NSW: Are outdated or inconsistent strata by-laws still valid?

Question: Our older building’s supposedly consolidated by-laws are inconsistent and contain old terminology. Are the outdated by-laws invalid?

I have three issues concerning By-Law consolidation.

1. I am concerned that our By-laws have not been consolidated in a logical way to make an accessible document; and
2. that the term ‘Council’ appears everywhere though out the document – through old and new By-Laws – where it means to refer to ‘strata committee.’ And
3. that all our Special By-Laws to cover various apartment renovations are not attached to their associated Annexures. The Annexures have all been lumped together at the back.

My building is 26 years old. Our current, supposedly consolidated By-Laws have been brought up to date with the 2015 changes – i.e. By-Laws 12-29 inclusive have been repealed by Special By-Law 1 and the new 12-29 substituted. The old ones haven’t been actually taken out – they are there along with the new ones. The old ones have topic headings but the new ones don’t. Consequently, you need to go back and forth from the repealed to the new ones. The term ‘the Council’ represents the legally defined term ‘strata committee’ throughout the entire document. Is this legally correct or are all these By-Laws where the term ‘the Council’ is inserted invalid?

Answer: You should not have old, repealed by-laws showing in your consolidated by-laws.

What you have described regarding old/incorrect/inconsistent terminology is not uncommon, especially for older strata buildings that have changed their by-laws numerous times over the years. What invariably happens is different parties draft by-laws over time, and they end up being inconsistent and sometimes incomplete.

We would need to look at your current consolidated by-laws, however it sounds like they were not consolidated properly. You should not have old, repealed by-laws showing in your consolidated by-laws for example. Ideally your by-laws should use the current terminology in the Act. We would recommend you engage a law firm to tidy all this up for you (including by removing any by-laws which have been validly repealed) and register a clean, consolidated set of by-laws that has the correct terminology, clause numbers, headings and any annexures laid out correctly.

This post appears in the December 2021 edition of The NSW Strata Magazine.

David Budgen
By-Law Builder | Bugden Allen Graham Lawyers
E: david@bagl.com.au
P: 02 9199 1055