I mention the pets issue in my intro to the Forum wrap-up because that changed thinking about strata by-laws that had been held sacrosanct for decades. The building concerned had a no-pets by-law which was assiduously enforced by the strata committee until one owner challenged it under section 139 of the Act: “A by-law must not be harsh, unconscionable or oppressive.”
Now the ultimate result in this case was that the NSW Court of Appeal ruled that the by-law was invalid as it was harsh and oppressive because it didn’t allow any exceptions under any circumstances.
Some people have interpreted this to mean that all by-laws are invalid, which is obviously not the case. However, it’s worth looking then at this roundup from our sponsors Bannermans lawyers which lists other by-laws that have been declared invalid for similar reasons, including bans on smoking and demands that floors could only be carpeted.
So, getting back to the Vegepod ban, our OP might do well to explain to their committee that if they push this too far, their whole by-law could be challenged and possibly invalidated by the Tribunal because it doesn’t allow for any variations under any circumstances and is therefore harsh and oppressive.
I would imagine any NCAT Member worth their salt would ask the strata scheme’s representatives what their definition of “in keeping with the look of the building” is. And if that’s not clearly defined in the by-laws, then the by-law could be seen to be harsh.
In the meantime, I’d be taking Kaindub’s advice, which is basically to ignore the committee’s demands, wait until they get a Notice to Comply and then ignore that too on the grounds that the by-law quoted in the NTC is invalid. In other words “bring it on”.
Meanwhile, they could write to the committee to have it put on record that they believe the by-law, or at least its enforcement, to be harsh and oppressive and to alert owners to the possibility that their committee is about to spend a lot of money fighting a legal case that is really just a coin-toss and even if they win will be to the detriment of the community.
A sensible committee will then just let it go through to the keeper. But then you will always have the bullies and martinets who can’t compromise, let alone see anyone else’s point of view.