COVID-19: Children playing on common property in NSW

As our isolation continues, a theme is developing with increasing queries about what is the situation with children playing on the common property. Let’s unpack this and consider the effect of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, the model by-laws, the Strata Schemes Management Act 2015 and the common law.

Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020

The public health order has been amended as of 1 May 2020. It prohibits people from leaving their home except with a reasonable excuse.  A non-exhaustive list of reasonable excuses is set out in schedule 1 of the order and now includes attending another person’s residence to provide care or support including supporting their mental, emotional or physical health provided no more than one other visitor (not including children) is present.

Gatherings of more than two people in a public place are still prohibited although there are exemptions if the people are members of the same household and gathering is for work, a wedding (limit of five people),a funeral (limit of ten people), moving to a new place of residence, providing care or assistance including emergency assistance or to fulfill a legal obligation.

It also requires certain facilities to be closed to the public including recreation facilities (indoor), outdoor playground equipment in a public place and outdoor gymnasium equipment in a public place.

Public places are considered to be places that are open to the public, or used by the public (whether for consideration or not) and whether or not the place or part of it is ordinarily open or used and whether or not the public to whom it is open consists only of a limited class of persons.

Does the public health order apply to common property and association property?

This is the $64M question and this post should be considered as an update to my post in April on this topic. In my view there are two considerations.

The first, is that strata and community schemes are private properties and therefore the public health order does not apply. Decisions in a discrimination law context support this view with decisions to the effect that the common property of a strata scheme was private property not open to the public except by invitation. Applying this reasoning the common property in a strata scheme would not be a public place.

This approach is supported by other terms in the public health order including the definitions of “place of residence” and “household”. Household means any persons living together in the same place of residence. Place of residence is defined to include “the premises where a person lives together with any garden, yard, passage, stairs, garage, outhouse or other area or thing attached to, or used in connection with, the premises”. Therefore, as common property facilities are used in connection with the premises, they form a place of residence and their use is not restricted to people living in those places of residence.

The complication to this approach would then be that the occupants of individual lots share parts of their place of residence with the occupants of other lots. Does this then make all occupants of a scheme part of the same household? This would be against the very purpose of the public health order as occupants would be able to freely mix on the common property or association property within the scheme’s boundaries as these areas would be considered to be part of their residence.  

The second, relates to the meaning of “public place” under the public health order and whether or not common property or association property (or part of it) is open to the public even if to a limited class of people. Think visitors (invited and uninvited) and contractors. The range of people who are able to access the common property of each scheme, even if it is only initially the front entrance, would include emergency services personnel, delivery people, guests whether invited or not, contractors and tradespeople. Arguably, these people are part of a limited class of the public able to access in most schemes at least part of the common property or association property. If the entrance is not secured then other internal common areas and gardens that are not fenced may also be accessed which may make those areas a public place under the public health order.

To ensure the common property or association property of a scheme is not considered to be a public place it would be wise to consider posting notices (with approval of course) stating that the scheme is private property and entrance is by invitation only although this would not be possible for all areas of a scheme if easements or open access ways provide rights of access. For instance, if a park in a community association has an easement permitting public access then this would be a public place as would any public accessways to get to the park and any playground or gymnasium equipment in the park would need to be closed.

Each scheme will need to consider how open their common property or association property is and whether it could fall within the definition of a public place under the public health order meaning any indoor recreational facility, outdoor gymnasium and playground equipment must be closed to members of the public. If children were playing in any of these areas that could be considered a public place then this would be in breach of the public health order and fines would apply.

Common Law Negligence & COVID-19

The public health order does not affect a person’s rights under the common law leaving open the possibility of a lot owner, occupant or visitor suing the scheme in negligence if they contracted COVID-19 and could establish that they did so from either coming into contact with others while on the common property or association property or from using the common property or association property facilities. This is of significant concern as we do not yet know the extent of how long the virus remains on surfaces or even in the air or even how contagious it is. This is why health authorities are recommending caution and social distancing.  

The key question is whether your scheme’s cleaning schedules can cope with having communal facilities open? Remember, even though we are now allowed to have two visitors to our homes the NSW government’s medical advice is to still social distance while doing so. Can the facilities be used by both adults and children with social distancing in place or does use need to be restricted? Can the facilities be adequately cleaned?  It is a risk that each scheme must consider as it will differ from scheme to scheme.

My suggestion is to act as a community and for the wider community and to try to prevent the spread of COVID-19. If your scheme does leave open facilities then your strata or executive committees need to reconsider the scheme’s cleaning schedules and rules for use to try to reduce any risk even if this requires additional funds to be allocated. This may mean restricting use of a small garden area to one lot at a time to ensure everyone’s safety.

Children Playing and the Strata Schemes Management Act 2015

Section 153 of the Strata Schemes Management Act 2015 prohibits owners, tenants and occupiers of lots in strata schemes from using or enjoying their lot in a manner that causes a nuisance or a hazard to the occupier of another lot and from using or enjoying the common property in a way that interferes unreasonably with the occupier of another lot’s use of their lot or the common property.

Children playing on the common property of a scheme could cause a significant amount of noise or a repetitive noise (such as a ball bouncing) that unreasonably interferes with another the occupant of another lot either enjoying their lot (especially if they are trying to work from home) or even from enjoying the common property. This requirement should also be considered in terms of the requirement to social distance and keep 1.5m apart. Are the responsible adults allowing children of different households to mix against the NSW government’s health advice?  And further, does this activity mean other occupants have to run a gauntlet to either keep 1.5m away or to avoid balls being thrown / being trampled etc? For instance, if the play area was the front entrance requiring other lots to either use another entrance if the children would not move then it could constitute a nuisance or hazard that unreasonably interferes with another occupant entering or leaving the building.

At the moment we are all having to make compromises however that works both ways: adults need to be mindful of others in the building that will be affected more than normal from the noise and other occupants need to be aware that there may be more noise than usual. What should not be compromised on are the health guidelines to keep 1.5m apart and if other occupants are continually required to use other entrances or exits or to dodge children playing in common areas then this should be considered seriously.

What can lot owners do to enforce section 153 of the Act?

They can try to address the issue with the responsible adults directly and if this fails request action from your strata committee by sending the complaint and the particulars of the issue (dates, times, lot no.s etc)  in writing to the committee or your strata manager and requesting it be placed on the agenda of the next committee meeting. If nothing is resolved, you can apply for mediation with the responsible adults and the owners corporation through Fair Trading (this is free) and if this is not successful then you can go to NCAT seeking an order that the behaviour not continue.

Children Playing and the By-laws

The model by-laws, which are in place for the vast majority of strata schemes in NSW have a specific by-law that regulates children playing on the common property. For older schemes that model by-law will generally be very similar to this:

“An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.”

The model by-laws for new schemes are slightly different but retain the prohibition on a child being in an area of possible danger or hazard to them. In the current COVID-19 crisis playing on common property, if it is a high traffic area such as a front courtyard or a small garden, poses a danger of exposing them to the virus.

Another model by-law that may apply is the noise by-law which for older schemes will generally be in similar terms to this:

“An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.”

If the adults supervising the children are contributing to the children’s noise then they will be in breach of this by-law.

You should also consider whether the children and the responsible adult are obstructing the common property and whether your scheme has a by-law prohibiting this.

What can lot owners do to enforce the scheme’s by-laws?

They can try to address the issue with the responsible adults directly and if this fails request action from your strata committee by sending the complaint and the particulars of the issue (dates, times, lot no.s etc)  in writing to the committee or your strata manager and requesting it be placed on the agenda of the next committee meeting. You can also ask the strata committee to consider issuing a notice to comply on the owner or occupant of the lot responsible.

If nothing is resolved, or the notice to comply is served but not complied with, you or your owners corporation can apply for mediation with the responsible adults and the owners corporation through Fair Trading (this is free) if you are seeking an order that the behaviour not continue and if this is not successful then you can go to NCAT seeking an order that the behaviour not continue. The other alternative, if a notice to comply was issued and not adhered to is to go straight to NCAT seeking penalty orders against the relevant lot owner or occupant.

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.

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