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Pet owners in two of Sydney’s most prominent apartment buildings are now wondering if they will have to move out or get rid of their pets following a decision by the NSW Tribunal Appeals Panel to overturn a previous ruling that their blocks’ anti-pets by-laws were invalid. Last year, by-laws in both the 260-apartment Horizon and the …
https://www.flatchat.com.au/pet-bans-back/The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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For those who like the contrasts found in legal cases consider the harsh unconscionable and oppressive in Cooper and also in Roden and contrast them with the Appeal Panels work in The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; where the Member argued:
(1) Does the by-law provide for unnecessary or unreasonable differential treatment between lot owners or occupiers?
(2) Does an aggrieved lot owner have a reasonable expectation (in the circumstances of the particular case) that any restriction(s) would not be required or imposed?
(3) Does the by-law provide for reasonable exceptions?
(4) Does the by-law provide a “complete embargo” as found in John Maait Properties?
(5) Is it appropriate that an owners corporation establish some control and is the level of control appropriate?
(6) Does the by-law include provision for consideration of individual needs which may not be necessary in relation to the majority of owners or occupiers?
(7) Does the by-law allow particular works or benefits but at an unreasonable cost?
(8) In considering each of the above factors (and any other factors which may suggest themselves), does the by-law include that element of extremity necessary to meet the high standard set by s. 139I have edited this and cut it back a lot because I’m not sure that posting huge chunks of legal verdicts improves the understanding of these issues. Most people won’t read very far into these documents.
Make your point, by all means quote a line or two, and then please provide a link to the document you’re quoting. But I think great long screeds of detailed copied and pasted material turns the vast majority of people off and halts discussion in its tracks (as you can see right here). – JimmyT
In Vanstone unreasonable is ‘synonymous’ with oppressive.
“Weinberg then referred to authorities, including the judgment of Lockhart J in Austral Fisheries, holding that a subordinate rule could be invalid as unreasonable if it was manifestly arbitrary, oppressive, capricious or irrational such that Parliament could not be taken to have authorised it.”
Vanstone v Clark (2005) 147 FCR 299It would be interesting to see how these SPs with prohibitory pet by-laws explained how the by-law is not irrational; see also 143 in the above case; can a prohibition be justified by reason? It is a reverse onus of proof if looked at that way.
For all the history of cases regarding by-laws is it really the case that the Parliament’s intention was to give strata owners the power to be unreasonable and irrational or has the justice system dug itself a hole it will always struggle to get out of due to flap-trap like that found in White v Betalli (NSWCA).
A broad interpretation is one thing but a power to be unreasonable; I think not.Typically these by-laws exist on the back of a subjective perspective held by sufficient, unaffected, people to have the numbers to create the by-law. The only real necessity when making by-laws is having the numbers. You don’t need to be rational or considered or base a decision on fact; hysteria is enough if it gets the job done.
Thank you NSW judicial system for the (dys)functional interpretation of the power to make by-laws.Weight given to an idea disproportionate to the probability of the occurrence of the idea is a common human mental trait that has been proven as fact by psychologists to lead to poor outcomes.
That goes a long way to explaining how this whole ‘dog’s breakfast’ has eventuated.83. We agree that a by-law which discriminates against a minority group of lot holders may be oppressive…..
The Owners – Strata Plan No 91157 v Yoolee Holdings Pty Ltd Limited; Yoolee Holdings Pty Limited v The Owners – Strata Plan No 91157 [2020] NSWCATAP 6
I guess it all depends which Appeal Panel one gets as to what is oppressive, harsh and so on and so forth.
Still a chocolate wheel.
“… this probably isn’t worth going to court over – and certainly not the CTTT chocolate wheel.”
J Thomson; Flat Chat forum 2011We do permit pets, but with restrictions. I’m very glad to see the result of these two appeals due to the broader issues raised. I have read both judgements. The key point for me was put forward by one of the Owner’s Corporations:
“… the implicit premise that one person’s preference to keep a pet is more important than another person’s… preference to live without a pet in the building…”
Strata living in a nutshell. 😉 Hopefully these appeals allow communities to choose their own destiny. Want a building which permits or restricts pets, short term lets, smoking, ballroom dancing in the courtyard, visible washing, solar panels, electric vehicle chargers? Read the by-laws & find a strata scheme which suits you & your circumstances.
The “spirit” of strata by laws is to ensure that one does not behave in a manner which interferes with their neighbours “peaceful enjoyment”. For example, one shouldn’t invite guests who are excessively noisy, and one should not deal with rubbish in a manner which disturbs the environment for their neighbours. In keeping with this “spirit“, it should be possible for a strata to develop a set of guidelines for pets, which ensures that they do not interfere with the “peaceful enjoyment” of neighbours. For instance, guidelines could include dogs on leashes in common areas and pets never entering neighbours properties, etc.
Pets living in strata’s with appropriate guidelines being followed in no way interfere with the peaceful enjoyment of neighbours more than say a family with a number of children, and I think that we would all agree that it would be inappropriate to have strata laws that ban children.
Thanks for your articles in the weekend Fin Review – very good. I refer to the article on this about a month or so ago.
You mentioned 3 schools of thought on this, but no one has mentioned the actual pets themselves – although point one may be linked to it.
While I believe some animals (birds in cages, lizards, some snakes in empty dry fish tanks, etc.) are ok in flats, the most common animals such as cats and dogs simply should NOT be allowed in any apartment.
This is something I have noticed in Asia and unfortunately it is creeping in here. There it is sadly common to own a dog (or cat) in a high rise and once a day (usually late afternoon) the owner brings it down to a small common lawn area, where everyone gathers to chat (and smoke) and let the animal have limited exercise for about half an hour. It then goes back up to the apartment, where it stays (often while the owner is at work) until it comes down again the next day, and so on.
It is a cruel and boring existence, as they need plenty of fresh air and outside space to run around. Not to mention the probability of dogs barking as well as the hygiene issue (worse with dogs than cats). Quiet simply it is cruel and should not be allowed at all.
It is very pleasing that the NCAT senior members recently ruled against pets in apartments – for normal, decent minded citizens, and domestic pets this must continue and be supported.
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