Who Let the Dogs In? Court of Appeal declares apartment's ‘No Pets Allowed‘ rule illegal
Cooper v The Owners -Strata Plan No 58068 [2020] NSWCA 250
Strata Schemes Management Act s 139
In the aforementioned case, the Court of Appeal declared a 'no pets' by-law invalid. The Owners Corporation that created and sought to enforce the by-law could not overcome the argument that the by-law was not an overreach of it’s power to make by-laws for the 'management, administration, control, use or enjoyment of the lots and common property' that are not 'harsh, unconscionable or oppressive'. In delivering it’s judgment, the Court highlighted the importance of the 'harsh, unconscionable or oppressive' constraint on the by-law making power (s139(1)) in protecting minorities or single lot owners against the majoritarian dictatorship.
The Owners Corporation of a 43 storey apartment building in Darlinghurst had created a by-law that stated 'an owner or occupier of a lot must not keep or permit any animal to be on a lot or the common property'.
The Coopers subsequently purchased an apartment where they commenced to live with their pet dog. The Owners Corporation failed in their action against the Coopers for breach of the by-law, with the Court of Appeal declaring the by-law invalid because it was ‘harsh, unconscionable or oppressive’.
Scrutiny of by-laws requires, to some extent, consideration of contemporary community standards. The problem with the by-law in this case is that the ban on pets was indiscriminate. It mattered not that the Coopers knew of the by law before they purchased the apartment.
NCAT has the power to declare a by-law invalid if it is found in particular circumstances to be harsh, unconscionable or oppressive, or if it is otherwise made beyond the power to create by-laws.
Where a use of a lot would not interfere with the use and enjoyment of any other lot or the common property, a by-law prohibiting that use could not be said to be one that has regard to the interests of all lot holders or for the benefit of all lot holders in the scheme.
Owners Corporations need to make evaluative judgments in the formation and administration of by laws.