REINSW has lodged a submission in response to the NSW Government’s proposal to mandate the installation of window safety devices.
The NSW Government hopes to reduce the number of children falling from windows by mandating the installation of window safety devices. The proposals, set out in the Children and Window Safety Consultation Paper, require Owners’ Corporations to install safety devices on all windows that pose a safety risk to young children.
“In 2011-12, 39 children aged nine or younger were hospitalised in NSW due to window falls,” Minister for Fair Trading Anthony Roberts said.
“Adult vigilance is critical when it comes to preventing a child fall, a window safety device is the last line of defence and it could save a child’s life.”
REINSW is supportive of initiatives to minimise the risk of death or injuries occurring as a result of children falling from windows. However, some of the proposals set out in the Consultation Paper are of concern and have the potential to shift liability onto property managers.
REINSW has lodged a submission in response to the Consultation Paper setting out these concerns. Following is a summary of the main points contained in the submission.
The Consultation Paper proposes to amend the prescribed condition report so that it lists window safety devices, therefore requiring landlords (or their property manager) and tenants to indicate whether or not working window safety devices are installed.
REINSW strongly opposes this proposal. We believe that the prescribed condition report should not refer to window safety devices in this context.
The inclusion of window safety devices in the prescribed condition report will require a property manager to make a determination about matters in respect of which they have no qualifications or expertise.
While the property manager will be able to visually determine that a device is installed on a window, it is not appropriate that they should be placed in a position where they have to make representations as to whether the device is an approved device and whether it is in working order.
REINSW believes that it is more appropriate to require the owners of residential rental premises to have any installed devices periodically certified by an appropriately qualified professional, and that this certification is then provided by the property manager to the tenant.
There is currently no Australian Standard for window safety devices and the Consultation Paper proposes to adopt an “outcomes” based approach, similar to the guidance contained in the National Construction Code.
REINSW believes that in order for there to be certainty regarding the requirements for compliance, there should be a prescribed standard that the devices and their installation must meet. In the absence of a standard, the questions of whether the device is strong enough to withstand the pressure of a child and whether it is designed to prevent a child unlocking it will be subject to debate. These are questions that are capable of being answered only by a relevant expert.
Liability of Owners’ Corporations
The Consultation Paper sets out that Owners’ Corporations will bear full responsibility for ensuring that window safety devices are installed on every window in a strata scheme that poses a safety risk to young children. If an Owners’ Corporation does not install window safety devices, they risk being held liable on the basis that they have not complied with the law.
If Owners’ Corporations are to bear all the responsibility for the installation of window safety devices and the liability for failing to do so, then they should also have full control over what devices are installed, who they are installed by and how they are installed.
There should be a mechanism whereby an owner can approach the Owners’ Corporation to request the installation of window safety devices. The Owners’ Corporation would then carry out the installation so as to ensure uniformity of devices and installation throughout the strata scheme.
If the Owners’ Corporation fails to install the devices within a specified timeframe, then the owner’s right to install the devices themselves would be triggered. This right would be subject to installation being done in a proper and competent manner by an appropriately qualified professional and a certificate being provided to the Owners’ Corporation.
It is worth noting that even in circumstances where the Owners’ Corporation has installed the window safety devices, the Owners’ Corporation has no control over how the occupants (i.e. owners or tenants) use the windows or devices. Therefore, REINSW believes that Owners’ Corporations should not be held liable for the neglect or misuse of window devices by occupants.
Consideration also needs to be given to the question of who is responsible for the maintenance of window safety devices and whether that responsibility should differ depending on whether they are installed by the Owners’ Corporation or the owner themselves.
REINSW has identified a number of other foreseeable implications in relation to the proposals, which should be addressed before any legislation is passed, including:
- Environmental and sustainability issues – If windows are only capable of being opened to 12.5cm this will potentially cause issues for occupants with ventilation and cooling. It is foreseeable that occupants will want to have air conditioning installed to alleviate some of these problems. This will place an additional financial burden on landlords, and will also have environmental and sustainability effects due to the increased usage of air conditioning.
- Health hazards – Reduced ventilation may potentially increase the incidence of mould and dampness, creating health issues for occupants and additional expense for landlords.
- Older buildings – In some older buildings the windows themselves may not be capable of withstanding the pressure of a child climbing on or leaning against them; therefore window safety devices will be of no assistance to prevent falls in such cases.
- Financial considerations – Window renovation and the installation of safety devices will place a financial burden on property owners, which may prevent or delay the work being carried out.
This article was first published in the June 2013 edition of the REINSW Real Estate Journal.