Whether you can or cannot prohibit an occupant of a strata lot keeping an animal has been of huge interest in NSW. The Court of Appeal decision in Cooper v The Owners – Strata Plan 58068  NSWCA 250 should have brought clarity. Strata lawyers continue to field questions however and not surprisingly given there has been confusion over when legislative changes would commence and at one apparently contrary decision in the NSW Civil & Administrative Tribunal.
Cooper involved Angus the mini-schnauzer who lived with his people in an inner city high rise apartment building where there was a by-law that prohibited the keeping of an animal. The Court of Appeal held that the by-law which contained a blanket prohibition on the keeping of animals was harsh, unconscionable and oppressive and invalid. In making its decision the Court of Appeal used a test of adverse affectation. Essentially, the by-law restricted Ms Cooper’s property rights but the restricted use (the keeping of Angus) did not adversely affect any other lot owner’s property rights and this was harsh, unconscionable and oppressive and in breach of section 139(1) of the Strata Schemes Management Act 2015 (NSW).
What does this mean? A by-law containing a blanket prohibition on keeping an animal will very likely be held to be invalid under Cooper. Amending by-laws to apply reasonable restrictions and conditions around keeping an animal on the scheme could save by-laws from being deemed invalid.
In a further change, on 24 February 2021, the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 was assented to.
What does this have to do with keeping an animal? A great deal. This Act brings in a number of animal friendly changes to the Strata Schemes Management Act 2015 that will commence on 24 August 2021 being 6 months after the Act was assented to.
The key change is that it inserts a new section 137B. A summary of the changes introduced by s137 is as follows:
- A by-law or a decision by an owners corporation under a by-law that unreasonably prohibits the keeping of an animal has no force or effect.
- It provides that it is reasonable to keep an animal unless in doing so it unreasonably interferes with another occupant’s use and enjoyment of the common property or their lot.
- A by-law prohibiting keeping an animal on a lot is not harsh, unconscionable or oppressive if it does not unreasonably prohibit the keeping of an animal on a lot.
- An owners corporation is deemed to have given permission to keep an animal if the owners corporation failed to make a decision on whether the animal could be kept within a reasonable time. (Note there is no definition of what ‘reasonable time’).
- While the section permits the regulations to specify circumstances where keeping an animal unreasonably interferes with the use and enjoyment by another occupant the regulations have not yet been updated. Under a new section 276A of the Strata Schemes Management Act 2015 the Minister review the Act and address items such as the circumstances in which it is reasonable to prohibit the keeping of animals, the welfare of kept animals and how to limit any adverse affects of keeping animals.
All in all. Good news for animals lovers. It does not mean however that our strata schemes will become a dog’s breakfast. Owners Corporations can impose reasonable conditions on the keeping of animals.
Allison Benson – Kerin Benson Lawyers