Since restrictions were introduced for COVID-19, we’ve been receiving questions from strata managers and residents about whether committees should be closing pools, gyms, public showers or saunas. We draw your attention to the fact that the situation has changed regularly, and restrictions differ in each state. This most recent response has been provided by Chris Irons, Hynes Legal in July 2020.
Question: In our apartment building, with the lifting of restrictions our pools and gym are now open, but the showers and sauna remain closed. Why is this?
I live in a strata Building in Southport, QLD. We have three high rise buildings with all amenities such as two pools, gym, saunas, spas and showers including toilets.
I don’t understand, why our gyms, spa’s and pools are open, but all showers and saunas are closed? It doesn’t make any sense. Why would this be the case ?
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Answer: If the closures are COVID-related, in some circumstances a body corporate may have no choice in whether a facility is shut.
What do the committee or general meeting minutes say about closures? That’s the first place to start. If there are no minutes or you don’t get them, that’s a separate issue – needless to say, that shouldn’t be happening.
More to the point, you say it makes no sense and you want help understanding, but have you actually asked the question of your committee, onsite manager or body corporate manager at all? Again, if you’ve not done any of these things, that’s a good place to start.
If the closures are apparently COVID-related, then you should be having a look at the directives issued by the Chief Health Officer for possible guidance. In some circumstances, a body corporate may have no choice in whether a facility is shut.
While I appreciate you have queries, you need to take responsibility to discover information – and answers – about your building for yourself. There are ample ways to do that, as I’ve highlighted above.
This post appears in Strata News #377.
Have a question or something to add to the article? Leave a comment below.
Chris Irons
E: [email protected]
P: 07 3193 0500
W: Hynes Legal
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The Queensland government has issued a comprehensive plan for the reopening of different recreation facilities. Body Corporates are in the unique position of being responsible for a number of these facilities (gyms, pools and saunas) all of which have different Covid-19 checklists and management plans for their re-opening which are the responsibility of the body corporate to monitor and enforce.
SIE is of the understanding that the Body Corporate in this instance is a PCBU, meaning the facilities it operates are categorised in the same way as a commercial pool, gym or sauna. Non-compliance will also attract the same fines as a commercial entity.
The covid-plans and checklist requirements are as follows,
Pools – https://www.covid19.qld.gov.au/__data/assets/pdf_file/0009/130005/Swimming-Pool-and-Aquatic-Centre-Industry-COVID-Safe-Plan.pdf
Gyms – https://www.covid19.qld.gov.au/__data/assets/pdf_file/0028/129925/Industry-COVID-Safe-Plan-Fitness-Facilities.pdf?nocache-v1
Saunas – https://www.covid19.qld.gov.au/__data/assets/pdf_file/0020/132293/COVID-Safe-Checklist-Beauty-Salons.pdf
You will note that Saunas fall under a different form of management under ‘personal services’ meaning the government has identified that these facilities pose an increased risk of transmission of Covid-19. They have increased cleaning requirements (between each use), collection of data and monitoring of hygiene during use. This is a likely reason why a body corporate may have decided not to re-open its facility yet.
It is ultimately at the discretion of the body corporate how they manage their risk in relation to covid health directives, checklists and possible fines.
Thank you for the reply and I take the last point as being my point. “Is this the right human and compassionate response to provide hand sanatisers for the out building” We have as I stated a large number of aged people who are in the defined critical area for Covid 19. You would hope that the committee and Managers would take these people as being worth caring for. Maybe the committee and the managers have other things on their mind such as closing the pool from use, but keeping it pumping and obviously chlorinating for the next 6 months without people being able to use it what a waste of Money.
I am the only resident who uses the pool for exercise. Others do not even use it for recreation. Due to podidatric problems I cannot exercise any other way.
Can I continue to swim? I would exit the pool if someone else turned up.
Thank you.
Hi Louella
We’ve received this response back from Chris Irons, Hynes Legal:
If the body corporate has made a decision to close the pool then you can ask the committee for its reasons, if you don’t have them already, and also put your concerns to them. Remember that the committee may have had no option in closing the pool – it might be part of a government directive. After that if you continue to have concerns about the pool closure you may need to seek further advice about your options. I’d urge you to bear in mind that at the moment, people all around the world have had their lives upended and changed, and your inability to use the pool may unfortunately be part of that.
The body corporate has closed our common outdoor swimming pool. Stating due to Coronavirus health and safety measures. What right do I have as a tenant/occupier to access the people? I thought body corporate cannote restrict tenants using parts of the common property? The government has not closed private pools?
I too have been debating this same issue. I want to keep using the pool which is outside and only used by around 3 / 5 people regularly all of an age of no concern and cannot see why I cannot at my own choice. I have requested to do so as a mental health issue to assist in my well being. Surely if the BCC have put signs up, then they have covered themselves and I can use at my own risk?
Exactly. I asked this too but body corporate was quick to dismiss it and reply with a link to health.gov.au (refusing to even highlight the section related to this issue). If the pool is used for exercise purposes what is the issue? For some, that’s all they can do (rehab). Surely a common-sense approach of:
An agreement from tenants to keep social distancing. Only 2 people using the pool at any one time. The pool is only for exercise and rehabilitation. Pool limited to residents only (no friends or family). Restrictions if a tenant has a positive result to COVID-19 and has visited the site (it’s now a criminal offence not to self-isolate when you should be). All individuals are responsible for following guidelines to minimise infection.
At the very least if we can’t use rooftop areas (pool, gym, BBQ (I understand the banning of the later 2) we should have discounts to our strata bill given they will need to do less cleaning, maintenance, and they don’t even need to show up to the building now.
I love how these decisions can be made by strata without a vote or any transparency whatsoever…
Hi Michael
We’ve received this response back from Chris Irons, Hynes Legal:
A body corporate may have no choice in the matter. If the government has issued a health directive, the body corporate may be bound to follow that and close the pool. There may be significant penalties otherwise, which you as an owner would ultimately have to contribute to.
If you don’t think the decision to close the pool was properly done, then by all means speak with your committee to voice your concerns. At that point, if you still have those concerns you may need to seek legal advice.
In relation to levies, bear in mind that it’s likely the body corporate might be incurring other, additional expenses at the moment in the form of cleaning common property or via the body corporate manager having to respond to the increased volume of enquiries from owners and occupiers about their COVID-19 concerns.
Hi Erin
We’ve received this response back from Chris Irons, Hynes Legal:
Thanks for your comment Erin. You need to bear in mind that the committee may not have a choice in the matter if the government has issued a direction for pools to shut.
Remember also that what occurs in a body corporate is about the collective and the needs of all owners and occupiers need to be weighed against the needs of an individual. While you might have valid reasons for wanting the pool open, the committee might have equally valid – if not moreso – reasons for wanting it shut. Your wellbeing is, with respect, just one element of everyone’s wellbeing the committee has to consider.
You’re perfectly at liberty to write to the committee to ask, if it’s not clear already, on what basis a decision has been made to shut the pool. You’re also free to put to the committee the ideas you state in your comment. You may also be able to challenge the decision, bearing in mind what I said earlier about there possibly being no choice in the matter on the part of the committee.
A final point – this is a stressful time for many people. Compassion and humanity are essential in our day to day communications and behaviour, particularly in a body corporate which is, after all, its own community. With that in mind, I’d suggest you don’t use phrases such as ‘an age of no concern’. There have been reports of COVID-19 causing serious symptoms, if not death, to people across a wide range of ages. Using statements like this might be offensive to people of a different age to you, which may not help your case on this particular issue and may put you offside with your strata community.
Hey guys, the latest health directive says that all shared pools including those in “apartments” must close. The only exception is backyard residential swimming pools. It appears pretty clear cut that ‘apartments’ means a body corporate??
Which state is this? Different states have different directives.
because the complex has many visitors, Trades people mainly I suggested that the Committee should place hand sanitisers at the entry doors of the buildings (We have 5 separate Buildings within the complex). A notice should also indicate the use of the hand sanitiser. The Buildings have upto 7 floors so the use of the Lifts should also be cleaned far more regularly than before or the use of the sanitisers should be mandatory before entering the lifts. . There are significantly large numbers of aged people within the complex (Over 60’s). Since these seem to be the more susceptible age group I would have thought that these types of actions would be mandatory? Is there any liability on the Committee or the Managers if they take no real action
This response from Chris Irons, Hynes Legal:
Thanks for your comment Edward. I need to clarify at the start that I can only talk about body corporate issues because that is my area of expertise. I can’t comment on what is or should be mandatory in other respects. The government has made many directions and orders during this pandemic and you’d need to check with the relevant Health departments about whether there’s a mandatory direction for the situation you describe.
If there’s not there’s nothing stopping the committee from doing what you suggest. They can take that decision themselves or you can put that to them. If you’re an owner then you can put it in writing and request the committee consider it as soon as possible. Even if you’re a tenant you can still communicate with the committee and voice your concerns. Remember that hand sanitiser is in very short supply at the moment so while you may have good intentions, there seems little point in requesting something be done if there are no supplies to carry it out.
Section 101A of the Body Corporate and Community Management Act 1997 (Qld) provides that committee members are ‘not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member’. The decision here is one for the committee. Managers – be either onsite managers or body corporate managers – are not the body corporate and can’t just decide to do something, without having a clear instruction from the body corporate to do so.
Finally, I want to make a point I’ve been making a lot lately: forget about legislation for a moment and think about the humanity of the situation. The world is in a pandemic. Everything we know has changed, dramatically. So too does our thinking have to change. Maybe the better way of thinking of things is, is it the right human and compassionate response to provide hand sanitisers (assuming they can be found) for out building?