The long debate is over: with the verdict in favour of pets.

The Court of Appeal, in its unanimous decision on 12 October 2020 in Cooper v The Owners Strata Plan No 58068 [2020] NSWCA 250, decided in favour of the owners of Angus, a 13 year old miniature schnauzer, by holding invalid a by-law prohibiting pets.

The Court decided that the by-law was “oppressive” because it prohibited an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property. Namely, keeping a pet animal, with the prohibition providing no material benefit to other occupiers of the building in their use or enjoyment of their own lots or of the common property.

What Was the By-Law?

Here’s how the by-law in question read:

“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.”

Now, section 139 of the Strata Management Act says:

139   Restrictions on by-laws

(1)   By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.

So the big question that Angus, and his owners, needed the Court to address was this: was that by-law in question contrary to the section? And, as you’ve seen, the Court found it was.

Where to From Here for Strata Buildings with Similar By-laws?

The practical effect of the decision is first, it is not relevant that a lot owner bought into a building knowing of the existence of the by-law.

Second, being invalid the by-law is of no effect leaving the building with no pet by-law at all.

These buildings now have the following choices:

• Do nothing: the result being no regulation of pets
• Call a general meeting and put in place new pet by-laws, permitting and regulating pet ownership

The Contents of Pet By-laws

A pet by-law permitting pet ownership with approval of the owners corporation is fraught with difficulties.  There is no guarantee approval will be provided: if the apartment is being sold at auction potential purchasers will not know whether or not they will receive approval until after they become owners:  approval is often subjective and so on.

And by-laws which limit the size or weight of approved pets are, put simply, inappropriate. Often small dogs are the noisiest: dogs such as greyhounds are very suitable for apartment living because they are quiet and sleep a lot after very little exercise: this firm is acquainted with a 14kg corgi and so on.

What is the Best Type of Pet By-Law?

This firm has for many years been preparing pet by-laws for new buildings.  In this firm’s view the better position is for by-laws to:

• permit pets (there are instances where owners have 2 pets and this should be considered)
• pets must be recorded on a pet register held by the owners corporation (this then gives the owners corporation information if a pet or its owner is breaching the by-laws)
• Include conditions (for example, how to dispose of pet waste, prohibiting access to a roof garden and so on).

Do You Need New By-Laws Now?

Quite possibly.

If your current by-laws prohibit pets entirely or you’re concerned that the sheer amount of regulation is too high, then it’s worth having the by-laws checked out. Get in touch if you need us to lend a hand with that.

This article was first authored by Phillippa Russell and published on her website. It is published here with permission together with some additions and minor edits from Raea Khan