Question: Is it legal for owners to remove child safety window devices on common property windows and replace them with restrictors that can be easily disengaged?
Two units in our complex have removed the child lock safety window devices and replaced them with a restrictor mechanism that can be disengaged anytime. The owners said they had made the change for cleaning and escape purposes, but the windows are opened all the time, effectively bypassing the legislation. The lots are on the second and eighth floors. As the windows are common property, is this legal, and if not, what can we do?
Answer: On the basis that the lot owner(s) have made alterations to common property without the OC’s consent, the OC is effectively obligated to repair same.
The owners corporation (OC) has an ongoing obligation to ‘ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies’ in accordance with Section 118(1) of the Strata Schemes Management Act 2015.
While the legislative requirements for window child locks appear clear, their interpretation has caused headaches.
It boils down to the compliance requirements under s30(3) of the Strata Schemes Management Regulation 2016 being satisfied, in particular:
- A screen, lock or any other device is a complying window safety device for the purposes of section 118 of the Act if it—
- has a child resistant release mechanism, in the case of a device that can be removed, overridden or unlocked.
This stems from the speech of Mr Chris Holstein in the Second Reading of the Strata Schemes Management Amendment (Child Window Safety Devices) Bill 2013;
“if the (window safety) device can be removed, overridden or unlocked it must have a child-resistant release mechanism.”
The 2020 National Construction Code Advisory Note indicates the purpose/use of a child resistant release mechanism is to enable the ‘release’ of a window safety device or screen (where required) to allow for its opening for say cleaning, or when children are not present; as follows:
“The NCC allows a screen or window opening restricting device which protects an openable window to be installed in a manner that allows it to be removed, unlocked or overridden. This would be useful, for example, in the event of a fire or other emergency or to allow for cleaning. In these situations, the unlocking device must be child resistant.”
On the basis that the restrictor mechanism is distinct from the window safety device, there should be no issue with it in principle provided that the means to disengage it can be considered a ‘child-resistant release mechanism’. The following extract from the NCC Advisory Note provides some guidance in this respect:
“A child resistant release mechanism could include a device which requires a key to unlock; a coordinated two handed operation to release; or the use of a tool such as a screwdriver, spanner, or Allen key to remove the screen or shift the window to the fully open position. The ABCB considers that a block which is screw fixed to the window track to restrict the opening of a window is a device with a child resistant mechanism and not a fixture.
There are a number of hardware solutions available, such as short chain winders and barrier screens, which will allow windows to comply with the requirements. Sliding window locks which key lock the sash so a 125 mm sphere cannot pass through, but allow the sash to open fully when unlocked, meet the requirements. The screen or opening restricting device must be able to resist a force of 250 N.”
If the restrictor mechanism is purported to be a child-resistant release mechanism and also the window safety device, it is grey whether this would satisfy the legislative requirements. One of our clients considered a keyed lock to satisfy both, noting that a ‘device unlockable by key’ is considered child resistant. Our view is that it is a matter for the OC whether to take a conservative approach to ensure compliance, and we suggested that in this instance they drafted a by-law to the effect that ‘owners and occupants must ensure that keys are not left within window locks to the extent they would no longer be child resistant’.
Noting the purpose/use of a child-resistant release mechanism, if a lot owner elects to use it to disable the window safety device or screen (after it has been installed to the satisfaction of the OC), it would be a matter for that lot owner.
On the basis that the lot owner(s) have made alterations to common property without the OC’s consent, the OC is effectively obligated to repair same. Therefore, the OC should serve a notice on the lot owners to reinstall the child safety locks. If the lot owners do not reinstall the child safety locks, the OC should seek to undertake the works and seek recovery of their expenses from the lot owners.
Any such recovery may require mediation in the Office of Fair Trading and/or orders from the New South Wales Civil and Administrative Tribunal.
In the alternative, the OC may wish to consider, say, an exclusive use by-law over the window area in favour of the lot owner, or a general by-law to ensure some form of compliance as per our above suggestion regarding the keeping keys separate from locks.
This post appears in Strata News #723.
Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226