The NSW Court of Appeal recently ruled against pet bans by owners’ corporations in their strata by-laws.

In the case of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 the NSW Court of Appeal unanimously determined that a by-law imposing a blanket prohibition on the keeping of animals in a strata scheme contravened Section 139(1) of the Strata Schemes Management Act 2015 (NSW) and was therefore invalid.

Section 139 places restrictions on the types of by-laws that may be adopted by strata schemes. It states that a: “By-law cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”

Such a by-law may be invalidated by the NSW Civil and Administrative Tribunal under section 150 of the Act.

The matter was brought before the Tribunal by occupants (the Coopers) of the Horizon apartments in Darlinghurst who reside with their miniature schnauzer, Angus.  

The Horizon owners’ corporation had adopted a by-law that imposed a ban on the keeping of animals in the complex (with the exception of assistance animals).  

Proceedings were instigated after the Coopers failed to have the by-law repealed. The owners’ corporation then commenced proceedings to have Angus permanently removed from the complex.

The Coopers lodged a cross-application against the owners’ corporation challenging the validity of the by-law, which ultimately lead to a Tribunal decision that the “facts do not support a conclusion that Section 139(1) has been contravened and should be declared invalid”.

The Coopers appealed the Tribunal’s decision in the NSW Court of Appeal, which handed down its decision in October, 2020. 

The Court held that the by-law banning pets was "harsh, unconscionable, or oppressive" because “it prohibits an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property, namely, keeping a pet animal” and such a prohibition "could not, on any rational view enhance or be needed to preserve the other lot owners' enjoyment of their lots and the common property”. 

It was said that an animal could be kept in an apartment building such as the Horizon without creating the least interference with other lot owners and a by-law which 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” is oppressive and impinges on a lot holders’ use of their real property in a respect that is unjustified.