Short answer
Yes. A by-law must be lawful and fair, and an owner or occupier who believes a by-law is harsh, unconscionable or oppressive can apply to the NSW Civil and Administrative Tribunal (NCAT), which can order the by-law be changed or revoked. Some by-laws are also invalid by operation of the Act itself — for example, a by-law that unreasonably prohibits keeping an animal has no effect regardless of any challenge.
The grounds for a challenge
The core test is that a by-law must not be harsh, unconscionable or oppressive. That covers a by-law that goes further than the situation could reasonably justify, or one that unfairly singles out a particular owner or group. A by-law also cannot be inconsistent with the Strata Schemes Management Act 2015 or another law. A by-law that is merely inconvenient or unpopular is not automatically unfair — the tribunal looks at whether it genuinely crosses into oppression.
Applying to NCAT
An owner who wants a by-law overturned applies to NCAT. The tribunal can invalidate the by-law, or order that it be changed, if it finds the by-law is harsh, unconscionable or oppressive. This is the individual owner’s remedy when the owners corporation will not change a by-law through the normal vote — a check on the majority using by-laws to impose whatever it likes on a minority.
By-laws that are invalid without a challenge
Some restrictions the law simply does not allow, so the by-law has no effect even if nobody takes it to NCAT. The clearest example is pets: a by-law that unreasonably prohibits keeping an animal is invalid under the Act, so an old blanket “no pets” by-law does not bind owners on that point. (See can a scheme blanket-ban pets.) Knowing which by-laws are void on their face saves a fight that does not need to be had.
Knowing whether your by-laws would hold up
The practical question for a self-managed scheme is whether the by-laws it is enforcing are ones that would actually survive a challenge. A system such as Straita keeps the scheme’s registered by-laws and their history in one place, so the committee can review them against the fairness and validity limits before relying on one — and an owner can see exactly what is in force if they think a by-law has gone too far.
Primary sources
- Strata Schemes Management Act 2015 (NSW) — by-laws must not be harsh, unconscionable or oppressive; Tribunal power to invalidate or change a by-law; invalid animal-prohibition by-laws (s 137B).
- NSW Civil and Administrative Tribunal (NCAT) — applying to challenge a by-law.
- NSW Government — Strata by-laws (Fair Trading) — limits on by-laws and how to challenge one.