These articles and Q&As discuss children and noise complaints in NSW apartments, especially during the COVID-19 lockdown. The information contained in this article was correct at time of publishing.
Jump directly to the QUESTION you are after:
- Article: COVID-19: Children playing on common property in NSW
- QUESTION: Are children allowed to play on the common property driveway? We have a group of families who socialise in the common areas? Is this allowed due to social distancing rules in NSW?
- QUESTION: With the current lockdown restrictions and more people including children home, will there be changes to strata laws regarding noise and neighbours?
- QUESTION: Are children excluded or exempted from breaching any provisions in the Strata Schemes Management legislation or any By-Law Clauses of the Strata Plan?
- QUESTION: Children Playing on Common Property – Do They Need Supervision? What are the rules around children and noise complaints in apartments?
- ARTICLE: How can apartments be better designed to meet the needs of families with children, taking into account increasing noise complaints in apartments?
COVID-19: Children playing on common property in NSW
As our isolation continues, a theme is developing with increasing queries about what is the situation with children playing on the common property. Let’s unpack this and consider the effect of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, the model by-laws, the Strata Schemes Management Act 2015 and the common law.
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020
The public health order has been amended as of 1 May 2020. It prohibits people from leaving their home except with a reasonable excuse. A non-exhaustive list of reasonable excuses is set out in schedule 1 of the order and now includes attending another person’s residence to provide care or support including supporting their mental, emotional or physical health provided no more than one other visitor (not including children) is present.
Gatherings of more than two people in a public place are still prohibited although there are exemptions:
- people are members of the same household,
- gathering is for work,
- a wedding (limit of five people),
- a funeral (limit of ten people),
- moving to a new place of residence,
- providing care or assistance including emergency assistance
- to fulfill a legal obligation.
It also requires certain facilities to be closed to the public including recreation facilities (indoor), outdoor playground equipment in a public place and outdoor gymnasium equipment in a public place.
Public places are considered to be places that are open to the public, or used by the public (whether for consideration or not) and whether or not the place or part of it is ordinarily open or used and whether or not the public to whom it is open consists only of a limited class of persons.
Does the public health order apply to common property and association property?
This is the $64M question and this post should be considered as an update to my post in April on this topic. In my view, there are two considerations.
The first is that strata and community schemes are private properties and therefore the public health order does not apply. Decisions in a discrimination law context support this view with decisions to the effect that the common property of a strata scheme was private property not open to the public except by invitation. Applying this reasoning the common property in a strata scheme would not be a public place.
This approach is supported by other terms in the public health order including the definitions of “place of residence” and “household”. Household means any persons living together in the same place of residence. Place of residence is defined to include “the premises where a person lives together with any garden, yard, passage, stairs, garage, outhouse or other area or thing attached to, or used in connection with, the premises”. Therefore, as common property facilities are used in connection with the premises, they form a place of residence and their use is not restricted to people living in those places of residence.
The complication to this approach would then be that the occupants of individual lots share parts of their place of residence with the occupants of other lots. Does this then make all occupants of a scheme part of the same household? This would be against the very purpose of the public health order as occupants would be able to freely mix on the common property or association property within the scheme’s boundaries as these areas would be considered to be part of their residence.
The second relates to the meaning of “public place” under the public health order and whether or not common property or association property (or part of it) is open to the public even if to a limited class of people. Think visitors (invited and uninvited) and contractors. The range of people who are able to access the common property of each scheme, even if it is only initially the front entrance, would include emergency services personnel, delivery people, guests whether invited or not, contractors and tradespeople. Arguably, these people are part of a limited class of the public able to access in most schemes at least part of the common property or association property. If the entrance is not secured then other internal common areas and gardens that are not fenced may also be accessed which may make those areas a public place under the public health order.
To ensure the common property or association property of a scheme is not considered to be a public place it would be wise to consider posting notices (with approval of course) stating that the scheme is private property and entrance is by invitation only although this would not be possible for all areas of a scheme if easements or open access ways provide rights of access. For instance, if a park in a community association has an easement permitting public access then this would be a public place as would any public accessways to get to the park and any playground or gymnasium equipment in the park would need to be closed.
Each scheme will need to consider how open their common property or association property is and whether it could fall within the definition of a public place under the public health order meaning any indoor recreational facility, outdoor gymnasium and playground equipment must be closed to members of the public. If children were playing in any of these areas that could be considered a public place then this would be in breach of the public health order and fines would apply.
Common Law Negligence & COVID-19
The public health order does not affect a person’s rights under the common law leaving open the possibility of a lot owner, occupant or visitor suing the scheme in negligence if they contracted COVID-19 and could establish that they did so from either coming into contact with others while on the common property or association property or from using the common property or association property facilities. This is of significant concern as we do not yet know the extent of how long the virus remains on surfaces or even in the air or even how contagious it is. This is why health authorities are recommending caution and social distancing.
The key question is whether your scheme’s cleaning schedules can cope with having communal facilities open? Remember, even though we are now allowed to have two visitors to our homes the NSW government’s medical advice is to still social distance while doing so. Can the facilities be used by both adults and children with social distancing in place or does use need to be restricted? Can the facilities be adequately cleaned? It is a risk that each scheme must consider as it will differ from scheme to scheme.
My suggestion is to act as a community and for the wider community and to try to prevent the spread of COVID-19. If your scheme does leave open facilities then your strata or executive committees need to reconsider the scheme’s cleaning schedules and rules for use to try to reduce any risk even if this requires additional funds to be allocated. This may mean restricting use of a small garden area to one lot at a time to ensure everyone’s safety.
Children Playing and the Strata Schemes Management Act 2015
Section 153 of the Strata Schemes Management Act 2015 prohibits owners, tenants and occupiers of lots in strata schemes from using or enjoying their lot in a manner that causes a nuisance or a hazard to the occupier of another lot and from using or enjoying the common property in a way that interferes unreasonably with the occupier of another lot’s use of their lot or the common property.
Children playing on the common property of a scheme could cause a significant amount of noise or a repetitive noise (such as a ball bouncing) that unreasonably interferes with another the occupant of another lot either enjoying their lot (especially if they are trying to work from home) or even from enjoying the common property. This requirement should also be considered in terms of the requirement to social distance and keep 1.5m apart. Are the responsible adults allowing children of different households to mix against the NSW government’s health advice? And further, does this activity mean other occupants have to run a gauntlet to either keep 1.5m away or to avoid balls being thrown / being trampled etc? For instance, if the play area was the front entrance requiring other lots to either use another entrance if the children would not move then it could constitute a nuisance or hazard that unreasonably interferes with another occupant entering or leaving the building.
At the moment we are all having to make compromises however that works both ways: adults need to be mindful of others in the building that will be affected more than normal from the noise and other occupants need to be aware that there may be more noise than usual. What should not be compromised on are the health guidelines to keep 1.5m apart and if other occupants are continually required to use other entrances or exits or to dodge children playing in common areas then this should be considered seriously.
What can lot owners do to enforce section 153 of the Act?
They can try to address the issue with the responsible adults directly and if this fails request action from your strata committee by sending the complaint and the particulars of the issue (dates, times, lot no.s etc) in writing to the committee or your strata manager and requesting it be placed on the agenda of the next committee meeting. If nothing is resolved, you can apply for mediation with the responsible adults and the owners corporation through Fair Trading (this is free) and if this is not successful then you can go to NCAT seeking an order that the behaviour not continue.
Children Playing and the By-laws
The model by-laws, which are in place for the vast majority of strata schemes in NSW have a specific by-law that regulates children playing on the common property. For older schemes that model by-law will generally be very similar to this:
“An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other areas of possible danger or hazard to children.”
The model by-laws for new schemes are slightly different but retain the prohibition on a child being in an area of possible danger or hazard to them. In the current COVID-19 crisis playing on common property, if it is a high traffic area such as a front courtyard or a small garden, poses a danger of exposing them to the virus.
Another model by-law that may apply is the noise by-law which for older schemes will generally be in similar terms to this:
“An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.”
If the adults supervising the children are contributing to the children’s noise then they will be in breach of this by-law.
You should also consider whether the children and the responsible adult are obstructing the common property and whether your scheme has a by-law prohibiting this.
What can lot owners do to enforce the scheme’s by-laws?
They can try to address the issue with the responsible adults directly and if this fails request action from your strata committee by sending the complaint and the particulars of the issue (dates, times, lot no.s etc) in writing to the committee or your strata manager and requesting it be placed on the agenda of the next committee meeting. You can also ask the strata committee to consider issuing a notice to comply on the owner or occupant of the lot responsible.
If nothing is resolved, or the notice to comply is served but not complied with, you or your owners corporation can apply for mediation with the responsible adults and the owners corporation through Fair Trading (this is free) if you are seeking an order that the behaviour not continue and if this is not successful then you can go to NCAT seeking an order that the behaviour not continue. The other alternative, if a notice to comply was issued and not adhered to is to go straight to NCAT seeking penalty orders against the relevant lot owner or occupant.
This post appears in Strata News #348.
This is not intended to be legal advice but is a general statement of my opinion. If your scheme is affected you should seek legal advice tailored to your scheme’s specific circumstances.
QUESTION: Are children allowed to play on the common property driveway? We have a group of families who socialise in the common areas? Is this allowed due to social distancing rules in NSW?
Are children allowed to play on the common property driveway? What happens when children and their friends, either other residents or visitors, are socialising on the common property? From my understanding, social distancing rules would include children playing. Is this allowable given the current climate?
We also have a group of families in our building who are holding social gatherings on common property during the lockdown? Should this be happening?
ANSWER: Children are not allowed to play on common property driveways at any time.
Children are not allowed to play on common property driveways. It is likely that you have the following standard by-law which applies to many schemes:
7 Children playing on common property in building
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or another area of possible danger or hazard to children.
Generally speaking, children are not allowed to socialise on common property unless there is a designated area eg bbq area, swimming pool area, rooftop terrace in which case there are usually by-laws governing the consumption of alcohol, overcrowding etc apply as well.
Regarding social gatherings and children playing during this COVID-19 lockdown, during the Prime Minister’s recent announcement National Cabinet agreed to limit both indoor and outdoor gatherings to two persons only. Presumably, this extends to children playing except if they are from the same household.
With adults hold social activities on common property because the common property is owned by the Owners Corporation, such social activities would require the authorisation of the Owners Corporation, especially in light of the insurance implications in case of personal injury etc.
This post appears in Strata News #340.
QUESTION: With the current lockdown restrictions and more people including children home, will there be changes to strata laws regarding noise and neighbours?
In this current situation where strata residents are in lockdown due to COVID-19 restrictions, a lot of people are working/studying from home. Now that parents and carers are encouraged to keep their children home from school if possible, children are inside the apartments for more time than usual.
Will there be changes to strata laws regarding noise and neighbours? It’s now, more than ever, important for workers and people studying at home to live in a quiet and comfortable environment without constant noise from other residents.
ANSWER: It is likely noise will increase and that the government would expect a higher degree of tolerance in these difficult times.
We have not been advised of any proposed changes to noise laws. The existing legislation and standard by-laws, in our view, provide adequate protection.
In our view it is not that they are excluded or exempted, it is that the owners/occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.
It is likely you will have a by-law to the following effect:
An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.
Note: This by-law was previously by-law 12 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 13 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.
Further, “nuisance” provisions exist in the legislation:
153 Owners, occupiers and other persons not to create nuisance
- An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
- use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
- This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.
However, we believe in the current climate of COVID-19, and the fact that most people are working from home, children are being cared for at home or homeschooled, uni students are working online from home, it is likely that noise will increase and that the government would expect a higher degree of tolerance in these difficult times.
Reasonable noise is acceptable and we do not think that the Tribunal would impose office-like conditions at home, though of course, there are protections in place if the noise should become unreasonable or unacceptably disruptive.
This post appears in Strata News #337.
QUESTION: Are children excluded or exempted from breaching any provisions in the Strata Schemes Management legislation or any By-Law Clauses of the Strata Plan?
Though the question may seem rather ‘extraordinary’, unfortunately, it’s a matter that perhaps other Lot Owners may have encountered.
I live in a 1970s three-storey apartment complex. I reside on the first floor. Anyone who has resided in an apartment complex built before the advent of the Building Code of Australia would know these buildings are rather ‘hollow’, in that you can hear sounds generated from the floor above and it literally spreads through your apartment.
Recently, new owners moved into the apartment directly above mine. They have two young children around 4-8 years of age. They run around and scream and shriek during the days and also in the evenings and early mornings. I’ve been tolerable for some time now but my patience had waned considerably most recently. My recent Sunday sleep in was halted abruptly at 6 am. There were screams, shrieking, hollering, simply pandemonium happening directly above my bedroom. This raucous went for over an hour.
Based on the copious information in context to ‘noise and disturbances’ which LookUpStrata provides, I decided to implement what I had read and had a chat with the resident. Sadly, I was told by the Lot Owner that the noise was made by their two friends who were over for a sleepover, something they will continue to have on weekends.
Are children exempted/excluded from breaches of s.153(1)(a) Strata Schemes Management Act (NSW) 2015 and the Strata Plan’s By-law 1 which is based on the model By-Law pertaining to quiet use and enjoyment?
Again relating to children, we have a common property driveway and we don’t have any playground amenities whatsoever on the common property because the land size is at full capacity. Can children use the common property driveway as recreational grounds? Of course, this driveway is used as a thoroughfare for motor vehicles and pedestrians.
Basketball bounces resonate on the concrete drive. Is this a breach of quiet, or use or enjoyment of a Lot Owner which causes a nuisance? When this was raised, again the parents claimed their children have ‘rights’ to play anywhere on the common property.
ANSWER – Occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.
In our view it is not that they are excluded or exempted, it is that the owners/occupiers of the lot are responsible to ensure no noise may interfere with someone else’s use of their lot or common property.
Children cannot use the common property driveway as recreational grounds. The by-laws typically state that an owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other areas of possible danger or hazard to children.
This post appears in Strata News #265.
QUESTION: Children Playing on Common Property – Do They Need Supervision? What are the rules around children and noise complaints in apartments?
I’m trying to get information about children and visiting grandchildren playing on common property. It is so hard trying to keep children (aged between 4 and 8) cooped up inside villas after school.
What age are children considered to no longer need adult supervision? My eldest grandchild is 8, so I know this one is fine, but I’m always out supervising my younger ones. What are the rules around children and noise complaints in apartments?
ANSWER – If there are areas of green space that the children can play in would be considered a much safer proposition but the children need to supervised in line with the by-law.
Children playing on common property is a very emotive issue. The residents with the children cannot see any issue with this and yet other residents are very concerned when this happens. And what age should children be allowed to play on common property unsupervised?
The bylaw in NSW reads (Unless the Owners Corporation has registered additional by-laws):
An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other areas of possible danger or hazard to children.
The ACT Default Rules are a bit vaguer.
Previous generations had the freedom of kids playing cricket, kicking a football or just running around in the street or neighbourhood or of course in their own yards. In a strata situation, the areas of common property are owned by all owners.
Accordingly, rules are made around those areas to accommodate all the owners. A major concern as strata managers that we receive is children playing on common property driveways whether supervised or not. Residents are very concerned that cars coming into the complexes sometimes do not slow down and put the safety at risk of the children. There could also be a breach of By-law 3 Obstruction of Common Property.
The crux of this is also what age is an adult? The legal definition of an adult varies from 16 to 18. The additional issue is if children are riding bikes, skates, scooters etc. that could expose the Owners Corporation to liability in the case of a mishap.
If there are areas of green space that the children can play in would be considered a much safer proposition but the children need to supervised in line with the by-law. The wording is – car parking area or another area of possible danger or hazard to children. So if an Owners Corporation had a grassed area fenced with childproof fencing would this be considered not to be a possible danger or hazard to children and they could play there unsupervised. Interesting conundrum.
P: 02 6132 4450
E: [email protected]
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
How can apartments be better designed to meet the needs of families with children, taking into account increasing noise complaints in apartments?
A Sydney couple recently received a letter from their strata management company, threatening them with a $550 fine due to ‘excessive noise’ emanating from their apartment – courtesy of their toddler.
This case shocked many and generated a great deal of media interest. The story was picked up by several TV programs, radio programs and printed media, and the mother, Janin Mayer (who lives in a 2-bedroom apartment with her son and husband, and is pregnant with their second child), expressed feeling discriminated against and worried about what will happen as their family grows.
The story prompted discussion online about the increasing number of families who are living in apartments and the tensions this can generate. The comments were voluminous and often heated – coming both from the perspective of families with children and from childless neighbours. While noise complaints in apartments and neighbourly tensions are not unique to higher density housing forms, they may be heightened due to living within such close proximity – and may become particularly pronounced when young children are present.
Given this topic has attracted recent media attention, it seems an opportune time for a greater understanding of families living in this context.
In the city of Sydney, a shift towards higher-density living arrangements has been a key planning strategy, in response to the growing population placing a strain on housing supply. Yet little is known about how people negotiate their everyday lives in these shared spaces and within close proximity to others, and thus whether this dominant policy response will meet the needs of a diverse population – including families with children – over the longer-term.
In the context of Sydney, apartment living represents a major shift in living arrangements from previous detached housing norms. Adjusting to this transition becomes particularly interesting in the case of families with children. Current plans for extending high-density housing in Australian cities have been criticised for neglecting the complexity of apartment populations. Apartments have been viewed as a temporary stage in the housing cycle, built with couples and singles in mind, with the expectation that residents will move to detached houses after having children. This influences the experience of families with children as infrastructure often fails to take their needs into account. Facilities for children are often limited in apartment complexes, and there are often restrictions on play in common areas.
While developers may not plan apartments with children in mind, families with children now comprise almost one-quarter of Sydney’s apartment population. The experiences of these families warrant research attention. It is important to gain a better understanding of the factors that make apartment living work for families with children.
With an interest in discovering more about the experiences of families such as Janin Mayer’s, I am currently undertaking my PhD research on the topic of families who live in apartments with children. I am interested in talking to such families in Sydney, to gain insight into their everyday lives – as they live and parent within close proximity to others. My research also aims to explore how apartments might be better designed to meet the needs of families with children, as a long-term living arrangement.
Some of the questions I aim to explore are: What things do families with children enjoy about apartment living? Which aspects are difficult or cause tension? How do families with children make use of space within and around the home? Do parents make decisions due to being aware of sound, and the impact of this on their neighbours? What are relationships like with neighbours and do families have experiences of tension, noise complaints in apartments or conflict with others living in their apartment buildings? Do families with children feel pressure to move into a detached home due to social norms or comments made about raising children in apartments?
Of interest to readers of this blog, I am also curious to explore the impact of strata legislation in NSW on families with children. Do strata regulations create challenges for families who want to make changes to their apartments, in order to make everyday life with children more comfortable?
The experiences of families with children and the strategies they have for overcoming such challenges may provide insights into how future Australian apartment developments may be better designed with families with children in mind.
With a transition towards shared living offering a number of important benefits – both environmentally and socially – it is important to identify barriers which may impede this form of living being seen as a long-term option and to provide support where possible in order for such benefits to be achieved in the Australian setting – for a diverse population (not just singles and couples without children).
If you are interested in hearing more about this research or if you are a parent/guardian living in an apartment in Sydney with children and would be interested in sharing your experience – please contact me on [email protected]
This project has been approved by the Human Research Ethics Committee, University of Wollongong.
Bio: Sophie-May is a PhD student in the School of Geography and Sustainable Communities, at the University of Wollongong. Her current research interests focus on the experiences of families living with children in apartments.
Have a question about children and noise in apartments or something to add to the article? Leave a comment below.
- Apartment living for families – how to get it right
- NSW: Q&A Is piano playing for hours a day a breach of our peaceful enjoyment?
Looking for strata information concerning your state? For state-specific strata information, take a look here.