NSW Court of Appeal Determines Blanket No Pets By-law as Oppressive

In Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250, a decision of the New South Wales Court of Appeal delivered on 12 October 2020, the Court of Appeal determined that a by-law imposing a blanket prohibition on the keeping of pets (save in respect of assistance animals) was “oppressive” contrary to section 139(1) of the Strata Schemes Management Act 2015 (“SSMA”) because:

• It prohibits an aspect of the use of lots in the strata scheme that is an ordinary incident of the ownership of real property, namely, keeping a pet animal.

• It prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others.

• It provides no material benefit to other occupiers.

The Court of Appeal also held that:

• A by-law which restricts the lawful use of each lot but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws conferred by section 136 of the SSMA.

• A by-law is to be for the “benefit of the lot owners” within the terms of s 9(2) of the SSMA.

• A by-law which limits the property rights of lot owners is only lawful (valid) if it protects from adverse affection the use and enjoyment by other occupants of their own lots, or the common property. The no pets by-law did not meet this description.

• The possible administrative convenience for the owners corporation or strata committee that might result from a blanket ban could not justify interference with the ordinary rights of lot owners by means of the subject by-law.

The Court of Appeal also 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.

The Court of Appeal decision sets a precedent and makes it clear that a by-law which provides a blanket prohibition on the keeping of pets is likely to be found invalid.

In view of the above decision, every strata scheme in New South Wales which has an existing by-law which provides a blanket prohibition on the keeping of pets should seek legal advice as to the impact of the decision and the options available to manage the keeping of pets moving forward.

If you have any questions concerning the keeping of pets in your strata scheme or pet by-laws, we can help.

Disclaimer: Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article.