Article: keeping animals in strata part 2, the road to approval
Previously, I wrote about when and how a resident of a strata scheme can keep pets in their lot.
Today, I set out the process than can be undertaken if the owners corporation has rejected your request to keep a pet.
So, you have written to the executive committee, enclosing a photo of Max lying on the grass with three other dogs at the park, belly up: “it really shows how submissive and kind his disposition is!” Not long after, you receive an email informing you that the Owners Corporation has considered and rejected your request to keep your furry friend in your lot.
Sure, you can hug your pet and cry yourself to sleep, but a better way to deal with this situation is to determine whether you have a case to object to the owners corporation’s decision, on the basis that it was unreasonable.
What constitutes an unreasonable decision? In our view, it would be considered unreasonable to reject your request to keep a pet if:-
- your neighbours have similar sized dogs/cats on the premises – with the owners corporation’s approval;
- your animal is an assistance or companion animal (in the case of an assistance animal, the owners corporation’s refusal could actually be illegal);
- the owners corporation provided no reasons for their decision. If that is the case, you should first request the owners corporation’s reasons before deciding how to proceed.
It may not be unreasonable if the owners corporation expresses concerns about:-
- the size or temperament of the animal;
- odour or noise;
- the security of the premises;
- objections from neighbours.
If you believe the owners corporation has acted unreasonably and you have tried to talk through the issues with members of the executive committee, but to no avail, the following may be options for you.
You may apply to the Office of Fair Trading for mediation. Mediation is a structured, informal and confidential negotiation process in which a neutral and independent mediator assists parties in dispute (usually you and a member of the owners corporation) to achieve a resolution. Mediation will not take place unless both parties agree to attend (but note the proposed changes to the legislation which could see cost orders made against parties who do not attend mediation).
The mediator is only a facilitator and cannot make orders that are binding on both parties. However if the parties do reach an agreement at the mediation and record that agreement in writing, that agreement is binding and can be enforced.
If mediation fails to resolve the dispute, or one party refuses to attend, you can then seek orders from the Strata Schemes Adjudicator. This is a ‘paper process’, with the Adjudicator seeking and considering written submissions from each of the parties. As the resident wishing to keep the animal, you will need to convince the Adjudicator that the owners corporation has unreasonably withheld its consent to your application. Your application will need to set out what orders you seek. The Adjudicator may make the orders you seek, or dismiss the application, or alternatively make the orders sought by the owners corporation.
Appeal to the NSW Civil and Administrative Tribunal (‘NCAT’)
If you are not happy with the Adjudicator’s decision, then you may appeal to the NCAT.
An appeal must be lodged within 21 days of the date of the Adjudicator’s order. The NCAT may confirm, vary or revoke the Adjudicator’s order or may substitute its own order. When lodging your appeal, you may also wish to have the Adjudicator’s order stayed, which means that order will not come into effect until the appeal has been determined. Unlike the Adjudication process, you need to appear before a member of the NCAT to argue the appeal.