QLD: Q&A Confining Residents During COVID-19 Lockdown

A Qld lot owner asks whether residents can be confined to their own floors during the COVID-19 lockdown. This information was correct at the time of publishing.

Table of Contents

• QUESTION: During the current lockdown in SEQ (31/7/21 to 8/8/21) is our body corporate required to shut our gym in our strata scheme?
• QUESTION: Several owners would like to keep our pool open throughout any future lockdowns. We have put COVID safe plans in place. Who do we contact to see if we can have an exemption?
• QUESTION: Our Body Corporate will not open our gym or BBQ and seating area around the pool due to COVID 19. We feel that we are being treated unfairly.
• QUESTION: During the COVID-19 lockdown, can Body Corporate request residents keep to their own floor unless there is some compelling reason to do otherwise?

Question: During the current lockdown in SEQ (31/7/21 to 8/8/21) is our body corporate required to shut our gym in our strata scheme?

I am the committee treasurer for a 70 lot strata scheme in Brisbane. I have trawled through the QLD Health directive regarding the current lockdown in Brisbane and SEQ (31/7/21 to 8/8/21) and I cannot find anywhere that requires private gyms in strata schemes to be shut.

Any reference to gyms being required to close is made in the context of a commercial premise. I looked up the definitions and the definition of a “residence” is (paraphrasing) a house, unit or apartment including the land it is located on. My interpretation of that is that common property in a strata scheme is part of the “residence”. Therefore I do not see how it can be concluded that a body corporate is required to, or even permitted to, close their gym.

The same directive has an explicit example whereby pools in a residential complex are able to remain open provided they are being used solely by permanent residents. It is silent on every other aspect of common property within a strata scheme.

It would seem to me that the risk of a private gym in a complex would be quite a low risk for covid transmission because they are typically not very highly utilised, and are typically only used by a small number of residents, and usually the same people regularly – easy to contact trace and only a small number of potential contacts. In the absence of any directive specifically requiring body corporates to close residential gyms, it seems to me as though they could remain open, but the body corporate may have reasonable cause to introduce certain measures. My ideas were to have the QR check-in code at the gym, enhanced signage around cleaning and sanitisation of equipment after use, strict adherence to “resident use only” policy, and even possibly introduce a requirement for only one household to be using the gym at once if they wanted to be very strict – perhaps via a fair use booking arrangement.

I think the approach of simply shutting common property facilities discriminates against strata residents because other than not being allowed to have visitors, residents of freehold houses are not restricted in what they may do in their own residence. I also think that it is not a proportionate response to the risk.

3 days without going to the gym is fine, 8 days is starting to get a little frustrating, but if these lockdowns are going to remain a feature of life for the next 6-12 months, then I believe it is worthwhile trying to get a risk-managed solution in place so that we can retain as much normalcy back in our lives as possible. I want to take this to our committee but first I need some more facts in terms of what the law says we can or cannot do – despite my best efforts I can’t find anything.

I would really value a response from someone in the legal profession as I admit this is merely my unqualified opinion.

Answer: Emergency COVID legislation is in place which empowers a committee to restrict access to common property but only if it to comply with a health direction.

Noting what you say about a response from someone in the legal profession, I am not providing you legal advice, more a general observation. You may need to speak with a legal practitioner and obtain your own qualified legal advice.

Let me firstly say that I don’t think this is an issue of discrimination or proportionate responses. This is an issue of what is and is not an appropriate decision for a body corporate to make.

You are quite right in that the Chief Health Officer’s most recent directions, at the time of writing (roughly the afternoon of 2 August), make no explicit mention of gyms in a body corporate.

With that in mind, the decision to open, close or otherwise regulate access to common property gyms is one that needs to be considered by the committee. The first question is, can they consider it? Emergency COVID legislation is in place which empowers a committee to restrict access to common property but only if it to comply with a health direction. Without that qualifier in place, it may well be the case that a decision to close a common property gym is a restricted issue for the committee and thus, would need to go to a general meeting for decision.

All of the practicalities you cite about QR codes and so forth, are all useful and relevant if and when this issue is considered at a meeting.

I must stress, each situation must be considered on its merits and it’s not possible to give you a definitive answer in this forum. If you haven’t already done so, I recommend you start a discussion with other committee members and owners as much as you can. It’s not clear, for example, if there is widespread support for your position, or if some owners and occupiers feel it is appropriate that common property be restricted during times of lockdown.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #499.

Question: Several owners would like to keep our pool open throughout any future lockdowns. We have put COVID safe plans in place. Who do we contact to see if we can have an exemption?

Several owners would like to keep our pool open throughout any future lockdowns. There are at least 5 owners who want to continue swimming, have discussed common sense issues and having a COVID Safe Plan in place.

3 owners have concerns about the pool being used during lock down and would like it to be closed. Can’t they just stay away?

Who can we contact to see if we can have an exemption.

Answer: It’s not necessarily a restricted issue for a committee to restrict use of common property, so long as that restriction is in line with a health directive.

It’s important to note that each time there are any COVID restrictions, including lockdowns, the detail of those restrictions can be different depending on the circumstances, e.g., how long the lockdown lasts.

Looking at the most recent lockdown in Queensland, i.e., the one which commenced in the week of 28 June 2021, the relevant directive provides for various restrictions, and then also some exceptions. Under Schedule 3 of that directive, there is a listing for swimming pools and the exception listed reads as follows:

The following are permitted to operate:

1. a pool in an apartment complex or body corporate; and
2. which is only used by permanent residents of the apartment complex or body corporate; and
3. no visitors are permitted to use the pool.

So all 3 of a, b and c would need to apply in order for the pool to operate.

It’s also important to add the committees have been given legislated powers under emergency COVID regulations to restrict access to and use of common property in order to comply with a health directive. In other words, it’s not necessarily a restricted issue for a committee to restrict use of common property, so long as that restriction is in line with a health directive.

Would closing your pool be in line with the above? That’s obviously a matter for interpretation and would probably vary from building to building. Remember also, the committee must act reasonably in everything it does, so it can’t close a pool if there’s no health directive in place warranting that.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #404.

Question: Our Body Corporate will not open our gym or BBQ and seating area around the pool due to COVID 19. We feel that we are being treated unfairly.

Our Body Corporate will not open our gym or BBQ and seating area around the pool due to COVID 19. Owners that reside on the property are frustrated that they are not opening these areas and frankly, have had enough.

Most owners need to use the gym for health reasons. We already had in place the self-cleaning of equipment before and after use with hand sanitizer, and using your own towel etc. available prior to COVID-19.

They will not communicate to us about these matters and ignore answering emails sent to them via the managing Body Corporate.

I hope you can advise us what we can do because we feel that we are being treated unfairly as they keep ignoring the requests to open these facilities.

Answer: You may wish to consider requesting an extraordinary general meeting to have the closure of facilities revisited and potentially overturned.

You may wish to consider requesting an extraordinary general meeting to have the closure of facilities revisited and potentially overturned. You’ll need signatures from 25% of all owners for that to occur. Based on your email you shouldn’t have a problem achieving that.v

All eligible lot owners can then vote on the motion and if it doesn’t pass – or the meeting isn’t called – you can challenge that through the Commissioner’s Office. In general terms, while committees are responsible for day-to-day decision making, they don’t have absolute powers and there are some thing they are not permitted to do by law. These are known as restricted issues and there have certainly been cases in which closing shared facilities has been found to be a restricted issue.

A note of caution: as I’m sure you are well aware, the situation with COVID can change very quickly. While there’s no health directives at present requiring closure of facilities such as pools and gyms, there certainly was once and that means there could be again. Bear in mind that by the time you get to your meeting, COVID requirements could be very different and the outcome you seek no longer as relevant. There may also be very good reasons why your gym and pool are closed – although, of course, you don’t know either way, because there’s seemingly been no minutes about any decisions.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #404.

Question: During the COVID-19 lockdown, can Body Corporate request residents keep to their own floor unless there is some compelling reason to do otherwise?

I have a question regarding building access during this time of Social distancing and lockdown.

Can the Body Corporate send a request to all residents asking them to follow social distancing rules by keeping to their own buildings and their own floors unless there is some compelling reason to do otherwise?

Answer: If the body corporate proposes to restrict access to common property, it needs to follow proper decision-making processes.

There is a world of difference between ‘requesting’ someone do something and ‘compelling’ or ‘ordering’ them to do something, or suggesting that it is an order. So the body corporate is perfectly entitled to ‘request’ residents to do what you describe. Similarly, you can ‘request’ these kinds of things if you want.

Access to different parts of your building or different floors may be a slightly different story. The body corporate is responsible for maintaining common property and if it proposes to restrict access to common property, it needs to follow proper decision-making processes.

Again though, it’s important to be clear what we’re talking about – if it’s a communication from the body corporate with helpful suggestions about preventing the spread of COVID-19, including restricting movement within the building, then not only is that fine, it’s actually pretty admirable and socially responsible. If it’s a communication saying you’re no longer allowed to access a part of the building that you are usually able to access, that might be a very different story.

More to the point, if you’re following social distancing or self-isolation directives of government during this time, I’m not sure why you would be wanting to travel to other floors or parts of the building anyway unless it falls within the ‘essential’ category.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #339.

Have a question about residents being confined during the COVID-19 lockdown or something to add to the article? Leave a comment below.

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Read Next:

• NAT: Q&A Closing Strata Pool & Gym Because of Coronavirus (COVID-19)
• NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much!
• QLD: Q&A Resident Managers Cleaning Common Areas – COVID-19

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