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.
This post appears in the August 2021 edition of The QLD Strata Magazine.
QIA Group
E: info@qiagroup.com.au
P: 1300 309 201
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