The More Than Strata Team are fans of pets. However the recent decision in the Court of Appeal that blanket bans on pets is invalid does not mean that our furry, feathered and scaly friends are automatically welcomed into the strata world.
No doubt you have read about it or watched the news segments. Pet owners and want-to-be-pet-owners living in apartments are rejoicing. Jo Cooper and her senior dog, miniature schnauzer Agnus have been successful in winning a case in the NSW Court of Appeal that found the blanket banning of pets in strata schemes is ‘harsh, unconscionable and oppressive’.
As all Courts (& NCAT) are bound by this decision, in short, the once model by-law banning pets is disallowed. But this does not necessarily mean that it’s now a free run for all pets in strata schemes. A few important scenarios may yet play out.
The Horizon Owners Corporation may seek to appeal to the Australian High Court.
Cases in the High Court are only heard once leave is granted to apply. There is no automatic right to appeal. There has been no news published in relation to the intentions of the Owners Corporation as yet, but it may yet happen. And if it does, there is always a chance that the decision will be reversed.
A blanket ban is not ok, but what about a part ban?
So a by-law that bans all pets is oppressive, but what about one that only bans some? For example, a by-law that allows cats, but disallows dogs? Or a by-law that allows dogs, but only of a certain breed or size? There is certainly still scope for an Owners Corporation to create bespoke by-laws that seek to apply restrictions, but the judgement does leave open grounds for the appeal of these by-laws. It becomes a not easy question of what defines an impact on others.
In providing its judgement the Court of Appeal focused on the theme of what powers an Owners Corporation has, or rather, does not have, to make by-laws. A statement contained within the judgement says… a by-law which 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 s 136.
Basically, the Court of Appeal is attesting that if someone is doing something within the confines of their own lot, and that action has no material impact on others, a by-law cannot be made to restrict that action.
Of course, this raises questions and potential objections to a whole bunch of other by-laws. But that’s a blog for another day.
Don’t adopt that fur-baby just yet. If you live in building with a blanket pet ban a new by-law still needs to be devised and passed. Now would be a great time to lobby, or even better, join your committee and start the process of having a new by-law put together for presentation to owners.
If your committee is unprepared to do so, any owner can put forward a motion for inclusion on the agenda at a general meeting, so there is nothing stopping you from going ahead and putting your own by-law forward.
A good pet by-law will include a condition that pets be allowed on application to the strata committee, which cannot be unreasonably refused. It may be appropriate that the by-law include restrictions on the number of pets, and arguably perhaps the type. It could be considered unreasonable to keep chickens as a pet (as popular as they were during Covid lockdown). The by-law should speak to the expected management of pets when on common property (such as they need to be carried or on a lead) and what actions will be taken should a pet cause damage to the common property.
Once your building has passed and registered a by-law in relation to the management of pets you can start looking for the perfect furry companion that will allow you to comply with them.
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