Keeping of Pets Legalised in NSW Strata Plans
One legal change to Property Law last year was the NSW legislature change to the prohibition of any Strata by-laws to prohibit pets within buildings.
Section 173B was inserted into the Strata Schemes Management Act 2015 (NSW) which provided that, a by-law was void if it unreasonably prohibited the keeping of a pet on a lot. The section states that is prima facie ‘reasonable’ to keep an animal on a lot unless the keeping of the animal interferes with another occupant’s use and enjoyment of the occupant’s lot or common property.
This change in statute was due to the landmark case of Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 last year. In this case, the owners of a half-blind and half-deaf schnauzer were appealing the legality of by-laws which prohibited the keeping of all pets in their Strata building.
After initially unsuccessful in the NSW Civil and Administrative Tribunal (NCAT), the applicants were successful on appeal to the NSW Court of Appeal. The court ruled the by-laws in question were oppressive because it prohibited the keeping of animals without any exceptions for animals that would create no hazard, nuisance, or material annoyance to others. The court held the by-laws interfered with the owner’s use of their real property in an unjustified way.
It is important to note the amendments to the law do not state that all pets are allowed in Strata Buildings and in all circumstances. Rather, it allows pets unless the keeping of the pet on the building would cause an unreasonable interference of another occupant’s use and enjoyment of their lot or common property.
Cluse 36A of the Strata Schemes Management Amendment (Pets) Regulation 2021 (NSW) states unreasonable interference may exist where:
The animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant;
The animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant;
The animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant;
The animal repeatedly causes damage to the common property or another lot;
The animal endangers the health of another occupant through infection or infestation; or
The animal causes a persistent offensive odour that penetrates another lot or the common property;
The change to law at this stage does not apply to Company Title property nor to Residential Leasing arrangements. For now, it seems that all pets can still be unreasonably banned for persons who occupy Company Title Apartments or for persons leasing Strata Apartments.
These amendments will come as a great relief to pet-owners in NSW. It is still important to remember that body corporate can still ban dangerous or badly behaved animals from the property.
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