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[Paddy]

We would really appreciate comments on the following situation:

We live in a strata block which fronts a river in Sydney. Our strata swimming pool is located on the waterfront.

One of our residents insists on fishing into the river from the pool area, setting up a number of lines over the edge of the (now new) glass boundary fence.

Our updated (2018) bylaws state “Residents using the communal BBQ, swimming pool, or garden areas must clean the area or facility, and remove any litter or fishing paraphernalia that may have accrued as a result of such use” however, do not specifically mention no fishing from the pool area.

Logically we think this situation creates a health & safety issue with the possibly of hooks, bait being left behind and the fishing lines intruding into the pool surrounds area if others are using the pool at the same time.

Does anyone have knowledge of specific regulations that may cover this situation?

 

 

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[Jimmy-T]

It would be a lot easier to ban fishing from common areas by the use of a rewritten by-law.  There could indeed be health and safety issues and there may also be aesthetic and ethical issues with the idea of live fish being pulled out of the water and killed and gutted, especially in front of children.

I wouldn’t pussyfoot around this. A communal swimming pool area is no place for people to be river fishing.  Within reason, the owners corp has the right and responsibility to control what happens (or doesn’t) on common property.

For instance, you could theoretically pass a by-law banning the use of barbecues on balconies because of the smoke and smell that goes into other residents homes.

Check with a strata lawyer but I don’t a ban on fishing from common property would fall foul of the “unreasonable, harsh or discriminatory” test.

By the way, I was going to say that I doubted very much if there were regulations that prohibited people from fishing from shared swimming pools but then I found this NSW Government fact sheet which under “Prohibited” says you can’t “use any methods (e.g line fishing, traps, nets, bait collection) in closed areas.”

But that seems to mean areas  of waters and rivers that are closed to anglers and other fishers for seasonal or stock protection reasons.

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[Flame Tree (Qld)]

I disagree. Surely a resident should be allowed peaceful enjoyment of their property, and if that means prosaically fishing from your riverbank all power to you. I think you’d need to see the pool layout and ensure he’s not interfering with primary pool users or making or leaving any mess but other than that it’s a common and perfectly legal activity. And I don’t think kids are that fragile to be overly distressed by the goings on here as they would be at any public jetty and often times it would be kids fishing anyways. If you live on a river and access to it is available, I think you’d find any adjudication would over-rule any attempt to limit it.

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[Paddy]

Thanks for the responses.

A group of us agreed to present the following motion at the upcoming AGM:

MOTION 3.  This meeting agrees that fishing from the pool enclosure at (our strata) be banned and, if agreed, that the decision be given effect in an appropriately worded by-law. To be actioned by our strata manager.

We have received the following ‘input’ from one of the SC ( a fisher):

‘Your idiotic motion on fishing from the pool is not only illegal and has no basis .It is like saying you cannot do backstroke in the pool. There are no by’-laws to cover this and how do you propose to enforce it.<br class=”” />Stop alienating other owners and learn to live and let live. Get a life and stop being so miserable and petty minded.’

Ah…Strata Living….

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[Flame Tree (Qld)]

Hiya, can I suggest a more short and sharp approach: ‘MOTION That river fishing from within the pool enclosure be deemed not permissible, and that this motion be included in the by-laws. To be actioned by our strata manager.’ I wouldn’t worry about your mate who’s obviously not a fan. Your motion will get up, or not on, the day and he has as much right to vote either way as you do.

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[Jimmy-T]

The motion would stand up if it was specific.  “No use of fishing equipment that has fish hooks attached, or any other method, including spear guns, that might present a potential physical danger to the residents and guests using the pool” would do the trick. That way you are reducing the risk, not banning the behaviour.

Of course, your angler’s arguments are spurious and ridiculous.  Swimming backstroke naked would be banned for all too obvious reasons. It’s not about the behaviour, it’s the effect on other residents in a communal space.

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[Paddy]

Thanks for that advice Jimmy re the more specific motion we should put forward. Unfortunately that may now need to be our second attempt if required as the time required to lodge this motion before the AGM has lapsed.

At this stage, our AGM next month will carry a motion asking the OC to ban fishing from the pool enclosure and, if passed by the required number of votes, be added to our by-laws. A change to By-laws would require the vote to be at least 75%, based on lot entitlements.

We understand that the meeting chairperson has been advised to rule the motion out of order at the meeting.

Our understanding of the Act is that he can do so if the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or, any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with”. (SSMA, Schedule 1, Section 19).

Our questions are:

1. Is the chairman obliged to explain the decision at the meeting?
2. What options do we have at the meeting for recording dissent, should the chair rule the motion out of order?
3. What options, following the meeting, are open to the OC or individual owners to have that decision reviewed by a higher authority?

 

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[Jimmy-T]

All the chairman needs to do is reiterate the conditions that allow him (or her) to rule the motion out of order.  However, I can’t see how any of those conditions would apply.

The comment that it would be like banning backstroke, is irrelevant.  Banning “bombing” in the pool might be closer to the mark, or taking glassware into the pool area – these are innocent pursuits on their own but with potential health and safety implications.

This may be an occasion where a quiet word before the meeting may be the best approach.  If the chair thinks the by-law is wrong, he should explain why to the meeting then let them vote.  The fact is that yes, you can take this to a higher authority – Section 232 is all about disputes between the owners corp and owners, and section 245(5) says this:

An application to the Tribunal for an order authorising a motion for submission to a general meeting may be made by any person who, at the time of the application, could have applied for the order to which the proposed motion relates.

I’m not entirely sure what that means, but the main point is that the chair should allow the vote to go ahead if only because not doing so is going to lead to a lot of unnecessary strife. If the anti-anglers are in a sufficient majority, and they are thwarted on a dubious technicality, then there is no way the matter will end there and the ensuing strife will cost the scheme financially and in its community spirit and cohesion.

If the by-law is “incompetent” under strata law, then it can be allowed fail at the registration stage. But declaring a vote on it “out of order” is highly dubious, undemocratic and unnecessary and will fast-track the scheme to a world of pain.

 

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