Balustrades and BCA requirements – when repair becomes upgrade

In Lipscher and Ors v The Owners – Strata Plan No 30995 [2017] NSWCATCD 2 (5 January 2017) three lot owners successfully challenged an owners corporation’s decision to replace balcony balustrades at the property.

The decision to replace the balustrades was made via an ordinary resolution in a general meeting. The lot owners complained that a special resolution was required, pursuant to the former section 65A of the Strata Schemes Management Act 1996, because the balustrades were otherwise in good working order and what was actually happening was an ‘improvement’ or upgrade, not repair and maintenance.

The Owners Corporation opposed the application, arguing that the balustrades were not safe and the work was indeed in the nature of repair and maintenance. The Owners Corporation argued that the balustrades posted a safety risk, being lower in height than the current BCA height requirements.

Unfortunately for the Owners Corporation, the expert evidence indicated otherwise, with one expert reporting that none of the balustrades appeared to be loose, significantly cracked or otherwise unsafe and that there was compliance with the BCA both as to height and climb-ability. Another expert, under cross examination, admitted there was no legal requirement for the Owners Corporation to bring the existing balustrades up to the current Building Code of Australia standard.

The Tribunal was not satisfied that there was any significant safety risk in respect of the balustrades and therefore the Owners Corporation should not have resolved the upgrade pursuant to section 62 of the Act (the former repair and maintenance provision). The Tribunal specifically ordered that the Owners Corporation not replace the remaining balustrades unless authorised by a special resolution.


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Posted in LCOR