On Monday 12 October 2020 the Court of Appeal looked into the validity of a strata bylaw prohibiting owners from keeping animals on their lots.
Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 is a case brought by Leo and Johanna Cooper, owners and residents of a unit at a Darlinghurt’s 43-storey apartment building known as “The Horizon”, who were told they were in breach of the bylaws because they kept their miniature schnauzer in their apartment.
The Coopers sued the Owners Corporation in the NSW Civil & Administrative Tribunal, claiming the bylaw was invalid under s139 of the Strata Schemes Management Act 2015 which prohibits bylaws from being “harsh, unconscionable or oppressive”.
The Coopers were successful, and the bylaw was ordered to be removed.
The Owners Corporation successfully appealed to the Tribunal’s internal Appeal Panel, which determined the bylaw could stay. The Coopers were required to remove their miniature schnauzer within 28 days.
The Coopers appealed to the Court of Appeal.
The Court of Appeal closely scrutinised the wording of the bylaw, which prohibited any animal from being on a lot or common property, save for assistance animals which is an exception required by the Act.
The question for the Court was whether the blanket ban was “harsh, unconscionable or oppressive”.
The Court’s starting point was to note that owners have freehold interests in their lots and are entitled to enjoy their ownership except when they are lawfully constrained from doing so.
Where a bylaw could not rationally improve the owners’ enjoyment of their lots, that bylaw will be “harsh, unconscionable or oppressive”.
The blanket ban on animals was so broad that it prevented owners from using their lots in a way which could not rationally adversely affect another owner.
The Court gave the example of a single goldfish kept in a secure tank as an obvious example of a breach of the bylaw which does not adversely affect another owner’s enjoyment of their lot or the common property.
Because the bylaw’s blanket prohibition on animals cannot provide a material benefit to another owner’s enjoyment of their lots or the common property, the bylaw is “harsh, unconscionable or oppressive”.
While the Coopers were successful, it is important to note the reason for their success was the broad and absolute nature of the bylaw.
A bylaw could be drafted with more nuance to exclude some animals and not others. A bylaw might, for example, prohibit the keeping of dogs of a certain breed or size, or prohibit dogs on common property. Where it can be shown that a dog’s barking is a nuisance to the other owners, that more nuanced bylaw might not be invalidated for being “harsh, unconscionable or oppressive”.
Strata bylaws are expected to become increasingly in issue as more people move into strata title apartments. Currently, 1.2 million NSW residents live in strata schemes. It’s estimated that half the state’s population will live in strata schemes in 16 years.
With more residents, strata bylaws will have to consider more nuanced and detailed drafting to accommodate every circumstance, which is likely to result in more challenges to those bylaws in the Courts.