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

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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: 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: 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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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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