In an update to the Cooper decision (which Allison discussed in the Law Society Journal – the link to which is here, a new case on animals in strata schemes was reported on by Jimmy Thomson and Sue Williams on 6 March 2021 in Domain with a puzzling and unexpected outcome. The decision has not yet been reported (and may not be) however the link to the article is here.
The Cooper decision in very simple terms has the effect that a by-law containing a restriction that does not adversely affect any other lot owner or occupant’s use and enjoyment of the common property is harsh, unconscionable and oppressive. In Cooper, the by-law prohibiting the keeping of animals was held to be invalid as, in that case, keeping Angus the miniature schnauzer, could not adversely affect any other owner or occupant’s use and enjoyment of their lot and therefore it fell afoul of section 136(1) of the Strata Schemes Management Act 2015.
Cooper sparked a legislative response in the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021. While the new s137B dealing with by-laws about animals is not yet in force, when it is, a decision that unreasonable refuses the keeping of an animal and a by-law that unreasonably refuses the keeping of an animal will be deemed to be invalid.
The decision in Cooper and the legislative changes that are on the way make the latest Tribunal decision an unexpected one.
If your owners corporation has a by-law prohibiting the keeping of an animal now is a good time to review it. If you have been refused permission to keep an animal on the scheme you should seek legal advice.
Author: Allison Benson