In the recent cases of The Owners – Strata Plan No 58068 v Cooper [2020] NSWCATAP 96 and The Owners –  Strata Plan 55773 v Roden; Spiers v The Owners – Strata Plan 77953 [2020]       NSWCATAP 95 the Appeal Panel found that by-laws prohibiting the keeping of pets were valid and enforceable by an Owners Corporation.

There is an inherent tension between a lot owner’s right to enjoy their lot and the OC’s power to control the use of the lots and common property for the enjoyment of all the lots, bypassing bylaws.

In both cases, the Appeal Panel dismissed the lot owners’ arguments that these types of by-laws were harsh, oppressive and unconscionable.  These decisions indicate, despite the ‘pet-friendly’ reforms mooted in the Strata Schemes Management Act 2015 (SSMA), and the first instance decisions of Yardy, Roden and Cooper, that pet animals do not have an automatic right of residence with their owners in the lot or on common property.

The Issue

By-laws can be made in relation to the ‘control, use or enjoyment of the lots or common property’. The power includes the prohibition or restriction of actions in a lot.  Some schemes have created by-laws banning all pets, irrespective of their behaviour, size, age, or species.   The issue is that S139 of the SSMA (unlike SSMA 1996) says that a by-law cannot be unjust, and must not be harsh, unconscionable or oppressive. Pet owners argue that blanket pet bans breach s139.

Roden & Cooper

In these significant decisions the Appeal Panel, constituted by the President and Deputy President) considered just this question.  Both appeals concerned large strata schemes: Roden a 40-storey 280 lot building the Elan, and Cooper a 43-storey 260 lot building, the Horizon.   Both schemes passed blanket by- laws, but in different circumstances.

Roden

Elan’s ‘ban’ was passed in 2013. The SSMA 1996 was in force. In 2017, Mr Roden, a   prospective pet owner challenged the by-law, first   unsuccessfully by motion in meeting and second, and successfully at NCAT.     Mr Roden argued that the OC did not adequately review the arrangements for the keeping of pets and the pet ‘ban’ was harsh, oppressive and unconscionable and therefore in breach of s139.  NCAT agreed and in September 2019 the by-law was declared to be harsh, unconscionable and oppressive and therefore invalid under s150 SSMA.  The OC appealed

Cooper

In Cooper, the Horizon’s ban was implemented by the developer, but then repealed and replaced in 2016 with an almost identical by-law (excluding assistance animals).  In 2016, Mrs Cooper (with knowledge of the by-law) moved in with Angus, a miniature schnauzer. In 2019, the OC sought to enforce the pet ban by seeking Angus’ permanent removal from the lot.   The lot owners responded by challenging the validity of the by-law.

In November 2019 NCAT found that the by-law was harsh, oppressive and unconscionable in the specific circumstances of the case because of uncontradicted evidence that Angus was suitable for strata living.  Angus had won a reprieve.  The OC appealed.

The Issue on appeal

The primary issue in both appeals was whether the no pets by-laws were in breach of s139 and if so were invalid by the operation of ss139 and 150 SSMA.

The Findings on Appeal

The Appeal Panel declared both by-laws to be valid.   In deciding that neither by-law was harsh, unconscionable, or oppressive it placed significant weight on the circumstances of each case.  In particular, in Cooper, the finding was that Mrs Cooper’s knowledge of the pet prohibition on the purchase of the lot made it much more difficult to demonstrate that the no pets by-law was harsh, oppressive or unconscionable.

General Principles

The following general principles result:

· a by-law which bans pets is not in itself harsh, oppressive and unconscionable

· the test under s139 is objective

· the degree of severity is higher than the standard of “unreasonable”

These decisions may have a more significant effect on strata living because it is arguable that other by-laws that regulating conduct by restriction and prohibition (such as smoking or balcony barbeques) are incapable of a challenge by aggrieved lot owners under s139.

Combing through the current by-laws may not be enough. Let the buyer beware.

 Are you having problems with pets and your strata scheme?  

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.

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