#13411
Billen Ben
Flatchatter

    Simone said:

    Dear Billin Ben

     

    The Qld case of Mineralogy P/L v Body Corporate for the ‘The Lakes Coolum [2002] QCA 550 discusses the validity of by-laws that are prohibitory rather than regulatory. 

    The decision refers to two High Court cases – Swan Hill v Bradbury and Brunswick v Stewart which also discuss the validity of prohibitory by-laws. 

     

    https://www.austlii.edu.au/au/cases/qld/QCA/2002/550.html

     

    Simone Balsara

    Lawyer

     

    TEYS Lawyers, The Strata Law Experts
    02 9562 6500 – 1300 TEYSLAWYERS
    Suite 73, Lower Deck, Jones Bay Wharf
    26-32 Pirrama Rd, Pyrmont NSW 2009

     

     

    I have read the case and feel the decisions are saying by-laws are about regulation and not prohibition.

    I am aware of the following:
    “The scope and purpose of the Strata Schemes Management Act 1996 are clearly to do with regulating in a harmonious way the interests of those that live in the communal environment of a strata scheme.”
    R Phillips:  Truran v Owners Corporation SP 22049 [2001] NSWSSB 12 (19 November 2001)
    (This was a matter relating to the keeping of pets.

    That makes me ask where does all that leave option C of by law 16 in the sch 2 model by-laws for residential strata shemes in the strata Regulations of 2010. The same prohibitory option appear inother model by-laws as well.

     

    Option C Subject to section 49 (4) of the Act, an owner or occupier of a residential lot must not keep any animal on the lot or the common property.

    The model by-laws offer a prohibitory by-law.

    By offering a prohibitive option are the model by-law out of step with the expressed principle in the cases Simone references; i.e. that by-laws are about regulation?