In brief - Courts confirm NSW strata schemes cannot rely on by-laws, like those that prohibit pets or cooking, if they are "harsh, unconscionable or oppressive"

A by-law can be harsh, unconscionable or oppressive regardless of whether it has been in place for many years or more recently made by the owners in general meeting.

The power is provided by section 150 of the Strata Schemes Management Act 2015 (NSW). It was applied in the "Cooper" case of 2020, when the NSW Court of Appeal held:

any by-law that "limits the property rights of Lot owners is only valid if it protects from adverse affection the use and enjoyment by other occupants of their own Lots, or the common property".

The effect of Cooper is to make the keeping of pets generally lawful in strata schemes. In the short time since it was decided, Cooper has had a significant impact on strata living with many more pets resting their paws in strata buildings.

This week the NSW Consumer Tribunal published its decision in "Franklin".

It declared invalid a by-law that prohibits cooking.

  1. A "blanket ban" on cooking was not required to "protect against unreasonable interference with another occupant's use and enjoyment of the occupant's lot or the common property".

  2. "… cooking in one's home is a right connected with the property".

In coming to its conclusion, the Tribunal considered:

  1. The size of the 87 residential lots in the former aged care centre were reasonably small, between 21m2 and 30m2.

  2. Kitchenette installation was potentially difficult.

  3. The strata scheme already had available a large commercial grade community kitchen.

  4. Any alleged "fire risk" could be adequately managed.

  5. Any "cooking smell" might be reasonably overcome by opening a window or the use of an exhaust fan.

Considerations for owners' corporations about their "standard" by-laws

Does this mean "standard" by-laws that do not protect other occupants and the common property are also invalid?

Questions arise, for example, around standard by-laws that limit or prohibit:

  1. the use of barbecues on balconies;

  2. children playing on common property;

  3. the drying of laundry items on balconies;

  4. window coverings; and

  5. changes to the use of a lot, particularly where the proposed future use is permitted by applicable planning laws.

The warning to owners' corporations has sounded and been repeated. Your "standard" by-laws may be invalid. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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