Can we repeal an exclusive use by-law?

@BondiLocal said:
Can the OC repeal the by-law that gives exclusive access to the roof area in either case: for the unit owner who has the illegal works, or the other unit owner who hasn’t (yet) built onto their unit on our roof?

The Owners Corp can’t repeal the by-law without the consent of the beneficiary of the by-law however, NCAT can order a by-law be repealed on a number of grounds contained in a Section 158 ruling (see below).

Now, given that your roof-dwellers have already bullied the Owners Corp into approving the changes to common property, I would guess that they aren’t going to put up with this without a fight.  So my advice would be to first and foremost consult a specialist strata lawyer (you could do worse than click on the Makinson d’Apice ad on the Home Page).  In the meantime gather all the rock solid evidence that you can of this bunch’s behaviour and how it disrupts other people’s lives.  You want notarised statutory declarations from residents, neighbours and visitors.  Videos are always good, as ar audio recordings (but not of conversations).  In other words, if you are going to do this, hit them with everything you’ve got that will stand up in court.

But to answer your original question – the OC can’t do this on its own but there other ways that you can get some relief.  You will find more information on that HERE.

Meanwhile, here is section 158 of the Act.

158   Order with respect to by-laws conferring exclusive rights or privileges over common property

(1)  An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:

(a)  on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or

(b)  on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or

(c)  on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.

(2)  In considering whether to make an order under this section, an Adjudicator must have regard to:

(a)  the interests of all owners in the use and enjoyment of their lots and common property, and

(b)  the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.

(3)  An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.

(4)  For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.

(5)  An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).