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Implementation of new window safety legislation problematic

20 July 2015
As agents across NSW take steps to comply with new window safety device requirements, practical issues are arising that highlight the fact that there was insufficient industry consultation before passing legislation.

Late in 2013, Parliament passed legislation regarding the implementation of safety devices in residential strata buildings. Under the new legislation, Owners’ Corporations have been given until 13 March 2018 to install window safety devices on windows above the ground floor in residential strata buildings, so they do not open more than 12.5cm when the lock is engaged.

As Owners’ Corporations across NSW now assess how best to comply with the new laws, it has become clear that there are a raft of practical issues which render implementation problematic.

“We certainly support any initiative that assists with the prevention of injury, or worse, a fatality,” REINSW CEO Tim McKibbin said. “However a lack of consultation with the appropriate stakeholders prior to passing this legislation means that many practical issues relating to implementation have not been addressed.

“The issue here is implementation. We’re concerned that due to inadequate industry consultation, the implementation phase for this legislation will not deliver results as efficiently, effectively or economically as it would have if a proper consultation process had been carried out.

“There are many Owners’ Corporations that are trying to comply, but are running into difficulties."

Following are just some of the practical issues that have been identified by the REINSW Strata Management Chapter:

  • Tenants and owners can interfere at will with the window safety devices without notifying the Owners’ Corporation. Therefore, the Owners’ Corporation has no way of knowing if a window safety device has been tampered with unless an inspection is carried out.
  • There is a cost to the Owners’ Corporation for each inspection in arranging access and having an authorised representative attend and check the installations.
  • The Owners’ Corporation is responsible for the initial installation. Therefore, under section 62 of the Strata Schemes Management Act, so too is the ongoing maintenance of the window screens whether or not the devices have been interfered with by the owners or occupants.
  • There is no stipulated qualification requirement for the installer of the window safety device.
  • There is no guideline for how window safety devices should be checked (e.g. annually) to enable the Owners’ Corporation to have a statutory defence if they are tampered with by unauthorised, unidentifiable third parties and a claim for personal injury is the end result.
  • No consideration appears to have been given to the provisions of section 65A of the Strata Schemes Management Act, under which a lot owner can be provided with exclusive rights of usage and obligations of maintenance by-law to fit and maintain the installations.
  • There needs to be either a legislative obligation on the owner/tenant to ensure the device is installed and maintained, or an option to enable the strata scheme to create a by-law to delegate this responsibility to the owner/tenant.
  • The occupier should be responsible for the maintenance of the window safety devices, or at least have the obligation to report any malfunction as soon as it is observed.
  • The Owners’ Corporation must ensure that there are complying window safety devices installed, so there needs to be a special resolution passed at a general meeting authorising the acquisition of the additional windows locks located in common areas other than in a lot before the installations can proceed.
  • As the item has not been a normal part of a 10 year budget expense as detailed under section 75A of the Strata Schemes Management Act, for strata schemes working on budgets prepared in the last 5 years, the acquisition would need to be addressed by way of a special levy and all future sinking fund budgets adjusted to take into account the prudent cost of an annual, or any other statutorily defined period, for operational compliance inspection.