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Pawproof by-laws: Recent changes to NSW strata laws on keeping pets

14 September 2021

#Property, Planning & Development

Published by:

Bribie Stansfield

Pawproof by-laws: Recent changes to NSW strata laws on keeping pets

On 24 August 2021, the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 (NSW) (Amending Act) commenced, marking a triumphant day for pet owners in strata schemes.

The Amending Act introduces section 137B into the Strata Schemes Management Act 2015 (NSW) (Management Act) which states that a strata scheme can no longer unreasonably prohibit the keeping of a pet on a lot. Section 137B aims to pave the way out of the litigious terrain that accompanies the topic of pets in strata schemes.

Background

NSW has seen a string of contentious cases emerge in the last two years relating to the topic of pets in strata schemes. The contention has arisen in cases where the NSW Civil and Administrative Tribunal (NCAT) has had to consider whether a by-law imposing a blanket prohibition on pets is “harsh, unconscionable and oppressive” for the purpose of sections 139(1) and 150 of the Management Act.

In particular, the decisions of NCAT’s Appeal Panel in The Owners — Strata Plan No 55773 v Roden; Spiers v The Owners — Strata Plan No 77953 [2020] NSWCATAP 95 and The Owners — Strata Plan No 58068 v Cooper [2020] NSWCATAP 96 (the Cooper Decision) are indicative of this. You can read our discussion on these decisions here. These decisions affirmed the position that a by-law providing for a blanket ban on pets was permissible under the Management Act.

However, in October last year, the Cooper Decision was successfully appealed to the NSW Court of Appeal for further consideration and has become the leading authority on the issue.

Significance of the Cooper Decision

The Court of Appeal’s decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 formed the basis for legislative intervention in the form of section 137B.

The applicants were owners of a lot in a freehold strata scheme comprising a 43-storey apartment building in Darlinghurst. In contravention of by-law 14, the owners kept an animal (a half-blind, half-deaf miniature schnauzer named Angus) in their apartment.

By-law 14 provided for the following:

“By-law 14 Animals

14.1   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 on the Common Property.

14.2   Should an owner or occupier of a Lot keep an assistance animal on the Lot or on the Common property, they must, upon request of the Strata Committee provide evidence that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 (Cth) within a reasonable period of time following that request.”

The Court of Appeal overturned the decision of NCAT’s Appeal Panel and held that by-law 14 was invalid because:

  • a by-law that restricts the lawful use of each lot, but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws conferred by section 136: [61]
  • 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. The Court, in this regard, considered a goldfish being kept in a fishbowl and questioned how a lot owner keeping the goldfish could in any way create a hazard or material annoyance to others. The Court concluded that by-law 14.1 thus interferes with lot holders’ use of their real property in respect and to the extent that is unjustified by any legitimate concern of others in the building: [88].

The Amending Act and Regulations

In keeping with the decision of the Court of Appeal, section 137B(1) states that a by-law or a decision by an Owners Corporation under a by-law is to have no effect to the extent that it would ‘unreasonably’ prohibit the keeping of an animal. Subsection (2) further clarifies that it is ‘reasonable’ to keep an animal on a lot unless the keeping of the animal interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property. The text in section 137B is consistent with the language of part 8 of the Management Act, which imposes other obligations on owners and occupiers.

Importantly, the Strata Schemes Management Amendment (Pets) Regulation 2021 (NSW) (Regulations), which commenced alongside the Amending Act, sets out various circumstances which constitute unreasonable interference of another occupant’s use and enjoyment of their lot or common property. Clause 36A of the Regulations states these circumstances include:

  • the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant;
  • the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant;
  • the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant;
  • the animal repeatedly causes damage to the common property or another lot;
  • the animal endangers the health of another occupant through infection or infestation;
  • the animal causes a persistent offensive odour that penetrates another lot or the common property;
  • for a cat kept on a lot – the owner of the animal fails to comply with an order that is in force under section 31 of the Companion Animals Act 1998; or
  •  for a dog kept on a lot:
      • the owner of the animal fails to comply with an order that is in force under section 32A of the Companion Animals Act 1998; or
      • the animal is declared to be a menacing dog or a dangerous dog under section 34 of the Companion Animals Act 1998; or
      • the animal is a restricted dog within the meaning of section 55(1) of the Companion Animals Act 1998.

Key takeaways

Owners Corporations should consider repealing and replacing any by-laws imposing a blanket prohibition on the keeping of pets, as these by-laws will no longer be enforceable.

On the face of it, this will be the case for all strata schemes in NSW, whether residential, commercial or industrial, as the Amending Act has not distinguished between these types of schemes.

Owners Corporations should consider as part of this process adopting mechanisms to better regulate pet ownership in strata schemes, including the adoption of a pet policy and pet register.

Authors: Elly Ashley & Bribie Stansfield  

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Bribie Stansfield

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