In the relatively recent case of Bruce v The Owners – Strata Plan No. 98803 [2022] NSWCATCD 83, the Tribunal has determined that Option B of By-law 5 Keeping of Animals in Sch 3 of the SSMR 2016 does not limit a lot owner to one animal.
Background
In June 2021, the applicants lodged a pet application form to the strata manager in relation to their French Bulldog, Peach. They were informed on 30 June 2021 that the strata committee had refused the application. Amongst the reasons for the refusal was that the committee had interpreted the words “an owner or occupier may keep an animal on the lot” as one animal, and the lot owners already had a French Bulldog by the name of Zodiac living at the lot (as well as a caged bird, however birds and fish are not considered under the by-law).
Peach was relocated for a period of time, but returned to the lot in August 2021. In the following months, after back and forth correspondence, the strata committee called an Extraordinary General Meeting for the Owners Corporation to vote on the matter. The motion put to the Owners Corporation was “that the Pet application be accepted”. The Committee circulated a document with the following prior to the meeting:
The Strata Committee have rejected the [Pet Application] on the grounds of it not being in compliance with the Strata by-laws (see by-law 5(1)).
This by-law stipulates an owner/occupier of a lot may keep “AN ANIMAL” on the lot with the written approval of the Owners Corporation.
This Strata Committee interpret this as meaning one animal per lot. (Caged birds or gold fish etc are not considered under this by-law.) To date no owner or occupier has been refused permission to keep an animal on their lot.
It is our opinion that if a second animal (irrespective of the size or breed of the animal) were to be allowed onto a lot, then it would be difficult to refuse future requests by other owner[s] to increase the number of animals on their lots.
With 24 lots in the strata this situation could in the future create unsatisfactory outcomes.
The motion was defeated at the EGM with no reasons given. This led to the Lot owners bringing an application for an order under s 157 of the Strata Schemes Management Act 2015 to permit the keeping of Peach on their lot.
Outcome
The tribunal held that consent to keep Peach on the lot was unreasonable withheld. This is because no reasons for the refusal were given at the EGM, and during the hearing the committee provided evidence to the effect that their reasons were the issues set out in their pre-meeting document.
Next, the tribunal considered whether the committee’s interpretation was correct. The Senior member found that, taking into consideration the Minister’s speech to Parliament, the Interpretation Act, the construction of the Model By-laws and Cooper, the by-law does not permit the keeping of only one animal.
Therefore, to the extent that the Owners Corporation’s decision to refuse the pet application was based on the view that the by-law did not permit more than one animal to be kept (other than animals such as fish or caged birds) it was in error and therefore the refusal was unreasonable.
The tribunal made an order allowing Peach to live on the lot subject to the conditions of the by-law and those agreed to in the pet application.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Authors: Ashley Howard & Allison Benson