251. Why are pet bans still being enforced?

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Despite the NSW Court of Appeal invalidating a by-law banning pets months ago, strata committees are continuing to enforce these by-laws. What are their chances of success and what can would-be pet owners do in the face of a ban?

Plus, Reena and I discuss:

  • the owner who won’t take responsibility for the spa on his balcony, because it was there when he bought in…
  • why owners should be given the opportunity to air their grievances
  • how to successfully negotiate access arrangements during complex rectification works 

Links mentioned:

5 Comments. Leave new

  • We are currently at NCAT with SC 20/47590 The Owners SP36965 v Jenny Alexander.
    Past the directions stage and waiting for a hearing date after exchange of docs.
    I believe no one is going to be arguing Cooper.

    Reply
    • Fascinating Stephen. I assume you are the OC banning Ms Alexander’s pet? Let us know how it goes. Did you see the ‘pets’ amendment made to the Sustainability Infrastructure Bill yesterday? If so, interested in your thoughts.

      Reply
      • Is this the most current form of what is proposed or has it changed again?
        https://www.parliament.nsw.gov.au/bill/files/3761/c2020-258A.pdf
        I like what i see, particularly 137B (2) but there are some things that leave me uneasy as they hold uncertainties.

        Re NCAT matter:
        I am just an owner watching the proceedings who feels it was not a wise decision by the anti dog SC members to start this action.
        A lot of the time the SC is infested with people who just want to protect the status quo from any interference by dissenting voices and pursue with vigor anyone who dares question the mantra of those who call themselves ‘the community’.
        I hear the contempt for the dog owner on one of the SP’s numerous Facebook pages is quite harsh and quite universal.
        I have sent a submission with a request to be joined , To be joined only if that was necessary to be heard.
        I argue Cooper makes the by-law of no force or effect and that orders should be made to strike out the by-law.
        I want to see what Cooper is worth at NCAT when hard line hippies try to protect a by law that is really all about a very negative view, held by the majority, of dogs and cats. The only problem with dogs and cats has always been the exists of the animal. Yet the unaffected owners feel they can and should be allowed to dictate no dogs or cats to others. It is quite funny that one of the most vocal opponents of the Alexander dog lives literally kms away from the lot where the dog is. As you might have seen from the web site Billen Cliffs is quite large in area and boasts over 10km of internal (predominatley dirt) roads.
        I could email you the submission as the second half could easily be made into a template for people defending these maters.

        Reply
  • With reference to:
    https://www.parliament.nsw.gov.au/bill/files/3761/c2020-258A.pdf

    137B 1 seems simple enough but in some cases it is only part of the by-law that it should apply to so would 137B 1 trouble a whole by-law in the cases where it is just a sub section in a by-law that is at issue? The current wording creates a grey area.

    I like 137B 2 as it captures ‘the vibe’ of Cooper but I would say does it really need to be expressed and also what is expressed in this section is only one of a number of principles expressed in Cooper.
    For example:

    It is only necessary to identify at least one circumstance in which a by-law is capable of prohibiting such a use for the by-law to contravene s 139(1) of the SSMA. In other words, the fact that in some circumstances carrying out a use prohibited by a by-law will adversely affect the use and enjoyment of another lot cannot save the by-law from contravening s 139(1): at [47] per Basten JA; at [79]-[81] per Macfarlan JA (blanket ban on the keeping of animals contravenes s 139(1) despite dogs sometimes barking and disturbing the enjoyment of other lots).

    137B 3 is interesting because there are existing parts of the Act, over 20 of them, that say the same thing, i.e. “the Regulations may …”. Typically if the words “the Regulations may …” are used then Regulations exist but I seem to recall at least once where the words were used in the Act but no Regulation existed; s 109 I think. So is this to be used, it is for potential future use or is it window dressing and definition will be left to the Tribunal or Courts?

    Something about 137B 4 I am uncomfortable with.
    There seems to be interplay between sub sections (3) and (4) that without the specifics of (3) makes comment on (4) difficult. Regulations can be fickle.

    In 137B 5(b) ‘reasonable time” should be 2 months, rather than leave a grey area and definition up to some legal stoush to determine, as 2 months is the time set in s 232 2(b) in relation to the exercise of a function and so it would seem if an OC was asked to exercise the function of making a decision over an animal request and failed to do so for two months then at least the section are temporally consistent in that anything beyond that time being a failure to exercise the function.

    I find uncomfortable the intangible of “the Minister has considered” which really is a meaningless requirement because the Minister can look something over and completely ignore it. There is a number of surveys that show that the majority of the public do not trust politicians. It would not be prudent to trust the Minister to act in the best interests of the public as the Minister’s obligation is to the Party and its welfare long before it is to the public interest.

    A much simpler solution would be just express an owners corporation cannot unreasonably prohibit the keeping of an animal and rely on Cooper for principles if someone wants to challenge such an expression.

    Reply

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