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Our building has become a noisy skate park.
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Fey Knows
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17/11/2017 - 5:32 pm
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A small group of children ten and under play often on skateboards and scooters in the all-concrete garage-car park area of our 42 unit block. It consists of children from two apartments here as well as their visiting friends. This is extremely noisy as it is a three-quarter-enclosed, echoey area and we feel the vibrations from their scooters and skateboards three levels up. It is also extremely dangerous with cars coming and going and blind-corner-doorways.

Of course, there are by-laws in place which they are defying.

The Strata Committee has been asked to stop them via the parents a number of times and the parents have been asked to stop them but it just goes on and on. The Strata Committee does not even acknowledge approaches and mine aren't the only approaches to them. (Our Strata Manager is not worth mentioning.)

We have a General Meeting coming up soon and I would like to briefly raise the issue which isn't on the agenda and think I should perhaps flag my intention with a brief email to the Strata Committee. We're desperate here; it's time to threaten the Committee with something but what? Tell them I'll take them to NCAT for not enforcing by-laws? What'll make them do what they should do?

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scotlandx
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19/11/2017 - 4:59 pm
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Tell the GM that if they don't take action you will be compelled to notify the insurer that children are engaging in dangerous activities on the common property, and that the OC refuses to do anything to stop it.

If something happens to a child in these circumstances the OC will be liable, and if the insurer knows that the OC did nothing to prevent it, they will refuse to pay and the owners will be personally liable.

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Digby
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20/11/2017 - 2:47 pm
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Hi, 

Put it on the meeting agenda for discussion ask all unit lot holders to bring what ever evidence or communication they way of had with the offending unit holder. 

You will have to move a motion to fine them for breach of the bylaws for excessive noise in the common area of the complex. Check department of fair trading in your state.

Kind Regards 

Digby

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scotlandx
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20/11/2017 - 5:42 pm
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Digby - the key issue may not be noise on the common property, because in the case of noise it has to interfere with a resident's reasonable enjoyment of their property.  The OP indicates that vibrations/noise are an issue, but this may be difficult to prove.  It is much easier to go the other route I suggested.

The essential element is that children should not be allowed in an area like that unsupervised, and they certainly shouldn't be riding skateboards.  The model by-law that deals with that is:

8   Children playing on common property

(1)  Any child for whom an owner or occupier of a lot is responsible may play on any area of the common property that is designated by the owners corporation for that purpose but may only use an area designated for swimming while under adult supervision.

(2)  An owner or occupier of a lot must not permit any child for whom the owner or occupier is responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area or other area of possible danger or hazard to children.

Schemes usually have by-laws that are similar.  Even if there isn't a by-law like that, allowing children to do that when it is so obviously dangerous is just plain stupid and opens the owners up to personal liability.

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Sir Humphrey
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21/11/2017 - 8:24 am
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I would be suggesting that the following bylaw be proposed for adoption at the general meeting:

"(2)  An owner or occupier of a lot must not permit any child for whom the owner or occupier is responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area or other area of possible danger or hazard to children."

Then, if the problem persists, you have a breach of a bylaw that is clear and explicit and recently adopted in the light of the current problem. That should make it far easier, if necessary, to demonstrate to both insurers and the Tribunal that the OC has considered the matter and is taking action. 

BTW. If there are areas of common property in which children can generally play harmlessly, then I would adjust the wording to just exclude the carpark. I would not want children to be prevented from having harmless unstructured unsupervised play. 

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bluehouse
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23/11/2017 - 12:08 am
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Yikes! The OC can be responsible if something happens to the children and the insurer can say we didn't prevent the playing?  I have made repeated efforts to stop a similar situation in our complex but with limited success. Can we still be responsible if parents ignore our requests?

We have a similar issue of kids on scooters and bikes but we are townhouses so the kids are racing down our very steep driveway to a couple of parking spaces at the bottom. There is a blind corner before the run down the hill and some residents drive too fast around it. Each house's carport opens directly off the drive. The kids in question are about aged 10 and down (so not necessarily able to assess the risk in a situation).  The issue to us is not the noise, but the danger to the kids.

I have spoken to the parents on my own behalf to suggest what they are doing is not safe "Its' really not safe what the kids are doing, we'd hate it if anything happened to them.  (Maybe if you are going to give your kids scooters without brakes, at least get them to them wear shoes!)".

Then as Secretary of the EC, I have explained the same "Children playing on Common Property" by-law pointed out by Scotlandx , and pointed out the risks to the children again. (One parent from one family sometimes comes out to watch the kids now).

Then as Secretary, I started getting complaints and expressions of concern one by one from all the residents without children, or residents with children who aren't allowed to do this, (or residents whose kids have now left home and were never allowed to do it). While we do have a few owners who make complaints just because a rule has been broken, I do believe that in this case the complaints are genuinely based on concern for the kids, and the anxiety of not wanting to be the one who accidentally hurts them. (People have even changed the way they park  to try and decrease the risk of the kids being hit). So I have passed on to the parents that there have been complaints, and that other residents would like the  parents to stop the kids doing it. Because the only by-law I could find to apply was no. 8 given above, I said that if they are going to let them do it, the kids need to be strictly and closely supervised by a parent at all times. (which it seems is too inconvenient to do).

Next I have sent out a letter via the Strata Manager, reminding all owners and residents of the by law that children need to be closely supervised and that children playing on the drive is dangerous. I also requested that drivers keep to our speed limit (5km). 

Most recently, I have spoken to the kids doing it myself directly, in case the message has not been passed on to them. (Oh! the sadness on a 6 year olds face when you tell them they cant ride their scooter on the concrete.)  I went and stood with them until they all responded and got off the drive to make sure they all got the message. 

The kids have now taken to riding down the sides of the drive, which I suppose is marginally better, but still not safe. I am not sure if they do that all the time or just when I am looking. 

I really resent having to talk to the kids myself, and having to speak to the parents more than once, as I don't feel the secretary should have to be the "strata police". But then I guess this whole website would be only half as big if our owners behaved appropriately out of a sense of responsibility to their communities.

Since then the matter has arisen at an EC meeting, but only in the context of peoples continued concern. We didn't really know if we could/should do anything more. 

Have I/we made reasonable efforts to stop it? Is there a reasonable next step?

The sad thing is that the newly moved in child who has started the use of the drive in this way, has managed to get many kids out playing together, including kids who have never been outside their houses (or away from their computer games) to play before. It is building up a nice sense of community among the kids that would be terrible to see lost due to this issue. We have a separate playground area, but it would really only entertain younger kids. 

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fcd
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23/11/2017 - 8:43 pm
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A couple of things.

You can't actually force control over someone else's behaviour. Plus while you can apply some sort of management to reduce risk, you can never completely eliminate risk to zero.
So if you've made reasonable attempts to make your community aware of the risk, then there's not much else you can do. (You shouldn't have to give yourself an ulcer worrying over this.)

Let's be really clear here; Kids on scooters do not hurt cars.
It's the vehicle movements that cause the hazard. So rather than stopping the kids actually forming the community that us adults often fail to do, and having some healthy outdoor fun to go with it, how about directing some energy to addressing the cars' problem? Even in the event of a collision I'd say (as a non-lawyer) that the vehicle driver makes a much-much larger contribution to 'negligence' than the OC does.

Plus letting the kids have some more free rein to scoot more often will tend to improve their safety - other members of the community will have seen them and have every reason to expect them to present on the driveway. It's a phenomena that's been studied and reported on that drivers will drive to the conditions they see/expect to see. Such as studies of bicycle rider safety which show that the more riders are in an area the rate of crashes (per 1000) will actually fall because of a safety in numbers/noticeability effect.

So are drivers expecting to see a driveway free and clear to 'speed' on, or are they expecting a driveway 'congested' with other non-vehicle users?

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scotlandx
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23/11/2017 - 8:51 pm
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I think we have been down this road before, but essentially a group of children are using a common property carpark as a skate park. I am not going to get into an argument, but that is wrong.  Go to your local Westfield and try it.

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fcd
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24/11/2017 - 12:13 pm
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I guess it depends on how the driveway space is perceived.

Is it as single-purpose-use? (cars only) To be kept free and clear for the exclusive use of vehicles?
Or can it be a shared, multi-purpose space that creates benefits for the townhouse 'community' beyond just vehicle movements? E.g., Imagine having a Christmas 'street party' on the driveway. Residents sharing food and conversation and deliberately choosing (for a couple of hours) to not use their cars.

In quiet streets kids use their driveways and the road as extended play areas, and this 'idyllic' image is something many people remember fondly, or aspire to. The OC community can choose whether they want to promote this sort of environment on their driveway.

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bluehouse
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25/11/2017 - 12:26 am
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It turns out that one of the reasons I have seen some drop in the kids use of our drive is that they have moved to using the drive of the complex next door and sadly, there has been an accident and a child hurt there earlier this week. Not a bad one, but enough to be very distressing to the driver, child, and childs family.  The car was moving slowly and the child hurtled down the hill into its side and flew off the scooter.  (The drive next door is parallel to, and has the same hazards as ours.)

I wrote previously that its not a matter of harmless fun among the kids, but physically dangerous activity regardless whether there are cars present or not. Once you add the fact that there are blind corners both onto the main drive and then into many of the individual lots, as well as a tendency of some drivers to speed (by that I mean well over our limit of only 5km) it becomes very dangerous. I think that residents should have the right to be able to manoeuvre out of their own lots without the risk of hitting a child. Or a child hurtling out of nowhere, on a scooter without brakes, paying no attention to what cars may be doing and ploughing into their car.

The complaints I've had from owners have not been because they didn't want kids using common property for fun activities, but because they don't want a child hurt. The by-law against kids using dangerous common property unsupervised is  the one I can apply to the situation to try and stop it. (There is nothing stopping the parents coming out and checking the kids are behaving safely.)

The situation cant be compared to studies of increased awareness by drivers of adult cyclists using roads for two reasons: One, kids under 10 simply don't have the ability to assess the risks or have the insight to imagine what could happen in a situation, or react appropriately. They are unpredictable and it would be unreasonable to expect them to be anything else. The example of cyclists on roads relies in part on the cyclists behaving safely and predictably as well as the cars. The second reason that the studies don't apply is that the results are based on STATISTICS and show accident rates DROPPING - we live in a specific case and don't want ANY accidents. 

The idyllic image of a multi-use driveway open space simply isn't realistic. We wont be holding our christmas party there as its steep and uncomfortable and generally an unpleasant place to hang out. We'll in the BBQ area with the child's playground next to it. 

But back to my original question in response to the comment that ScotlandX made that insurers wouldn't pay if the OC have not stopped the activities. Is what i have done so far adequate? Or do we have to keep taking it further? And what would further be? 

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dan
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25/11/2017 - 5:40 pm
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If bylaws are being breached then the OC or the SC (if they have had this power delegated to them) has the option of deciding whether to issue a notice to comply and ultimately applying to the Tribunal for the recalcitrant residents to be fined if the breaches continue. This would certainly show an insurer that an OC had attempted to use every means it had available under the Strata Scheme Management Act.

We're in a similar situation with unsupervised young children riding bikes and scooters on the main driveway which is actually owned by another strata complex behind ours. It's not all our common property and we only have the right to drive on it to gain access to our various driveways which branch off it. The Strata Manager has sent on average two letters a year to residents stating that complaints and concerns have been received.  The letters have been largely ignored and as Secretary I have asked our Strata Manager to include an agenda item for our upcoming AGM to issue Notices to Comply to the recalcitrant residents.  

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scotlandx
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26/11/2017 - 3:07 pm
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bluehouse - this is not legal advice.

I think the OC would have to take all reasonable steps to ensure that the residents are aware of the by-laws, and the OC's position in that regard.  This may include things like sending a very firm letter to residents advising that these activities are a breach of the by-law, and that they are not permitted under any circumstances - that letter could be refreshed a couple of times a year.  You could advise that if any children are found to be playing in that area they will be told to leave.  You may also want to speak to your insurer to ask them what they expect.

Bear in mind that if something did occur, and someone was injured, if a court held that the OC was not liable, then the insurer wouldn't be liable either.  That might focus parents' minds a bit.  It is strange how parents don't seem to care until something terrible happens, and then it is someone else's fault.

A driveway is not a shared multi-purpose space, it is a driveway.

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