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  • With more and more people now living in strata blocks, it is perhaps unsurprising that there has been such interest in the NSW Court of Appeal’s recent decision overturning a blanket ban on pets in a Sydney apartment building.
  • The power to make strata by-laws is limited by the Strata Schemes Management Act 2015 – namely, the purposive limits of s 136 and s 139, requiring a by-law not be harsh, unconscionable or oppressive.
  • Section 139 focuses on the character of the particular by-law not the state of an individual’s knowledge.
  • In considering if a by-law is harsh, unconscionable or oppressive a test of adverse affection applies.
  • Blanket prohibitions in by-laws are likely to be invalid.

On 12 October 2020, the NSW Court of Appeal handed down its decision in Cooper v The Owners – Strata Plan No. 58068 [2020] NSWCA 250. This was the latest decision in a highly publicised saga over whether or not an owners corporation (‘OC‘) has the power to make or maintain a by-law providing a blanket prohibition on the keeping of animals on the lot or on common property of a strata scheme.

Relevant legislation

A strata scheme is a product of statute, created by a subdivision under the Strata Schemes Development Act 2015. Section 9 of the Strata Schemes Management Act 2015 (the ‘Act’) provides: ‘(1) The owners corporation has the principal responsibility for the management of the scheme, and (2) It has for the benefit of the owners of lots in the strata scheme (a) the management and control of the use of the common property of the strata scheme, and (b) the administration of the strata scheme.’

Section 136 of the Act authorises an owners corporation to make by-laws ‘in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme’ with the restriction that a by-law will have ‘no force or effect to the extent that it is inconsistent with this or any other Act or law.’

Section 139 provides a number of other restrictions on by-laws; the relevant restriction in this case being subsection (1) which states: ‘A by-law must not be harsh, unconscionable or oppressive.’ This was a new limitation brought in by the 2015 reforms.

A brief history

The Coopers and Angus, their miniature schnauzer, live in a 43-storey strata scheme in Darlinghurst, Sydney. The scheme’s by-laws relevantly stated ‘an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property’ (by-law 14.1). The OC took action to enforce the by-law and the Coopers took action in the NSW Civil & Administrative Tribunal (‘NCAT’) seeking orders that the by-law was harsh, unconscionable and oppressive under s 139(1) and invalid under the Act.

At first instance, the NCAT held the by-law to be harsh, unconscionable or oppressive, declared it invalid, made orders requiring the by-law be removed, and dismissed the OC’s application for orders that the by-law had been breached. On appeal, the NCAT Appeal Panel overturned Senior Member Burton’s decision and found in favour of the OC, making orders requiring Angus be removed from the scheme within 28 days.

Court of Appeal decision

The Court of Appeal, comprised of Basten JA (who wrote the lead judgment), MacFarlan JA and Fagan J, allowed the Coopers’ appeal, set aside the orders of the NCAT Appeal Panel and made an order granting the Coopers’ costs in the Court of Appeal. In doing so, the Court noted that strata title is a well-known form of real property and is subject to the fundamental principle of indefeasibility of title. This has significance in identifying the attributes (and constraints) of a particular title which, in this case, were the by-laws (at [1], [9]).

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