Earlier this year, the NSW Civil and Administrative Tribunal handed down a decision in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19. The Tribunal decided that the owner of a lot was allowed to keep his small Maltese cross terrier, called Baxter, on the lot owned by him and his wife in the strata scheme and declared that a particular By-law was invalid.
By-law 16 provided that an owner or occupier of a lot must not keep any animal on the lot or the common property (subject to the former legislation).
Section 136(1) of the Strata Schemes Management Act 2015 (Act) provides that By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property. However, there are certain restrictions imposed on By-laws by virtue of section 139 of the Act including that a By-law cannot be harsh, unconscionable or oppressive.
The Tribunal has jurisdiction to make a declaration that a By-law is invalid pursuant to section 150 of the Act if the Tribunal considers that the By-law is harsh, unconscionable or oppressive.
Mr Yardy brought an application against the Owners Corporation seeking orders that the By-law 16 was invalid because it imposes a blanket prohibition upon per ownership and in such circumstances, it is harsh, unconscionable or oppressive and contrary to section 139(1) of the Act.
It is only necessary to establish that the By-law is one of either harsh, or unconscionable or oppressive. In this instance, the Tribunal concluded that the By-law was all of those things: harsh, unconscionable and oppressive.
By-law 16 was “harsh” because it imposed a complete prohibition, with no exceptions, and secondly provided no means by which special circumstances of a particular lot owner might be considered.
By-law 16 was “unconscionable” because it is contrary to the lot’s owners’ basic habitation rights considered in light of contemporary community standards and secondly it provides no opportunity for consideration to be given to the right and needs of individual lot owners.
By-law 16 was “oppressive” in that it does not involve or permit a balanced consideration of the interests and needs of all lot owners or occupiers and operates only in the interests of the lot owners who are opposed to pet ownership.
It is worth noting that the Owners Corporation had amended a previous By-law concerning pet ownership that relevantly provided an owner or occupier of a lot could keep an animal on the lot or common property provided they sought and obtained the approval of the owners corporation which must not be unreasonably withheld.
The Tribunal ordered that By-law 16 be revoked and the terms of the By-law as previously provided be revived.
Owners corporations need to be wary of imposing blanket prohibitions on the behaviour of its lot owners and occupiers otherwise it may face challenges to the validity of its By-laws.
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