In the recent decision of Roden v The Owners-Strata Plan No 55773  NSWCATCD 61 (Roden Decision), the NSW Civil and Administrative Tribunal reaffirmed its position that a by-law which entirely bans pet ownership is “harsh, unconscionable and oppressive” for the purposes of section 139(1) of the Strata Scheme Management Act 2015 (NSW).
In the Roden Decision, the Owners Corporation submitted that their by-law, which entirely banned pet ownership, should be upheld because their strata scheme was, because of the time it was created, able to adopt the model by-laws under the Strata Schemes Management Regulation 2010 (NSW) (Former Regulations).
The Former Regulations allowed Owners Corporations to adopt “Option C” which provided that an owner or occupier of a residential lot could not keep any animal on a lot or on the common property unless that animal was an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 (Cth).
Option C was removed as an option when the NSW Government passed the Strata Schemes Management Regulation 2016 (NSW). Accordingly, new strata schemes who adopt the model by-laws must select a by-law that allows some form of pet ownership.
The Tribunal found that by-laws adopted under the Former Regulations could still be challenged on the basis that they were “harsh, unconscionable and oppressive”.
This decision followed the Tribunal’s finding in Yardy v Owners Corporation SP 57237 (2018) NSWCATCD 19, that a by-law which prevents the keeping of any animal as a pet is contrary to an owner’s basic habitation rights, their use and enjoyment of their lot and was accordingly “harsh, unconscionable and oppressive”. A detailed review of the Tribunals findings in the Yardy Decision can be found in our previous article here.
The Roden Decision is important as it opens the door for owners and occupiers in strata schemes who have adopted Option C of the Former Regulations to challenge this by-law and require their relevant Owners Corporation to adopt some form of pet friendly by-law.