NSW: Shutting Facilities and Restricting Access to Common Areas

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These Q&As and article about whether NSW Owners Corporations have authority to shut facilities and restrict access to common property areas have been contributed by Allison Benson, Kerin Benson Lawyers and Natalie Fitzgerald, More Than Strata.

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• 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.
• ARTICLE: NSW COVID-19: Should Owners Corporations & Community Associations Prohibit Use of Their Recreational Facilities?

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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
E: [email protected]

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
E: [email protected]

This post appears in Strata News #338.

NSW COVID-19: Should Owners Corporations & Community Associations Prohibit Use of Their Recreational Facilities?

Now that the initial shock has worn off the question of whether owners corporations and community associations should close their recreation facilities or whether it is business as usual. This question has been answered by my fellow ACSL colleagues, Chris Irons and Frank Higginson in relation to sunny Queensland. In New South Wales, schemes are still asking the question.

There are two key issues here. The first is whether the series of Public Health Orders issued by the NSW government have effect for strata and community schemes.

The most recent order is Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 which came into effect on 31 March 2020. The order can be accessed here: Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020.

Issued for public health reasons, this Order restricts people from leaving their place of residence without reasonable excuse. Reasonable excuses include to obtain food or other goods and services, to obtain medical treatment, to travel for work or education (but only if this cannot be done at home) and for exercise.

It also restricts gatherings “in a public place” of more than two people. There are limited exceptions which include whether the people are members of the same household, for work or education gatherings, fulfilling legal obligations, attending weddings or funerals (although the numbers allowed are restricted), providing emergency assistance or care for a vulnerable person, facilitating a move or fulfilling legal obligations.

The Order goes further and requires certain premises to be closed to “members of the public”. Relevantly, for owners corporations and community associations these premises include:

• “amusement centre” – which is defined to encompass any area mainly used for billiards, pool or like games;
• “micro breweries or small distilleries” or “cellar door premises” – which is likely to affect some of our Hunter Valley community associations;
• “recreation facilities (indoor)” – which is defined to include indoor pools, spas, gyms and other indoor areas used for indoor recreation “whether or not operated for the purposes of gain”,
• “any outdoor playground equipment in a public place” and
• “any outdoor gymnasium equipment in a public place”.

The argument put out by some lot owners is that the common property of an owners corporation and the community property of a community association is not a public place and that it is not open to members of the public. The dispute over is it a public space? / is it a private space? has been raised in the context of anti-discrimination legislation (which will be discussed in a future blog) but it has not been raised in the context of a Public Health Order.

To my mind the public/private argument should not be relevant in this context. Why? A Public Health Order must be characterised as the ultimate form of beneficial legislation. Its whole purpose is aimed at keeping the people of NSW safe and therefore should be interpreted as widely as possible.

I also note that the Public Health Order specifically provides that other privately owned spaces, spaces where the owner/operator can select who can be on the property such as restaurants, motels, amusement centres, beauty salons, education centres etc are included in the Order.

The second issue comes down to common law negligence and insurance. If for instance, an owners corporation or a community association decided to keep its recreation facilities open on the basis that it believed it was not subject to the Order as it was a private space used by its members then it leaves itself open to claims in negligence.

Read next: NAT: COVID-19, Insurance and Strata Properties – FAQs

How? The key reason that the Order was issued was that COVID-19 is extremely contagious and potentially fatal. The owners corporation or community association would have a hard time arguing that it did not know these facts. To not know these simple facts would require the members of the scheme to have not listened to any form of news and to have not spoken to anyone outside the scheme in the last say six weeks.

It means that if a person contracts coronavirus, uses that area and unwittingly infects others in the scheme that the scheme has left itself open to a claim it contributed to the person catching COVID-19 by ignoring the risks and knowingly allowing the use of the area. Given that many insurers have been quick to bring out their pandemic clauses, the owners corporation or community association may not be covered in this instance.

Read next: Coronavirus could spark legal action by the families of those who have died

For these reasons, and on the basis of simple common sense and a desire to assist the community at large, owners corporations and community associations should temporarily close down any games rooms, indoor recreation facilities etc.

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.

This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.

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

Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.

This post appears in Strata News #336.

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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Read next:

• SCA (NSW): Concern About Growing Impact of Coronavirus Disease 2019 in NSW
• NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much
• NSW: Q&A Short Term Letting, Airbnb and Coronavirus
• NSW: Strata Managers to Take Leading Role in COVID-19 Crisis
• NSW: Owners Corporation Meetings in the Time of COVID-19
• NSW: Impact of COVID-19 on Contracts For Remedial Works

Visit:

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

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