15 November 2009

Fire Risk in Overcrowding


Partner And Chairman

Tel: 02 9233 9034

Mob : 0431 701 077


Estate Planning, Trusts, Probate and

Estate Litigation


Dispute Resolution




You may have read the front page article “Fire flat building changes: 15 minutes to ‘flashover’” in this morning’s Sydney Morning Herald (Friday, 21 September 2012) about the apartment fire in Bankstown, Sydney which took the life of one young woman and left a second young woman in Liverpool hospital in a critical condition when they jumped from the window of their 5th floor apartment to escape a raging fire. The article reported that the living room had been partitioned to create a fourth bedroom, there were locks on the various bedroom doors and that the front door (which is a fire door) had been propped open.

Clearly this is but one example of the disastrous consequences of an overcrowding issue that many owners corporations have to deal with, particularly in high rise buildings in or close to the Sydney CBD and other transport hubs.

We are frequently asked what can be done about it. Typically the conditions of consent for the construction of the building provide that the building is to be a residential complex and is not to be used for serviced apartments nor to house more than two or three adult persons per bedroom. In addition, the by-laws registered with the strata plan may provide (and if they do not then the owners corporation may adopt a by-law that provides) a prohibition against the occupation of an apartment by more than two adults per bedroom (two children under, say, 10 being equal to one adult). A well drawn by-law should also provide a prohibition against the “subdivision” of any room to create further bedrooms.

The real issue is one of ascertaining whether or not a strata lot is actually being used contrary to the overcrowding by-law and  the certainty of the ability of the owners corporation to enforce a prohibition against overcrowding.

Section 65 of the Strata Schemes Management Act1996 (the Act) entitles the owners corporation to access a strata lot for the purpose of carrying out work required to be carried out by the owners corporation under the Act or to satisfy an order or notice from a public authority but not to ascertain whether or not a by-law such as one prohibiting overcrowding is being breached. Similarly Section 65C entitles a person authorized to carry out an inspection under the Environmental Planning and Assessment Act 1979 to notify the owners corporation that it requires access to a particular lot and, if the lot owner will not give access, then the owners corporation may apply for a Strata Schemes Adjudicator’s order for entry to the lot under Section 145 of the Act.

We consider that this approach is unwieldy, time consuming, expensive and ineffective to deal with overcrowding.

Even if all those steps are carried to fruition (over a 3 to 6 month period) the principal occupier of the strata lot, who may be a head-tenant and not the owner, can simply move elsewhere and repeat his or her performance. They have not suffered any real pecuniary penalty; nor is there any criminal sanction.

We consider that a better course of action would be to adopt a two-pronged approach of:

  1. including under Section 65 of the Act the right of the owners corporation to access a strata lot for the purpose of ascertaining compliance with any by-law or section of the Act regulating overcrowding; and
  2. putting the prohibition against overcrowding into the body of the Act rather than leaving it to the by-laws (which may be revoked or amended and are incapable of certainty of enforcement).

We all need to remember that Sydney is going up not out. This means that there are more and more high-rise apartments being built close to transport hubs and major centers, not only of the central Sydney CBD but also major centers such as Chatswood, Parramatta, Bankstown and the like. The rental market in Sydney is extremely tight and has been so for several years. There is great pressure, particularly on students, to find inexpensive accommodation. These are conditions that fuel the explosion of dormitory style accommodation close to transport and tertiary institutions in normal residential strata lots which we have all seen is not only uncomfortable and problematic for the owners of other strata lots in the building but can have disastrous and indeed fatal consequences.

Latest Firm Published Insights