The decision in Cooper v The Owners – Strata Plan No 58058 [2020] NSWCA 250

In the latest decision in a long line of cases, the NSW Court of Appeal has determined that no strata scheme in New South Wales will be allowed to have By-Laws imposing a ‘blanket ban’ on keeping an animal on any lot or the common property.  The decision is an important development which creates some clarification of the rights of lot owners in relation to the keeping of pets in strata schemes.

In a fight to challenge the validity of a ‘blanket ban’ By-Law, which restricted Jo Cooper from having Angus (her 14 year old miniature schnauzer) reside in her home in the Horizon Apartment Complex in Darlinghurst, the Court determined that the ‘blanket ban’ By-Law extends so far as to prevent lot owners from using their lots in a lawful way which could not, an any rational view, have an adverse effect on other lot owners’ enjoyment of their lots or the common property.

The breadth of the ‘blanket ban’ restriction was such that it is oppressive, in contravention of section 139(1) of the Strata Schemes Management Act 2015 (NSW), as 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”.

By reason of its oppressive nature, the Court determined that the ‘blanket ban’ By-Law is subject to invalidation.

The decision is an important development which creates some clarification of the rights of lot owners in relation to the keeping of pets in strata schemes.  It is essential to note that the Court’s decision does not impact on the right of the lot owner to refuse pets during a tenancy, regardless of the strata scheme’s By-Laws. In other words, a landlord still has the right to approve or refuse a tenant’s pet during a tenancy.

The history of the Coopers’ fight has not been uncontentious and there is every chance that the matter will be appealed to the High Court.  For now, the decision is a binding precedent in New South Wales that a ‘blanket ban’ By-Law will be invalid due to its oppressive nature.

 

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