The Strata Schemes Management Act 2015 (NSW) at section 122 sets out what authority an owners corporation has to enter any part of the scheme.
Basically, an owners corporation (and it’s agents or contractors) is authorised to enter any part of the strata scheme to conduct work that is required or authorised to be carried out by the owners corporation under the Act, work that is required to be carried out by the owners corporation under a notice given to it by a public authority (for example under a fire order) or work that is required to be carried out by the owners corporation by an order given under the Act (for example under a works order).
While this is reasonably clear the effects of Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 needs to be considered.
Under the Public Health Order repairs can still be conducted. The rules differ from Local Government Area (LGA) to LGA however. Attached here is the current Public Health Order.
There are currently three sets of rules in NSW under the Public Health Order.
The first set apply to the whole of the state and are the least restrictive – they are in part 2 of the Public Health Order.
The second set of rules apply to most of the rest of the State apart from listed areas of concern – they are in part 3 of the Public Health Order. This is because currently everywhere in NSW outside of an “area of concern” is considered to be a stay at home area. These rules currently apply until 1 October 2021.
The third most restrictive set apply to each ‘area of concern’ – they are in Part 4 of the Public Health Order. The areas of concern currently are Bayside, Blacktown, Burwood, Campbelltown, Canterbury-Bankstown, Cumberland, Fairfield, Georges River, Liverpool, Parramatta, Strathfield or defined areas of Penrith (see schedule 1). These rules currently apply until 1 October 2021.
The general rules for works are:
Part 2 General Area Rules
(Currently, the whole of state except ‘stay at home areas’ and ‘areas of concern’)
- Must comply with the 1 person per 4 square metres rule for indoor areas, and 1 person per 2 square metres rule for outdoor areas: cl 2.2(1)
- No more than 5 visitors to a household: cl 2.4
- When indoors, must wear a fitted face covering unless in an indoor area for work and no one else is present: cl 2.7 & 2.9
Part 3 Stay at Home Area Rules
(Currently, the whole of the state except ‘areas of concern’ –applies until 1 October 2021.
- Must meet the 1 person per 4 square metres rule: cl 3.8 (note there is an exception for construction sites)
- Must wear a fitted face covering unless in an indoor area for work and no one else is present: cl 3.15 & 3.17
- People in a stay at home area from 9 September 2021 for the area that comprises Yass Valley local government area, and otherwise from 14 August 2021 onwards must stay at home unless they have a reasonable excuse: cl 3.2(1)
- Relevantly, a reasonable excuse includes work that cannot reasonably be conducted at home such as repair work to a building.
- Workers can attend a residence to conduct prescribed work and non-prescribed work but conditions apply: cl 3.11. This clause is extracted below:
3.11 Workers authorised to visit place of residence
(1) A worker is authorised to visit a place of residence in a stay at home area to carry out work other than prescribed work.
(2) A worker is authorised to visit a place of residence in a stay at home area to carry out prescribed work if—
(a) the prescribed work is necessary, or
(b) for prescribed work carried out in an outdoor area of the place of residence, other than necessary work—no more than 5 workers are in the outdoor area at any 1 time, or
(c) for prescribed work carried out in an indoor area of the place of residence, other than necessary work—
(i) no more than 2 workers are in an indoor area in the place of residence at any 1 time, and
(ii) no person, other than another worker, is in the same room as the worker when the worker is carrying out the prescribed work.
(3) Prescribed work is necessary if—
(a) the work is urgently required to be carried out—
(i) to ensure the health, safety or security of the place of residence or persons residing at the place of residence, or
(ii) because of an emergency, or
(b) the work is for—
(i) the installation, maintenance or repair of an essential utility, or
(ii) fire protection and safety, or
(c) for prescribed work that is cleaning or repairs and maintenance—the work is carried out—
(i) at a place of residence that is unoccupied when the work is being carried out, and
(ii) because it is necessary for the sale or lease of the place of residence.
Part 4 Areas of Concern Rules
(Currently, Bayside, Blacktown, Burwood, Campbelltown, Canterbury-Bankstown, Cumberland, Fairfield, Georges River, Liverpool, Parramatta, Strathfield or defined areas of Penrith)
- Must meet the 1 person per 4 square metres rule: cl 4.9
- Must wear a fitted face covering unless in an indoor area for work and no one else is present: cl 16 & 4.18
- People in an area of concern must stay at home unless they have a reasonable excuse: cl 4.2(1). Note what constitutes a reasonable excuse is limited by a curfew so that some activities do not constitute a reasonable excuse between 9pm and 5am.
- Workers can attend a residence to conduct prescribed work and non-prescribed work.
- Only authorised workers that have had at least 1 dose of a COVID-19 vaccine can leave an area of concern. This means that owners corporations need to ensure that any worker engaged meets this criteria. The authorised worker is required to carry evidence of their vaccination status, name and address and to provide it by an occupier of the place of work e.g. an occupier of a lot if they go to inspect a lot.
- No one in an area of concern can allow a visitor to their place of residence however there is an exception for workers visiting a place of residence to carry out works or prescribed works under clause 4.12 which is extracted below.
4.12 Workers authorised to visit place of residence
(1) A worker is authorised to visit a place of residence in an area of concern to carry out work other than prescribed work.
(2) A worker is authorised to visit a place of residence in an area of concern to carry out prescribed work if—
(a) the prescribed work is necessary, or
(b) the prescribed work carried out in an outdoor area of the place of residence and no more than 5 workers are in the outdoor area at any 1 time.
(3) Prescribed work is necessary if—
(a) the work is urgently required to be carried out—
(i) to ensure the health, safety or security of the place of residence or persons residing at the place of residence, or
(ii) because of an emergency, or
(b) the work is for—
(i) the installation, maintenance or repair of an essential utility, or
(ii) fire protection and safety, or
(c) for prescribed work that is cleaning or repairs and maintenance—the work is carried out—
(i) at a place of residence that is unoccupied when the work is being carried out, and
(ii) because it is necessary for the sale or lease of the place of residence.
Prescribed works are defined in the Public Health Order as:
prescribed work means the following—
(a) cleaning,
(b) repairs and maintenance,
(c) alterations and additions to buildings,
(d) work carried out as part of a trade, including electrical work or plumbing.
In addition, workers residing in Greater Sydney are not permitted to travel more than 50kms from Greater Sydney without a permit and without having a COVID test in the last 7 days and being negative and can be required to show evidence: cl 5.3 & 5.5
In summary, access to a lot should be provided if the worker follows all the guidelines for their area. It is not however, unreasonable for a lot occupier to refuse access unless they have evidence of the worker’s address (so that they know they are not living in an area of concern), and if they are from an area of concern evidence that they have had 1 dose of a vaccine and, if they are residing in Greater Sydney and travelling more than 50km from Greater Sydney that they have had a test that is negative within the last 7 days and have a valid permit.
This information is current as at 14 September 2021 and does not apply to a construction site. As the public health orders are constantly changing, please visit the NSW Legislation COVID page website here to view the most current public health orders.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.