A couple of years ago, the Tribunal was asked to determine whether a by-law was invalid by virtue of section 139 of the Strata Schemes Management Act 2015 (NSW) (Act) in Yardy v Owners Corporation SP 57237 [2018][1]. Those proceedings involved ‘Baxter’ a small maltese cross terrier. The Tribunal held in those proceedings that the relevant by-law prohibiting the keeping of pets in the strata scheme was invalid.
The Court of Appeal recently had to determine the same issue in Cooper v The Owners – Strata Plan No 58068 [2020][2]. Was a by-law invalid pursuant to section 139 of the Act which states that a by law must not be “harsh, unconscionable or oppressive”? Section 150 of the Act then goes on to say that any such by-law maybe invalidated by the Tribunal.
This time the Appellants owned ‘Angus’ a miniature schnauzer in the Horizon apartment building in Darlinghurst. The owners corporation had adopted a by-law 14.1 which provided that “Subject to section 139(5) of the Act, an owner or occupier of a Lot must not keep or permit any animal to be on a lot or the Common Property.” There was an appropriate carve-out for an ‘assistance animal’ at by-law 14.2.
The appeal arose out of the decision from the Appeals Panel of NCAT. The Court of Appeal found in favour of the appellants for the following reasons:
- Freehold strata ownership is a well-known form of real property and keeping a pet is “an ordinary incident of the ownership of real property”.
- The prohibition of animals under by-law 14 did not derive validity from any provision in the Act. (Section 136 of the Act was considered that provides by-laws may only be made for a proper purpose, that is, to confer specific functions on the owners corporation with respect to managing, administering or controlling the strata scheme or make provision in relation to the use and enjoyment of lots and the common property).
- The by-law lacked any rational connection with the enjoyment of other lots and the common property and provided no material benefit to other occupiers.
The Court concluded that the by-law was indeed ‘harsh, unconscionable or oppressive’.
Perhaps it is time for owners corporations to revisit their by-laws concerning the keeping of pets and resolve to change blanket prohibition by-laws in favour of by-laws that are more pet-friendly or require the owner to seek the consent of the owners corporation.
[1] NSWCATD
[2] NSWCA 250 (12 October 2020)
