Australia has one of the highest rates of pet ownership in the world, with approximately 61% of households in Australia having at least one pet [1]. However, despite our love for our furry friends, up until recently, there has been a strict ban on keeping animals as pets in NSW strata buildings as part of the owners’ corporation by-laws. A recent landmark decision made in the Supreme Court of New South Wales Appeal Division, reversed this decision, and as of 25 August 2021, animals are now allowed in apartment complexes. Here’s what you need to know.

Background on the changes – Cooper v The Owners – Strata Plan no 58068 [2020] NSWCA 250

Whilst other state governments have begun encouraging owners’ corporations to allow pets within unit occupied buildings, New South Wales has taken it a step further and have ended the blanket bans on pets in owners’ corporation managed buildings. 

In the landmark decision of Cooper v The Owners – Strata Plan no 58068 [2020] NSWCA 250 (‘The Cooper Case’), the New South Wales Supreme Court of Appeal unanimously ruled on eradicating blanket bans on animals in apartment complexes.

In the Cooper Case, the subject Strata Plan’s (SP 58068) by-laws contained a statement which provided that an owner or occupier of a Lot within the strata scheme must not keep or permit any animal to be on a Lot or on the Common property.

Following a suite of NSW Civil and Administrative Tribunal (‘NCAT’) proceedings against Mrs Cooper – the owner of a 14-year-old schnauzer breed dog named Angus, who resided within Strata Plan 58068 – Mrs Cooper appealed the NCAT decision in the NSW Supreme Court of Australia. In this case, the Court found that by-law 14 was invalid as it was beyond its power, harsh and oppressive and as such, was in contravention of s136(1) of the Strata Schemes Management Act 2015  (‘The Act’).[2]

The Supreme Court made that the findings of the Court did not just relate to the Cooper Case but extended to the way in which owners’ corporations are allowed to govern their schemes generally. The Court found that whilst owners’ corporations should be allowed to manage and control their respective strata schemes, it is imperative that they be managed to prevent oppression, especially where they found “a liberal democracy is not a majoritarian dictatorship”.[3]

Understanding what your owners’ corporation can or can’t do following the decision in the Cooper Case

Following a detailed revision of the Act, the Act has been amended pursuant to Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 No1. This means that as of 25 August 2021, owners’ corporations can no longer unreasonably ban pets under the Act.

The only circumstances where the owners’ corporations may prohibit pets is where there is an unreasonable interference such as repeated damage to common property, menacing behaviour, persistent noise, and odour[4] caused by the pet. For a prescribed list of what constitutes unreasonable interference, please view the NSW Fair Trading website.

The Act also permits revision to the relevant strata by-laws in order to keep animals where the owners corporations has reasonable grounds to prohibit the keeping of an animal, except in the event where the provision impacts matters such as the welfare of the animal, wellbeing of residents, or barriers faced by residents such as domestic violence[5] who find support in their pets.

The Act, however, does not affect landlord’s rights under a residential tenancy agreement to prohibit an animal from their lot and as such, a landlord can still prohibit a tenant from any animal keeping upon their lot unless with direct permission from the landlord to do so.

So what does this mean for pet owners?

We have summarised how the new laws impact owners’ corporations and the rights of the residents of a strata scheme. Below is a list of what the owners corporations can and can’t do pursuant to the amendments effective 25 August 2021:

Can the Owners Corporation…

Yes /  No

Any Exceptions

Prohibit me from owning a pet in my building?

No, unless…

There has been repeated damage to common property, menacing behaviour, persistent noise, and odour.

Reverse a decision made under reasonable grounds

Yes, where the provision impacts matters such as:

  • Welfare of the animal;
  • Wellbeing of residents; or
  • Barriers faced by residents where the animal may be considered support.
 

Make me seek approval for my animal in the scheme?

Yes, however they are limited by…

Only refusing permission where the animal causes unreasonable interference to another occupant and, in doing so, must make their decision within a reasonable time frame.

Where a decision is not made in accordance with the rules set out above, the keeping of the animal is deemed to be approved.

Set certain conditions in place for governing animals?

Yes, so long as the conditions are reasonable and to prevent animals from causing an unreasonable interference within their scheme.

 

Remove an animal from the scheme?

Yes, however only where…

Reasonable steps are taken to prohibit an animal if it is a nuisance, or a hazard, or if it causes an unreasonable interference.

These include:

  • Resolving disputes within the scheme, such as by way of negotiation.
  • Seeking a nuisance order.
  • Prohibiting an animal through NCAT.

If you would like to understand these changes further or feel your current owners’ corporation is not adhering to the new legislation, our experienced Sydney Commercial Lawyers can look over your owners’ corporation agreements, and provide tailored advice on what your obligations and rights are. Give us a call on 02 9262 4003 or submit an online enquiry to get started.

[1] “RSPCA Knowledgebase.” RSPCA Knowledgebase, 9 Nov. 2018, kb.rspca.org.au/knowledge-base/how-many pets-are-there-in-australia/.
[2] Cooper v The Owners – Strata Plan no 58068 [2020] NSWCA 250 at [61].
[3] Ibid at [48].
[4] NSW Fair Trading. “End to Blanket Bans on Pets in Strata.” NSW Government, NSW Government, 23 Aug. 2021, www.nsw.gov.au/media-releases/end-to-blanket-bans-on-pets-strata; Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 No1 at [137B]
[5] Ibid at [276A]
The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
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