My view is that precedent doesn’t apply at all! The law has to be applied to each situation regardless. However, in practice what the EC can coerce an owner to take responsibility for is another matter!
Pedantically and legally, if there was no by-law for the whirly bird installled many years ago … no responsibility for the owner. I would think this applies to the owner who had one installed more recently also. That is you can’t legally enforce a special by-law retrospectively making that owner liable either. In both cases the EC could probably get SBLs passed but if it went to NCAT or tribunal the new Bylaws would be found to not be binding on the owners.
To be valid any by law would have to be enacted before or at the same time (contemporaneously) as the installation. Owner’s who installed whirlybirds and could convince a tribunal that at the time of installation they were not advised of or aware of the whirlybird’s maintenance being their responsibility would get a ruling in their favour.
What are other’s views? (bush lawyer here *smile*)