In my view, the Minister’s comments are problematic. Contrary to what Fair Trading and the Minister set out to do, these latest comments have not clarified the situation, but only muddied the waters further still.
The Minister’s own government, in passing the 2016 Regulations, included a Model By-Law under Schedule 3 which on its face, requires owners and occupiers to comply with town planning laws, which include the zoning requirements and the LEP (local environmental plan).
In an appropriate case, if an OC were to seek to enforce this Model By-law via a Notice to Comply and at NCAT, in my view the Minister’s comments (and Fair Trading’s handbook) would not prevent the Tribunal from finding in favour of an Owners Corporation, should it correctly prosecute the case.
The model by-law is clearly enforceable under Part 7 of the SSMA 2015, and it is business as usual for strata lawyers and owners corporations as far as I’m concerned.
If the government were to rescind Model By-law 18, then that would be a different story, but unless that happens, the Minister’s and Fair Trading’s comments will have to be viewed through a prism, as being persuasive but not binding.