Is a By-Law prohibiting BBQs on a balcony legal? Our By-Laws expressly prohibit any type of BBQ using any type of fuel from being used in a balcony.
See if an electric BBQ will suffice.
By-laws are intended to regulate and not prohibit. The power to regulate does, however, in appropriate circumstances, extend to prohibition. Consider, for example, a ban on BBQs on balconies. Where the building is multi storey, there are multiple balconies constructed one above the other. Owned by different lot owners, the balconies are all made of (exposed) hardwood. Residents have a penchant for charcoal grills and the balconies are exposed to gusty seaside winds… Contrast that to a low rise residential complex, constructed wholly of brick, tiled concrete balconies, enclosed on two sides and with an all-weather (10 amp only) power point for an electric BBQ.
The by-law in question prohibits BBQs that use ‘fuel’. Practically, the first thing to do is to see if an electric BBQ will suffice! If not, then careful consideration would need to be given to the circumstances, including the text and effect of the by-law, to see if it was either
- void as prohibitory or
- oppressive or unreasonable, having regards to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.
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Michael Kleinschmidt has specialized in strata law for over 20 years. During this time, he has served all of the peak stakeholder groups: Australian College of Strata Lawyers – Fellow and Council Member, Australian Resident Accommodation Managers Association (Qld) - Legal Panel Member, Strata Community Australia (Qld) - inaugural Legislative Committee Chairperson and past Professional Standards Committee member, Commissioner for Body Corporate and Community Management (Queensland) Stakeholders’ Group – ACSL representative, Attorney General’s Community Titles Legislation Working Group - ACSL representative. Across his years of practice, Michael has acted for almost all of the different stakeholder groups (occupiers, owners, bodies corporate, management rights’ operators, banks, body corporate managers, property developers and utilities providers) in almost every conceivable strata matter type ranging from structuring duplexes to 400-lot island resorts, litigating leaking roofs before departmental adjudicators through to appealing novel points of strata law to the Queensland Court of Appeal.
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