Protecting your investment and adding value to your community
What do we mean by building compliance? “ the building satisfying the legislative and other mandated requirements for safe and lawful occupation ” We usually think of matters impacting in our safety and the breaches of the Building Code
What types of building compliance? • Statutory obligations: – Strata Schemes Management Act 1996 – Environmental Planning and Assessment Act 1979 – Local Government Act 1993 – Work Health and Safety Act 2011 (Cth)
What types of building compliance? • General legal obligations: – Duty of care (negligence) – Occupier’s liability
Statutory obligations • Environmental Planning and Assessment Act 1979 and regulations: – Conditions of Development Consent – Conditions run with the land • enforceable by Councils against Owner of the land • Council Orders (also Local Government Act 1993) – Essential Fire Safety Measures (Philip Chun)
Statutory obligations (continued) • Strata Schemes Management Act 1996 – Section 62 obligations. Thoo’s Case : “…common property fixtures or fittings must be renewed or replaced under s 62(2) only when they are no longer operating effectively or have fallen into disrepair to the point where their renewal or replacement is called for as they can no longer be kept in a state of good and serviceable repair pursuant to s 62(1). ”
Statutory obligations (continued) • Strata Schemes Management Amendment Act 2015: – Section 106 – Duty in relation to maintenance and repair (replaces section 62) – Section 115 – Initial Maintenance Schedule – Section 118 – Window safety devices
Statutory obligations (continued) • Council Orders – Broad powers of Council to issue orders – May be required to pay all or any reasonable costs incurred by the Council (Compliance Cost Notice) (some limitations apply) – Culture of compliance v real safety culture
Statutory obligations (continued) • Work Health and Safety Act 2011 (Cth) - Will apply if: (a) Mixed residential and commercial premises. (b) Owners Corporation engages any worker as an “employee”
Statutory obligations (continued) • Duties under the WHS Act include: - must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
General law obligation • Common law duty of care • Now being relied upon following Thoo’s Case in respect of former section 62 claims • Occupier liability of an Owners Corporation no different to an ordinary occupier’s liability • Ridis ’ Case – Require a system of inspection and monitoring but not “expert” assessment
Building compliance – importance • Safety of occupants and visitors/damage to property Examples: – Fire Safety: Not all occupants and visitors are the same – Amenity: Access and egress; services and equipment
Building compliance – importance • Insurance issues – Duty of disclosure – new insurance and renewal. If breach duty, Insurer may refuse to pay or reduce payment – Duty is to disclose every matter that is known to you being a matter relevant to decision of Insurer to accept risk and terms. Reasonable person test
Annual Fire Safety Statements • Lessons to be learnt from the Bankstown Fire Inquest: – For owners: • No complacency • Engage the relevant “qualified” people to assist
Annual Fire Safety Statements – For Strata Managers: • Document all steps taken • Check delegation under Management Agreement • Keep the Committee informed. Include on agenda
Emergencies and legal issues • Safety first! Protection of life and property • Duty to mitigate the loss and avoid further loss • Notify the Insurer – emergency repair costs may be covered • Engage licensed contractors – comply with requirement of the Home Building Act 1989
Emergencies and legal issues (continued) • If you have a Strata Managing Agent, check your Agreement to see what functions are delegated and what limitations are imposed. Is it enough?
QUESTIONS
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