@scotlandx said:
He doesn’t say anything of the sort mini – in that post he says:One of those distinctions is between “retrospective” application of a new law to past events, and the “saving”, or continued operation of old law to new events. There is fairly common tendency to conflate the two concepts .
That is precisely what you have done. Also the discussion is in relation to someone who got approval, but didn’t get a dog, and then the old by-law was replaced with one that prevented keeping of animals. Mr Russell’s view was that the consent under the old by-law no longer applied because of that. The person would have had a right accrued under the old by-law, if they had brought a dog in in reliance on the consent under the old by-law.
Did you read his second post, on the second page? And I don’t read his posts to say that “The person would have had a right accrued under the old by-law, if they had brought a dog in in reliance on the consent under the old by-law.” There’s simply nothing in his first or second post which says that. In particular he concludes with:
“In this case the words “must not keep a dog” are similarly clear. Which brings me back to the view that a clear savings provision would need to have been included, which is not the case.”
I think it’s quite clear. That is, unless if a “savings” provision was included in that case then the “old consent” doesn’t have any effect (i.e. the words “must not keep an animal” says what it means and means what it says).
I don’t think you have read White v Bettali very carefully – it says that the limitations on the kind of regulations that may be set by by-laws arise from the statute that permit them to be made. I don’t think it was ever the intention of the legislature that strata law could be used to prescribe the exact removals company that may be used by a resident.
See White v Betalli at first instance at [37] per White J:
“37 In my view, the only limitations on the power of the owner of land being subdivided by a strata scheme of subdivision after 1 July 1997 to make by-laws are:
(a) the need for the consent of mortgagees and other holders of security under ss 8(4C) and 16 of the Strata Schemes (Freehold Development) Act;
(b) the express restrictions and prohibitions in s 49 of the Strata Schemes Management Act;
(c) the need to avoid inconsistency with any Act or law; and
(d) that the provision is made for a proper purpose and fairly falls within the concept of a by-law, that is, the regulation of the rights and responsibilities of lot owners, occupiers, or the owners corporation, in respect of the lots, or the lots and common property, for the strata scheme.”
I don’t see how a by-law restricting the use to a specific removalist company infringes upon any of those four points (similar to how, an owners corporation, in theory, could make a by-law requiring lot owners to pay additional contributions above their usual levy contributions, and not in accordance with unit entitlement).
And in any case, White J went onto say at [44] that:
“44 By-laws frequently interfere with the rights of property of an owner of a lot. In Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432, the Court of Appeal upheld the validity of a by-law which prohibited a proprietor or occupier of a lot from engaging in any enterprise other than the practice of medicine, but excluding the practice of pathology. It was held that the power in s 58(2) of the Strata Titles Act enabling by-laws to be made for the purpose of, inter alia, the use of lots, extended to regulating what activities could and could not be conducted on each lot. The Court (at 11,443 and 11,434) rejected the argument that subs 58(2) of the Strata Titles Act (the predecessor to s 47 of the Strata Schemes Management Act) only permitted the making of “non-discriminating by-laws” which equally affected all lots.”
And then his Honour concluded that an owners corporation, in theory, could make a by-law allowing a lot owner to use another owner’s lot without their consent.
Quite clearly, the cases show that an owners corporation has very wide powers to make by-laws. Given that the doctrine of “restraint of trade” has no application to by-laws, then, I don’t see why a by-law couldn’t be made to restricting the choice of a removalist of a lot owner to one specific removalist company.