Strata Law

New South Wales has finally ended blanket bans on pets in apartments, following in the footsteps of Queensland and the ACT.

Victoria made some progress last year, although not to the same extent with reforms preventing landlords from unreasonably restricting pets. The Northern Territory is following suit.

South Australia has pet agreements, required for any lease, allowing pets with ground rules in place for property maintenance and management.

Western Australia has a $260 pet bond, to be taken when a pet is named on the lease for fumigation at vacancy, Tasmania has a similar system albeit without the bond.

The NSW&rsquo;s reforms are related to strata title, as until these changes, most strata titles included a blanket pet ban. Historically NSW has had the most complex regulations surrounding pets and strata.&nbsp;

Now instead of strata laws, it&rsquo;s owners corporations and landlords. The NSW government has said they can still refuse to keep an animal if there is &ldquo;repeated damage of the common property, menacing behaviour, persistent noise and odour.&rdquo;

Owners corporations will also have the right to set conditions about how pets are kept, such as requiring supervision on common property or while entering and exiting an entrance or lift.

The government says these conditions must be &ldquo;reasonable&rdquo;, but there are currently NO guidelines.

Some actions such as restricting the size of a home&#39;s pet, not uncommon in the past, were found in a report prepared as part of the NSW legislation review to be unreasonable. However, this is not specified in the law that was passed.

Close to 2.5 million Australians are living in apartments and a third of Australian households rent their homes. So with the number of renter&rsquo;s rising in the wake of property prices continuing to outpace wage growth, there is a need for consistent, equitable and pet-supportive housing rental policies across the country.

With such inconsistencies across Australia, and changes only finally occurring in the past 2-3 years, there is a lot of uncertainty for renters and pets often become the victim, as more than 60% of households include a pet.

Pets are part of the family, and this he been demonstrated over and over, especially during lockdown with mental health studies and surveys demonstrating the benefits of an animal on mental health

Dogs are the best examples of this, shown to increase daily exercise across all age groups.

There are even benefits for landlords, with US research suggesting that households with pets stayed in rental properties longer than those that did not have pets. This brings longer-term, more secure rent to property owners.&nbsp;

In spite of this as recently as 2018/19 pet bans have been sweeping and widespread in many rental properties, apartment buildings in particular are the biggest offender.&nbsp;

Emma Power of WSU during a 2016 survey found,&rdquo; that pet ownership can trigger feelings of housing insecurity for Sydney&rsquo;s renter households.&rdquo;

Roughly half of those surveyed who declared their pets when they applied for properties had been given pet ownership as the reason their application was rejected.

Mrs Powers said, these figures are likely to represent only a small proportion of those who have been rejected for pet ownership as reasons for rejection are rarely provided.

Most doggedly concerned landlords are simply barking up the wrong tree with many studies showing that the majority of landlords who worried about pets had zero first hand experience with such problems. Even when damage occurred it was significantly less than the average deposit, or pet-bond.

jordan_55689

Barking up the right tree: A guide to renting with pets in Australia

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Cats, dogs, birds and even fish, for many of us they are our closest companions, however, under some strata's rules pets are not allowed.

However, new laws have been introduced to make it easier than ever to include pets in your apartment.

But beyond that, there are developments that welcome pets with open arms and even facilitate pet living and lifestyles.

Here are 4 incredible Melbourne apartments which welcome your pets:

1. Voyager, Docklands 
Address: 103 South Wharf Drive, Docklands VIC 3008 
Two-bedroom apartments from $706,500

[smartcode_project:default project_id=3494]

Voyager, a chic residential tower delivered by Mirvac, is a new development set within the master-planned Yarra’s Edge precinct.

The harbourside precinct, set to be home to over 3,000 people, boasts over 1,000 sqm of fine dining and retail, a state-of-the-art wellness centre, parklands and marina berths.

Voyager boasts an abundance of premium amenities, designed for residents and their guests to entertain or retreat. The residence’s waterfront location offers sensation views of the Melbourne CBD.

The 315 contemporary apartments contain versatile floor plans available to suit any lifestyle or companion!

2. Folia, Doncaster 
Address: 59 Stables Circuit, Doncaster VIC 3108 
One-bedroom apartments from $400,000

[smartcode_project:default project_id=22584]

Situated on Doncaster Road, Folia forms part of Mirvac’s larger master-planned community, Tullamore.

Achieving the highest environmental certification in Australia, the development has achieved a six-leaf EnviroDevelopment accreditation, thanks to its many sustainable features.

These include a 70kWh solar panel array, renewable energy and battery storage and the possibility of including a Tesla Powerwall II battery within each residence. 

The broader development site also boasts 20 per cent of open, green space, so there's plenty of space to play with your furry companions

3. Sky Garden, Glen Waverley 
Address: 227 Springvale Road, Glen Waverley VIC 3150 
Two-bedroom apartments from $668,000

[smartcode_project:default project_id=2881]

Sky Garden, the latest development by the diversified property group Golden Age, spans three towers across the new and improved The Glen shopping centre in Melbourne's Glen Waverley.

Famed architecture firm Rothelowman designed the three apartment buildings, soaring 12, 13 and 20 levels and homing 555 one, two and three-bedroom apartments,

The apartment development is part of the $430 million Glen redevelopment which completed construction in December 2020.

Sky Garden features over 4,000 square metres of internal and external facilities with one of the most impressive features unsurprisingly being the garden in the sky.

The Sky Garden has sun lounges, a bar and kitchen for entertaining, a kids playground, veggie gardens, large lawns with water features and private dining and seating sanctuaries to unwind. The Sky Garden is located above the podium levels linking each tower.

4. K1 Residences, Melbourne 
Address: 1 Union Street, Melbourne VIC 3004 
Four-bedroom residences from $2,590,000

[smartcode_project:default project_id=2772]

For a truly exclusive pet palace, there is K1 Residences, delivered by the rapidly growing Optimus Developments, it is made up of 13 whole floors, four-bedroom apartments with gun-barrel views across Albert Park.

With architecture by award-winning DE atelier Architect, design details include spacious garden balconies, floor-to-ceiling windows doors and oversized bathrooms.

Interior design is from Bergman and Co, while landscape architects Aspect Studios handled K1’s gardens, a defining element of the building. Plus with Albert Park just across the road, it's a short walk for some fresh air with your pets.

The 175 sqm apartments come in a variety of four-bedroom configurations which is attractive for the downsizer market who are taking advantage of the soaring housing market by cashing in.

There are a number of curved balconies in each apartment which make for a striking facade.
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Cats, dogs, birds and even fish, for many of us they are our closest companions, however, under some strata's rules pets are not allowed but there are always those that welcome pets with open arms

Pet friendly palaces: Four Melbourne apartments perfect for pets

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More than one million people in NSW are being invited to have their say on how laws can be changed to improve the experience of the growing number of people living and working in strata communities.

Minister for Better Regulation Kevin Anderson said community consultation was now open as a crucial part of the statutory review of both the Strata Schemes Development Act 2015 and Strata Schemes Management Act 2015.

“With the continued surge in popularity of apartment living we expect over half the population of Greater Sydney to be living in strata titled apartment towers, townhouses and blocks of flats by 2040,” Mr Anderson said. “There are now 81,717 strata schemes registered in NSW and every year this number grows by more than 1,000 across both Sydney and regional NSW.

“It is important that the laws covering strata living stay relevant and address some of the fundamental issues that might be stopping people from fulfilling the great Australian dream of home ownership. “The Government’s landmark 2015 reforms modernised strata living, but we know there is more to do.

"In particular, we know more needs to be done to ensure that apartment buildings are well maintained and remain free of building defects over their lifetime so that owners aren’t left out of pocket by tens of thousands of dollars. That’s why we will be seeking feedback on changes that would require owners to disclose critical information about programmed maintenance, capital works spending and defects.”

Mr Anderson said feedback was also being sought on a new digital Strata Portal that will capture mandatory information for each strata building in NSW and make it available to the regulator to ensure compliance with fire and other important safety requirements.

“Strata schemes are integral to supporting NSW’s growing population and housing boom. As more and more people choose to call NSW home, strata living holds the key to encouraging growing cities and urban development which is why this review is so important to ensure we make strata living more appealing,” Mr Anderson said.
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Community consultation is now open as a crucial part of the statutory review of two the strata scheme acts



Joel Robinson

Strata laws in New South Wales to be reviewed

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<div class="column">EXPERT OBSERVATION</div>
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<div class="column">On 15 January 2015, the Home Building Amendment Act 2014 changed the terminology and definitions from structural to “major” and from minor to “in any other case” i.e. non-major.</div>
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<div class="column">These amendments apply retrospectively to residential building work commenced or completed prior to the commencement of the amendment except in relation to a dispute in which proceedings had already commenced prior to the operation of the amendment or in relation to contracts entered into prior to 1 February 2012.</div>
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 Two recent NSW Civil and Administrative Tribunal Appeal Panel decisions have considered the definition of major defect and how to establish whether a defect meets this definition, providing useful guidance on this topic.</div>
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<div class="column">The definition of a major defect is substantially different from the old definition of a structural defect. A major defect is defined as a defect in a “major element” of a building. This involves defects to the following parts of the building that are defined as a major element:
<ul>
<li>a) An internal or external load bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams); or</li>
</ul>
<ul>
<li>b) A fire safety system; or</li>
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<ul>
<li>c) Waterproofing; or</li>
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<li>d) Any other element that is prescribed by the regulations as a major element of a building.</li>
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In addition to affecting a “major element” of the building, a “major defect” must have the following consequences (emphasis added):
<ul>
<li>a)  The inability to inhabit or use the building (or part of the building) for its intended purpose; or</li>
</ul>
<ul>
<li>b)  The destruction of the building or part of the building; or</li>
</ul>
<ul>
<li>c)  A threat of collapse of the building or part of the building.</li>
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A defect may also be a major defect if:
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<li>a) It is a defect of a kind that is prescribed by the regulations as a major defect; or</li>
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<li>b) If it involves the use of a building product within the meaning of the Building Products (Safety) Act 2017) in contravention of that Act.</li>
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What defects are included in categories of major defects will depend upon the meaning of the words“destruction”, “the inability to inhabit or use the building”, or “threat of collapse”.
It is possible that the meaning of “major defect” will be considered to only include defects that have significant consequences. If so then the limitation period will be reduced to two years for some defects that previously would have had a six-year warranty because they will be regarded as non- major.
Whilst there is very little judicial consideration of the meaning of major defect by the Courts in NSW, the definition has been considered recently in two cases this year by the Appeal Panel of the NSW Civil and Administrative Tribunal in relation to the question of jurisdiction. In other words, if a defect is not a major defect and more than two years have passed since completion of the building, then the claim is out of time and the Tribunal does not have jurisdiction.
In Vella v Mir [2019] NSWCATAP 28 the Appeal Panel set out the sequence of analysis to decide whether a claim for a major defect was made within time as follows:
<ul>
<li>a)  when the statutory warranty period starts;</li>
</ul>
<ul>
<li>b)  whether s.18E(2) applies if the statutory warranty has already been enforced;</li>
</ul>
<ul>
<li>c)  whether each of the defects is a major element in a building;</li>
</ul>
<ul>
<li>d)  whether each of the defects in a major element is a major defect;</li>
</ul>
<ul>
<li>e)  whether the application has been made within time by reference to the statutory warranty period.</li>
</ul>
In Ashton v Stevenson [2019] NSWCATAP the Appeal Panel applied the decision of Vella and also found that the following must be established for a defect to be a major defect:
<ul>
<li>a)  The first step in the analysis is that the defect must be part of a “major element” of a building.</li>
</ul>
<ul>
<li>b)  Inclusion in the definition of major element does not mean that the defect will be a “major defect”.</li>
</ul>
<ul>
<li>c)  The extent to which a defect impacts on the habitability or the integrity of the building needs to be proved by the party alleging a major defect (referring to Panchal v Jones t/as Oz Style Homes [2018] NSWCATD 238).</li>
</ul>
<ul>
<li>d)  The consequences of the defect must be shown to have, or probably have, a proven consequence for the habitation, or use, of the building or to the integrity of the building.</li>
</ul>
<ul>
<li>e)  Section 18E(4)(a)(i) requires that there must be a proven, or probable, inability to inhabit, or use the building.</li>
</ul>
<ul>
<li>f)  Section 18E(4)(a)(ii) and (iii) are at the more serious end of consequences or impact on a building. The reference to destruction does not mean minor process of deterioration, but evidence of a real possibility of destruction, not merely incidental damage or superficial deterioration.</li>
</ul>
<ul>
<li>g)  These are matters for evidence as to the actual impact which must involve more than a speculative or pessimistic assessment of possibilities in order to prove that the defect will have, or probably have, the prescribed consequences.</li>
</ul>
<ul>
<li>h)  The evidence must establish that the consequences are imminent or probable.</li>
</ul>
<ul>
<li>i)  Whilst expert evidence may assist in this analysis, such evidence is not determinative of the issue and must rise above speculation and suggestions as to possibilities.</li>
</ul>
<ul>
<li>j)  Evidence from the occupants of users of the building (as opposed to expert evidence) would be necessary to establish the claim.</li>
</ul>
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In summary, a 'major defect; will have to overcome the criteria that the defect renders a building (or part of it) uninhabitable or incapable of use, destroys the building (or part of it) or imposes a threat of collapse of the building (or part of it). These criteria all involve a significant degree of seriousness.
Additionally, establishing whether a defect is a major defect is not simply a matter for expert opinion and will require evidence from occupants of the building to establish the seriousness of the defect, particularly in relation to the ability to use the building or a part of it for its intended purpose.
Unless a defect can be proven to be a major defect, an owners corporation will be out of time to claim for some very significant and costly defects if proceedings are commenced outside of the 2- year limitation period for minor defects.
The owners corporation has a strict obligation to maintain and repair the common property pursuant to section 106 of the Strata Schemes Management Act 2015. This includes taking action to address all defects at the property for which the builder and the developer are responsible. Failure to do so may leave the owners corporation open to action by any interested person, such as a lot owner.
It is therefore important to take steps to review the building for defects after the first 12 months from the date of issue of an occupation certificate and obtain legal advice on pursuing the builder and developer well before the 2 year limitation period expiry.
Helen Amanatiadis is a strata lawyer from JS Muellers &amp; Co Lawyers 
 
 
 
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j.ballantyne1990-6AQqhLzZaK

How to establish a major building defect: JS Mueller & Co Lawyers' Helen Amanatiadis

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The strata building bond and inspections scheme applies where a developer and builder enter into a contract from 1 January 2018 in NSW.
The scheme applies to building work to construct residential or partially-residential strata properties that are four or more storeys. Buildings that are three storeys or under are covered under the <a href="http://www.fairtrading.nsw.gov.au/sites/ftw/Tenants_and_home_owners/Home_building_and_renovating/Home_building_compensation_fund.page" target="_blank">Home Building Compensation Fund</a>.
This scheme includes a building bond and mandatory defect inspection reports. It provides a structured, proactive process that resolves building issues quickly and cost effectively.
Developers must lodge a building bond with NSW Fair Trading equal to two percent of the contract price for residential and mixed-use high rise strata buildings.
The building bond secures funds (up to the amount of the bond). The building bond can then be used to pay the costs of rectifying any defective building work identified in a final inspection report.
Stages in the process:
1. Preparing to lodge the building bond - The developer should prepare to lodge the building bond once they and the builder have entered in to a contract. The bond is equal to two percent of the contract value of work.
2. Bond lodgement - The lodgement is uploaded online through a form, with bond payment and supporting documents and information.
3. Appointing a building inspector - The developer sources a building inspector through the Strata inspector panel. The building inspector must be independent of the developer.
4. Interim inspection and report - The building inspector conducts their first inspection of the strata property and completes a report identifying any defective building work. This happens between 15 and 18 months after the building work has been completed.
5. Final inspection and report - The building inspector arranges with the owners corporation to conduct a final inspection of the property. This happens between 21 and 24 months after the building work has been completed.
6. Payment of bond - If there are no defects, the bond is released in full to the developer.
7. Completing the process - The Building Bond Secretary facilitates the release of the bond money. The owners corporation must use any money they receive to fix the defects identified. After the defects are fixed, any money left over must be returned to the developer.
Developers, building inspectors, builders, the owners corporation and a strata inspection panel will all be included in the process.
To read more about the building bond and inspections scheme <a href="http://www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Strata_schemes/Building_bond.page" target="_blank">click here.</a>
 
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NSW strata building bond and inspections scheme process

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All strata schemes must review their by-laws by 30 November 2017, if they have not already done so since 30 November 2016. 
Each strata scheme has its own by-laws, which are a set of rules that owners, tenants and, in some cases, visitors must follow.  By-laws cover behaviour of residents and the use of common property. They can cover issues such as whether pets are allowed on the scheme, how smoking is regulated, parking and noise levels.
The by-laws can vary significantly from scheme to scheme and it is important to understand which by-laws apply to your scheme.
Owners corporations can determine the by-laws that suit the preferred lifestyle of the strata scheme. A by-law must not be harsh, unconscionable or oppressive. No by-law is capable of restricting a dealing in a lot, including restricting short-term letting. By-laws cannot restrict children, and cannot restrict the keeping of an assistance animal.
A copy of your scheme's by-laws is kept on the strata roll and is available from either the secretary of the owners corporation or from your managing agent (if your scheme has one).
The by-laws that apply to your strata scheme depend on the date the strata plan was registered. More information on these by-laws can be found on the Registrar General's Guidelines website.
<div>Review of all strata by-laws</div>
<div>Model by-laws</div>
<div>Pets</div>
<div>Assistance Animals</div>
<div>Nuisance smoking</div>
<div>Common property rights by-law</div>
<div>What by-laws are in place at your scheme?</div>
<div>Complying with by-laws</div>
<div>Dealing with by-law breaches</div>
<div>Penalties and fines</div>
<div>Changing by-laws</div>
<div>Other important responsibilities of strata residents</div>
If, as a result of the review, your scheme proposes changes to the by-laws, these must be put to a special resolution vote at a meeting of the owners corporation. The new  by-laws must also be registered with the NSW Office of the Registrar General within 6 months after the special resolution has been passed. This can be done by lodging a Consolidation/Change of By-Laws form. Tenants must also be informed of any change in by-laws.
In addition, the Secretary of the strata scheme must now keep a consolidated list of  by–laws. A consolidated list of by–laws must be registered with Land and Property Information before any new change of by–laws can be registered.
 
<h1>Model by-laws </h1>
The Strata Schemes Management Regulation 2016 includes a set of model by-laws which provide 'sample rules' to guide the owners corporation in setting their own by-laws. Owners corporations can choose to adopt these or make changes to better suit their circumstances to manage issues in strata like overcrowding, pets, parking, and smoke drift. Schemes are not required to adopt or adapt any of the model by-laws, they are available to assist schemes in reviewing and making by-laws to suit their scheme. Model by-laws cannot be the by-laws for your scheme unless they are first formally adopted by the owners corporation and registered with Land and Property Information.
The model by-laws include options for:
<ul>
<li>permitting pets</li>
<li>dealing with nuisance or hazardous smoking</li>
<li>helping owners corporations address noise and short-term letting</li>
<li>measures to prevent overcrowding.</li>
</ul>
View or download a copy of the model by-laws in the Strata Schemes Management Regulation 2016 from the NSW Legislation website.
 
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All NSW strata schemes must review their by-laws by 30 November 2017

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The new strata building bond and inspection scheme in New South Wales will start 1 January 2018 following a change to the original commencement date of 1 July 2017.
This scheme will only apply to construction contracts signed (or where there is no contract and building work commences) from 1 January 2018 according to NSW Fair Trading and will not require developers of new strata schemes to lodge defect bonds before 31 December 2017.
The starting date has been due to put procedural and professional requirements in place before commencement.
This includes:
<ul>
<li>the new standards and procedures relating to strata-specific building inspections</li>
<li>new digital business processes to support bond lodgement and processing of the scheme. </li>
</ul>
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jonathanchancellor-7SQnKwU6yx

Date change for NSW strata building bond scheme

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New South Wales has modernised its strata laws to reflect 21st Century living with updated rules that came into effect this week.
It is the biggest overhaul in four decades. It was 1961 when Strata Plan No 1 was registered at an Enfield walkup. Now the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015 marks the most significant reforms since 1973 revisions. 
There are around 90,000 strata schemes across the state ranging from duplexes to those with 100s of flats.
More than two million NSW residents live in the apartments, units and townhouses, and that is set to rise dramatically from downsizers. 
The new rules will effect anyone who owns or rents.
Some changes will be noticed quickly while others will take time - especially the controversial reform that paves the way for urban renewal by the compulsory demolition particularly of well-position small, older apartment blocks on large land holdings.
There's over 90 changes being implemented by the Innovation and Better Regulations Minister Victor Dominello.
NSW was the first place in the world with strata title back in 1961, so there is no doubting they needed modernisation. Around 30% of schemes in the Sydney date back more than 30 years. 
Many of the new model by-laws only apply to new strata schemes. So the model rules including the pro-pet proposal won't see pets run amok in every strata. The changes will likely facilitate some owners corporations implementing by-laws that set limits on the number of people living in a unit, albeit with no limits on family members.
One of the most important changes relates to renovations, which ought make it a little easier for cosmetic alterations.
Strata schemes can pay the council to issue parking fines for pesky unauthorised use of the visitors’ spaces.
There are some modernisation on how a strata is run, such as allowing owners to use technology to communicate on issues, in meetings and casting a vote.   
Tenants will have more rights so if more than 50% of the building is tenanted, a tenant representative can be nominated as a non-voting member of the strata committee.
The most controversial change is the ability for the owners’ corporation to decide to sell or redevelop their building.
Instead of the previous requirement of unanimous consent, the 75% threshold is a generous gift to the development lobby especially as each apartment will have one vote, rather than be based on the more worthy unit entitlement.
It is extraordinary the lawmakers would seek to have the penthouse owner's voting entitlement the same as the viewless studio down near the laundry in the basement.
Turmoil will follow at the expense of individual property rights. All it takes is for anyone - it does not have to be a lot owner - to give a written proposal to the owners corporation for a sale or redevelopment of the strata scheme to be considered. 
Any strata then needs just half the owners - perhaps two of the four owners - to pass a resolution at a general meeting to progress the prospect further along.
The intending stayput owners do get around 74 days notice of the rug being pulled from under them with limited recourse.
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jchancellor-FAypfDUnLy

New South Wales updates strata laws

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The Strata Schemes Management Act 2015 (NSW) which, but for part 11, will commence on 30 November 2016 gives “eligible tenants” certain rights.
Section 258 of the Act requires landlords (or sub-lessors) to notify the owners corporation of any tenants (or sub-tenants) by way of a tenancy notice.
At a minimum, the following information must be provided: the lot number, names of all tenants, an address for service of notices (which may be an email address), the date the tenancy is to start and the name of the agent acting on behalf of the lot owner (if any).
Once notice has been provided the tenant or tenants are eligible tenants.
If the strata scheme has received tenants notices for at least half the lots in the scheme a tenants meeting must be held 14 days prior to the Annual General Meeting (AGM) to allow eligible tenants to elect one tenant representative to the strata committee.
Eligible tenants must, at least 7 days before any AGM or extraordinary general meeting (EGM), be given a copy of the agenda. However if there is a noticeboard for the scheme required by the by-laws then the agenda need only be displayed on the noticeboard. Note not all meeting documents need be provided to eligible tenants.
Tenant representatives have a right to attend strata committee meetings, AGMs &amp; EGMs but
<ul>
<li>have no right to vote or to address the meeting (unless authorised);</li>
<li>cannot put motions on the agenda or nominate a person for office;</li>
<li>cannot act as an officer of the owners corporation;</li>
<li>are not counted for the purposes of quorum for strata committee meetings; and</li>
<li>may be excluded from discussions on financial statements, audit reports, levying or recovery of contributions and strata renewal</li>
</ul>
Tenant representatives must also be provided with notice of any strata committee meeting and a copy of the strata committee meeting minutes.
Eligible tenants have a right to attend an AGM or EGM but, unless they hold the proxy on behalf of the owner of their lot (or another lot in the scheme), they have no voting rights, no right to address the meeting and may be asked to leave if there are discussions on financial statements, audit reports, levying or recovery of contributions or strata renewal.
Note all tenants have a right to receive a copy of the by-laws for the scheme (and the strata management statement if applicable) within 14 days of becoming eligible for possession of the property. Your landlord or sub-lessor must provide this information.
The article first appeared on <a href="https://kerinbensonlawyers.com.au/nsw-fact-sheet-6-strata-reforms-tenants-rights/" target="_blank">Kerin Benson Lawyers</a>.
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Property 101: New South Wales strata reforms and tenants rights

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GUEST OBSERVER
The New South Wales Government is finally biting the bullet on rewriting the Building Professionals Act, the law governing the way buildings in the state are certified and deemed to be fire safe.
The decision follows the fatal 2012 Bankstown fire in an apartment block which had a litany of certification problems and a subsequent government review of the building certification process.
A young woman who was forced to leap from a window on the burning fifth storey of the Euro Terrace apartments died, with another young woman badly injured. When the NSW Deputy Coroner investigated the circumstances of the death he found significant failings in the current regulation of fire protection equipment and systems.
The building was 10 centimetres short of the 25-metre height where sprinklers become mandatory in units. The Deputy Coroner said sprinklers in the unit would have given the two women time to be rescued.
The inquest heard evidence that fire safety problems with the building had been identified in 2010 but nothing substantial had been done to improve it by the time of the fire.
The government then commissioned the review by former Treasury Secretary Michael Lambert who found practices for ensuring apartment fire safety were “totally ineffectual” and had led to the approval of unsafe buildings.
The government is finally acting on his report from last October, which was highly critical of the way in which commercial and apartment buildings in NSW are certified and deemed to be fire safe.
One of the changes recommended is more frequent audits and checks against building owners choosing and paying for their own certifiers.
This is long overdue. These arrangements create a conflict of interest. Allowing owners to choose and remunerate their certifier has the potential for abuse. Certifiers may choose to look the other way when the building owned by a developer who is paying them regularly has a fault which needs rectification.
There is also the issue of the skills of the certifiers. There is an absence of required qualifications and accreditation of people carrying out critical life-saving fire protection work which must be addressed. There needs to be regulation surrounding the accreditation of people working in the fire protection industry.
The owners of apartment buildings must be aware they have a role to play in keeping their building fire safe. They must be educated around the need to maintain and comply with fire standards.
This means ensuring their buildings have effective fire maintenance schemes with detection systems and other fire safety installations, such as extinguishers, hoses, exit lights and fire doors well maintained and up-to-date. Access to fire escapes must be clear at all times, with appropriate evacuation signage directing residents to exits.
Managing agents are accountable for the buildings they oversee, ensuring that fire safety standards are upheld and the fire risk assessment needs to be periodically reviewed.
Each year a qualified person such as a fire engineer or building surveyor must inspect the fire safety measures and provide a Fire Safety Installation Certificate to the owners. The annual Fire Safety Statement must be provided to the council and the NSW Fire Brigades, and must be prominently displayed in the strata building.
There are a number of older buildings which may not currently be subject to these requirements. However, many of these buildings will be subject to a development consent, construction certificate or fire safety order at a future date which may incorporate these requirements.
It is up to owners and managing agents to ascertain what is required. For older buildings that have not had a Fire Safety Schedule, a fire safety consultant can be engaged to conduct an audit on the building, to report on what is there and to suggest upgraded fire safety measures.
There is now greater emphasis on the records and evidence required by building owners to demonstrate regulatory compliance.
The New South Wales government says it will pursue more than 70 suggested changes. We look forward to their implementation.
Matthew Wrigley is managing director and licensee in charge of Perpetual Strata Management and can be contacted <a href="https://perpetualstrata.com.au" target="_blank">here</a>.
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