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
