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(NSW) Many years ago a by-law was approved re air-conditioning installations. It was very poorly worded, probably unenforceable and possibly unlawful (by purporting to allow trespass). Three years ago the OC approved and registered the standard ‘cosmetic, minor and major’ by-laws that include specific reference to air-conditioners, but the original by-law was not repealed. That repeal occurred by special resolution at the AGM this year, but the SM has not got around to registering it.
The committee now has a request from an owner to install an air-conditioner as allowed under the original by-law. I maintain that since the AGM repealed that by-law the application cannot be approved under that provision but must be handled under the new by-laws. (Those new by-laws contain significantly stronger requirements for documenting the application, but actually allow more freedom in the placement of the units, and do not include the potentially unlawful aspect).
The SM insists that the application be considered under the original by-law, claiming that’s what the applicant requested, and as the repeal has not yet been registered then the application should be handled as requested. I suspect that the SM is embarrassed by the delay in registering the by-law change, and what appears to be an even longer delay in putting the request before the committee.
If the SM presses the point the committee is likely to agree, as there would be no valid grounds for refusing.
The application does not meet the requirements of the new ‘minor renovations’ by law, mainly because of the lack of documentation.
Hence the question – is the committee able to approve an application that meets the requirements of a by-law that has since been repealed but not yet registered?
Approvals done in the last few years have been under the new by-laws, ignoring the conflict between the two. I suspect that the request that this application is handled under the old by-law is deliberate, triggered by the resolution at the AGM to repeal it.
I appreciate that this is a strictly legal question, but I would appreciate any comments that I can put to the committee.
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This is not a strictly legal answer, but your SM works for the OC, not the other way round. The OC made its wishes known when it voted for the new by-law. So stand your ground. The recalcitrant owner can take you to NCAT and argue that he/she wants to install aircon under an outdated by-law with no documentation. Good luck to him or her.
BTW I recently assisted an owner who objected strongly to providing documentation for a renovation. Turned out that the owner simply didn’t understand what was required so I made a list and ticked off each document as it was provided. Once the owner saw this structure and had a list to work through, the documents started to appear. Owner also didn’t know how to look up trades’ licenses so I did that for her. Took a bit of time, but we got there in the end. I actually felt sorry for her once I realised that her aggression and refusal to comply stemmed from feeling out of her depth and not up to the task.
I ran this through an AI interface and this is what it said (and bear in mind that AI can get things wrong):
The new by-law prevails over the old one, even if the old one was never formally repealed. This is because the new by-law replaces the old one through a valid process, such as passing a special resolution and registering the change with the relevant authority. When a new by-law is introduced and properly registered, it becomes the operative rule, and the old one is considered superseded and inoperative.
How a new by-law takes precedence
Replacement: A new by-law effectively replaces an older one. If the new by-law is passed correctly, it makes the previous, inconsistent by-law invalid.
Registration: For a change to be valid, the new by-law, amendment, or repeal must be registered with the appropriate authority, such as the Land Titles Office.
Consolidation: The process of registering a new by-law often requires the creation of a consolidated set of all current by-laws. This consolidated version becomes the official and current set of rules for the strata scheme.
No explicit repeal needed: While a formal repeal is the clearest way to remove a by-law, it is not legally required. If a new by-law is created that contradicts an old one, the old by-law is automatically superseded. The registration of the new by-law serves to remove the old one from force.Important considerations
Proper procedure: For a new by-law to take precedence, it must have been created through the correct and legal process, which typically involves a special resolution at a general meeting.
Registration is key: The change is only officially in effect once it has been registered. Without this registration, the change is not legally valid and the old by-law would remain in force.That is all very impressive but the response quoted this passage from Kerin Benson lawyers which I think may be more reliable.
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