NSW: Q&A Shutting Facilities and Restricting Access to Common Areas

These Q&As and article are about whether NSW Owners Corporations have the authority to shut facilities and restrict access to common property areas.

Table of Contents:

• QUESTION: We have a pavilion which can be booked free of charge. Since COVID, there has been a cleaning fee for each booking. While this seemed reasonable in the past, our committee is not reviewing the decision until their next meeting in 2023. Is this unreasonable?
• QUESTION: Is my landlord or the strata obliged to provide tenants with access to all common areas? We have no access to the common area rooftop.
• QUESTION: Is it possible for the strata committee to pass a motion to decommission the unnecessary elevator?
• QUESTION: Is it legal to block access to a common area lift from the car park to the foyer?
• QUESTION: What are the regulations surrounding common property use during COVID-19? I’m particularly after information about swimming pools in apartment buildings.
• QUESTION: Does a NSW Strata Committee have the authority to shut facilities and restrict access to Common Property areas?
• QUESTION: We have a large pool and large enclosed area, plus several acres of garden space. Residents are practising social distancing. Why should we shut these facilities?
• QUESTION: For facilities in a NSW strata complex, should we be closing our hardly used outdoor pool? Is it ok for two people to swim and sunbake in the pool area? No one has complained as yet.

Question: We have a pavilion which can be booked free of charge. Since COVID, there has been a cleaning fee for each booking. While this seemed reasonable in the past, our committee is not reviewing the decision until their next meeting in 2023. Is this unreasonable?

I live in an apartment building in the CBD which has a ‘residents pavilion’ in an outdoor common area which you can book free of charge for gatherings/parties etc. Since COVID-19 started, we’re asked to pay a $120 fee for COVID-19 sanitising to use the facilities. Up until a few months ago, this made total sense. I fully understood and have paid the fee in the past.

They still want to charge the fee, despite COVID-19 restrictions being more or less gone in all settings. When I questioned when this would be changed, the building manager told me ‘the owners corporation will review this decision when they next meet in March 2023’.

I don’t think this is reasonable, and it’s resulting in restricted access to the building’s facilities. Is there anything I can do?

Answer: This would only be permissible if it is being done in accordance with a registered by-law.

This would only be permissible if it is being done in accordance with a registered by-law. By-laws are the way in which an owners corporation makes its own rules and there are legal processes that must be followed to make those rules.

If the rules are just being made up (either by the building manager or strata committee), they aren’t enforceable.

There may be a by-law which regulates use of this area. It may have been amended in the past years to include a fee. Alternatively, it may delegate power to the strata committee to set the fee (and if that were so, the strata committee ought to have made a valid decision in a meeting, by resolution, to set the fee, and there should be minutes of that).

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in Strata News #567.

Question: Is my landlord or the strata obliged to provide tenants with access to all common areas? We have no access to the common area rooftop.

I rent in a block of 42 apartments. Although there is a common area on the rooftop, not every resident has been given a key.

Is my landlord or the strata obliged to provide tenants with access to all common areas? Part of the reason many of us signed our rental agreements is the rooftop feature this building offers.

Answer: Either the rooftop is “restricted” common property or everyone (ie all residents whether owners or tenants) should be given access. Neither strata nor your landlord can discriminate against tenants.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #563.

Question: Is it possible for the strata committee to pass a motion to decommission the unnecessary elevator?

I am an owner in a 14 Lot Townhouse complex. We have a new lift that travels from the basement common area to the ground floor common area.

We don’t use this lift very often because each townhouse can access the basement common area via its own townhouse stairs. I assume this lift is mostly for disabled people, but currently, we don’t have any disabled people living here.

Most owners want to decommission this lift due to the rare usage and COVID-19 issues. This will also save us money on the regular upkeep and maintenance which can be expensive and unnecessary if no one needs to use the lift.

Is it possible for the strata committee to pass a motion to decommission the elevator?

Answer: While it’s possible under strata law for an owners corporation to decommission its elevator, this may not be permitted under planning or anti discrimination law.

The strata committee alone cannot decommission the elevator. While it’s possible under strata law for an owners corporation to decommission its elevator, this may not be permitted under planning or anti discrimination law.

Under the Strata Schemes Management Act 2015 (SSMA), a strata committee is permitted to carry out repairs and maintenance of common property. This arises by a combination of sections in the SSMA including:

1. Section 9 which makes the owners corporation responsible for management of its strata scheme and common property.
2. Section 36 which deems the strata committee to be the owners corporation when the strata committee makes a decision.
3. Section 106 which requires the owners corporation to repair and maintain common property.

The permanent decommissioning of an elevator is not maintenance and repair of common property. Rather it is either a change to common property, a decision not to repair and maintain common property or a combination of both. To do any of these requires a special resolution of a general meeting because:

1. Section 108 requires changes to common property to be approved by a special resolution before the change is made.
2. Section 106 permits an owners corporation to decide by special resolution not to repair and maintain common property where it is inappropriate to repair and maintain it and that decision does not the safety of the building, structure or common property or detract from the appearance of any property in the strata scheme.

Accordingly, the strata committee alone cannot decommission the elevator.

Sections 106 and 108 are a pathway through which an owners corporation via a general meeting special resolution could permanently decommission an elevator. However, if it was a requirement of the original development approval for the building that it have an elevator, then the owners corporation must comply with that requirement under the Environmental Planning and Assessment Act 1979 (EPAA) unless it can get it changed.

The decommissioning of the elevator if it involves changes to the building eg removal of the lift shaft or demolition, is probably not exempt development and the owners corporation would likely need a development approval from your local council under the EPAA. You should speak to a duty planner at your local council to see if development approval would be given.

Finally, an owners corporation is subject to the Anti Discrimination Act 1977 (ADA). Under the ADA and following on from the decision in Hulena v Owners Corporation Strata Plan 13672 [2010] NSWADTAP 27, an owners corporation cannot discriminate in the provision of services such as access through common areas on account of disability or age.

While your building may currently have no residents with a disability, this could easily change in the future and decommissioning of the elevator may amount to prohibited discrimination under the ADA. For example, a current resident may become disabled, current or future residents may have visitors with disabilities, or future residents may have disabilities. If compliance with the ADA would cause the owners corporation unjustifiable hardship, then it may have a defence to a discrimination claim under the ADA. The owners corporation should obtain detailed legal advice about its obligations under the ADA as part of its decision making.

Carlo Fini
Lewis & Charles Lawyers
E:[email protected]
P: (02) 9159 9053

This post appears in the December 2021 edition of The NSW Strata Magazine.

Question: Is it legal to block access to a common area lift from the car park to the foyer?

The Strata Committee is denying access to the elevator via the car park unless you have a doctor’s certificate stating you can’t walk up 12 steep stairs to the front entrance (which then leads to the same lift as the car park lift one level down). 

This means that anyone with a disability needs to get a doctor’s certificate before they enter the building via the car park lift. They would then need to pay $130 for the fob key access to be changed. So none of our friends who can’t walk up stairs can just drop by either. 

Is it legal to block access to a common area lift?

Answer: Generally speaking and provided the by-laws applicable to your scheme expressly so permit, an owners corporation may restrict access to the common property especially if there are safety/security issues at stake. However, even if a by-law does restrict access to an item of common property, it could be challenged if it would restrict access to your lot.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #468.

Question: What are the regulations surrounding common property use during COVID-19? I’m particularly after information about swimming pools in apartment buildings.

I have read this article on LookUpStrata: NSW: Misinformation About COVID-19 Laws Clarified, however, it is dated 25 April 2020 regarding Covid-19 and Strata Swimming Pools in NSW. 

The advice was that there was currently no law that required Owners Corporations in NSW to close recreational facilities (inc Swimming Pools) on Common Property. Is this still the case, or have things changed since then?

Answer: You are correct that NSW Fair Trading updated their online guidance in the last week of May, and there have not been any further changes this year around laws for pools.

Thank you for your question, and it is definitely one that a lot of people are curious about as the weather is starting to warm up for summer.

You are correct that NSW Fair Trading updated their online guidance in the last week of May, and there have not been any further changes this year around laws for pools. As such our understanding is that there is currently no law required to close the swimming pools on common property.

However, should an owners corporation wish to leave the common property pool open for everyone’s enjoyment, they are required to ensure that they have carried out a risk assessment around the use of the pool, and demonstrated that the associated common areas are being cleaned and maintained to a high level that will not jeopardise anyone’s health.

It is important to note that the owners corporation are also required to implement adequate monitoring processes, to allow residents to enjoy the pool safely, and these would include:

• Social distancing
• Safe hygienic measures such as regular cleaning and sanitising

We also strongly recommended that the strata committee formalise the details and processes that they would like implemented around the swimming pool and associated common area, via a proper committee meeting to confirm the following:

• What measures are being introduced and why
• What signage is being introduced
• What communication strategies are to be used with consideration to your scheme’s diversity
• How suggestions and/or concerns from residents are to be dealt with

You will note on Strata Plus’ website that there are two further relevant articles that were written earlier this year and contain useful information that is still current:

• COVID-19 Swimming Pools, Spas & Saunas
• COVID-19 Common Property Areas & Shared Facilities

We hope the above has been helpful and please feel free to contact our team of accredited strata managers, at one of our 6 offices throughout NSW, which are located to help service local needs.

Please note that the above is general information and if you require legal advice, we suggest that you speak with a specialised strata lawyer.

Jane Giacobbe
Strata Plus
E: [email protected]
P: 0402 341 848

This post appears in the November 2020 edition of The NSW Strata Magazine.

Question: Does a NSW Strata Committee have the authority to shut facilities and restrict access to Common Property areas?

Prior to, and totally unrelated to any COVID-19 issues or regulations, my Strata Committee has key locked both the pool/spa room (which contains a shower and toilet) and a separate toilet, which is the sole wheelchair friendly toilet in our NSW Over-55s complex. Both areas are Common Property.

Only two of the Committee members have keys to each of these two areas and they have set the daylight hours at which they will unlock the doors.

The committee states they have taken this action because they believe a resident lot owner’s son was using the toilets in lieu of his mother’s ensuite at night and on weekends.

There is no by-law in place for this lock-off action and no motion has ever been placed before the Owners Corporation.

Does a NSW Strata Committee have the authority to shut facilities and restrict access to Common Property areas?

Answer: There would no grounds when public health orders are lifted for these amenities to not be reopened unless they are being renovated.

The short answer, in a non-Covid-19 world, is no. The committee can not close down access to the common property.

There is case law whereby by-laws were found invalid when they attempted to empower the strata committee to deny access to the common property to individual residents.

There is some debate as to whether or not the current public health orders apply to strata schemes, with the general consensus being that it is sensible to close down amenities during the pandemic. But there would no grounds when public health orders are lifted for these amenities to not be reopened unless they are being renovated.

Natalie Fitzgerald
More Than Strata
E: [email protected]
P: 1300 044 979

This post appears in Strata News #350.

Question: We have a large pool and large enclosed area, plus several acres of garden space. Residents are practising social distancing. Why should we shut these facilities?

We are in NSW. We have a large pool 25x5m approx and large enclosed area. We also have several acres of garden space.

One of our residents is concerned about the possibility of being fined if there are more than 2 people in the area. Residents are only using it for exercise and maintaining social distancing whilst doing so. There has been a maximum of 4-5 people at any time including couples from the same household.

There is little direction regarding the touching and cleaning of surfaces. It is frustrating that there has been no clear direction re these areas.

Update: (One day later) Sadly from lack of official direction the Owners Corporation have now closed our pool altogether.

Answer: Clear directives would stop many of the inter-scheme debates about what should and should not be closed.

I agree! There has been no official direction unlike in Victoria where strata schemes have been specifically mentioned in orders. That would stop many of the inter-scheme debates about what should and should not be closed.

As for myself, I urge owners corporations to exercise caution and to protect themselves from potential claims of negligence or failure to adequately maintain the common property by closing indoor recreation areas at a minimum and seriously considering closing outdoor pools.

Too little is known about what is required to prevent the spread of the virus. For instance, we are being advised to wash our hands constantly, to avoid touching our face after touching another person or external surface and to stay 1.5m away from each other. But what are the current cleaning guidelines? Can the virus be transmitted through water? We don’t have guidance on this yet which is why I recommend caution around recreation facilities.

If facilities remain open, the owners corporation should be posting warnings that it is a ‘use at your own risk’ scenario to try to limit any potential liability. As for walking in the grounds of a scheme, provided the 1.5m guideline and the less than two guidelines are adhered to, this should not be an issue. We are allowed outside for exercise.

Allison Benson
Kerin Benson Lawyers 
E: [email protected]
P: 02 4032 7990

This post appears in Strata News #338.

Question: For facilities in a NSW strata complex, should we be closing our hardly used outdoor pool? Is it ok for two people to swim and sunbake in the pool area? No one has complained as yet.

Answer: If your scheme believes that it can adequately clean the pool, any gates, steps, railings and changing facilities that anyone using the pool may come into contact with then it may be content with taking the risk of leaving the pool open.

The Public Health Order referred to recreation facilities (indoor) and public outdoor pools so your scheme can’t rely on the Order to close the outdoor pool. I don’t have access to the information as to why public outdoor pools were closed, whether it was from a real risk of infection spreading from using the pool (in think people touching the edges, ladders, using changing facilities etc) or as people would gather in these areas.

You note that the pool is hardly used so it may not be a risk from using the pool. The general public doesn’t have that data. However, I also noted the need for schemes to protect themselves from negligence claims and that this in itself was a good reason to close down facilities.

If your scheme believes that it can adequately clean the pool, any gates, steps, railings and changing facilities that anyone using the pool may come into contact with then it may be content with taking the risk of leaving the pool open. If it does that, it should be informing residents of the cleaning schedules for the area, the potential risk and a warning to try to limit its liability.

My concern is how much cleaning is going to be considered enough and does your scheme have the capacity to undertake increased cleaning? Does it have to be after every person for instance? Also, is your scheme prepared to run the risk that the pool becomes a hot spot for residents to gather?

My final query is whether your scheme asked residents to notify them if they are required to be in quarantine and what arrangements have been put in place to assist these people and also to protect other residents?

Allison Benson
Kerin Benson Lawyers 
E: [email protected]
P: 02 4032 7990

This post appears in Strata News #338.

Have a question about whether Owners Corporations should close their facilities or something to add to the article? Leave a comment below.

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Visit:

• COVID-19 and Strata
• Strata Committee Concerns
• Maintenance and Common Property
• NSW Strata Legislation

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