Can Your Strata By-laws Ban Pets Because of Allergies? NSW Legal Guide

Introduction

Living in a strata scheme often means balancing the comfort of pet owners with the health needs of residents who have allergies. This issue can create tension, especially when allergies impact daily life and well-being.

This guide addresses whether strata by-laws in New South Wales can ban pets solely because of allergies, outlining the legal framework, recent court decisions, and practical solutions for managing pet ownership and allergy concerns within strata communities.

A Direct Answer to Banning Strata Pets for Allergies

A strata scheme in NSW cannot enforce a blanket by-law that bans all pets to accommodate a resident with allergies. The law is clear that allergies are not listed among the specific circumstances that constitute “unreasonable interference,” which is the legal test for refusing to allow an animal in a strata property.

Interactive Tool: See If Your Strata Can Refuse Pets Due to Allergies

Why Your Strata Cannot Implement a Blanket Pet Ban

The Landmark Cooper v The Owners Strata Plan No 58068 Decision

A landmark decision by the NSW Court of Appeal in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 fundamentally changed the rules for pet ownership in strata schemes. The court ruled that a by-law imposing a blanket ban on all pets is invalid because it is “harsh, unconscionable or oppressive” under Section 139(1) of the Strata Schemes Management Act 2015 (NSW).

The court found that such a by-law unlawfully restricts a lot owner’s property rights, fundamentally changing the answer to the question of can you keep a pet in a NSW strata scheme. In particular, it clarified that:

• Keeping a pet is considered an ordinary part of the lawful use of a home.
• A blanket prohibition provides no significant benefit to other residents while severely limiting an owner’s enjoyment of their property.

The ruling also established that a by-law is only valid if it protects other occupants from adverse impacts, which a blanket ban fails to do on a case-by-case basis.

The Requirement for a Case-by-Case Assessment of Strata Pets

Following the Cooper decision, strata schemes in NSW can no longer enforce blanket prohibitions on pets. Instead, owners corporations are now required to assess each pet application on its individual merits.

This shift means that a strata scheme must have a fair and reasonable process for considering requests to keep an animal. The case-by-case assessment should focus on the specific circumstances of the pet in question, rather than applying a broad, prohibitive rule.

When considering a pet application, the following factors may be relevant:

• The animal’s size and breed
• Its potential impact on other residents
• Possible effects on the common property

The primary consideration is whether a particular pet would genuinely interfere with the peaceful enjoyment of others in the strata building.

The Unreasonable Interference Test & Pet Allergies

Defining Unreasonable Interference in Your Strata Scheme

An owners corporation can only refuse permission for a pet if it is proven to cause unreasonable interference with another resident’s use and enjoyment of their lot or common property. Importantly, this assessment focuses on the actual behaviour of the specific animal, rather than speculation about its size or breed.

Under the Strata Schemes Management Regulation 2016 (NSW), unreasonable interference is defined by specific circumstances, which include when an animal:

• Makes persistent noise that unreasonably interferes with the peace, comfort or convenience of another occupant.
• Repeatedly runs at, chases, attacks, or otherwise menaces another resident, a visitor or another animal.
• Repeatedly causes damage to common property or another lot within the strata scheme.
• Endangers the health of another occupant through infection or infestation.
• Causes a persistent and offensive odour that penetrates another lot or the common property.
• Is a cat or dog whose owner fails to comply with a nuisance order issued under the Companion Animals Act 1998 (NSW).
• Is a dog that has been declared dangerous, menacing or is a restricted breed under the Companion Animals Act 1998 (NSW).

How Severe Allergies Are Assessed by Your Strata

Allergies are not specifically listed as a form of unreasonable interference in the strata regulations. Therefore, the mere presence of an allergic resident is not an automatic reason to refuse a pet application.

Instead, the owners corporation must assess each situation on a case-by-case basis.

If a resident provides medical documentation of a severe allergy that cannot be managed through reasonable accommodations, it may provide grounds for refusing a specific pet. Before reaching such a decision, however, the strata scheme must first explore all practical solutions, such as:

• Creating pet-free zones.
• Enhanced cleaning protocols.

How Your Strata Must Manage Allergy Complaints & Pet Requests

The Process for Fairly Assessing a Strata Pet Application

When a pet application is submitted, the owners corporation has a legal duty to consider it fairly and make a decision based on the individual merits of the request. Strata managers, who are often the first point of contact, can assist in guiding the application process; however, the final decision rests with the owners corporation.

Moreover, the committee cannot unreasonably refuse permission for a pet. If an application is denied, the owners corporation must provide valid and specific reasons for the refusal. Additionally, a decision must be made within a reasonable time. Under Section 137B(5) of the Strata Schemes Management Act 2015 (NSW), an application may be considered automatically approved if consent is unreasonably withheld or if the owners corporation fails to decide in a timely manner.

Exploring Reasonable Accommodations & Resolving Disputes

Before refusing a pet application due to an allergy complaint, a strata scheme must first explore all possible reasonable accommodations to balance the health concerns of an allergic resident with the pet owner’s rights. Practical solutions include:

• Regularly grooming the pet to minimise dander
• Requiring pets to be carried or kept in a carrier while on common property
• Increasing cleaning frequency of common areas to remove allergens
• Designating pet-free zones in certain common areas, such as a lounge or gym

If these measures are not feasible or an agreement cannot be reached, the first step in resolving the strata dispute is mediation, which involves a neutral third party helping both sides find a mutually acceptable outcome. Should mediation prove unsuccessful, either party can pursue their strata dispute in the NSW Civil and Administrative Tribunal (NCAT) to seek a binding order. NCAT has the authority to permit a pet if consent was unreasonably withheld or to order the removal of an animal that is proven to be causing a nuisance or hazard.

Conclusion

In NSW, strata by-laws cannot enforce a blanket ban on pets due to allergies, as each case must be assessed individually. A strata scheme can only refuse a pet application on allergy grounds if it is proven to cause unreasonable interference, which requires medical evidence of a severe allergy and a demonstration that all reasonable accommodations have been exhausted.

Navigating these complex strata regulations and disputes can be challenging for both pet owners and owners corporations. For trusted expertise and clear guidance on your rights and obligations regarding pet ownership in a strata scheme, contact PBL Law Group’s experienced strata by-law lawyers today. Our strata lawyers can help you resolve disputes and ensure your strata scheme remains compliant with NSW law.

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