Pet ban shock as Appeals Court erases by-laws

It was a decision that doubtless had the denizens of luxury Sydney apartment block Horizon spluttering into their sundowner G&Ts on Monday afternoon … and then checking their bank accounts.

Much to everyone’s surprise, the NSW Appeals Court – the state’s highest judicial body – has ruled that strata by-laws which ban pets are “harsh, discriminatory and unconscionable” and therefore invalid.

Not only that, they awarded all costs to the appellant, Jo Cooper, meaning the owners will have to find an estimated $500,000 to cover her legal fees as well as their own, with some in the 260-plus unit block facing a five-figure special levy.

Ms Cooper, by the way, will be excused making any contribution: NSW strata law excludes the winner of a legal battle against their Owners Corporation from contributing to costs awarded against the strata scheme.

Up the hill in Kings Cross, where owners in the only slightly less salubrious Elan also had a temporary win in their battle to prevent residents from having pets, their demand for costs from the owner who lost in the last round at the NSW Civil Administrative Tribunal might have to be put in abeyance unless they have the stomach for another legal battle.

Pro-pets

As our correspondent Sue Williams reports in the Sydney Morning Herald, the “losing” owner may be in no rush to pay any costs that were awarded against him in a decision that has now been overturned.

As we have said many times in Flat Chat, we have no dog in this fight.  We are pro-pets in apartment blocks but we also believe there should places where people can find apartments where pets are not and never will be allowed.

What we have never supported is the idea that pets shouldn’t be allowed because just over 25 percent of owners can block changing by-laws that have never been properly considered in the modern context.

For the record, in the past year The Horizon’s owners have voted overwhelmingly to keep their no-pets by-laws.

The Elan, on the other hand, just narrowly scraped through the vote that authorised their committee to appeal against the original decision to allow pets, an appeal they won at NCAT but which has now been overturned by a much higher court.

Infringe

The fur will fly, as they say.  But there is a much more significant aspect to this, and one with broader consequences than simply whether or not the people next door can have a cat.  In simple terms, it’s about whether strata schemes can have by-laws that pre-empt problems.

At the heart of it is the Appeal Court’s ruling that by-laws can’t exist if they infringe on strata residents’ right to do what they wish in their own homes, provided that doesn’t have a negative impact on their neighbours.

The principle is based on the idea that there exists within strata law the ability to censure, fine and even force owners to change the way they behave or alter changes to their property that creates a nuisance to other owners.

Thus there is no standard by-law that prevents you from smoking on your balcony but there is one that says you can’t do it if smoke drift is triggering your neighbour’s asthma, for instance.

Pets are actually a case in point. If you are only concerned about nuisance, you don’t need a by-law banning animals because there’s already a section of the strata Act that says even pets that have been allowed can be forced out of the strata scheme if they turn out to be a pest.

So now that pets have been let off the leash, what other pre-emptive by-laws could be under threat?

Flooring

Do you have a by-law that demands you have a certain level of noise insulation under a hard flooring?  Or does yours even insist that you must have carpet and underlay (the most effective form of noise and impact insulation on flooring)?

The pet by-law ruling could be expanded to mean that you can put down any kind of flooring you want, in the knowledge that if you seriously miscalculate the level of noise transmission, you could be forced to rip it up and start again?

Because that’s what could happen if the downstairs neighbour’s legal right to the peaceful enjoyment of their lot has been seriously compromised.

How many chancers, egged on by flooring sales people, will take a punt that they will get away with their cheap flooring, despite the complaints of the downstairs neighbours that they gave driven insane.

And as for Airbnb, you can bet that when the tourists come back, any by-laws that aren’t absolutely watertight will be severely tested

Some by-laws, especially those that control people’s behaviour on common property, will be unaffected by this ruling.  But that could be the next battleground.

It’s generally accepted that strata schemes can set their own rules and by-laws for the control of behaviour on common property.  But what about aesthetically driven by-laws such drying your laundry where it can be seen from outside?

There are some strata schemes where you are forbidden from doing that even when the laundry is inside but can be seen from outside.  That’s one that could and should be ignored without repercussions.

Persuasive precedent

As for the rest of Australia, while the NSW Appeal Court ruling is not a direct precedent for courts in other states, it could be used as a “persuasive” precedent, especially in lower courts and tribunals elsewhere.

In Victoria, by-laws may not be “discriminatory“, in Queensland they may not be “unreasonable”.

Meanwhile, it will fall on NCAT to determine whether or not by-laws are harsh, discriminatory or unconscionable. And it will be there that breaches of the basic rights to the peaceful enjoyment of your homes are worked out.

It’s NCAT where you will have to go when pre-emptive by-laws have been erased and you need to prove nuisance.

Let’s just hope they are up to the task.  It’s hardly encouraging that a bench of three of their most senior members on the Appeals Panel got it wrong over the pet by-laws.