Court strikes down ‘no pets’
The NSW Court of Appeal has decided that strata owners
have the same rights as home owners to keep pets, so long as
the pets don't disturb the neighbours in the strata scheme
or interfere with the use of the common property.
The judgment of the NSW Court of Appeal is Cooper v
The Owners – Strata Plan No 58068  NSWCA 250 (12
October 2020) (Basten JA, Macfarlan JA and Fagan J
The Court struck down strata by-law 14 in Strata Plan
58068 which contained a blanket prohibition on keeping
animals. It stated:
14.1 Subject to section 139(5) of the Act, an owner
or occupier of a Lot must not keep or permit any animal
to be on a Lot or on the Common Property.
14.2 [assistance animals are permitted, subject to
Note: animal is not defined in the Act, but can be
assumed to include dogs, cats, birds in cages and fish in
secure aquariums; assistance animals are ‘dogs or
other animals’ which assist persons with a disability.
Strata by-law 14 was struck down because it contravened s
139(1) of the Strata Schemes Management Act 2015
(NSW) (the Strata Management Act), which states:
139(1) A by-law must not be harsh, unconscionable or
Note: Any such by-law may be invalidated by the Tribunal
(see section 150)
The Coopers purchased a strata title lot in a high-rise
(43-storey) apartment building in Darlinghurst, Sydney known
as The Horizon. Strata by-law 14 was in force when they
They moved “Angus”, a miniature schnauzer dog, into their
apartment not long after they purchased. “Angus” was 9 years
old, weighed approximately 9.5 kgs, did not bark, and was
always leashed for daily walks. The owners corporation
applied to remove “Angus” because it was a breach of by-law
14 to keep him in their apartment. The Coopers applied to
the Tribunal (NCAT) to declare the by-law invalid because it
contravened s 139(1).
The Court of Appeal’s reasoning was as follows:
- Freehold strata ownership is a well-known form of
real property, and keeping a pet animal is “an ordinary
incident of the ownership of real property”. “The
fundamental principle of indefeasibility of title to
real property under the Torrens system has significance
[to] constraints imposed by by-laws”.
- Under s 136(1), by-laws may only be made for a
proper purpose. That is, to (i) confer specific
functions on the owners corporation with respect to, or
(ii) make provision directly in relation to, the use and
enjoyment of the lots and the common property for the
purpose of managing administering or controlling the
- The Strata Management Act provides that certain
by-laws may limit a lot owner’s rights, such as by-laws
to limit the number of adults who may reside in a lot (s
137), to prohibit short-term rental accommodation (s
137A) and to not cause a nuisance or hazard to the
occupier of any other lot or the common property, such
as the penetration of smoke from smoking (s 153).
- The Court said model by-laws 6 (Noise), 9 (Smoke
Penetration) and 12 (Appearance of lot) were valid
despite limiting an owner’s rights because “each of
these provisions is expressly designed to deal with
activities which may adversely affect the amenity of
other lots, including the use of common property and the
external appearance of the building”.
- The prohibition of animals under by-law 14 did not
derive validity from any provision in the Strata
Management Act. The Act contains these provisions as to
animals: s 139(5) which provides that a by-law may not
prohibit the keeping on a lot of an assistance animal:
and s 158 which provides that the Tribunal may order the
removal of an animal if it “causes a nuisance or hazard
to the owner or occupier of another lot or unreasonably
interferes with the use or enjoyment of another lot or
of the common property”.
- The Court viewed the words “harsh, unconscionable or
oppressive”, in s 139(1) as a group (a triune),
objectively. According to Basten JA (and Macfarlane JA),
by-law 14 “lacks a rational connection with the
enjoyment of other lots and the common property”.
According to Fagan J, by-law 14 “provides no material
benefit to other occupiers” and so it was “oppressive”.
By-law 14 was therefore invalid because it contravened s
- In reaching its decision, the Court considered and
rejected these submissions made by the owners
- The OC argued that the strata scheme reflected
community standards in adopting by-law 14, the
owners being entitled to regulate their own affairs
through by-laws and decisions of the owners
corporation. The owners had voted to retain the
by-law with an 83% majority vote. Characterising
this submission as “relying on democratic governance
principles”, Basten JA observed that “a liberal
democracy is not a majoritarian dictatorship; it
operates under legal constraints designed to protect
minorities from oppression. The Strata Management
Act contains such restraints, both in s 136 and s
139, enforceable by NCAT under s 150.”
- The OC argued that Coopers had purchased the
property with by-law 14 in place, and should
therefore not be allowed to complain. This was
irrelevant to the validity of the by-law. Basten JA
observed that s 139(1) “focuses on the character of
the particular by-law, rather than the state
of knowledge … of any particular lot owner”. Fagan J
observed that “the oppressive character of a by-law
[is] inherent from the time of its adoption.”
- The OC argued that “It was appropriate to
formulate the prohibition in blanket terms to avoid
the need to draw invidious distinctions which might
in turn invite a flood of applications in a large
building with some 341 lots.” Basten JA said that
by-laws for pets were not the only by-laws which
required individual consideration - there are a
number of by-laws which require an “evaluative
judgment”, such as whether noise or behaviour is
“likely to interfere with the peaceful enjoyment of
the owner”. Also, there was no reason to suppose the
owners corporation “would be flooded with
applications”. In addition, the Strata Management
Act provides steps to resolve disputes as to animals
in ss 157 & 158.
- In the result, “Angus” was able to remain because
there was no longer any by-law which prohibited him from
being kept in the apartment.
- And the Court ordered the owners corporation to pay
the Coopers’ legal costs in the proceedings.
Analysis: It’s time to
replace ‘no pets’ by-laws with pet friendly by-laws
The owners of The Horizon strata scheme failed to keep up
with the times.
When The Horizon strata scheme was registered in 1998,
Model By-Law 16 (see Strata Schemes Management Regulation
1997 – Schedule 1) contained three options for the
keeping of animals for a strata scheme to choose from:
- Option A required the owner or occupier to obtain
the written approval of the owners corporation to keep
any animal (other than a fish in a secure aquarium).
- Option B allowed a cat, a small dog or a small caged
bird, or fish kept in a secure aquarium, to be kept
without approval, but required approval for other
- Option C prohibited the keeping of any animal.
The Horizon strata scheme chose Option C – the blanket
prohibition - for its by-laws.
On 30 November 2016, the Strata Schemes Management Act
2015 came into force. It replaced the former Act. A new
Model By-Law 5 was introduced under the Strata Schemes
Management Regulation 2016 (NSW) - Schedule 3. Model
By-Law 5 was more pet friendly, which was a reflection of
changed community standards since 1997. No longer was there
an Option C. Model By-Law 5 It contained modified versions
of Options A and B.
- Option A requires the owner or occupier to notify
the owners corporation if they keep an animal on a lot.
- Option B requires the owner or occupier to obtain
the written approval of the owners corporation to keep
an animal on their lot.
There are also special provisions inserted in the Strata
Management Act – to deal with refusals of consent (s 157)
and for the removal of animals (s 156 and s 158).
The Horizon strata scheme did not decide to replace the
by-law banning pets with a pet friendly by-law, despite the
change in the law and change in community standards.
The Court of Appeal’s decision to strike down the by-law
banning pets was in this sense inevitable.
Any strata scheme which has an Option C by-law – which
bans pets - needs to replace it now with an Option B style
by-law, which requires written approval for keeping of pets.
Option B is a ‘model’ not compulsory, by-law, which means
that the strata scheme is able to adopt its own version. It
can include more restrictions if desired.
Care needs to be taken in drafting that the restrictions
imposed are directed to regulation of conduct. In the words
of s 158(1) of the Strata Management Act, to circumstances
where “the animal causes a nuisance or hazard to the owner
or occupier of another lot or unreasonably interferes with
the use or enjoyment of another lot or of the common
Otherwise, the by-law is liable to be declared invalid as
‘harsh, unconscionable or oppressive” under s 139(1) of the
Strata Management Act for the reasons set out in Cooper’s