A key legal development in strata law this year has been the NSW legislature's prohibition against any strata by-laws which purport to impose blanket bans on pets within buildings.
Specifically, a new section 137B was inserted into the Strata Schemes Management Act 2015 (NSW) stating that a by-law is void to the extent that it unreasonably prohibits the keeping of a pet on a lot. The section states that it is deemed prima facie ‘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.
This change in statute was a response to the landmark case of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 last year. In that case, the owners of a half-blind, half-deaf miniature schnauzer named Angus were appealing the legality of by-laws which banned the keeping of all pets in a a strata building in Darlinghurst.
After losing the case in the NSW Civil and Administrative Tribunal (NCAT), Angus's owners were finally successful on appeal to the NSW Court of Appeal. The judges in that case ruled that the by-law in question was oppressive because it 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 - thus interfering with the lot holders’ use of their real property in an unjustified way.
The law does not say that all pets will be allowed in all circumstances
It is important to understand that the Cooper case and the legislation which followed it does not say that all pets are allowed in strata buildings and in all circumstances. Rather it allows pets unless the keeping of the pet on the building would cause an unreasonable interference of another occupant’s use and enjoyment of their lot or common property.
Clause 36A of the Strata Schemes Management Amendment (Pets) Regulation 2021 (NSW) states unreasonable interference may exist where:
- 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; or
- the animal causes a persistent offensive odour that penetrates another lot or the common property;
A further thing to be aware of is that this change in law does not, at this stage, appear to apply to Company Title property nor to residential leasing arrangements. For now it seems that it would seem pets can still be unreasonably banned for persons who occupy company title apartments or for persons leasing strata apartments.
Conclusion
These amendments NSW strata legislation will come as a great relief to pet-owners and brings Australia in line with other countries like those in Europe. However it is important to remember that a body corporate may still ban dangerous and badly-behaved animals and that the bans against these rules do not apply to company title properties or where apartments are being leased.
If you have any questions about this article, please contact the office on 1800 870 407 and one of our solicitors/conveyancers will be able to assist.
