LegalSeptember 09, 2020

NSW Strata: Appeal Court victory for dog owners

Article by the Wolters Kluwer Property Law Editors

The decision of Cooper v The Owners — Strata Plan No 58068 [2020] NSWCA 250 is the most recent chapter in a strata dispute concerning the validity of a by-law that imposed a blanket ban on pet ownership.

History of the dispute

The 43-storey apartment building situated in Darlinghurst, New South Wales, had had the no-pet by-law since it was registered in 1998.

At EGMs held in 2015 and 2018 and at the AGM held in 2018, the Coopers who owned one of the apartments, unsuccessfully sought repeal of the by-law and its replacement. The Coopers were seeking a way to validate the keeping of their dog in their apartment.

The Coopers, who argued that the by-law was invalid as it was harsh, unconscionable or oppressive (in contravention of s 139 of the Strata Schemes Management Act 2015), then sought an order invalidating the by-law under s 150 of the Act.

The Tribunal at first instance agreed with the Coopers that the by-law was invalid (see Owners — Strata Plan No 58068 v/ats Cooper (2019) NSW Titles Cases ¶80-195[2019] NSWCATCD 62).

However on appeal, the Appeal Panel of the Tribunal found that the by-law was not harsh, unconscionable or oppressive (see The Owners — Strata Plan No 58068 v Cooper (2020) NSW Titles Cases ¶80-202[2020] NSWCATAP 96).

Most recent decision

In the most recent decision, delivered by the New South Wales Court of Appeal on 12 October (see Cooper v The Owners — Strata Plan No 58068 [2020] NSWCA 250), the appeal court determined that the by-law was invalid finding that the by-law was oppressive because it prohibited an aspect of the use of lots that is an ordinary incident of the ownership of real property, namely, keeping a pet. Further, the by-law provided no material benefit to other occupiers in their use or enjoyment of their lots or of the common property.

The appeal court found that the by-law should not have prohibited 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 appeal court was dismissive of the owners corporation’s assertion that removing the blanket ban on pet ownership could result in administrative convenience for the owners corporation/strata committee. The appeal court noted that “the making of evaluative judgments in response to applications by lot owners, or concerning their behaviour, is a common incident of the management of strata schemes”.

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