balustrade issue?

Just bought a house built in the 70's and the balustrade doesn't reach the required height of 1m, the agent said I would not be able to rent out the house until this was rectified. I would of thought it would be a non issue as it was legal when built, anyone know if the agent is right or wrong?

 

If it was built before the law changed I'm pretty sure it's fine. Don't quote me on that though.

 

My understanding is that it is not retrospective if it was built to the code of the day - like many building requirements.

Any additions or alterations will need to be up to current code though.

 

What is a balustrade exactly?

If someone fell and injured themselves they would probably sue you. You would likely lose too especially as the agent has warned you and you know about it.

Check with your insurer if they would cover you in this instance

 

It's the bit between the floor and the handrail. There are rules for height and spacing of any bars or wires, too ( currently not more than 150mm gap). These rules have changed over time.

It might just be a difference of 20mm.

 

Usually safety rules override previous leglislation, particularly when it relates to rental properties. Pool fences are a case in point, as are smoke alarms. In both cases the time frame for compliance in rental or sold properties was earlier than that for owner occupied properties.

Now that it has been brought to your attention, if you fail to act and there is an accident, you will almost certainly be held liable. It is also questionable if your insurance would cover you.

If you choose not to do anything, at least get confirmation IN WRITING that you are covered by your insurance company for accidents resulting from the non-compliant railings.

You may find that PMs won't handle your listing as they have legal responsibilities.

We owned a unit in a complex where the balcony rails were not compliant after a change in the rules. Before we sold plans were underway to replace all balcony railings, advice to body corporate was that it had to be done.
Marg

 

An article written by Chris Kerin, Kerin Benson Lawyers. ( not sure if it applies to non strata though):

'Balustrades Regulations and Strata Liability
A defective balustrade is one of the biggest risks to safety on common property, and as such, it is of great importance that an owners corporation ensures that any balustrades in their scheme are structurally sound and comply with the relevant building standards. The current Building Code of Australia (BCA) requires that balustrades meet a minimum height of 1 metre (1000mm) and all newly constructed strata plans must adhere to this requirement.

However, previous building standards contained less stringent requirements for balustrades resulting in confusion about whether all balustrades need to comply with the current standards in order to avoid potential liability for the injury or death of owners, occupiers and visitors.

What if our balustrade complied with the relevant standard when it was built, but does not comply with the current BCA?

Retrospectivity of the BCA:

It is well settled law that safety standards for building design, such as the BCA, do not act retrospectively1. This was confirmed in the recent case Hutch v Ryan2 where a resident tried to sue the owner of a premises after falling over a balustrade several meters onto the floor below.

In determining whether the owner had breached the duty of care owed to the resident, the essential question was whether the owner knew or ought to have known that the balustrade was dangerous and failed to take precautions to address the danger.

Although the balustrade did not comply with the current BCA, the fact that it complied with the relevant standard at the time of its construction was an important factor in concluding that the owner was not aware of the risk, absolving any liability. Therefore, as a general rule, if your balustrade complied with the relevant standard when it was built, there is no need to upgrade it in order to comply with the current BCA.'

Circumstances that may require a balustrade to be upgraded:

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. For example, it is implicit from the decision of Hutch v Ryan that if an owners corporation was aware that a no longer compliant balustrade was also dangerous, they could be liable for any resulting injury. Such knowledge may be imputed from:

• building reports highlighting the safety issues of a balustrade;
• various safety incidents caused by a defect in the balustrade, indicating to the owners corporation that the balustrade is unsafe; or
• the presence of young children living in the scheme, increasing likelihood of potential accidents.

In these circumstances, the owners corporation should rectify the balustrade, and any new works will need to comply with the current BCA standards.'

Balustrades Regulations and Strata Liability - Do Your Balustrades Comply?

 

Irrelevant, as in the above case it was judged that the owner was unaware of the risk.

In the initial post in this thread, I t was said that the owner DOES know about the problem, (told by his PM) so can't claim to be unaware of the risk, which was crucial in the above judgment.
Marg

 

That is why I posted a good slab of the article, including the section about when there might be liability!

 

My legal advice if a client asked me would be to fix the bloody thing to make it safe.

 

Balustrades, Handrails & Stairs

Link is from the BCA through a Qld service.

The fact whether you are aware of compliance or not is only a concern if the requirements are retrospective IMHO.

Would another not so diligent pm be concerned? What if the next pm doesn't raise it as an issue? Are you still aware/concerned?

Can you fix another rail above the existing?

 

It raises an interesting point:

• What about stairs where the riser height is not to current standards?

• Or second storey opening windows which now need to be limited to a vey small opening (150mm I think) in new builds if the opening is lower than about 1.7m off floor level?

 

@Joynz Riser height is not a standard fixed quantity, it is a formula: 2 risers + going = ???

If it falls in the range it's legal.

Window opening locks were an immediate change for new construction but phased for existing.

 

My understanding of the NCC / BCC is there is a minimum and a maximum riser height (115mm, 190mm - and a150mm sphere must not pass through ariser opening) and the riser height should also be consistent.

(2R +G is a formula for the slope max. / min. not the actual individual riser max/ min.)

 

Thanks for good answers all around. If it was timber I wouldn't of asked I would just replace (already doing with the rear deck) the front is a steel handrail that suits the age of the home. Seems silly really that a rail that has been adequate for 47 years needs to be removed.

 

How high is it?

Is it on the second storey?

 

It's like seatbelts. Why do we need them when cars had been around for 50 years without them.

The risk is yours though.

 

The difference is the retrospectiveness.

I.e. from a certain date all cars had to have seat belts no matter what their age. All buildings with balustrades, however, do not have to have 1 metre high balustrades.

 

850 roughly, yeah it's a veranda on the "second storey" starts about 2.2m from ground

 

I no longer spoon feed - access to the BCA is freely available.

No it doesn't require removal - weld/bolt another rail over the top.