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By Johanna Miller and Hamish Thomson

New South Wales Court of Appeal Victory for Pet Owners

Cooper v The Owners — Strata Plan No 58068 [2020] NSWCA 250 “Cooper

The NSW Court of Appeal has recently handed down its decision in a four-and-a-half-year litigation battle by property owners, Jo and Lee Cooper, to keep their miniature schnauzer, Angus, in the prestigious Horizon building in Darlinghurst. The Horizon Building has always included a blanket “no-pet” ban in its strata by-laws, which the Coopers disputed as being “oppressive” pursuant to section 139(1) of the Strata Schemes Management Act 2015 (the Act). The Court of Appeal ruled that the by-laws were oppressive in nature, effectively prohibiting strata buildings in NSW from imposing by-laws which have a blanket prohibition against animals.

Background to the Dispute

This dispute started almost five years ago, when at meetings held in 2015 and 2018 and at the annual general meeting held in 2018, the Coopers unsuccessfully sought to repeal the “no-pet” by-law and replace it. The 43-storey apartment building had the “no-pet” by-law since it was registered in 1998.

The Owners Corporation (OC) of the Horizon building in Darlinghurst, sought Court Orders to remove Jo Cooper’s Miniature Schnauzer, Angus. The OC sought a penalty against the Coopers for keeping a dog in the strata scheme against the by-laws.

Angus, 13 years old, was described as “highly trained, de-sexed, vaccinated, parasite-free, hypoallergenic, non-shedding, extremely friendly, family-oriented and good with children, does not bark and is always leashed when he leaves the apartment for walks two to three times per day” and spent much of his life in the strata residence without complaint.

In response to the OC’s legal action, the Coopers claimed the by-law was “oppressive”, “harsh” and “unconscionable” pursuant to section 139(1) of the Act and further sought an order to invalidate the by-law under s 150 of the Act . The New South Wales Civil and Administrative Tribunal (“NCAT”) agreed with the Coopers at first instance, stating the by-law was oppressive to pet owners. However, on appeal to the Tribunals Appeal Panel, the decision was overturned and the Appeal Panel up-held the ‘no-pets’ by-law.

NSW Court of Appeal Case

The Coopers were not satisfied with the result and appealed the Appeal Panel decision to the NSW Court of Appeal. On review, the Court of Appeal overturned the Appeal Panel’s decision and allowed the Coopers’ appeal.

In their reasoning, the Court ruled that a blanket “no-pets”by-law was oppressive contrary to section 139(1) of the Act:

“because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance, or material annoyance to others. By-law 14.1 thus interferes with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building”.

The Court ruled that a by-law:

“which restricts the rights of all owners as to the use and enjoyment of their lots in circumstances where the prohibited use would not interfere with the use and enjoyment of any other lot, is not a by-law which has regard to the interests of all lot holders; nor is it “for the benefit of the lot owners”, within the terms of s 9(2) [of the Act].”

Effect on Apartment, Unit and other Strata Property Owners

The Court in its decision has now established a binding precedent for New South Wales. The Court of Appeal decision has made it clear that by-laws providing for a blanket ban on pets will be found to be invalid due to their oppressive nature. The decision creates significant difficulty for strata schemes with such by-laws or who intend to impose by-laws which prohibit pets. Conversely, the decision is a landmark a win for pet owners, giving strata property owners the right to keep their pets at home.

What to do if your strata property does not allow pets

If you have a dispute regarding pets in your strata property, general strata property enquires, or any other property matter, get in touch with our experienced property law team at O’Hearn Lawyers.

Call us on 4951 8199 or click the link below to get in touch.

 

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The material included in this website is produced by O’Hearn Lawyers Pty Limited.  It is designed and intended for general information purposes only.  The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such.  You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. 

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