May 28, 2020 at 12:24 pm #229850FlotsamMember
I am unable to find the published decision but I am in posssesion of an article (https://www.domain.com.au/news/sydney-apartment-owners-win-the-fight-against-pets-in-buildings-958709/) that advises that the NCAT Appeal Panel ruled yesterday that it is permissible for owners to vote to ban pets from a Strata Plan altogether.
This is in contrast to McCormick & McGinness v The Owners – Strata Plan No. 2371 decided on 9 October 2018, in which a Senior Member of the Tribunal recorded his view that: “a blanket prohibition on the keeping of animals in a strata scheme, especially when there is no possible discretion or capacity to consider the particular needs and desires of individual lot owners or occupiers, does not reflect a notion of fairness” and will be considered harsh, unconscionable and oppressive, contrary to applicable strata legislation.
I have always had the understanding that it is “luck of the draw” on which NCAT member you have hearing your case and that it is entirely possible that two members could rule in complete opposite directions on the same issue. I’m less clear on whether the Appeal Panel is considered to be a “higher power” relative to the ruling by an individual member.
How do Strata Plans approach this issue going forward? Seems to me like the situation is that if the large majority of owners feel strongly one way or the other, then you should go ahead and put in place your by-law which creates a record of the large majority’s decision, and pray to the gods that you don’t have an owner that feels so strongly the other way to take it to NCAT. What a mess!May 30, 2020 at 1:10 am #229979DobbieMember
It may be legal to pass a by-law forbidding pets in a strata but how easy or difficult would it be to enforce it? Companion animals help the elderly to live longer and happier lives. Forcing an owner to give up a pet because it has become necessary for that person to downsize from the family home to a unit seems to me to be extremely harsh, unconscionable and oppressive, affecting not only the owner but the pet also. An interesting conundrum.
DobbieJune 4, 2020 at 8:10 pm #230480Amanda FarmerExpert
As you posted this a little while ago, by now your questions may have been answered via my Happy Hour vid here:
Yes, the Appeal Panel decision is binding on the lower level (ie: single member sittings) of the Tribunal.
Tune in to the podcast next week when I bring you my interview with David Edwards, who ran the successful appeal for the Owners Corporation in the Cooper case. This should provide further guidance for you.
Cooper case is here: https://www.caselaw.nsw.gov.au/decision/1724e1ecfad345359d1fdf39
Roden case is here: https://www.caselaw.nsw.gov.au/decision/1724e0ba0053349bd5cacedd
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