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  • #61087
    The Hood
    Flatchatter

    In a decision handed down yesterday, SC 21/48504, NCAT declined to invalidate a fact of the animal by-law.
    The by-law says:  no dogs or cats, other than assistance animals as prescribed by legislation, shall be allowed upon any lot or the common property;

    Seems it is OK to keep such a by-law on the books.
    The Tribunal found:
    9. The above section 137B invalidates any existing “blanket ban” in relation to keeping of animals as may presently exist within any strata scheme. It also places an onus upon neighbours or strata management to be able to satisfactorily demonstrate that actual unreasonable interference with other lot owners or users of common property has been caused by the keeping of a particular animal upon a lot.

    10. Section 137B operates irrespective of any by-law. This does not however mean that the body corporate lacks power to make any particular relevant by-law and that the Tribunal should therefore make an order such as is presently sought. The section simply renders inoperative the application of any such by-law in relation to a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity.

    11. Accordingly, in the absence of the existence of an animal upon the applicant’s property and therefore the absence of any attempt by the management committee to impose an order for removal of any such animal,there is presently no basis for any orders to be made as sought within the present application.

    I just can’t follow how the existence of an animal on the applicant’s property or an attempt by the management to remove an animal relates to the validity of the by-law.
    Strange decision but it does mean feel free to have a no dogs by-law on your books.

    • This topic was modified 6 months, 2 weeks ago by .
Viewing 9 replies - 1 through 9 (of 9 total)
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  • #61092
    Jimmy-T
    Keymaster

    It’s certainly strange.  NCAT seems to be saying we won’t invalidate the no-pets by-law because there are no actual  pets involved.  But if there were pets involved, then we would invalidate it.

    This is pretty close to an actual Catch-22,  rather then the overly used and misused versions we hear about.

    Catch-22, for those who haven’t read the Joseph Heller novel or seen the movie, was that you could get out of military service due to grounds of insanity, but applying to get out of military service proves that you are sane.

    In this case, the no-pets by-law stands but only if there are no pets involved, otherwise it would be invalid.

     

     

    #61098
    Sir Humphrey
    Strataguru

    It seems to me that the Tribunal was asked to give orders in respect of a particular animal, for which there was no evidence. The Tribunal will only give an order that it is asked to give.

    The Tribunal correctly noted that the by-law was in conflict with legislation. However, there is nothing to stop an owners corporation from adopting by-laws, even if they cannot be enforced due to inconsistency with legislation.  If an order was sought to enforce such a by-law it would decline to give such an order on the grounds that the by-law was inconsistent with legislation.

    If somebody had put a motion to a general meeting that the animal ban by-law be rescinded and if that motion failed, the proponents could go to the Tribunal seeking an order to give effect to their motion on the grounds that it was unreasonable for the motion to have failed. It sounds like such an order would be likely to be granted by the Tribunal but that is not what they were asked.

    • This reply was modified 6 months, 2 weeks ago by .
    #61103
    The Hood
    Flatchatter
    Chat-starter

    Just thought i should mention in the Roden case the by-law was invalidated where there was no pet in question at the time of the application.

    The Tribunal was asked to invalidate the by-law under s 150
    It is not relevant to s 150 if the applicant had or was seeking to get a dog.

    The validity of a by law turns on the “inherent qualities” of the by-law.
    This is well expressed in the Cooper case in a number of paragraphs.

    It is interesting that it is rather true a SP can have a raft of unenforceable by-laws on their books when we often see in NCAT matters applicant’s claiming they bought in because of some particular by-law.
    People rely on the integrity of by-laws but it seems there is no obligation for those by-laws to have any integrity.
    Strata is a wonderful place.

    #61113
    Jimmy-T
    Keymaster

    It is interesting that it is rather true a SP can have a raft of unenforceable by-laws on their books when we often see in NCAT matters applicant’s claiming they bought in because of some particular by-law. People rely on the integrity of by-laws but it seems there is no obligation for those by-laws to have any integrity.

    I too laboured for many years under the misapprehension that a by-law could not be registered if it was invalid.  I would amend that “could” to “should”, as there is nothing to stop a bad by-law being registered, although debating, registering and ultimately defending it at the tribunal is a waste of considerable amounts of time and money.

    The Act is very clear on this. Section 136(2), Matters by-laws can provide for, says this:

    A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

    In other words, register as many invalid by-laws as you like but don’t be surprised if, when you try to enforce them, an owner or tenant challenges them, and the Tribunal bounces them, saying they don’t have any “force or effect” because they are inconsistent with strata or any other law.

    And any strata manager who leads you up that particular garden path should be asked to explain why that doesn’t breach the duty of care in their code of conduct, if not in their contract.

    • This reply was modified 6 months, 2 weeks ago by .
    #61118
    Sir Humphrey
    Strataguru

    In other words, register as many invalid by-laws as you like but don’t be surprised if, when you try to enforce them, an owner or tenant challenges them, and the Tribunal bounces them, saying they don’t have any “force or effect”

    The principle here would be that it is up to the court system to determine whether a by-law has effect when someone seeks to obtain an order that depends on that by-law. It is not up to an office clerk doing the paperwork to register the by-law to determine whether it conflicts with any other law.

    #61185
    A. Mazed
    Flatchatter

    No pets, no smoking, no noise, no garbage, no obstructions, no washing, no BBQs. Is there anything one is ALLOWED to do in an apartment? Sleep? Live? Eat? Watch TV? Have people over?

    I have just been ordered to stop feeding honey to my visiting lorikeets. No by-law or number just “You are forbidden to feed birds, other animals, or strays. OK but what about the cockroaches that invaded my property when the whole of the building was treated? They all seem to have come to me, well, at least the ones who survived. Will STRATA punish me because they are feeding at my place? Will STRATA pay for them to be removed or will STRATA remove me? I own my property.

    • This reply was modified 6 months, 1 week ago by .
    #61188
    Jimmy-T
    Keymaster

    I have just been ordered to stop feeding honey to my visiting lorikeets.

    Maybe you should say they are hypothetical lorikeets, then you’ll be OK.

    #61194
    The Hood
    Flatchatter
    Chat-starter

    In other words, register as many invalid by-laws as you like but don’t be surprised if, when you try to enforce them, an owner or tenant challenges them, and the Tribunal bounces them, saying they don’t have any “force or effect”

    Regardless of whether one agrees or disagrees with the legal reasoning behind the decision, I believe it comes up short with regards to public policy considerations. It essentially places the onus on occupants (and potential purchasers) to read through the by-laws which are ‘on the books’ and come to their own conclusions as to their validity under the SSMA.
    If NCAT took a more proactive approach to invalidating those by-laws (a task which it is best placed to do), then there would be no ambiguity about whether or not they are enforceable and valid, as opposed to simply being ‘on the books’ despite an incompatibility with the relevant legislation.

     

    • This reply was modified 6 months, 1 week ago by .
    #61197
    Jimmy-T
    Keymaster

    If NCAT took a more proactive approach to invalidating those by-laws (a task which it is best placed to do), then there would be no ambiguity about whether or not they are enforceable and valid, as opposed to simply being ‘on the books’ despite an incompatibility with the relevant legislation.

    You’re right, except that there are 80,000 strata schemes in NSW alone, each potentially with its own by-laws.  So being “pro-active” would demand a lot of sifting, sorting and assessing.

    Perhaps a system whereby every new by-law had to be approved by Fair Trading before it was registered could work, provided they were still subject to a test at the Tribunal if it was challenged.

    But let’s not forget that in the famous Jo Cooper “no pets” by-law case, the original tribunal overturned the pet by-law, the Appeals Board overturned the tribunal finding and the Court of Appeal reinstated the original verdict.

    And let’s not fall into the trap of assuming that by-laws written by lawyers and strata managers are going to be correct every time.

    I also think it would help if every new by-law had a summary of intent attached to it. E.g, “the intention of this by-law is to prevent owners from using visitor parking for their own purposes”. Then we could by-pass the weasel words and bush-lawyering and ask pertinent questions about whether the by-law was permitted in the first place and whether it achieved its purpose at all.

     

    • This reply was modified 6 months, 1 week ago by .
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