upgrade those balustrades to achieve compliance with the NCC? The typical answer has been that the requirements of the NCC are not retrospective, so owners corporations are not required to upgrade balustrades to comply.

The NCAT Appeal Panel decision in SP36613 v Doherty; Doherty v SP36613 (22 September 2021) turned that reasoning on its head. This case marks the first time that an owners corporation has been ordered to upgrade an unsafe balustrade to achieve compliance with the NCC, going against the long-held view that the NCC provisions are not retrospective and that an owners corporation does not have to upgrade existing building elements to achieve compliance with the NCC.

THE DOHERTY CASE

The owners of a Sydney top floor apartment in a 7-storey mixed use strata building, constructed in about 1990, had a rooftop courtyard surrounded by a balustrade, which did not meet the safety requirements of the NCC. The balustrade was less than 1 m high and contained large gaps, through which a person could fall, and was easily able to be climbed over. Ms Doherty, one of the owners, became concerned that the balustrade was unsafe, so asked the owners corporation to upgrade the balustrade to make it compliant. The owners corporation refused to do so, and she then, unsuccessfully, applied to NCAT to force them to do so. NCAT held that the requirements of the NCC were not retrospective. Ms Doherty then successfully appealed against NCAT’s decision, with the Appeal Panel ordering the owners corporation to renew the balustrade ensuring its compliance with NCC safety requirements.

APPEAL PANEL’S REASONING

The reason the Appeal Panel ordered this, was that they found that the owners corporation knew, or should have known, that the courtyard balustrade was unsafe, because several years earlier, the Local Council had ordered the owners corporation to upgrade other balustrades throughout the building to make them safe. As those balustrades were of the same design as this one, the owners corporation should have been on notice that the courtyard balustrade might also be unsafe and should have investigated this. The Council had also written to the owners corporation recommending that balustrades be at least 1 m high, have no openings between bars more than 100 mm and no horizontal parts that would allow children to climb over them.

Other reasons the Appeal Panel found that that the owners corporation knew, or should have known, that the courtyard balustrade was unsafe, included a report written by the owners corporation’s consulting engineer making it clear that the balustrade did not comply with the NCC safety requirements. The engineer’s report observed that non-compliant balustrades posed a high risk to the safety of building occupants, particularly their children and strongly recommended that the balustrade be replaced with a new, NCC-compliant balustrade. The balustrade, however, was not replaced.

The owners corporation had also engaged an expert to prepare a safety report, which identified the falling hazard as major and needing immediate attention, strongly recommending that the owners corporation consider replacing the non-compliant balustrade.

DUTY TO REPLACE COMMON PROPERTY

The Appeal Panel then considered whether the duty of the owners corporation to repair and replace common property, under section 106 of the Strata Schemes Management Act 2015 (NSW), required the owners corporation to replace the balustrade. They concluded that it did, because the unsafe nature of the balustrade was obvious or patent and, even more importantly, the owners corporation knew, or should have known, that the balustrade was unsafe.

They held that this duty extended to the maintenance, repair and replacement beyond common property that had just physically deteriorated in condition or operation, it also covered items that were obviously unsafe or presented an obvious safety risk once investigated, where the need for that investigation was obvious or at least reasonable. The Appeal Panel also held that that duty required the owners corporation to investigate obvious safety risks, including those that were brought to its attention by a lot owner. Importantly, they held that it did not matter that the balustrade had complied with the Standards when it was built, when the balustrade now posed an obvious safety risk.

WHAT ABOUT PREVIOUS CASE LAW?

The Appeal Panel looked at the earlier decision of the NSW Court of Appeal in Ridis v SP10308 and said it didn’t apply here. In that case, the court held that an owners corporation was not required to replace a strata building’s entrance door’s old annealed glass with modern safety glass, even though it had shattered on impact causing a serious injury. However, they reached this conclusion because the owners corporation did not know, and ought not to have reasonably known, that the old annealed glass was unsafe and posed a risk of personal injury. In the Doherty case, the owners corporation clearly knew or should have known that the balustrade was unsafe, requiring them to act and not turn a blind eye to the safety risk.

This is notable as it effectively means that if a strata owners corporation is aware that something is unsafe (regardless of whether it complied with the applicable Standard at the time of construction) they must repair or replace it.

WHAT ABOUT AS 1288: 2021?

AS 1288: 2021 contains new requirements for balustrades. For example, AS 1288: 2021 requires laminated glazing in balustrades protecting falls from 5 m or more. Also, any balustrade systems that are supported by spigot, point-fixed or core drill fixings must demonstrate compliance with the NCC through a Performance Solution (such as an engineering solution or testing in a laboratory). AS 1288: 2021 will not become mandatory for new residential buildings, or in construction work done on existing residential buildings, in Australia until it is referenced in the NCC later in 2022. This is because building legislation in each state requires construction work to comply with the NCC, but not Australian Standards that are not referenced in the NCC. However, there is still the possibility that work on new or existing balustrades will need to comply with AS 1288: 2021, particularly if compliance is necessary, under the legislation, to ensure the work is done properly with due care and skill.

WHAT IMPACT DO THE DOHERTY CASE AND AS 1288: 2021 HAVE ON NON-CONFORMING BALUSTRADES?

So, what does the Doherty case mean for existing balustrades that do not comply with AS 1288: 2021, especially once it is referenced in the NCC? Will all non-compliant balustrades in existing strata apartment buildings have to be upgraded to comply with AS 1288:2021? The answer is ‘no’, because the NCC is not retrospective and there is no absolute requirement for an existing balustrade to comply with AS 1288: 2021. But the Doherty case does show that where a balustrade is non-compliant with the NCC or AS 1288: 2021, that might demonstrate that it is unsafe. If that is the case, the building’s owners corporation will need to upgrade the balustrade to achieve compliance if it knows, or ought to know, that the balustrade is unsafe.

WHAT ABOUT REPORTING REQUIREMENTS UNDER THE NCC 2022?

How will the referencing of AS 1288: 2021 in the NCC impact on industry professionals who assess and report on the safety of balustrades? Since the requirements were introduced in part to improve safety, where an existing balustrade in a strata apartment building is assessed not to comply with AS 1288: 2021, the industry professional should report the non-compliance to the owners corporation and, if qualified, provide them with an opinion on whether the non-compliance renders the balustrade unsafe and, if so, why. If the balustrade is unsafe, the professional should recommend that the balustrade be upgraded or replaced and, if appropriate, provide a scope of works, to make it safe and compliant with AS 1288: 2021. This applies to any non-compliant building element, for example, a non-compliant window next to a new replacement window that is installed by an industry professional. The professional should alert the building owner to the existence of the non-compliant window and seek instructions to replace it with a compliant one.

THE WASH UP

The decision in the Doherty case turns on its head the commonly held assumption that an owners corporation is not required to upgrade a non-compliant unsafe balustrade, particularly where it complied with the Standards when built. The case shows that where a balustrade is obviously unsafe, or an owners corporation ought reasonably to know that a balustrade is unsafe, they are required to make the balustrade safe and compliant with the NCC. This also means that an owners corporation that obtains expert advice identifying unsafe balustrades it cannot turn a blind eye to the safety problem. Further, the case is likely to apply to other jurisdictions in Australia who have similar strata laws to those contained in NSW.

Industry professionals need to be across the new requirements of AS1288:2021, particularly once they are referenced in the NCC later this year and be aware that balustrades that do not comply with AS 1288:2021 may well be unsafe and require upgrading or replacement.

Disclaimer: The information contained in this article is provided for your personal information only by Adrian Mueller from JS Mueller & Co Lawyers. It is not meant to be legal or professional advice, nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein.