We have all seen the most recent orders from the Government about using public pools, gyms, etc (Order) effectively closing them down. We have now turned our minds to the pools and gyms in strata and community schemes (Schemes).
With things moving at the speed of light the main thrust of everything is to protect the health and safety of people. So at a basic level Schemes should take the high ground and close everything in any case, even if technically the Order does not apply (which we believe it does in any case). Let us look at an example of pools or other indoor facilities (eg gyms) in Schemes.
- Section 7 of the Public Health Act 2010 (PHA) applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. The Minister is empowered to make an order declaring any part of the State to be a public health risk area and the order may contain such directions as considered necessary to reduce or remove any risk to public health in the area and to segregate or isolate inhabitants of the area and to prevent, or conditionally permit, access to the area.
- There is a definition in the PHA for public swimming pool or spa pool which includes “(e) a pool situated at private residential premises, but only if that pool is used for commercial purposes”. Most pools in Schemes are not used for commercial purposes, so the pool does not appear to fall under that definition.
- However, indoor pools or other indoor facilities in Schemes do seem to comfortably fit within the Order relating to recreation facilities (indoor).
- Generally only owners, occupants and their invitees have access to such facilities via an access card, locked gate, entranceway etc.
- In most cases, there is no policing of whether a person using such facilities is in fact an occupant. This means, for example, that an occupant of a lot in a Scheme could invite a guest (eg a family member or friend who is not an occupant) to use the facilities with them at any time. That guest is a member of the public using the facilities. So the lawyers in the room would argue that, in this situation, the Order would apply because the facilities are open to members of the public (via occupants). Equally, a person who is a temporary occupant (eg a friend housesitting or an air bnb guest) is also arguably a member of the public, so the Order would apply to them as well.
- If the Order does not apply, this is not the end of the matter. Owners Corporations have the principal responsibility for the management of strata schemes and have, for the benefit of the owners of lots in the strata scheme, the management and control of the use of the common property of the strata scheme and the administration of the strata scheme. Community Associations must control and manage association property and must do so for the benefit of its members.
- This means that owners corporations and community associations have the overall power to restrict the use of the common property and association property by occupants of lots in the Schemes.
- This awful virus (COVID-19, also known as Novel Coronavirus 2019) is not something that any of us have ever faced before. It is a life-threatening health hazard affecting each and every one of us. Closing pools and other indoor facilities in Schemes until the virus is under control seems to me to be a necessary step to take to protect the health and safety of all of the occupants in the Schemes. Closing these facilities would also be supporting the overall intent of the Order, which is to protect everyone’s health and safety including in relation to social gathering in places such as facilities in the Schemes.
- Of course, there are other risks in the Schemes that need to be tackled on a daily basis eg using lifts, door handles, garbage chute handles, lift buttons. However, they can be more easily managed by occupants taking steps to cover their faces with masks and their hands (eg with gloves, a cloth, keys) or quickly wash their hands afterwards. Using pools and other indoor facilities are quite different because there are additional risks to their use eg gym equipment, pool/spa steps and ledges that are touched and sat on, etc. Two occupants (one with the virus) could both swim in the pool and then the infected occupant gets out first, followed by the other occupant, both touching the same side of the pool as they do. Not to mention the fact that we do not know for sure if the virus can survive in water.
- There is a real risk of legal action being commenced against the Schemes in the future for failing to close their facilities to protect their occupants, if an occupant or their family member or guest falls ill (or worse) from the virus and has a claim in damages, as a result of using the facilities that were not closed when they should have been (regardless of the existence of the Order). In other words, the Schemes could face a negligence case against them and insurance policies may not indemnify the Schemes in this situation, resulting in owners/members being liable for potentially quite large contributions to pay any damages claim awarded against the Schemes. There is also the risk of a fine being imposed on the Schemes for failing to comply with the Order (if our interpretation is correct and it does apply in the circumstances described above).
- If the Schemes compare the risks and costs of a negligence claim being made against them with angry owners who have been locked out of the facilities seeking reimbursement of contributions, it seems to be a no brainer that closing the facilities is a much lower and less costly option than keeping them open.
- Also, if the Schemes close the facilities then they are also supporting and assisting the NSW Government, health professionals and the whole of society in trying to stop the spread of this insidious virus and to reduce the number of people who become seriously ill or die from it.
The Schemes would rather be criticised by occupants who cannot use the facilities than for taking no steps at all and then occupants or others using the facilities die.
If owners/occupants are that passionate about their loss of use of the facilities, they can apply to the NSW Civil and Administrative Tribunal (Tribunal) for an order that the Schemes reopen the facilities. I am sure the Schemes would much prefer the Tribunal to make the call on whether to reopen the facilities or keep them closed (and may the force be with them).
Therefore, I would say the smartest and safest approach to take is to close the facilities in the Schemes as if the Order is binding on the Schemes, because this option provides the best protection to all occupants and the management of them. The closure should be done as quickly as possible and a notice should be sent out to all occupants notifying of the closure of the facilities until further notice.
Let us know if anyone needs assistance in preparing any notice, advice or specific information for your Schemes.