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@Sir Humphrey said:
I don’t think I find the Tribunal reasoning unclear. I think they are saying:The OC can seek an order for a person to rectify some by-law breach and/or pay a fine for that breach. The authority for the Tribunal to make the first order comes from the Strata Act.
If the order is made but the lot owner does not comply with the order, then the OC can apply for a further order that the lot owner be fined for failing to comply with a Tribunal order.
The authority for the Tribunal to make this second order comes from the Tribunal Act. It is not needed specifically in the Strata Act, since it could be applied to any instance of failure to comply with a Tribunal order …
Good shot, sir! But according to Adrian Mueller, above, that’s not quite it.
I’ll let him speak for himself but it seems that it works (or doesn’t) something like this:
Joe Bloggs builds himself a pergola on common property, in breach of by-laws, and eventually gets a Notice to Comply.
He ignores it so the committee seeks a fine at NCAT, which can fine up to 10 penalty points (currently $110) but usually starts off at a much lower rate, let’s say $250.
The miscreant pays the fine … but the pergola remains. The committee goes back to NCAT and this time, for a subsequent offence, he can be fined up to 20 penalty points, but for the sake of argument, let’s say he gets hit for $500.
He refuses to shift it.
Now, under the previous laws, the next step would be to seek orders from NCAT. If the miscreant ignored them, he was in for a big fine for breaching a Tribunal order.
What Adrian Mueller and the Tribunal member were saying was that the capacity to fine the miscreant for breaching a Tribunal order relating to a by-law breach, no longer exists.
If the lady who had polished her concrete floor had been pinged six months later, she could have kept things exactly the way they were, paying the occasional by-law breach fine when it came up, until the committee gave up.
And that’s the problem – when it’s worth the miscreant paying modest fines (for instance, if we are eventually allowed to ban or restrict Airbnb) then we will be unable to prevent by-law breaches by seeking penalties through Tribunal orders.
Does that make sense?