So your owners corporation’s strata managing agent has informed you that you can’t bring your pet Shitzu named “Fluffy” into your unit because it is not a pet friendly complex or because if you bring your dog into the strata complex it will likely cause a lot of noise and disturb other residents.
Owners and occupiers in strata schemes have been struggling for years to find effective strategies when dealing with an owners corporation unreasonably withholding its consent to keep their pet cat or dog in their unit.
So what can owners and occupiers do if their application to their owners corporation to keep their pet in their unit has been refused by the owners corporation or the owners corporation’s executive committee?
The first step is to investigate and attempt to obtain documentary evidence of the reasons why the owners corporation withheld its consent. If you are of the view that the owners corporation acted unreasonably in withholding its consent, you may:
(a) lodge a Fair Trading mediation application with the owners corporation and, if this is unsuccessful or has been refused by the owners corporation;
(b) subject to legal advice, lodge a strata Adjudication Application.
The Applicable Law
Section 150(4) of the Strata Schemes Management Act 1996 (“SSMA”) states:
“150(4) An Adjudicator may, by order, declare that the applicant for the order may keep an animal on a lot or common property in such manner as is specified in the order if the Adjudicator is satisfied that:
(a) subclause (2) of by-law 16 in Schedule 1 (or a provision to the like effect in any by- laws) is in force in relation to the strata scheme, and
(b) the application is made with the consent of the owner of the applicant’s lot (if the applicant is not the owner), and
(c) the owners corporation has unreasonably withheld its consent to the keeping by the applicant of the animal on the lot or the common property.”
The following is a useful summary of key legal principles taken from Tribunal cases which deal with applications for the unreasonable withholding of consent to keep a dog in a lot in a strata scheme under model by-law 16 (Note: you should always check your owners corporation’s applicable by-laws to see which by-law applies to your scheme as the by-law may be a different to by-law 16).
Key Cases
In applications under section 150(4) of the SSMA, an Adjudicator is required to determine the reasonableness of the decision on the information that was before the owners corporation, at the time the refusal was made: Chomyn v Owners Corporation SP 14801 [2001] NSWSSB 6 (10 August 2001).
In Paris, Arthur v The Owners Strata Plan 16973 [1998] NSWSSB 12 (11 February 1998), Member Cochrane examined the word “unreasonably” within section 150(4)(c) of the SSMA. The following parts of Member Cochrane’s decision are relevant:
“The applicant alleges that the approval by the owners corporation has been unreasonably witheld (sic) and therefore is in breach of By-law 16.
The word “unreasonably” is to be given its meaning in the ordinary parlance; the authority for this is Davies J in Curragh Coal Sales Co Pty Ltd -v- Wilcox [1984] FCR 46. In order to have regard to ordinary parlance one has regard to the dictionary. The Macquarie Dictionary provides the following definitions:
“Reason” sound judgment or good sense
“Reasonable” agreeable to reason or sound jugement, endowed with reason
“Unreasonable” not reasonable, not endowed with reason, not guided by reason or good sense, not based on or in accordance with reason or sound judgment.”
In Johnson v The Owners – Strata Plan [2003] NSWCTTT 74, the Adjudicator said in respect of an owners corporation where by-law 16 applied:
“Precedent concerns are not valid concerns. Nor is it appropriate for the owners corporation to have a “policy” which it seeks to arbitrarily apply in every instance. This is because the owners corporation are obliged to consider each request for an animal on its merits”.
If the owners corporation’s executive committee required more information in relation to your application, the onus is on the owners corporation to have asked for it: Beames v Owners Corporation [2003] NSWCTTT 82 (28 January 2003).
In Montagna v The Owners – Strata Plan [2003] NSWCTTT 783, the Tribunal said in respect of an owners corporation where by-law 16 applied:
“It is therefore not open to owners corporations to decide that it does not want animals in the scheme and it is obliged to consider any request for permission to keep an animal on its merits. It is also not simply a matter of “majority rules”. Rather, the owners corporation are obliged to reasonably consider the request put to it.”
In Kelly & Owners of lot 3 v Owners SP 5044 (Strata & Community Schemes) [2012] NSWCTTT 54 (8 February 2012) the Tribunal held:
“33. …However, the information before them was simply that the dog barks, as all dogs bark … The real issue of importance in considering the impact of the proposed dog on the other lot owners was … the volume, frequency and timing of its barking. There was no information available to the lot owners about that.
34. It seems to me that the dog is likely to bark from time to time. So much is agreed. If the dog becomes a nuisance due to the volume, frequency or timing of its barking the lot owner(s) affected have a remedy in the other by- laws dealing with nuisance and annoyance or transmission of noise.
35. I am therefore satisfied that … there was no probative information available in relation to the actual or expected impact on the other lot owners due to noise. The objections taken were therefore of a speculative nature and the decision made fails the test of reasonableness outlined above.
41. Some noise is always present in strata living. No strata scheme is “completely quiet” as suggested by the respondent. There is always a siren, children playing, traffic, aircraft, music, television and a variety of other noises that impact on residents in a strata scheme.
42. I have had the benefit of reading the by-laws associated with this strata scheme and I am satisfied that should Lilly’s barking become more than “occasional” the lot owners’ interests are protected by by-laws 1 and/or 14. Furthermore the concerns of the other lot owners can be further protected by imposition of a condition for the approval.”
If you believe that your application to keep your pet in your unit has been unreasonably withheld by the owners corporation and need legal advice, please feel free to contact our strata lawyer Michael Pobi on (02) 8710 3430 or you can e-mail him at michael.pobi@pobilawyers.com
Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.
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