Question: Why has no one used the argument that their pre 2016 pets bylaw remains valid due to the schedule 3 transitional provisions of the Act?
Answer: The no pets model bylaw that was introduced in 1997 wasn’t valid.
When the New South Wales Government rewrote the strata laws that commenced in November 2016, there was a provision which said that if there is a pre existing bylaw that was valid at the time it was made, it remains valid by law, no matter what we say in these new laws.
The question is this, was possible to make a no pets by law prior to 2016. Why didn’t some smarty pants run that argument in the court of appeal and say, ‘Your honours, we were able to make no pets bylaw in 1997, this transitional provision in the new strata laws was say that if the bylaw was valid back then it’s still a valid bylaw. How can you overturn?’. The court’s answer to that question, even though it didn’t directly arise in the case was this: you’d never had the power to make a no pets bylaw. That was quite a surprising position for the court to take, but in effect, what the court was saying was that the no pets model bylaw that was introduced in 1997 wasn’t valid.
That’ll leave a lot of people scratching their head asking ‘How can the government make a model bylaw that’s not valid?’, Well, it’s possible. Courts have the power to and do set aside legislation and regulations that are made by the government or Parliament from time to time, and I guess that’s what the court was saying that ‘You’ve never had power to make a no pets bylaw’, so that transitional provision doesn’t help you.
This post appears in the July 2021 edition of The NSW Strata Magazine.
Adrian Mueller
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266
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