Question: Are children allowed to play on the common property driveway? Can residents and their visitors socialise in the common areas?
Are children allowed to play on the common property driveway? Are they required to be supervised? What happens when children and their friends, either other residents or visitors, socialise on the common property?
Answer: Whether children can play on the driveway depends on your scheme’s by-laws, but most NSW model by-laws require adult supervision in car parking areas, including driveways.
The answer depends on what by-laws your strata scheme has in place, so the first step is always to check your registered by-laws.
What the model by-laws say
Most strata schemes in NSW have adopted model by-laws drawn from the Strata Schemes Management Regulation 2016 (SSMR 2016). Which version applies to your scheme depends on when it was registered.
For schemes registered on or after 30 November 2016, the model by-law provides that any child for whom an owner or occupier is responsible may play on any area of common property that is designated by the owners corporation for that purpose, but may only use an area designated for swimming while under adult supervision. An owner or occupier must not permit any child for whom they are responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area, or other area of possible danger or hazard to children.
For schemes registered before 1 July 1997, the model by-law provides that an owner or occupier must not permit any child of whom they have control to play on common property within the building, or, unless accompanied by an adult exercising effective control, to be or remain on common property comprising a laundry, car parking area, or other area of possible danger or hazard to children.
So what does this mean for a driveway?
A driveway is a car parking area, and both versions of the model by-law expressly call out car parking areas as places where children must be accompanied by an adult exercising effective control. The practical reason is obvious. Vehicles come and go on driveways, creating a genuine hazard for children at play.
If your scheme has either of these by-laws in place, then technically, unsupervised children on the driveway, whether residents or visitors, would be in breach of that by-law. The obligation sits with the owner or occupier responsible for the child.
What about visitors and friends?
Owners and occupiers have responsibility not just for their own children, but for children who are visiting them. If a resident’s child invites friends over and they are all playing on the driveway unsupervised, the resident owner or occupier may still be the one on the hook under the by-law. Most schemes have also adopted a by-law that makes owners and occupiers responsible for the behaviour of their invitees on common property. Again, check your scheme’s registered by-laws.
A word of practical caution
The legal definition of “child” in NSW is any person under 18. That means, read literally, a 17-year-old hanging out on the driveway with friends could technically fall within the scope of these by-laws. Whether it’s practical to apply this interpretation, or whether it is upheld by the NSW Civil and Administrative Tribunal (NCAT) if disputed, is a different question, and one that would depend on the specific circumstances. If you’re dealing with an active enforcement dispute, it’s worth obtaining legal advice rather than relying on the by-law text alone.
What if your scheme doesn’t have these by-laws?
Not every scheme has adopted these model by-laws. Where a strata scheme was registered between 1 July 1997 and 29 November 2016, the by-laws adopted are those registered with the scheme, which may be model by-laws, custom by-laws, or a combination. Your by-laws may say something different, or may say nothing at all about children on common property. Always obtain a copy of your scheme’s registered by-laws before acting. Your strata managing agent can provide these, or they can be accessed through NSW Land Registry Services.
The bigger picture
The question of where children can play in a strata scheme is one that many owners corporations could approach more proactively. Schemes that have the model by-law in place can formally designate areas of common property for children’s play, something worth raising at your next general meeting if your scheme hasn’t already done so.
This article provides general information only and does not constitute legal advice. If you have a specific dispute or need advice tailored to your circumstances, consult a strata lawyer.
This post appears in Strata News #790.
Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960
I came to Sydney 40+ yrs ago, Shared a flat with a young girl in Bankstown NSW & we had no problems with noise etc! Married & moved to a house, son married & left home & we needed to be closer to his family! Came back to a lovely small unit block of 8 Units. in Bankstown , NSW AUSTRALIA close to shops rail etc Thought my life was organised UNTIL the other owners of the unit block above us decided to change the flooring of their units to plank flooring! Then my nightmares began, anything dropped on the flooring above would wake me up every night/morning. Nobody would listen to me! Planking is of the best quality!! I don’t care it still makes a noise & disturbs my sleep & has done for the past few years BUT NO ONE is LISTENING TO ME!
Have exactly the same problem in Victoria. Check your Bylaws as up above units cannot pull carpet out and replace with tiles./boards They must seek permission and submit their flooring covering plans showing the underlay and noise cancelling material that is being installed. There is a section in the strata title act that stipulates that whatever it is no one can diminish or interfere with with your normal daily enjoyment of living. It requires backboned chairperson to tell up above to carpet or place noise reduction under lay. Most will do nothing so it will be a NSWCAT tribunal to dish out what your Body Corp should be applying.
We had this question come from one of our Facebook subscribers, commenting about the situation. There does seem to be a lot of interest from the public concerning the way in which the body corporate handled the complaint.
NSW Fair Trading, on their Strata and community disputes page, suggest:
Talk about it
Sometimes people in dispute have not even spoken to each other about the problem. This makes it very hard for people to continue living together happily. The first step towards resolving a strata issue is to make every attempt to do so by discussing it with the other party. It might help to have the owners corporation discuss the problem at a meeting.
Our subscriber asks:
It is really the scheme’s elected committee which decided for the letter to be sent surely?
See an update from A Current Affair on this story here: Sydney mother distressed after legal warning over crying baby in apartment.