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

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

Table of Contents:

• QUESTION: If an unfinancial owner owes more than $10K, can they use the apartment’s swimming pool? We believe the courts have served the owner?
• QUESTION: In our two lot scheme, the my power board is located in the other lot. The owner will not allow access. Is there a way to provide access without incurring huge expense?
• QUESTION: Three lots in our small building don’t have washing machine facilities and use the shared laundry room. Can I propose a motion restricting access for only units without lot facilities and introducing a small usage to offset costs?
• QUESTION: Our building has a registered by-law stating that the common property laundry is for the exclusive use of two units. Can I challenge this by-law and return the laundry to common property for general use?
• QUESTION: Can a mixed-use strata scheme have a bylaw restricting owners of commercial property lots from accessing the swimming pool when all lot owners contribute to the common property upkeep of the pool?
• QUESTION: My carport was removed four years ago as it was considered dangerous and was never replaced. Can I seek compensation?
• QUESTION: Can a strata committee restrict access to a rooftop where there is no apparent danger and no maintenance issues? If so, what and how much notice should be provided?
• QUESTION: Lot owners have been instructed to no longer use the red bins. All garbage must go in the rubbish chute! Can we be denied access to the bins?
• QUESTION: Our strata units have a right of way to allow access to two buildings further down the path. Unauthorised people walk through our property. Can we put a lock on the gate and only allow authorised people through.
• QUESTION: Is it legal to lock emergency doors with a coded number lock? The village management are the only ones who know the code.
• 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: If an unfinancial owner owes more than $10K, can they use the apartment’s swimming pool? We believe the courts have served the owner.

Answer: Under strata law, there is no automatic right to deny an unfinancial owner access to common property facilities.

In NSW, the Strata Schemes Management Act 2015 (SSMA) governs the rights and responsibilities of lot owners in a strata scheme, including the implications of being unfinancial.

Under Schedule 1, Clause 23(8) of the SSMA, an owner who has not paid their levies (including interest and recovery costs) is considered an “unfinancial owner.” This status restricts their participation in certain strata matters, such as:

• Voting at general meetings (except on motions requiring a unanimous resolution) (SSMA Schedule 1, Clause 23(8)​).
• Being elected to the strata committee (SSMA Section 32(2)).

However, the Act does not explicitly prevent unfinancial owners from using common property facilities such as the swimming pool, gym, or barbecue areas. Restrictions on the use of such amenities must be set out in the by-laws of the strata scheme.

Can an unfinancial owner be denied access to the swimming pool?

If the strata scheme’s registered by-laws include provisions restricting access to common facilities for lot owners with unpaid levies, enforcement may be possible. However, owners corporation should seek legal advice to determine whether such a by-law could be deemed harsh, unconscionable, or oppressive under SSMA Section 150, which may render it invalid.

It is also important to note that legal interpretations evolve over time. Even if legal advice was obtained when the by-law was first drafted, it may be prudent for the owners corporation to seek updated legal advice, as changes in legislation and case law may have altered the enforceability of such provisions. Legal advice given several years ago may no longer be relevant under current strata law.

What if the owner has been served by the courts?

If the owner has been served with court orders for debt recovery, this does not automatically strip them of access to common property facilities. The owners corporation would first need to have a valid, registered by-law restricting access in order to enforce such a rule. Even then, enforcement may require an NCAT order under SSMA Section 147 to ensure compliance, particularly if the owner challenges the restriction.

Key Considerations for the Owners Corporation

1. Check the by-laws – If the strata scheme does not have a by-law restricting access for unfinancial owners, the owners corporation cannot legally enforce such a restriction.
2. Assess the enforceability of the by-law – Even if a by-law exists, it may be challenged under SSMA Section 150 if it is deemed harsh, unconscionable, or oppressive.
3. Seek updated legal advice – Even if legal advice was obtained when the by-law was first introduced, it is advisable to reassess its validity given possible changes in law and case law developments. What was enforceable a few years ago may not be today.
4. Apply to NCAT if necessary – If an enforceable by-law exists, the owners corporation can apply to NCAT for an order ensuring compliance.

Final Thought

Owners corporations with by-laws restricting access to facilities for unfinancial owners should not assume their enforceability without legal review. As strata law evolves, seeking updated legal advice is essential to ensure compliance with the current legislative and case law landscape. A by-law that once seemed enforceable could now be deemed harsh, unconscionable, or oppressive under SSMA Section 150, leaving the owners corporation unable to impose the intended restriction.

Importantly, without a valid, registered by-law, none of these restrictions are enforceable. Under strata law, there is no automatic right to deny an unfinancial owner access to common property facilities. If an owners corporation wants to impose such restrictions, it must first ensure a properly drafted by-law is in place—and even then, its validity may be subject to legal challenge.

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

This post appears in the April 2025 edition of The NSW Strata Magazine.

Question: In our two lot scheme, the my power board is located in the other lot. The owner will not allow access. Is there a way to provide access without incurring huge expense?

I live in a two-lot scheme. The owners corporation’s power board is located on the wall of the other lot. The lot owner will not provide access to the board. The strata manager suggests we split the power board and relocate my half so that I have access. He maintains the costs need to be split.

Is there a better way to solve the access problem without this expense?

Answer: Common infrastructure is automatically common property even if it is situated in a private lot.

Common infrastructure, previously referred to as “structural cubic space”, is generally any pipes, wires, cables, etc, that are not for the exclusive enjoyment of one lot (as in your case). This is automatically common property even if it is situated in a private lot, to which the owners corporation has access rights and the responsibility to repair and maintain. 

As the area is common property, to make alterations/relocate the power board, the owners corporation would pay and on-charge owners in proportion to their unit entitlements (ie the split your strata manager refers to).

Sharing/splitting the costs in accordance with the unit entitlements allocated to the 2 x lots is the fairest and most equitable way of separating the power board to service each lot.

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

This post appears in Strata News #713.

Question: Three lots in our small building don’t have washing machine facilities and use the shared laundry room. Can I propose a motion restricting access for only units without lot facilities and introducing a small usage to offset costs?

I live in an eight unit building. Five owners have a washing machine connection inside their lot. The three lots without a washing machine connection have not been renovated since the building was built in 1963. They use the common laundry room. One lot has a washing machine space and connections inside their unit but always uses the shared laundry room.

Can I submit a motion to the next AGM to restrict access to the laundry room? I propose we install a lockable door on the room and create a by-law to restrict access for the three units without laundry facilities in their unit. I’d also like to implement a small usage fee for these units to help offset costs. Is this possible?

Answer: Discuss your ideas with all other owners.

There are a few things you need to consider, starting with sections 108 and 139 of the Strata Schemes Management Act 2015.

If you are seeking to install a door and lock to a room that currently does not have a door, you are seeking the owners corporation to make changes to the common property and a special resolution will need to be passed in order to achieve this. Section 108 of the Strata Schemes Management Act 2015 governs how the owners corporation may make changes to common property: View – NSW legislation

You may need to consider that for the special resolution to pass, there must not be more than 25% of the value of the votes cast against the resolution. Refer to section 5 of the Strata Schemes Management Act 2015: View – NSW legislation

Section 139 of the Strata Schemes Management Act 2015 provides that a by-law “must not be harsh, unconscionable or oppressive”: View – NSW legislation

In 2020, the NSW Civil & Administrative Tribunal provided some examples of the questions that may lead to a by-law being considered harsh, unconscionable or oppressive:

1. Does the by-law provide for unnecessary or unreasonable differential treatment between lot owners or occupiers?
2. Does an aggrieved lot owner have a reasonable expectation (in the circumstances of the particular case) that any restriction(s) would not be required or imposed?
3. Does the by-law provide for reasonable exceptions?
4. Does the by-law provide a “complete embargo” as found in John Maait Properties?
5. Is it appropriate that an owners corporation establish some control and is the level of control appropriate?
6. Does the by-law include provision for consideration of individual needs that may not be necessary in relation to the majority of owners or occupiers?
7. Does the by-law allow particular works or benefits but at an unreasonable cost?
8. In considering each of the above factors (and any other factors which may suggest themselves), does the by-law include that element of extremity necessary to meet the high standard set by s.139

This is taken from the decision in the case regarding The Owners Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited: The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6 (16 January 2020)

Please note my response above does not address all the issues which may arise. It would be best to consider the provisions and examples referred to above and discuss your ideas with all the other owners. You should obtain legal advice prior to proposing any motions or by-laws for approval at a general meeting.

Shane Williamson
Williamson Lawyers Pty Ltd
E: [email protected]
P: 0404 045 605

This post appears in the August 2024 edition of The NSW Strata Magazine.

Question: Our building has a registered by-law stating that the common property laundry is for the exclusive use of two units. Can I challenge this by-law and return the laundry to common property for general use?

I inherited a unit in a block of 6. The block was built over 40 years ago. I discovered a recently registered by-law stating that the common property laundry is for the exclusive use of two units. My unit does not have a laundry.

The exclusive use laundry is small. There is only room for two washing machines. These are owned by the two units with exclusive use. The power appears to be connected to the respective owners’ meters. No compensation was paid to obtain this exclusive use. Is it possible to challenge this by-law and return the laundry to common property for general use?

Answer: Speak with the owners and/or the strata committee first to ascertain why those two lot owners were granted the exclusive use of the common property laundry.

Yes, it is possible to challenge the by-law.

However, I suggest you speak with the owners and/or the strata committee first to try and ascertain why those two lot owners were granted the exclusive use of the common property laundry. If the owners or strata committee are not forthcoming, I would suggest an inspection of the scheme’s records in accordance with section 182 of the Strata Schemes Management Act 2015 (‘the Act‘).

Whilst the lack of consideration for the grant of right might be a ground to seek the repeal of the by-law, monetary compensation for a grant in right is not always provided. Areas of common property may have been traded, or the exclusive use may have been granted for services provided to the owners corporation. The other lot owners may have simply not needed the use of the common property and did not require payment of compensation.

If either of the benefitted lots have changed hands since the exclusive use rights were granted, this could further complicate any proceedings as you would expect that any incoming purchaser of the lots would have paid for the grant in rights in their purchase price.

Before commencing Tribunal proceedings, mediation through the Office of Fair Trading must first be attempted. If the other party refuses mediation, proceedings can be taken directly in the NSW Civil and Administrative Tribunal (‘NCAT‘).

Tribunal proceedings could be instituted under section 150 of the Act seeking an order that the by-law be invalidated. The application would be against the owners corporation and would be on the basis that the owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

Tribunal proceedings could be instituted under section 148 of the Act seeking an order that the additional by-law be repealed. Any such application would be against the owners corporation if the Tribunal considers that, having regard to the interest of all owners of lots in the strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owner corporation.

Tribunal proceedings could be instituted under section 149 of the Act on the basis that the owners corporation or the benefitted owners have unreasonably refused the repeal of the by-law. Before an application of this nature could be made, you would need to put a motion to a general meeting of the owners corporation to repeal the by-law. If either the repeal of the by-law is not specially resolved by the owners corporation and/or the benefitted owners refuse to provide their written consent, an application can be made under this section.

When considering whether to make an order, the Tribunal has to weigh up the interests of all owners in the use and enjoyment of their lots and common property with the rights and reasonable expectations of the owners benefitting from the by-law.

It is difficult to provide advice on the appropriate application to NCAT without further information. It may be that the appropriate application is a combination, seeking more than one of the orders above. Similarly, it is difficult to provide prospects of success for any Tribunal application without further information and a comprehensive review of all the materials.

Before embarking on mediation in the Office of Fair Trading and/or NCAT proceedings, I suggest you seek specialist legal advice from an experienced strata lawyer.

Matthew Jenkins
Bannermans Lawyers
E: [email protected]
P: 02 9929 0226

This post appears in Strata News #685.

Question: Can a mixed-use strata scheme have a bylaw restricting owners of commercial property lots from accessing the swimming pool when all lot owners contribute to the common property upkeep of the pool?

Answer: If you’re contributing to a pool and you’re restricted from accessing the pool, I think that bylaw could be harsh, unconscionable and oppressive.

You can have a bylaw where you say the exclusive use right for the pool belongs to all lot owners of the residential lots, but then you also make them pay for it. That would get up, but a bylaw saying commercial owners can’t use the pool? If you’re contributing to that common property, I think that bylaw could be harsh, unconscionable and oppressive. You get what you pay for. If I’m paying for the upkeep and maintenance of the pool, I want to use it, even if it’s just to look at and dip my toe in once every six months.

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

This post appears in the June 2023 edition of The NSW Strata Magazine.

Question: My carport was removed four years ago as it was considered dangerous and was never replaced. Can I seek compensation?

When I purchased my unit, I had the use of a carport. The carport was removed as it was considered dangerous. It has been over four years and the structure has not been replaced.

I have requested compensation for the loss of facility and have been told I need to get a valuation and then 75% of votes to proceed. Only three carports were removed, so the affected lots are a minority.

Without my complaints, I believe the matter was considered closed as we have limited funds.

Answer: The owners corporation cannot decide not to repair or replace common property where it detracts from the appearance of any property in the building or impacts the structure or common property within the strata scheme.

To determine your recourse, if any, it must first be established whether your carport is your own lot property or common property.

We would need to know:

• When was the carport erected? Was it there at the time of registration of the strata plan? If not, who erected it? An owner via a by-law or the owners corporation?
• Is the carport on your title or via an exclusive use by-law?
• Are there any by-laws relating to carports registered with the scheme?
• Is the structure of a carport referred to on the strata plan?
• Did the owners corporation obtain any resolutions regarding the removal of the carport?
• Were you asked to repair or replace the carport at your own cost?

The answers to these questions will assist in determining whether you have rights against the owners corporation.

As a general proposition, carports are common property unless:

• they are wholly within the cubic space of the lot and/or referenced as private property on the strata plan; or
• they have been installed by individuals after the registration of the strata plan.

Finally, the owners corporation cannot decide not to repair or replace common property where it detracts from the appearance of any property in the building or impacts the structure or common property within the strata scheme, as appears to be your situation (subject to the above exceptions).

You should also write to your strata manager and ask on what legal basis the carports were removed and seek specialist strata legal advice, especially since it has already been four years since the carport removal and your rights may potentially have lapsed.

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

This post appears in the April 2023 edition of The NSW Strata Magazine.

Question: Can a strata committee restrict access to a rooftop where there is no apparent danger and no maintenance issues? If so, what and how much notice should be provided?

Leading up to New Year’s Eve, lot owners in our building were informed that access to the rooftop would be closed from 6 am on 31 December until 6 pm on 1 January 2023.

Before we purchased an apartment in the building, there was some unruly behaviour by lot owners using the space on New Year’s Eve. Since then, lot owners would informally book the space each year and security was arranged to ensure disruption did not occur again. Due to the low number of residents wishing to use the space this NYE, it was decided the costs associated with arranging security were not worth it and access would be restricted.

If the committee is within their rights to restrict access, how much notice are they required to give?

Answer: Unless the rooftop has a restricted rooftop usage by-law, the committee does not have the authority to restrict access to common areas.

The powers of owners corporations, and hence their strata committees, are tempered by various legislative restrictions. A strata committee cannot make decisions on matters that require a unanimous or special resolution such as dissolving a strata property, creating/amending by-laws, or building rules, setting, or changing levies, and changing the rights, privileges or obligations of property owners.

With regards to restricting usage/access to your rooftop, you should check if a by-law is in place concerning the usage/access to the rooftop. There may be a by-law that regulates the use of this area. It may have been amended recently and delegating power to the strata committee to set the restrictions.

From the information you have provided, it appears that access to the rooftop was restricted for just the 36hrs during NYE only and at no other times. I’m unsure if by ‘restriction’, the notice refers to a limited amount of people or if it means no access for anyone?

Nonetheless, consideration must be given to the responsibilities of the committee in upholding their duty of care, where there are potential security/safety hazards, damage to common property, disturbance, capacity breaches and consider any insurance policy limitations. All these are very real and valid and should be taken into consideration when creating a by-law.

So, unless the rooftop has a restricted rooftop usage by-law, the committee does not have the authority to restrict access to common areas. Although acting responsibly, if the rules are just being made up (either by the building manager or strata committee), they aren’t enforceable. The rooftop provides amenity facilities; therefore, the owners corporation should have a by-law that establishes rules on how to use and manage those facilities. The by-law needs to be resolved by special resolution at a general meeting and registered with the NSW Land Registry Services before it comes enforceable.

Please be mindful that section 150(1) of the SSMA specifies the Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

Eddie Parada
Australian Strata Management
E: [email protected]
P: 02 940 155 05

This post appears in the March 2023 edition of The NSW Strata Magazine.

Question: Lot owners have been instructed to no longer use the red bins. All garbage must go in the rubbish chute! Can we be denied access to the bins?

Our strata committee recently stopped lot owners from accessing the red bins for garbage disposal. We have been instructed to only put garbage through the chute. Something we have items to dispose that are not suitable for the rubbish chute.

Can the strata committee stop lot owners from access to garbage services when owners pay for this service via council rates?

Answer: Check your bylaws – there may be a valid reason for the change.

There may be valid reasons for the restriction to access the red bins eg for the health and/or safety of all residents provided the restriction is set out in a registered by-law.

You should ask the Strata Committee for their rationale and whether they have a by-law to that effect.

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

This post appears in Strata News #632.

Question: Our strata units have a right of way to allow access to two buildings further down the path. Unauthorised people walk through our property. Can we put a lock on the gate and only allow authorised people through.

Our block of 6 strata units has a right of way leading through our property to allow access to two buildings further down the path. People not associated with the buildings walk through our property to access the next street. They are not entitled to do so.

We have had nuisance people coming through the gate into our property and intimidating some of our owners. Are we able to put a lock on the gate if we issue the authorised ‘right of way’ owners a key? In order to do this, who do we need permission from?

Answer: Contact a lawyer to give you general advice concerning your rights and obligations before putting locks on the gate.

To consider having permission to put a lock on the ‘right of way’ gate is not a cut and dried proposition, with a lot of factors to establish. The first place to start in determining the right course of action to manage / prevent foot traffic nuisance is with your Title Documents. You need to confirm what type of ‘Right of Way’ or easement exists over the common driveway, assuming it’s a dual driveway/footpath. In Common Driveway Laws in NSW (often referred to as shared driveway laws under the theme of property law and easements) there are 3 main types of easements:

• Right of Carriageway: right for a person authorised to drive a vehicle;
• Right of Footway: a person authorised to walk or bicycle over specified parts;
• Right of Way: right for a person authorised to drive, walk use in general terms.

Therefore, if you have a ‘Right of Way’ shown on your title, you are not allowed to obstruct the use of any part of that right by the person who enjoys that right as you can’t be 100% sure none of the residents in the other two blocks aren’t using the ‘Right of Way’ to access the lower street as other non-residents do. Further consideration would have to be given to safety. If it’s a dual vehicle and foot traffic, what are your insurance limitations in the event of an incident and are there signs clearly notifying the restricted use of the ‘Right of Way’?

I would also recommend contacting a lawyer to give you general advice concerning your rights and obligations before putting locks on the gate, even though your intent is to provide keys to residents there might be fire evacuation restrictions. You should also have the lawyer give you advice if the culprits are potentially trespassing, and to check what easements there are on your property. In NSW, you can contact NSW Land and Registry Services. They have all relevant information on the types of easements and details of easements on your property.

Eddie Parada
Australian Strata Management
E: [email protected]
P: 02 940 155 05

This post appears in the December 2022 edition of The NSW Strata Magazine.

Question: Is it legal to lock emergency doors with a coded number lock? The village management are the only ones who know the code.

Is it legal to lock emergency doors with a coded number lock? The village management are the only ones who know the code.

When we have after-hours functions, we have no knowledge of the code and cannot open the designated emergency doors if there is an emergency.

Elderly and frail residents attend these functions. We would have to usher these residents through a 25 meter long passageway to reach the main entrance of the community centre.

Answer: It is a building code and a compliance obligation to ensure that all fire or emergency exits doors (required exits) can provide quick, easy egress OUT of a building.

It is a building code and a compliance obligation to ensure that all fire or emergency exits doors (required exits) can provide quick, easy egress OUT of a building.

It is important here to first note the intention of the emergency door and the direction that would be considered emergency egress. In the event of a fire or emergency, evacuation routes are designed and certified to provide the quickest and safest means to evacuate a building with little logical thought required from fleeing residents or occupants. You will notice these days that all fire doors should either have a simple lever style handle or crash bar that required minimal force to open them.

Emergency doors can however be locked in the direction of travel from outside the building, into the building. e.g. from the street into the fire stairwell of the building. This is due to the requirement of building security and in the event of an emergency, no one other than emergency personnel, should be running back into the building. In certain building designs and certifications, failsafe options have been authorised whereby locked doors (even those with codes or key requirements) are automatically unlocked upon trigger of emergency – alarm, sprinklers the like.

Due to the use and function of the space mentioned, it is reasonable to assume that this venue would be accessed by the public, who are unfamiliar with their surrounds. Such unfamiliarity as well as crowd control, and quantity, will ultimately affect the determination of whether a “fail-safe,” option may be viable.

Ultimately, A required exit or fire door forming part of a required exit (under the NCC) must be readily openable upon egress. Assuming that an approved and certified “fail-safe” option is not in place, the use of a coded lock would be in breach of the NCC as a required exit or fire door must be immediately openable in the direction and path of egress without any delay and minimal effort. If you have concerns in this matter, we would recommend that you ask your strata manager to motion a fire audit or review from a suitably qualified fire professional.

Dakota Panetta
Solutions in Engineering
E: [email protected]
P: 1300 136 036

This post appears in Strata News #604.

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
Lawyer (NSW)

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.

Read next:

• NSW: Phase two strata laws on the horizon: Proposed changes
• NSW: New strata laws introduced to protect owners and make strata living easier
• NSW: Q&A Short Term Letting, Airbnb and Coronavirus

Visit:

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

Looking for strata information concerning your state? For state-specific strata information, take a look here.

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