It was until recently generally thought that with the exception of assistance animals, that by-laws may permit, permit with consent or prohibit the keeping of animals in a lot or on common property – and that sections 156 to 159 gave NCAT powers to enforce such by-laws and also to order that an animal may or may not be kept, in certain circumstances.
However in a case concerning the Horizon Building in Sydney decided on 12 October 2020, the NSW Court of Appeal has held that applying the tests encompassed by the phrase “harsh, unconscionable or oppressive” in section 139 of the Act, a by-law which prohibits absolutely the keeping of animals is “oppressive” because it prohibits an ordinary incident of the ownership of real property, namely, keeping a pet animal, and provides no material benefit to other occupiers. The Court unanimously concluded, perhaps surprisingly, that in an apartment building such as the Horizon in Sydney, an animal could be kept within a lot without creating the least interference with other lot owners. Therefore the by-law 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 it interfered with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building.
The Court held that this was to be contrasted with the model by-laws concerning animals as set out in Sch 3 of the Management Regulation 2016. Option A of model by-law 5 would permit an owner to keep an animal subject to it remaining within the owner’s lot and entering common areas only under supervision. Option B would permit an animal to be kept within a lot or on the common property subject to the approval of the owners corporation, such approval not to be unreasonably withheld. The Court held that these were examples of by-laws that avoided oppression by restricting individual lot owners’ exercise of their property rights only to an extent that is adapted to the preservation of others’ enjoyment of their own lots or of the common property.
The result will undoubtedly be that the Owners Corporations spend a significant amount of Owners money on litigation in NCAT (where legal cost are generally not recoverable) disputing the niceties of a particular animal and its potential impact on other lot owners in the particular circumstances of the particular strata building. For pet lovers, you can argue the toss, no matter what the by-laws say.
Wayne Muddle SC