Article written by Mills Oakley Lawyers:
On 18 September 2013, the Strata Schemes Management Amendment (Child Windows Safety) Bill (“the Bill”) was introduced in the Legislative Assembly of the New South Wales Parliament in response to a report prepared by the Children’s Hospital at Westmead. The Bill is currently awaiting the Second Reading debate in the Legislative Assembly.
What is required by the Bill?
The Bill will make it mandatory for Owners Corporations to install child safety devices on windows, in an effort to reduce the risk of death or injury caused by children falling out of windows. Section 64A of the Bill provides that the Owners Corporation is to bear the costs of installing the child safety devices.
A lot owner may also install the safety device to a window which requires such a device to be installed (except for a window in another lot owner’s unit), and seek reimbursement from the Owners Corporation. However, in this situation the lot owner is responsible for the cost of any repairs if common property is damaged during the installation. The Second Reading speech by the Minister for Fair Trading, the Honourable Anthony Roberts (Member for Lane Cove), indicates it is intended that the lot owner’s right to install a safety device overrides any of the Owners Corporation’s by-laws to the contrary.
The criteria identifying the windows subject of the Bill will be set out in amendments to the Strata Schemes Management Regulation 2010 (“Regulation”), which are yet to come. However, the Second Reading speech indicates that the Bill is intended to include “openable windows when the lowest edge is less than 1.7 metres above the internal floor level, and when the drop from the internal floor level to the external surface beneath the window is two metres or more.”
A complying safety device may comprise a strong screen or window lock, for example. We note Parliament does not intend to specify a list of “complying window safety device”, but such a device is required to “allow the window to be locked with a maximum opening of 125 millimetres and it must be able to resist 250 Newtons.”
It appears Owners Corporations will have until 13 March 2018 to comply with the new requirements of section 64A once passed into law.
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Dispute Resolution
If an Owners Corporation fails to install a child safety device on a window the subject of the Bill by 13 March 2018, an “interested person,” such as a lot owner, may apply to the Consumer, Trader and Tenancy Tribunal (or rather its coming replacement, the NSW Civil & Administrative Tribunal) for orders from a Strata Schemes Adjudicator that the Owners Corporation exercise a function under section 64A, or alternatively that the Owners Corporation comply with section 64A.
If an Owners Corporation fails to comply with section 64A, it will be guilty of an offence and liable to a fine of up to $550.
Who is required to comply with the Bill?
The explanatory note to the Bill indicates that the amendments are to apply to residential strata schemes set out in the Regulation. The Second Reading speech does not suggest any exceptions, and the fact that Owners Corporations will have approximately 4.5 years to comply with the amendments also suggests that all residential strata schemes will be required to install the child safety devices.
Conclusion
Owners Corporations, and their strata managers, will need to be aware of the new obligations that will arise once the Bill has been passed into law, and presumably make plans to ensure compliance as part of their usual scheduled maintenance and refurbishment.
However, Parliament has allowed a degree of flexibility by providing an Owners Corporation with an open choice of safety device, and that an Owners Corporation may fulfil its section 64A obligations and minimise its costs of compliance by installing a relatively cheap lock or safety screen, along with the lengthy period before compliance will be required in early 2018.
For more information, please contact:
Paul Jurdeczka | Partner Deliang Chin | Lawyer
pjurdeczka@millsoakley.com.au dchin@millsoakley.com.au
