24 Nov 2021A court battle over whether a miniature schnauzer called Angus can live in a Sydney unit with his owner has set a legal precedent for residents who wish to live with their pets in apartments.
For five years, Jo Cooper tried to convince the owners corporation of the luxury Horizon high rise building to allow her to keep her beloved deaf and partially blind 14-year-old dog in her apartment, despite a bylaw banning all pets in the tower.
The decision in the NSW Court of Appeal overturned earlier legal rulings banning the pet dog and will now allow Angus to live out his sunset days in his owner’s apartment.
Court rules Horizon’s blanket ban on pets in apartments is oppressive
The ruling by the three judges in the NSW Court of Appeal could have far-reaching consequences for people who wish to keep pets in apartments. (See Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250.)
The judges ruled that the Horizon’s longstanding ban on pets in apartments was a breach of section 139 of the NSW Strata Schemes Management Act 2015, which provides that by-laws can’t be “harsh, unconscionable or oppressive”.
They said the ban restricted the “lawful use of each lot” and lacked a “rational connection with the enjoyment of other lots and the common property”.
“The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others,” the judges said.
Democracy wins over dictatorship
The strata committee argued the ban on pets in apartments was the will of the majority, but the judges ruled the majority did not have the right to become a dictatorship. The judges pointed out that democracy operates under legal constraints designed to protect minorities from oppression.
Dogs that bark incessantly could be a problem in an apartment block, but the judges said there were provisions in sections 153 and 158 of the Strata Schemes Management Act to deal with such problems.
Decision changes how owners corporations can govern strata schemes
While Angus may be old and past his prime, his impact on the legal position of strata governance could last for many years beyond his time on this earth.
The ruling means no residential building in NSW will be able to enforce a blanket ban on pets in apartments. As lawyers for Ms Cooper pointed out, such a ban would even include goldfish and birds in cages.
Around 5.7 million of Australia’s 9.2 million households have a pet, so the judgement will have a wide impact.
It also demonstrates that just because a majority in a strata committee decree something, if it is harsh or oppressive, it may be legally overturned.
