This week I am joined by David Edwards, the lawyer who led The Horizon apartment building to success before the NCAT Appeal Panel. David explains the facts, findings and impact of this case, in which a by-law banning pets was upheld. He also promises to buy me a drink. I wrote that one down. 

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12 Responses

  1. If in the course of living in the unit block – community, a unit owner develops eye problems that necessitates them to have a seeing eye dog. On what grounds does the The Owners Corp. could prevent the dog in this situation? And to extend this argument further, if a unit owner that due to their age and mental state needs a “companion pet” – dog etc for their wellbeing as recommended by a health agency, ie doctor, psychologist etc, in the circumstances of the ban on pets by the Owners Corp . would the unit owner succeed in having a companion pet- dog allowed, even with control rules in necessary to succeed?

    1. Hi Harry, great question. In NSW, by-laws cannot ban “assistance animals”. So a seeing eye dog would fall into this category and must be permitted. However, the definition of “assistance animal” is quite narrow and does not cover “companion animals” or “emotional support” animals. So, if there was a total ban on pets and an elderly resident (per your example) wanted a dog or cat as a companion pet or emotional support animal, the ban would apply to prevent that from happening.

      1. Hi Amanda

        Does your seeing eye dog comment apply to someone purchasing when they are on notice that there is a pet ban by-law as distinct from an existing owner developing problems that leads to the necessity of a seeing eye dog?

        1. Hi Thejoysofcommunityliving (nice handle!)
          Any by-law that bans assistance animals is invalid. So, whether you need an assistance animal when moving in for the first time, or you develop a need over time, the building cannot prevent you from keeping one.

  2. And, I wonder if the “vote” by the owners corp was based on unit entitlement? If so it was not the number of owners but those with the most control wasn’t it?

    1. The votes were by UE and the committee vote as a block. There is much more to this story that has not been reported.

  3. As expected David left out a lot of facts about the fact the committee members informed me about the fact that pets are to be snuck in rather than submit a motion for change. Votes were not transparent and were based on UE and the committee votes as a block. This story is extremely misleading here.

    1. Only 1 fact need be considered. There was an existing by law, before you bought/moved in, not allowing pets. You moved in then wanted to change the by laws, and it finally wasnt ruled in your favor. I am glad that by-laws have been upheld, as it represents the Owners Corporation’s ability to manage the way the building operated overall. Dismissing a by-law creates a range of future issues as to the strength of any by-law.

      Respect others, not just consider for yourself. If I bought into a building that had a no pets by law, I would want and expect that to be upheld (except for assistant animals) … I have a phobia with dogs since a traumatic event during childhood, so dont push for the “pets are positive for mental health” argument. It would be detrimental to the health of others that may have mental or other health considerations (asthma, allergies etc) , so there are two sides of every consideration.

      As the appeals tribunal final verdict, if you wanted a pet, purchase or rent a property that allowed for it, rather than move into a place then expect everyone else to make the change/adjustment for you. If you feel so strongly about keeping a pet, move into a property (house) that allowed for and is suitable for one.

      1. The by-law was token, there have been pets in the Horizon from it’s inception and this is fact. When certain owners are allowed to have pets and others who wish to change the by-law so it is fair on everyone are vilified, that is an abuse of power. You state you have a phobia and allergies, assistant pets can’t be denied, and are not free from causing allergies. It is no different from walking down the street or sitting at a cafe with pets around. Have we lost so much humanity that we don’t care for the elderly or those that are lonely and would benefit greatly from the love and companionship a pet provides? No one should be able to dictate how we live within our own homes, just like noisy neighbours or loud music, pets can be dealt with when and if they are a problem, to blanket ban them is not the answer.

  4. The problem is that people do not know what they are buying. Fair Trading should inform people who want to buy in a Strata Scheme that they do not have the rights to have a pet on a strata scheme. Why should some buildings have pets and others don’t? Fair Trading is making people fight with each other instead of creating harmony in their buildings. In our Strata of 4 Lots we used to have dogs and cats without any problem and the strata levies were very low. Now, is not the case, we are paying for shonky and unnecessary repairs and there is nothing I can do about it, How many people are in the same situation, where bullies are in charge of our buildings?
    Thanks Amanda for keeping us informed!!

  5. If the community is the community within the SP we now have 70000+ ‘little kingdoms’ in NSW predominantly run by people whose subjective perspective will determine how life rolls within a SP.
    Democracy should be more than the often uniformed and selfish position of strata owners.

    I would expect the Supreme Court to do much better than the ‘test’ the Appeal Panel has put forward in Cooper.
    I prefer the ‘test’ in Yoolee at 75 (also visible in Cooper at first instance) where it is implies there should be a reverse onus of proof. If a by-law wants to prohibit then an OC needs to show it is not excessive to do so. Reverse onus of proof is not a new concept in law take the Drug Misuse and Trafficking Act 1985 which has a number of sections where the onus of proof is on the accused to prove otherwise than what the prosecution claim.
    I think a lot of these little kingdom owners would struggle to show that a prohibition is warranted.

    I am really surprised how much weight the history of a by-law has given a by-law is potentially only good until the next general meeting.

    I can find ‘unreasonable’ being on the same level with oppressive in a real Court decision, so is the Appeal Panel right saying oppressive is a higher bar than unreasonable?
    I don’t think so and I think the Appeal Panels test is far from being a solid objective test.

    “… 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 299

    David was interesting as he was part of the Tate case and in Tate we find:
    “By-laws have a public purpose which goes beyond their function of facilitating the internal administration of a body corporate ..”

    The idea the community is the community within the SP is not exactly how the NSWCA sees it. It seems there is a degree of contemporary community standard applicable when it comes to by-laws.

    Bring on the Appeal and lets all not get too carried away with what some administrative decision maker (NCAT) thinks after all NCAT is still a chocolate wheel.

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