NSW Snoop Dog Defeats Strata Building
Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250
Quick Read
This unanimous NSW Court of Appeal decision about a by-law that imposed a blanket ban on pets at the Horizon building in Kings Cross also has wider implications for all strata by-laws. The primary issue was whether a long-standing by-law that prohibited all pets in the strata building was legally permissible and valid. After a detailed consideration of what strata by-laws can and cannot prohibit and how those prohibitions relate to strata owners’ property rights, the NSW Court of Appeal decided that a blanket ban in a by-law was not permissible and that the pet by-law was invalid. But, it also went further to say that any by-laws that tried to prohibit behaviour must be directed towards the protection of the strata owners’ property rights in the use of their lots and the building. So, it has very widespread impacts on NSW strata title buildings and stakeholders.
Implications
The power to make by-laws is inherently constrained by the nature of strata owners’ property rights.
If a by-law restricts activities, the restriction must protect another strata owner’s ability to enjoy their property rights.
The connection between the restriction and the protected rights must be ‘rational’; or logical and obvious.
By-law validity must be considered objectively; not based on individual or specific experiences, beliefs or knowledge.
Societal values are relevant to the assessment of strata by-law validity.
Administrative convenience or certainty for strata building doesn’t justify restrictive by-laws.
Majority views in the strata building [even if unanimous] do not protect or enhance by-law validity.
By-laws will be inherently invalid if they infringe these tests, despite the specific limits on harsh, unconscionable or oppressive by-laws.
Where there are other mechanisms [like other laws or by-laws] to deal the problem behaviours, that may be enough to make a by-law on the same matter invalid.
Full Report
This court decision is an appeal to the highest Court in NSW after the dispute went from NCAT to a single judge in NSW Supreme Court.
The dispute arose after an owner in the Horizon strata scheme in Kings Cross, NSW with a pet Schnauzer challenged a long standing by-law that read ‘…an owner or occupier of a Lot must not keep or permit any animal to be on a Lot or on the Common Property’ so that the strata owner’s dog could lawfully stay in the building.
So, it was a dispute about the validity of a strata by-law that prescribed strata owner behaviour without exceptions.
The key legal issues the Court of Appeal identified and considered were the general legal principles that applied to strata buildings’ fundamental ability to make new by-laws, the permissible terms of a prohibitory by-law, and how other restrictions on by-law in the Strata Schemes Management Act 2015 applied.
In making its decision, the Appeal Panel examined the structure of the Strata Schemes Management Act 2015, and, reviewed previous superior Court decisions [including Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,43, White v Betalli [2007] NSWCA 243, and Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46] focusing on the fundamental property rights of strata owners as the core issues.
Interestingly, this case went back to first principles about strata by-laws rather than just one pet by-law. So, it has much wide application.
The leading judgment from Justice Basten concluded that.
A strata building’s power under s.136(1) of the Strata Schemes Management Act 2015 is not unconstrained.
A by-law which restricts the lawful use of a strata lot on a basis which lacks a rational connection with the enjoyment of other lots and the common property is beyond the power to make by-laws.
For any by-law to be valid, it must be directed towards the prevention of strata owners using their lots or the common property in a way which could rationally impact upon other strata owners' enjoyment of the building.
Any possible administrative convenience for the strata corporation or strata committee resulting from a blanket ban in a by-law does not justify interference with the ordinary rights of strata owners.
Although owners corporations are empowered to manage and control a strata scheme, this power is constrained to ensure minorities are not oppressed.
The other restrictions in the Strata Schemes Management Act 2015 about harsh, unfair and unconscionable by-law could also have applied to the by-law if it was otherwise permissible.
So, the blanket pet ban by-law in this strata building was invalidated, perversely leaving the building with no restrictions at all on strata owners keeping animals.
Case Details
Case Name: Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250
Date: 12 October 2020
The Parties:
The Owners - Strata Plan No. 58068
Johanna Anwar Cooper & Leo Bernard Cooper
Keywords
#NSW #NSWCourtofAppeal #byaws #pets #2020 #SSMA2015 #s.136 #s.139