Balustrade Requirements : NCAT Landmark Ruling

23 March 2025 in Civil and Commercial Litigation | 4 min read | skip to FAQs

This article examines the obligations of owners corporations to ensure that the balustrades on-site comply with the safety requirements of Australian Construction law. It explores the duties of owners corporations and highlights the importance of maintaining safe common property under Strata law. It also addresses the potential legal consequences for failing to address safety risks, emphasising the need for compliance with modern safety standards to protect residents and visitors.

The Building Code of Australia Guidelines for Balustrades

The Building Code of Australia (the BCA), which is part of the National Construction Code (the NCC), sets strict guidelines for the design and construction of buildings to ensure public safety. Balustrades, being crucial safety components of buildings, are subject to specific requirements under the BCA.

These standards are provided under Clause D2.16 of the BCA and have been in effect since 1997. The key stipulations of Clause D2.16 regarding balustrades include:

1. Height: Balustrades must be at least 1 metre high when measured vertically from the floor or ground surface beneath. This is a critical safety measure, ensuring that the balustrade can effectively prevent falls from elevated surfaces such as balconies or stairways.
2. Openings: Openings between balusters or any gaps in the balustrade must not exceed 125 millimetres, making it difficult for children to climb through or fall through these gaps. For some high-risk areas, the opening limit is more stringent, ensuring complete safety against accidental falls.
3. Horizontal Structures: The BCA mandates that there must be no horizontal elements between 150 millimetres and 760 millimetres from the floor, as such elements can act as a foothold, increasing the risk of falls.

These design requirements of the balustrades are aimed to prevent individuals, especially children, from climbing over or through them, which is a critical consideration to prevent injuries in living spaces. Balustrades must also be designed to protect against personal objects falling from the balcony, potentially striking individuals at the lower levels.

These provisions reflect the standards required for new buildings, but the question then arises: what about older buildings built before the recent amendments to the BCA?

Recent NCAT Decision regarding Older Balustrades

It is commonly thought by the strata community that the BCA’s provisions only apply to new buildings, not those constructed before the BCA’s introduction. However, this view is being challenged, particularly in response to safety concerns raised in older complexes.

A landmark decision by the NSW Civil and Administrative Tribunal (NCAT) has altered the way older balustrades are to be viewed. In 2021, the NCAT Appeal Panel ruled that owners corporations are required to upgrade unsafe balustrades in the building to meet amended and current safety standards. The ruling came in response to Doherty v Strata Plan No. 36613 [2021] NSWCATAP 285. In this case, a risk complaint was lodged regarding the safety of the balustrades in an older strata building. The Appeal Panel held that, although the balustrade may have been compliant when originally built, the owners corporation had a duty to upgrade it to meet the later introduced BCA requirements.

The case set precedent for the principle that owners corporations cannot ignore safety risks, even if the building predates the amended, current standards.

Obligation to Manage and Maintain Balustrade Requirements

Under Section 106 of the Strata Schemes Management Act 2015 (NSW), owners corporations are legally obliged to manage and maintain the common property of the strata scheme. This includes ensuring that common areas, such as balconies, stairways, and other communal spaces, are safe for use by all residents. This duty to maintain common property extends beyond physical deterioration. It also includes any element that poses a risk to the safety of residents, visitors, or the general public. For example, if a balustrade, regardless of the building’s age, is found to be unsafe, the owners corporation must act immediately to rectify the issue.

This could involve engaging experts, such as building inspectors or engineers, to assess the safety of balustrades and other features of the property. If an expert identifies that a balustrade does not comply with the safety requirements of the BCA, the owners corporation should not ignore the issue.

Due to the landmark decision, even older buildings are now expected to meet the amended, current BCA requirements, particularly where non-compliance could also be a breach of section 106 of the Strata Schemes Management Act 2015 (NSW). Therefore, the owners corporation of any strata complexes in NSW must ensure compliance with these safety standards. Failure to do so can result in legal consequences, particularly if an accident occurs due to the unsafe condition of the balustrade.

Key Takeaways for Strata Law

1. Owners corporations have a duty to ensure that balustrades on-site comply with the current safety standards pursuant to Clause D2.16 of the BCA.
2. The BCA’s requirements for balustrades must be met in all buildings, including older strata properties. If the current balustrades are unsafe, they must be replaced or upgraded to comply with the new safety provisions.
3. If a safety issue is identified, whether by an expert, resident, or committee member, owners corporations must act quickly to rectify the problem and avoid legal consequences.
4. The Act mandates that owners corporations manage and maintain common property to provide safe conditions for residents.

How can BSM Law assist you?

At Brander Smith McKnight, our experienced civil and commercial litigation Sydney lawyers are experienced in all aspects of strata law and are able to assist owners corporations in fulfilling  building safety and compliance obligations given the 2021 NCAT ruling in relation to balustrades that predate the amended, current standards. Whether you are dealing with outdated balustrades or need guidance on your responsibilities under the Act and the BCA, BSM Sydney Lawyer are here to help. Our civil and commercial litigation lawyers offer a complimentary 20-minute consultation to discuss your matter.

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