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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
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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?