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In a graceful Annex walk-up named after a poem by Alfred, Lord Tennyson, residents over the past two years have had to confront a dilemma with a starkly different literary label: the Kafkaesque bureaucratic maze they fell into after a bylaw enforcement officer told the owners to fix the railings on the building’s six generously proportioned balconies.

Almost two years ago, city officials, acting on a complaint, informed the condo board that operates Audley Court, on Kendal Avenue, that they’d have to replace dozens of curving, bevelled wooden slats because they all fell six inches short of the height currently proscribed for balcony railings.

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The balcony railings at Audley Court, at 68 Kendal Ave. in Toronto's Annex neighbourhood, were built at 36 inches high in 1912. But current regulations require them to be at least 42 inches.Michael Rubin

Under the building code’s safety regulations, railings now must be 42 inches high; the ones on Audley Court, which was built in 1912, were only 36 inches, and were thus deemed to be a climbing risk according to the property standards bylaw.

However, when the building’s board of directors began investigating a solution, they soon realized they were stuck in a Catch-22.

According to the bylaw, building owners can’t remedy non-complying railings by just adding extra height on top of the existing structure, because such repairs are still considered a climbing risk.

Then there’s the heritage wrinkle. Because Audley Court – which was once a hotel and later home to some well-known artists and journalists – is listed on the registry of historic Toronto buildings, heritage officials told the board they’d have to take special steps if they wanted to replace the railings, with quotes running as high as $150,000. But since the building isn’t a formally designated heritage structure, it doesn’t qualify for grants or subsidies meant to allay the cost of protecting its historic features.

The owners, board representative Michael Rubin contends, also received conflicting information from various city departments about whether or not those lower railings – commonplace in many of Toronto’s older apartment buildings – are “grandfathered,” meaning they’re exempt from rules promulgated since the structure was built. The enforcement action against Audley Court clearly suggests they weren’t grandfathered. But engineering consultants retained by the board to undertake legally mandated audits of the building’s capital reserve fund never flagged railing replacement as a potential outlay.

“To the layperson, it’s completely confusing,” says heritage architect Catherine Nasmith, who was hired at one point to advise the Audley Court board.

Beyond the specifics of this one address, the case hints at the existence of all sorts of latent financial risk in the hundreds of older apartments that dot downtown and mid-town neighbourhoods, many of which are now condos.

Ms. Nasmith and Mr. Rubin both say city officials have informed them that the municipality only sends out property-standards-bylaw enforcement officers if a complaint comes in. “They don’t go out looking for trouble,” Ms. Nasmith says.

Mark Straga, director of investigative services for municipal licensing and standards and a former deputy chief building officer, confirms that approach. “If something comes to our attention, we will go and inspect,” he says.

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Almost two years ago, city officials informed the condo board that it would have to replace dozens of these curving, beveled wooden slats.Michael Rubin

The property-standards rules cover everything from garbage-strewn front yards to wilting roof shingles. Yet “life safety” issues, such as fall hazards, Mr. Straga says, “is not something we take lightly.” The city won’t sacrifice safety “just because the railing has been like that for a long time.” At present, there are no children living at Audley Court, and board officials say they’re not aware of any accidents.

Less clear is what happens when bylaw officers happen to notice an older building that isn’t in compliance, of which there is no shortage. Mr. Straga says his officials aim to strike a “balance” between overly aggressive enforcement and a purely complaint-driven policy.

But Mr. Rubin wonders whether the municipality’s determination to pursue a case against Audley Court when so many other older apartments haven’t faced similar orders points to a liability chill within the municipality. “After a complaint has been lodged,” he says, “both the city and the building can be held liable.”

In recent months, Audley Court’s board and an engineering consultant have developed what they hope will be a suitable work-around that passes muster with the multiple municipal departments that need to give a green light.

Rather than incurring the cost of replicating the slats, they’re looking at erecting 42-inch high plexiglass panels behind the existing railings in order to satisfy the requirements. To pass muster with heritage preservation services officials, the panels can’t be attached to either the railings or the pillars supporting the balconies.

The approach, though less costly, may still expose the board to unknown financial liabilities because the panels must be secured to the floors of the balconies, and the installation could expose age-related weaknesses in those structures.

With the second anniversary of the initial bylaw-enforcement order around the corner, Mr. Rubin says the condo board is now anxiously waiting for the city to issue a building permit.

“I’ll keep you posted.”

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Residents are caught in a Catch-22 where they have been told to do something about the non-conforming railings but are being blocked at every turn when they propose solutions.Michael Rubin

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