Towards the end of last year, NSW Fair Trading ruled – or, at least, stated since they don’t get to make or interpret the law – that Owners Corporations in NSW could not pass by-laws enforcing their residential only zoning.
Since then we’ve had the NCAT ruling in the Woollahra case that overturned a by-law and, on the other hand, the Privy Council ruling in the Turks and Caicos case (as well as learning of a WA Appeals Court ruling).
With these conflicting if not contradictory rulings in mind, I presented five prominent strata lawyers Stephen Goddard, Amanda Farmer, Cathy Sherry, Adrian Mueller and Jessica Bates with the following hypothetical:
An owners corporation has a by-law in place that simply says that, since the building is zoned residential only, and ‘residential’ has been defined by the local authority as being leases of no less than 90 days, lets of less than 90 days are not permitted.
An owner has cited Section 139(2), saying this by-law interferes with their dealing with their lot and is prepared to fight Notices To Comply all the way to the Supreme Court, if need be.
What would your advice to your Owners Corporation be? Don’t fight it because you won’t win and it will be a waste of money? Or roll the dice and use the WA and Privy Council rulings to support your case?
Now, readers in Victoria should note that a series of high level court rulings in that state, where strata and planning laws are different, have established the principle that strata owners can’t do anything to prevent short-term lets.
The state government has also re-tabled its wildly pro-Airbnb legislation which it will try to ram through Parliament later this year.
But back in NSW, click on the next five pages to see how our panel of lawyers responded: