Conflict between private and public restrictions

This chapter examines the potential conflict between privately created and public restrictions in relation to multi-owned property. All states in Australia grant bodies corporate broad powers to create by-laws that regulate the use of common and individually owned lot property. By-laws can be created with exclusive reference to the values of a particular strata or community scheme and without reference to the values of the wider community. Further, by-laws that regulate activities that do not cause any meaningful harm to others are at odds with one of the fundamental principles of liberal society, ‘negative liberty’. The potential for conflict between privately created by-laws and public legislation, as well as the values of civil society, is yet to be fully recognised, let alone addressed by the legislature and judiciary.