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:https://www.legislation.nsw.gov.au/_emergency/Public%20Health%20(COVID-19%20Restrictions%20on%20Gathering%20and%20Movement)%20Order%202020.pdf

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 this 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 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 the Order as it was a private space used by its members then it leaves itself open to claims in negligence. 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.

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.