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QLD: Q&A Safety Hazards and Risk in a Body Corporate

The LookUpStrata Team
Pool Cleaning

Qld lot owners would like to tidy up car park storage in their underground car parks. How do they do this while still complying with the Body Corporate?

Table of Contents:

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Question: Excluding requirements for cleaning pools, what are the regulations for third party cleaners when they step onto common property? Are they required to sign in? Should they provide the body corporate with proof of insurance?

Answer: Should a body corporate engage a contractor that does not have insurance in place, the body corporate could be taking on these responsibilities and liabilities.

Tyrone Shandiman, Strata Insurance Solutions:

Our response is limited to insurance advice. We cannot advise on the regulations applicable to contractors accessing the site.

From a strata insurance perspective, tradespeople are not required to be insured as a condition of cover under the strata policy. Notwithstanding, it is recommended that the body corporate engage contractors with insurance.

A contractor’s public liability policy will cover the contractor for legal claims against them for personal injury and property damage.

This is important for anyone engaging a contractor, as it gives the body corporate or injured person recourse against the contractor’s insurance, should an injury or damage event occur for which the contractor is liable. Without cover, the injured parties may not be in a position to receive compensation for an event.

Additionally, if the contractor causes damage to the building and their action results in a strata insurance claim, the strata insurer can recover against the contractor (and their insurance policy). This will have a positive impact on the building’s claims history.

Dakota Panetta, Solutions in Engineering:

This is a very multifaceted answer, so my first suggestion is to seek advice from a WHS practitioner or lawyer who can articulate the WHS needs of your specific scheme or portfolio, both in regard to physical hazards and the risks associated with organising workers.

The first delineation a strata scheme needs to determine is if they would be deemed a PCBU (Person Conducting a Business or Undertaking) in regards to the WHS framework.

If the answer is yes, your duties as a strata scheme are significantly greater than a scheme that would not be deemed a PCBU.

Whilst a strata scheme may, at times, be exempt from being a PCBU, the strata management firm never will be. Consequently, the strata management firm could be caught up in any WHS issues that arise by being the entity that organises and directs the contractors, in this instance the cleaners.

So, to protect both the strata scheme and the strata management firm, there needs to be a very clear WHS policy in place:

  1. identifying risk onsite at a property
  2. managing insurance risk in the event of an incident.

If any PCBU is directing or allowing work to take place onsite (note that under WHS law, a workplace is any place where a worker goes to conduct their work), they must ensure the site and the means of entering and exiting the site are free from hazards.

If hazards do exist that invariably cannot be removed, the PCBU entity controlling the contractor (worker) must ensure that their workers are appropriately prepared and briefed, and this can include a sign in and induction (being shown around the property).

Under most Australian WHS legislation, it is an offence to engage a person to do work if that work requires specific qualifications or experience, e.g. working at heights and the entity that engages them, e.g. the body corporate, could be held liable for this offence.

Specifically regarding insurance, it is a best practice scenario when appointing contractors to complete work on common property rather than a mandate.

Should a body corporate engage a contractor that does not have insurance in place, the body corporate could be taking on these responsibilities and liabilities. For example, where a contractor engaged by the body corporate gets hurt, and the contractor does not have insurance, the body corporate can be held responsible for the medical expenses and liability of that contractor.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

This post appears in Strata News #691.

Question: We are in a large building with a car park in the basement. Owners have exclusive use car spaces. The builder sold off the management of the car park to a contractor. There are many parking issues but the contractor will not assist. What can we do?

We are in a large building with car park lots in the basement. Owners have designated spots with “exclusive use rights”, and the parking spot is on the title attached to the apartment. The original owner/builder sold off the parking lot section along with other commercial lots to a private investigator and the parking is managed by a contracted company.

Apartment owners pay a “parking lot levy” for ongoing exclusive use, which doesn’t make much sense and many residents aren’t aware before moving in. There had been many issues in the car park, including thefts and dangerous driving with excessive speed. Recommendations had been sought from safety consultants, such as installing safety mirrors and speed bumps, however, the new car park owner shows no interest in collaborating with the residential body corporate to implement any recommendations.

It is getting to the point of serious safety concerns. I am a committee member and would like to explore our resident’s rights in this situation, and the legality of our withholding levies until the commercial lot owner complies.

Lastly, is it even legal when the parking spots on our title are collectively sold by original owners without consent from residential owners and body corporate?

Answer: Ask whether the contract is being adhered to. If not, what avenues of redress are available?

It’s not unusual for schemes, particularly larger sites where there is a mixture of residential and commercial occupants, to have a third party engaged to assist with managing the car parks.

So, without seeing all of the documentation, we would presume that arrangement is likely to be legal. And, in that case there is likely to be a governing document – a contract or management agreement – that sets out the responsibilities of the parking contractor and how they relate to the management entities – your body corporate and any others – of your building.

To understand your position you will need to review those documents and we recommend that you engage a strata specialist solicitor to advise the body corporate on your rights and what pathways you have available to redress issues with the parking contractor. This would probably include advice on which party is responsible for addressing maintenance and safety concerns in the car parks and how concerns can be communicated. The contractual documentation should set out a process to manage these issues and most likely the best thing to do is follow the process.

It’s not easy, but it helps if you can put aside notions of what you want to happen or think should happen and focus only on your legal position and what can happen.

If you are focused on issues such as owners not being aware of the situation before they move in, it is unlikely to help you bring resolution. The rule of caveat emptor – buyer beware – applies here, so it is not really an issue of concern to the parking contractor.

Equally, and provided your solicitor advises there are no issues with the sale of the parking rights, it doesn’t really help you to spend too much time thinking about whether the set-up is right or good. If you want to have that debate, write to your MP and maybe they will take up the issue for you. Once something is legal, you really just have to think about the contracts, whether they are being adhered to. If not, what avenues of redress are available? It’s a bit of a cold way to think, but it is how your issues will be resolved.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #689.

Question: An owner wishes to replace a roller door with a tilt door in their garage. Safety concerns exist as the door opens onto common parking, turning and pedestrian areas. What should we consider?

Are there regulations governing tilt garage doors opening onto common parking, turning and pedestrian areas? An owner wishes to replace a roller door with a tilt door for more headroom. We are concerned that the opening arc of a tilt door might present a safety issue to another vehicle or resident if the garage door is operated remotely.

Answer: If an owner applies to change either their property or the common property, it is reasonable to ask them to demonstrate that the proposed change is safe.

The body corporate is responsible for site safety. When an owner applies to modify their property or common areas, it’s reasonable to request they demonstrate that the proposed change is safe. It’s also reasonable for the committee to reject the application if safety isn’t demonstrated.

In the case of tilt doors, I couldn’t find specific safety directions around these, but there are a lot of general concerns around the additional opening space they require. If, as you indicate, the door will open into an area where people and vehicles are regularly present, it seems only a matter of time until there is some incident or accident.

As such, it is worth discussing with the owner to see what could be done. The owner could engage a safety expert to demonstrate the installation would be safe or advise on any additional changes that could be made to make it safe. Otherwise, it may be easier to look at alternatives. As the owner wants extra headroom, perhaps a different installation like a flex-a-door might be suitable instead.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the February 2024 edition of The QLD Strata Magazine.

Question: Our committee recently refurbished the pool. They are happy with the work, but I feel there are safety concerns. As an owner, how do I raise my safety concerns?

The committee refurbished the pool last year. There was no contract for the $53,000 job. The quote included a handrail, but an underwater grab rail has been installed, and the pool floor is uneven. In the pool area, the provided bench seating has a broken slat, and it is unsafe.

The committee are happy with the work and don’t feel the broken seat is a liability. As an owner, should I organise a health and safety check on these worrying issues?

Answer: You can make a formal submission to your body corporate advising of your concerns and requesting a safety officer be appointed.

If you have concerns about the safety of your pool, you should probably contact your local council for advice. They may send out someone to inspect.

You can also make a formal submission to your body corporate advising of your concerns and requesting a safety officer be appointed. You could submit a letter or an owner’s motion to the committee. I think submitting a motion is better as it forces the committee to vote on the matter.

Alternatively, you could book an independent inspector yourself. I’m not sure how easy this would be. The body corporate usually arranges pool inspections. Contractors may not want to work for an individual, but perhaps someone would provide you with a report. We can’t recommend anyone specific, but I would google local inspectors and see what they say.

Regarding your complaints, a broken slat on a seat sounds like a relatively easy fix for the body corporate. If you raise the issue, a repair should be arranged. Have you asked about the change of the handrail? There may be a good reason for this. The contractor who did the work may have recommended the change, perhaps as a safety issue rather than a matter of preference.

Your pool should be inspected annually, and there should be a notice of the due date somewhere near the pool. You could wait until that inspection. If there is a problem with the construction, you would expect it to be identified and, if necessary, a rectification notice issued.

Beyond this, you raise issues over the quality of the work done and the process behind the approval. There seems to be some disconnect in the idea that you are unhappy with the work done while the committee is happy. Have other owners voiced complaints? It’s hard to tell from the outside. It sounds like there is a bigger issue going on. Tit for tat battling over the minor repair of a bench is a classic sign of this kind of thing. Still, as an owner, you have the right to raise a dispute, so if you have concerns, you should follow the dispute hierarchy of submitting letters and owner motions, and if you cannot get a satisfactory answer, make a filing with the Commissioner’s Office.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the December 2023 edition of The QLD Strata Magazine.

Question: A resident takes unacceptable risks to carry out unapproved maintenance to common property. What actions can the committee take to stop them?

We have one resident in our scheme who continually undertakes unapproved maintenance on common property. They’ve exposed us to unacceptable risk by climbing onto the roof. We are under a building format plan, and our by-laws are schedule 4 by-laws. What by-laws (if any) is the resident breaching with these actions? If he is not breaching any by-law, what action can the body corporate or committee take?

Answer: The devil is always in the detail on things like this.

People try to help and sometimes don’t understand they shouldn’t. This really comes down to the content of the actual by-laws and the characterisation of what the owner is doing.

The starting point should be a conversation with “please don’t do that without the committee signing off”, and then you need to get legal advice after that. The devil is always in the detail on things like this.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: As a tenant, can my daughter expect to feel safe on the common property of her apartment building? The body corporate is aware the lighting is not working but refuses to carry out repairs due to the cost.

My daughter has rented in a small unit complex in Townsville. The security lighting in the common areas on the external stairways and car park areas is not working. The complex is very dark in these areas, with no natural, street, or security lighting. My daughter does not feel safe after dark, especially walking from the garage to the door of her unit.

She has notified the real estate in writing. They have passed her concerns onto the body corporate. The body corporate has responded that they are aware the lighting is not working, and they have decided not to rectify it due to the expense.

Is the body corporate required to maintain/install working security lighting? If they choose not to, are they liable if my daughter sustains an injury (or worse) due to inadequate lighting?

Answer: Occupiers have direct rights with the body corporate.

Under Queensland body corporate legislation, a tenant is known as an ‘occupier’. Occupiers have direct rights with the body corporate. In other words, if the body corporate has a responsibility to maintain common property for the benefit of all residents – including occupiers – then the body corporate must meet those obligations, regardless of whether it appears too costly or they would prefer not to. It is not up to the real estate agent to initiate this. Your daughter can do that directly.

If the body corporate maintains its position and does not want to address the issue, then your daughter can pursue dispute resolution proceedings against the body corporate through the Commissioner’s Office. Your daughter may also have options to pursue this matter through the Residential Tenancies Authority. Recent tenancy reforms in Qld require minimum housing standards, and your daughter may have rights to pursue this issue as a result of those standards.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: In what circumstances is the body corporate a PCBU under the WHS Act?

Our body corporate engages a service provider who lives in his own lot of the complex to provide onsite caretaking and letting business and does not employ anyone else. Is a body corporate a PCBU under the WHS Act?

I have come across two different answers to this question that contradict each other. I read that a body corporate will be a PCBU if any of the lots or common property are used for non-residential purposes, including letting businesses conducted by owners under management rights business agreements.

I also found information on the WorkSafe website suggesting that even if an individual owner conducts a business on the premises and is considered a PCBU under the WHS Act, it does not automatically make the body corporate a PCBU. Instead, whether or not the body corporate is a PCBU depends on the activities of the body corporate as a whole rather than of any individual owner.

Could you please clarify whether the body corporate can be regarded as a PCBU in our scenario?

Answer: The predominant view among lawyers in the industry is that if a letting agent uses the common property as part of their letting business, the body corporate is caught within the ambit of being considered a PCBU.

The predominant view among lawyers in the industry is that if a letting agent uses the common property as part of their letting business, the body corporate is caught within the ambit of being considered a PCBU.

I am aware that the WorkSafe Qld website indicates a less stringent view on bodies corporate but I do not think a body corporate would be able to rely on the website’s statement if something were to take place and enforcement action were to be undertaken against the body corporate under the WHS Act.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the May 2023 edition of The QLD Strata Magazine.

Question: We obtained a safety report confirming pots at our front door do not cause any risk or block access. We negotiated with the committee to leave the pots in place. However, 12 months later, we’ve been forced to remove the pots. What happened?

We live in a complex of 25 units/townhouses. There are pots and plants and other items in common areas across the site. We have been forced to remove a few pots and plants next to our entrance by the committee. Now the area is bare and unsightly.

We had a safety report undertaken for the area which showed no access or safety issues were caused by the plants and pots. There were no interferences with services.

There is clear discrimination here. All unit owners need to be treated equally by the committee. We had a conciliation agreement with the committee to leave the plants in place, but now 12 months on, they threatened to remove the plants at our costs. Any suggestions would be appreciated.

Answer: Look at what may have changed since the conciliation session.

Given a conciliation agreement was reached, it sounds as though things have gone awry from what was discussed at that conciliation session. So my first tip would be to look at what may have changed since that time.

Beyond that, you’re right, in that by-laws are not meant to discriminate (‘discriminate’ here has its literal meaning). I’m interested in your comment that you were ‘forced’ to remove the plants. Did you receive a contravention notice and was it enforced? Bear in mind that by-law contravention is an allegation until such time as an order of an adjudicator, or magistrate, is made.

I’d always recommend talking with the committee in the first instance and seeing what could be worked out. Although given what you say above, that time may have already passed. You can put a motion to the committee to make an improvement to common property in relation to plants. ‘Improvement’ here can mean an addition to the common property. As an owner you have a legislated right to put a motion to the committee and have a decision on it in a set timeframe and then if no decision, or an unreasonable one, you can dispute that through the Commissioner’s Office. You can also seek to have by-laws changed at a general meeting.

I can’t help but return to my first point: what else is going on here that has led to this situation developing the way it has and why might your circumstances seemingly be so different to those of other owners?

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #639.

Question: Is a QLD body corporate required to have Workers Compensation insurance?

At a recent general meeting of our QLD body corporate, I queried an ongoing Workers Compensation insurance policy. Why do we have it and who is it for? We have no employees or volunteers. Our body corporate manager admitted they didn’t know why we required the Workers Compensation insurance policy. Why is this required? Is it in case a contractor doesn’t have insurance and we get sued?

Answer: Under the WHS Act, a body corporate which uses its common areas for residential purposes only and does not employ a worker under a contract of service is not regarded as a PCBU.

WorkCover Insurance is designed to cover employees defined by the Workers’ Compensation and Rehabilitation Act 2003.

In most cases, an employee works under an employment contract and receives PAYG wages.

Contractors that are not deemed employees do not fall under Workcover and the Strata Insurance would be the policy designed to provide cover for claims made by contractors for injury.

Please see the below applicable excerpt from the WorkSafe website.

Community title scheme body corporate (‘body corporate’)

Under the WHS Act, a body corporate which uses its common areas for residential purposes only and does not employ a worker under a contract of service is not regarded as a PCBU. Note, that, where a body corporate engages a person to do repairs (e.g. an electrical contractor), this does not make the body corporate a PCBU for the purposes of the WHS Act.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: The sliding garage gate in our new building is a safety concern in my parking space. I’ve raised the issue with the Body Corporate but they are not concerned. Are they liable if any damage occurs to me or my vehicle?

My new apartment building has a sliding gate for entry and exit into the resident’s car park. The gate slides open beside one of my car parks alongside my vehicle. From that parking space, I’m unable to see when a vehicle is entering or exiting the garage and, therefore, we do not know when the gate is about to open. This presents a risk when exiting the vehicle. A thin mesh wall may present a solution.

I raised this problem with the Body Corporate and suggested it was a defect. The developer states that it is not a defect. The Body Corporate believes it is not their issue. I believe they should come up with a solution to ensure my parking space is safe.

Should the Body Corporate be responsible to rectify this? If not, would they be liable for any potential damage?

Answer: You need to establish whether the set-up is actively unsafe.

To move the conversation forward you need to establish whether the set-up is actively unsafe.

At the moment you have an opinion that other people don’t agree with. That’s fine, but without evidence, it is something of a stand-off. From the information provided we can’t really say if one opinion is more valid than the next.

The facts that could take the matter forward would be something like a safety report from a qualified professional. If they agreed with you that the current set-up was unsafe, there would be an imperative to resolve that. If not, you may have to live with the situation.

You could ask the body corporate to undertake that report – you might submit a request to the committee or the next general meeting for this. If they are unwilling – and they are not obliged to follow your request – you could pay someone to do the report yourself.

If a safety issue is found then it would fall on the body corporate to resolve it. If the body corporate thinks the matter is a defect, they could refer it to the builder or developer but that is a different issue – it’s a body corporate car park so they carry the risk and liability for it. You have to bear in mind that any fix may not be the solution that you want. You are asking for a mesh wall but it may be that others think a mirror or a sign is sufficient. You may need to compromise to get a resolution.

Be reasonable in your correspondence with the body corporate and hopefully you can get some allies to try and resolve the issue.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #626.

Question: Resident car washing creates unsafe wet areas. Residents sometimes use electricity in these areas to vacuum their cars. Is the body corporate responsible if this results in injury?

When residents wash their car in the car park, the area stays wet and they use their vacuum cleaner on the wet surfaces. Should the committee be managing these situations. I feel residents are left to their own devices.

We also have some residents who water plants and the footpaths stay wet. There is no approved voluntary work.

Who is responsible if any injury occurs on the common property due to these unsafe practices?

Answer: Personal injury claims can be very costly to a BC and we have seen many result in hundreds of thousands of dollars in compensation.

This can be a tricky one. Many surfaces are treated with non-slip coatings or additives to assist in slip resistance when wet and may be the case within your scheme (parking areas, pathways etc).

In regards to the vacuum lead being a trip hazard, this is difficult to assess unless at the time of an inspection it is in use but in an ideal world, no loose leads should be left across a path of travel.

If, however, you believe the surfaces are dangerously slippery when wet, the owners may vote to have an independent slip test conducted (usually termed a pendulum slip test) to determine the resistance of the surface when wet.

If shown to be dangerous, the owners may wish to look at installing drainage options to ensure adequate water management directing water safely out of the building.

We have seen many Bodies Corporate create a dedicated carwash bay in the carpark equipped with nice, suitable box drains around it to capture all water run off, soap etc. It also solves the issue of the vacuum lead crossing common paths of travel and being a tripping hazard. This is always a recommended endeavour and adds to the service offering a BC has for its residents and potential new owners.

To answer your query on responsibility after an injury, in most (not all) instances, the body corporate will have a claim made against it for the liability. Personal injury claims can be very costly to a BC and we have seen many result in hundreds of thousands of dollars in compensation.

It is this reason why we recommend an annual safety audit to try and prevent many of these incidents occurring or at least limit the BCs liability by taking some reasonable measures to minimise injury (e.g. signage, designated bays etc).

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

This post appears in Strata News #485.

Question: Residents regularly bring shopping trolleys into the car park area. This could lead to accidental damage to other resident’s cars. Could the body corporate be liable for this damage?

Residents in our apartment complex have been bringing shopping trolleys home from local supermarket. They use the shopping trolleys to transport shopping in the lift from their cars up to their apartments. They often leave empty trolleys in the car parking area. This could lead to accidental damage to other resident’s cars.

Could the body corporate be held liable for this damage? Should the body corporate committee take action to make sure trolleys are either returned collected or at least make sure that trolleys are stored where they won’t damage private property?

Answer: Dumped trolleys can cause a hazard and the body corporate can potentially be held liable for hazards on body corporate property – especially if they are not taking steps to resolve the matters.

You can report dumped trolleys directly to the shops involved and they will come and pick them up. Brisbane Council has a handy list of contacts on their webpage: Abandoned shopping trolleys.

That’s not really the issue though.

Dumped trolleys can cause a hazard and the body corporate can potentially be held liable for hazards on body corporate property – especially if they are not taking steps to resolve the matters.

As a first step you can write to owners advise them of the situation and ask them to return any trolley they may use to the relevant store.

If that doesn’t work, you may need to identify the individuals bringing the trolleys to site. Send them specific letter or breach notices if necessary. Maybe send their details to the store they are taking the trolleys from. If you are really unhappy with the situation you could have CCTV cameras installed so you can identify the relevant individuals.

It doesn’t seem like a good idea to create a space where the trolleys can be stored. While it may help with immediate management it also effectively condones the practice and infers that the body corporate has some responsibility for it.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the July 2022 edition of The QLD Strata Magazine.

Question: If an older building is not aware whether they have asbestos in the building, should that building have an asbestos report carried out?

Answer: If there is no asbestos register, however you suspect asbestos may be present, call in a hygienist.

Asbestos was used in buildings up to around 1985. After this, they stopped using asbestos in construction. Some older properties have been renovated, and during the renovations, the asbestos may or may not have been removed.

If asbestos has been identified in a building, there’s normally an asbestos register at the property. For older style strata buildings where asbestos has been identified, there would be an asbestos register on site. Contractors will refer to this as it will clearly identify where in the building the asbestos is located and if any work needs to be done on the property.

If there is no asbestos register, however, you suspect asbestos may be present, call in a hygienist. A hygienist will carry out lab testing to confirm if asbestos is present, and also identify whether the asbestos needs to be removed or rectified.

Ryan Richards Sedgwick E: Ryan.Richards@au.sedgwick.com P: 1300 735 720

This post appears in the April 2022 edition of The QLD Strata Magazine.

Question: Is an 8 storey 30 unit strata plan under the accommodation module required to conduct a WHS inspection every year? The strata plan does not employ staff but has a contracted building manager/cleaner.

Answer: A WHS report is the simplest and easiest way to show that, as a BC, you have fulfilled your duty of care and to alert you and your manager to anything that needs rectifying.

William Marquand, Tower Body Corporate:

There is no requirement to have a periodic WHS inspection, however, as a body corporate manager I would recommend that you do. They are a very good way of ensuring that your site is safe for all who use it.

In terms of the legislation, the basic requirement in the standard and accommodation modules for maintaining the common property is stated as:

The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

Maintaining a safe site is part of keeping a property in good condition so all body corporates have an obligation to keep their site safe, but there is no specific direction on how to do this.

Body Corporate owners also have to consider their obligations under the WHS Act, particularly if they are deemed to be a PCBU – a person conducting a business or undertaking. However, these obligations do not extend to a requirement to have an annual (or any) inspection.

You can find out more information about this on the Work Safe Queensland site: Apartment owners and bodies corporate

Dakota Panetta, Solutions in Engineering:

Whilst it is hard to distinguish a direct correlation between a WHS report and a PCBU’s obligations under the WHS 2011, it is much simpler to consider the common law duty of care that everyone shares and that will ultimately see the BC liable for damages.

A body corporate has a duty of care to the safety of every person on that property including residents, visitors and even trespassers. If someone injures themselves on common property, the first thing the courts will ask when a claim is lodged is: “what did you do as a body corporate that was reasonably practical to mitigate and minimise the risk of the injury that occurred?”

If as a BC you did nothing, no annual safety report, no proactive maintenance, the body corporate will be liable for the personal injury. Each year we see millions of dollars paid out by Bodies Corporate for simple injuries on common property.

A WHS report is the simplest and easiest way to show that, as a BC, you have fulfilled your duty of care and to alert you and your manager to anything that needs rectifying.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: We have had a growing number of camper vans in our underground car park, all with gas bottles attached. Is this a potentially hazardous situation and should the body corporate require residents to store gas bottles offsite?

A number of camper vans have appeared in the car park recently and a couple of dual cab utes with a sleeping pod on the back.

Both types of vehicles have one or two 9kg gas bottles attached. With LPG being flammable and also being one and a half times heavier than air and the apartment car park being underground, I’m concerned that if there was a leak, gas would pool in the lower area creating a hazardous situation.

Should the Body Corporate Committee required residents to store gas bottles offsite?

Answer: If there is adequate ventilation and the required safety certificates are in place then Owners will be afforded considerable protection.

There are several issues to consider with respect to the questions below:

Caravan, camper trailer and RV manufacturers (QLD)

Manufacturers of caravans, camper trailers and RVs should ensure the gas system designed for their vehicle complies with all requirements of (AS/NZS5601.2).

Designers of caravans, camper trailers and RVs should, in consultation with a licensed gas installer, give specific consideration to the following:

In addition, manufacturers must engage an appropriately qualified, experienced and licensed gas installer to undertake the installation of the gas system. On completion of the installation, the installer is required to provide a certificate confirming compliance.

It is also worth noting that the following also applies:

If there is adequate ventilation and the required safety certificates are in place then Owners will be afforded considerable protection, especially as the quantities present are relatively small and consistent with household (not commercial use).

It would be of benefit to ensure where possible that the vehicles are parked such that the gas bottles are not exposed to impact from other vehicles and that the vehicles are not to be permanently parked in the basement areas.

QIA Group E: info@qiagroup.com.au P: 1300 309 201

This post appears in the March 2022 edition of The QLD Strata Magazine.

Question: Our car parks have a retention pit on the far side with a drop of up to 500mm. Residents are reluctant to park in these spaces due to the precipice. Is there a legislative requirement for a safety barrier?

I own a unit in a 12 unit single level complex. Each unit has a car park adjacent to its unit. My car park has a retention pit on the far side with a vertical, sloping drop off of 300mm to 500mm. My neighbour in unit 2 has a level drop off of 200mm. Residents are reluctant to park in these spaces, especially at night, due to the precipice. 

I would like to know what the legislation is regarding this area as I feel that a safety barrier is required.

Answer: No, but the greater risk to the body corporate is the duty of care that everybody corporate has over the common property.

This is a great question to raise and one that we receive quite regularly from Strata Communities. As we advise on safety reporting and compliance across the entire Australasian region, we come across many scenarios like this one.

To answer the question of ‘is there a legislative requirement for a safety barrier’… the simple answer is no. The building code and the national construction code only reference the need to have a barrier or system to prevent a fall when the possible fall is 1 metre or greater. As you have described the precipice only reaches a maximum of 500mm.

Now that covers the requirements under relevant building and construction codes. BUT the greater risk to the body corporate is the duty of care that everybody corporate has over the common property.

As you have identified and most would notice even at a glance, this scenario is still a hazard. Whilst it does not breach any specific codes, you have a trafficable area of vehicles and people, with a sharp drop into a retention pit.

A pedestrian walking could easily slip, particularly at night without lighting and a vehicle reversing could misjudge the edge and cause significant damage to the mechanisms of the car.

In strata, whilst it is always important to observe and be aware of the relevant codes and standards of compliance, it’s even more important to remember the term ‘reasonably practicable’ because these would be the words you would hear in court when an owner or visitor sues you.

The courts would ask, what did you do that was “reasonably practicable” to mitigate this hazard and prevent injury or damage?

It is quite reasonable to believe that this scenario could be a hazard and therefore the strata scheme has a duty of care to mitigate or at least minimise the risk. Simply failing to act would not be an excuse in court.

In my opinion, it would be worth contacting the builder and asking about the necessity of this retention pit. Does it need to be this deep given there are two stormwater drains in the pit? If so, then we would strongly be recommending that a barrier of some sort be installed and ensure that this barrier is a contrasting colour to ensure drivers of vehicles will see it when trafficking the area.

We would also recommend lighting be installed to assist visitors walking up and down the common property at night.

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

This post appears in the February 2022 edition of The QLD Strata Magazine.

Question: Are we required by law to have a safety inspection of the common property, and if so, how often? We are a small lot body corporate of only 6 units.

Answer: The amount of activity upon the Common Property and the level to which it is maintained are the more important risk indicators than the size of the scheme.

The answer to the question is layered and dependent upon a number of circumstances.

Generally the size of the scheme is not the most important determining factor, rather the amount of activity upon the Common Property and the level to which it is maintained are the more important risk indicators.

Body Corporate and Community Management Act:

The Body Corporate and Community Management Act requires a Body Corporate to maintain the Common Property, this includes ensuring it is safe and fit for purpose.

Work Health Safety Act and Regulations QLD

The WHS Act outlines the general health and safety duties of Persons conducting a business or undertaking (PCBUs), officers of companies, unincorporated associations, government departments and public authorities (including local governments), workers and other people at a workplace.

General duties for PCBUs require the duty holder to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If this is not possible, risks must be minimised so far as is reasonably practicable.

Under Section 7 of the Workplace Health and Safety Regulation QLD – A strata title body corporate that is responsible for any common areas used only for residential purposes and which does not employ a worker does not conduct a business or undertaking for the purpose of the WHS Act.

However under section 29 of the Work Health Safety Act QLD – Any person at a workplace (the Common Property becomes a workplace when a person performs work upon it), including customers and visitors, must take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. If owners are aware of any safety issues on the Common Property they need to communicate that to the persons (residents, visitors or contractors) who may be impacted by it.

Common Law Duty of Care

At its most basic, a duty of care is a legal obligation (that we all have) to take reasonable steps to not cause foreseeable harm to another person or their property. A duty of care is breached when someone is injured because of the action (or in some cases, the lack of action) of another person when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way.

Obligations

Our understanding is that each of the requirements above carry positive obligations, meaning Owners are required to find out if the Common property is safe and do their best to rectify any issues they discover. It is not a defence for Owners to say that they were not aware of or did not know that the Common Property was unsafe, as they are required to ensure it is, at all times.

Requirements

The legislation above does not stipulate that Owners are required to obtain a Safety inspection or report, instead the law requires a Body Corporate to demonstrate that they have done as much as is reasonably practicable to maintain the Common property and keep it safe.

Timeframes

The legislation above does not stipulate a specific timeframe for keeping the Common property maintained or safe, rather it applies a continuous obligation to do so. This means that Owners should have a process in place such that as issues arise, they can be identified and addressed in accordance with the risk.

In the absence of a specific timeframe an annual inspection and report is adopted, this interval is consistent with the annual budgeting and insurance review and renewal requirements for Bodies Corporate.

Safety Report

A safety report provides Owners with a means of demonstrating that they have met their obligations and so provides them with a defence under both Common and Statute law.

I trust that the above sufficiently addresses the query, however if further information is required please do not hesitate to contact the undersigned.

QIA Group E: info@qiagroup.com.au P: 1300 309 201

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: Where can we find the legislation around safety compliance for playgrounds?

How concerned do we have to be about whether the playground equipment at our body corporate is compliant? I think our issue will be the fall areas.

Where can we find the legislation around safety compliance for playgrounds?

Answer: The owner of the playground, in this instance the body corporate holds a duty of care towards all residents, visitors and even trespassers onsite.

Within Australia, all playgrounds are expected to meet the standards of AS 4685 and then the relevant standards within i.e. swings, slides, cableways etc.

The owner of the playground, in this instance the body corporate holds a duty of care towards all residents, visitors and even trespassers onsite. Therefore the playground of which is common property is too the responsibility and also the liability of the Body Corporate.

As well as following all requirements of AS 4685 and subsequent testings, safety measures etc, the BC should also implement a number of checks to meet their duty of care.

The playground should be routinely checked for safety hazards that may cause a slip, trip fall or impact injury.

The playground should be completely fenced off to avoid the danger of roads/ moving vehicles.

Signage should be installed promoting hours of use, supervision required, emergency contact numbers and stranger danger safety information.

Cleaning should be frequent and particularly more so during the current pandemic climate.

If of an elevated nature a severe fall is possible, a safety mechanism should be implemented to ensure children cannot fall from any elevated heights.

Should an injury occur relating to the playground on common property, similar to any other common property, the questions raised would be ‘was it up to standards and maintained?’ ‘What was done that was reasonably practical to minimise and mitigate a hazard?’

If you are particularly concerned about fall areas this would be an example of a risk that needs a reasonably practical means of minimising or mitigating. This may include installing netting, barriers or crash mats.

The inherent nature of outdoor play presents risks, the important thing is that the body corporate do everything that is reasonably practicable to minimise and mitigate safety hazards.

For any more information relating to common property safety, please feel free to contact myself or the team as we complete thousands of safety reports and audits.

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: Can I store two bikes in my parking space if they do not obstruct other residents? The committee demand I remove the bikes but I have nowhere else to store them.

I own and live in a unit complex on the Gold Coast. All owners have an allotted car parking space. 

I keep 2 bikes in my allotted space up against the brick wall where the nose of my car is parked so there’s a few inches between the bikes and the front of the car when it’s parked there. The bikes are not obstructing anyone in any way. 

Someone in the complex has complained about the bikes for some unknown reason and wants them removed. I have since received a letter from the BC demanding the bikes be removed, however we have no car park storage so I have nowhere else to store them.

Answer: Is it a breach, and why does the activity cause a problem?

With all by-law issues, owners should look at the matter by answering two questions: is it a breach, and why does the activity cause a problem?

To confirm whether keeping the bikes in the area specified is a breach of the by-laws, you can start by checking the CMS for your scheme to review the exact boundaries of your parking space. Does it extend to the wall at the rear of the space, or does it stop before that? You may be keeping the bikes on common property without realising it, and that would be a breach of the by-laws.

Then, have a look at the by-laws and see if anything is restricting what can be kept in parking spaces. Some by-laws limit the use of these spaces to cars only. If not, and the bikes are being kept in your space, it may be legitimate to keep them there.

The letter from the Body Corporate should explain why it believes you have broken the by-law. It should outline the relevant by-law and how your action has breached it. If a reasonable explanation has not been supplied, you can ask for one.

The second question as to why the activity is causing a problem may require a more nuanced answer. What can seem harmless to you as an individual may be more problematic for the body corporate or other owners. In this case, it may be that having one or two lots store additional items in the parking spaces doesn’t cause a substantial problem, but if everyone kept things other than cars in the spaces, the car park could quickly become dangerous or messy. The items could attract thieves or vermin. The body corporate has to apply laws equally to all owners, which may be what is happening here. If you are not clear about the reasons for the by-law, then contact your committee or manager and ask for further explanation. Not everyone will be happy with every rule and decision, but there should at least be a logic behind that to help you rationalise why they are being made.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #485.

Question: Without any approval or consultation, can a resident build a colourbond wall between their car space and neighbouring car space in the basement car park?

We live in a 52 apartment lot strata building. Without any approval or consultation, can a resident build a colourbond wall between their car space and neighbouring car space in the basement car park?

The car spaces are open and if you have 2 vehicles in your allotted parallel spaces, it is impossible to open your car door without encroaching into neighbouring space. What approval would be required? Would it contravened building approval or create airflow issues?

Answer: Installing a wall on a car park boundary would amount to an improvement to common property and would ordinarily require body corporate approval.

Installing a wall on a car park boundary would amount to an improvement to common property (presumably the car park is exclusive use). This would ordinarily require body corporate approval. The committee may choose to refuse such an improvement, particularly if it created an air flow or building approval issue. These matters are things that the owner would need to confirm and provide evidence that they do not create any issues.

Adjudicators have (rightly or wrongly) held that owners do not have the right to temporarily encroach on other car park spaces for opening a car door (even though practically this regularly takes place).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #452.

Question: A Committee member is using one of his car park spaces to store dangerous goods relating to his asbestos removal business. Does this affect our insurance? How do we address this issue?

I am a committee member on a Body Corporate with 8 townhouses.

One of our committee members is using two visitor car parks, one to park his car on a regular basis and the other car park to store an industrial pallet jack capable of lifting substantial loads of industrial waste onto a truck.

He runs an asbestos removal company and we have reason to believe he is storing asbestos material in plastic bags in this body corporate area which is not secure and literally anybody from the street could access this potentially hazardous material.

This is clearly breaching a number of bylaws, statutory laws regarding storage of hazardous material and zoning laws regarding conducting an industrial business in a residential area.

The activity is noisy, dangerous and presents a risk to the body corporate and also neighbouring properties.

We are also deeply concerned about the Body Corporate Public Liability insurance aspect of running an industrial business and storing hazardous materials on Body Corporate property.

Would we be liable if anything happened to the hazardous material?

What happens if someone is injured on Body Corporate property whilst he is operating and working in the body corporate area?

This is a clear abuse of body corporate property which is affecting the lives of the residents wanting to live in peace and not exposed to risk.

This lot owner is generating income at our expense and we have had enough. We need a strategy to prevent him from running an industrial business from a residential area.

Answer: You need to address the enforcement of by-laws and/or a dispute regarding nuisance.

Chris Irons

I can’t comment on the insurance liability side of things, you may need to address that with your broker or insurer (although, of course, doing so could in and of itself cause a problem). I wouldn’t advise waiting to find out though, as clearly there are issues now to address.

In terms of what to do, I would suggest it would be enforcement of by-laws and/or a dispute regarding nuisance. The onus is upon the complainant (e.g., committee) to attempt to resolve this themselves first. Assuming you can’t, or that you’ve already tried to do so without success, then your next step is to apply for dispute resolution through the Commissioner’s Office.

Tyrone:

Most strata policies will have an exclusion in their public liability policy for the actual or alleged use or presence of asbestos.

The body corporate can be drawn into a claim related to the owners storage of asbestos & even if they are able to defend the claim they will still incur legal costs in the process.

So the body corporate should be concerned if asbestos is being stored by the owner.

Business activity also needs to be disclosed to insurers prior to offering cover and section 188 “Use affecting premium” states:

  1. This section applies if, because of the way that a lot is used, the premium for reinstatement insurance or the premium for public risk insurance required to be taken out by the body corporate is likely to increase.

  2. The owner of the lot must give the body corporate details of the use.

If after disclosing the use this impacts premium, the owner can be responsible for the additional costs in accordance with Section 182 (2) (c) The body corporate may adjust the contribution payable by an owner of a lot under subsection (1) in a way that fairly reflects— the proportion of the total risks covered by the policy attributable to activities carried on, or proposed to be carried on, on the owner’s lot.

This article is written based on the Body Corporate and Community Management (Standard Module) Regulation 2008 – if the property is not part of this module (for example an accommodation or commercial module) similar provisions may apply under those modules.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500
Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Is an Owner permitted to store containers of petrol in their car space (on title) within the car park of a strata title building?

Is an Owner permitted to store containers of petrol in their car space (on title) within the car park of a strata title building? There is no By-law specific to storage of containers of petrol on Common Property, or anywhere within the car park.

Answer: To the best of our knowledge a home owner can store up to 120 litres of one of fuel on their property, but it cannot be under the main roof of the building.

To the best of our knowledge a home owner can store up to 120 litres of one of the most dangerous fuel such as unleaded petrol on their property, but it cannot be under the main roof of the building.

So if the petrol is being stored in a car park under a building that would mean it is being stored under the main roof of the building and therefore it is breaking the law in relation to fuel storage.

Dean Christoff Trilogy Fire Safety E: dean@trilogyfiresafety.com P: 07 3901 8203

This post appears in Strata News #418.

Question: Can I put a box trailer in my second parking bay and used it for car park storage? Will it comply with body corporate and how do I go about getting approval?

I have two parking bays in my complex.

I want to put a storage lockup in my second parking spot for car park storage but the committee said the type of shed I want to install doesn’t comply with the body corporate rules.

Can I put a box trailer in my second parking bay and used that for car park storage? How do I go about getting approval?

Answer: It is a question of whether the committee is acting reasonably in refusing permission.

I am going to proceed on the basis that the parking bay is an exclusive use space.

The starting point is whether the by-laws deal with the type of things that can be installed for car park storage along with whatever anyone else has got installed.

Then it is a question of whether the committee is acting reasonably in refusing that permission. The question about the box trailer is the same. This really is one of fact and degree.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #218.

Question: Lot owners store furniture and rubbish in our car park. I want car park storage to stop. Our Body Corporate will not assist. What do I need to do?

I live/own an apartment in Surfers Paradise, Queensland.

The security underground car park has a lot of things stored in car park spaces: Furniture, Tyres, Cupboards etc….

I’ve contacted Management and the Body Corporate on many occasions to have this stuff removed but with no result.

The Body Corporate told me it was too long a process to have the items removed from the car park area.

What can I do to make this happen?

Answer: Check the by-laws to see if what is being stored is breaching any by-laws.

First, you need to check the by-laws to see if what is being stored is breaching any by-laws.

If it is, then there is a form 1 that can be sent to the committee: Notice to body corporate of a contravention of a body corporate by-law. That will then:

  1. Force the committee to take by-law enforcement action; or

  2. If the committee doesn’t take by-law enforcement action – allow the owner to make an application in the commissioner’s office seeking that the by-laws are complied with.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #197.

Article: QLD Car Park Storage: Dangerous items stored in Common Areas

This article discusses the importance of good car park storage guidelines.

There is an increasing trend of people storing items within the reach of children in common areas such as car parks. We have cited over 4 cases where this has occurred within the last month. Due to this, we thought it was pretty important to let managers and residents know about important safety concerns around car park storage.

The picture highlights a few things.

Hazardous chemicals are substances, mixtures and articles that can pose a significant risk to health and safety if not managed correctly. They may have health hazards, physical hazards or both. Examples of chemicals that can immediately injure people or damage property include flammable liquids as pictured.

Keeping equipment free from obstruction

Person not to obstruct an evacuation route

  1. A person must not—

    1. place a thing— building if the thing would be likely to unduly restrict, hinder or delay a person to access equipment

There is supposed to be a 2 meter free access to fire equipment and exits.

The Building Fire Safety Management Tool, from the Queensland Fire and Emergency Services is a good checklist for owners and managers to understand what the requirements are under the fire regulations.

Solutions in the storing of items and equipment could be in the form of lockable storage shelves/cabinets, or an over bonnet storage locker as shown below.

Peter Greenham, Independent Inspections E: peter@iigi.com.au

This post appears in Strata News #158.

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