Court of Appeal overturns strata pet ban
On 12 October 2020 in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250, the Court of Appeal unanimously allowed the Coopers’ appeal, striking down the ban on pets in Darlinghurst’s Horizon building. In applying the tests set out in s139 SSMA and encompassed in the phrase ‘harsh, unconscionable or “oppressive” the Court found that the blanket by-law was oppressive.
The Court made it clear that the power to make by-laws is not unconstrained and that a by-law which limits the property rights of lot owners is only lawful if it protects from adverse affection the use and enjoyments of other lot owners of their lots or the common property. The Court found that the blanket bylaw was ‘oppressive’ under s139 SSMA.
Fagan J said at [88]:
“The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others. By law 14.1 thus interferes with lot holders’ use of their real property in respect and to an extent that is unjustified by any legitimate concern of others in the building”.
The decision, whilst a big win for one of Sydney’s most infamous canines, does not prevent the making of by-laws relating to individual pets but it is likely to change the way in which strata schemes govern and may have ramifications on the making of a broad range of bylaws.
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Clare Peacock is an experienced construction lawyer working on Sydney’s Northern Beaches. Clare provides practical, cost-effective building approval advice to property owners, builders and strata managers. Services include residential building disputes, body corporate issues and strata building problems.