No pet by-law update: new regulations and their impact on owner’s corporations and owners

In March this year, we published an article on the fallout from the landmark NSW Court of Appeal decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 where we acted for the applicant, Jo Cooper (the Cooper Case). 

Following the Cooper Case, on 24 February 2021, the NSW parliament passed the Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 (the Sustainability Act), which, among other things, makes amendments to NSW strata laws as they relate to pets. These provisions will commence this week. 

From 25 August 2021, an owner’s corporation will not be able to have a by-law which unreasonably prohibits the keeping of an animal on a lot. It will also be deemed reasonable to keep an animal on a lot unless keeping the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.

Helpfully, the Strata Schemes Management Amendment (Pets) Regulation 2021 (Regulation) has now been published prescribing the circumstances in which the keeping of an animal will unreasonably interfere with another occupant’s use and enjoyment. 

The Regulation provides that for the purposes of section 137B(3) of the Strata Schemes Management Act (NSW) 2015, the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are:

(a) the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or

(b) the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or

(c) the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant, or

(d) the animal repeatedly causes damage to the common property or another lot, or

(e) the animal endangers the health of another occupant through infection or infestation, or

(f) the animal causes a persistent offensive odour that penetrates another lot or the common property, or

(g) for a cat kept on a lot — the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 31, or

(h) for a dog kept on a lot—

i. the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 32A, or

ii. the animal is declared to be a menacing dog or a dangerous dog under the Companion Animals Act 1998, section 34, or

iii. the animal is a restricted dog within the meaning of the Companion Animals Act 1998, section 55(1).

The full Regulation can be found here.

Given the Regulation provides a clear list of circumstances, any previous ambiguity in the Sustainability Act has arguably been remedied.

In light of the Regulation, it will be risky for owner’s corporations to have by-laws that go beyond the scope of the circumstances set out in the Regulation.

In our practice since the Cooper case, we have seen a number of owner’s corporations introduce by-laws imposing limitations on owners as to the number of animals permitted, or the weight, size and breed of animals allowed. 

It is worth noting that the Regulation does not impose these kinds of restrictions.

Of course, the Regulation still requires a common sense approach be taken. 

There will always be an element of subjectivity which we foreshadow will cause problems. What one owner considers, for example, to be persistent noise that unreasonably interferes with their peace, comfort or convenience, might to another owner cause no interference whatsoever.

The Regulation will be subject to claims that might be exaggerated, and owner’s corporations will need to consider and assess the complaint within the particular factual matrix that is relevant to their scheme.

Overall, the Sustainability Act and the Regulation are a good outcome for pet lovers of NSW and are a direct result of both the decision in the Cooper case and of the continued lobbying of our client, Jo Cooper.

Whether you are an owner’s corporation that is concerned your by-law might not be upheld in light of the new legislation or you are an owner who is considering adding a furry companion to your family and you want to better understand your rights, please reach out to Sharon or Emma for tailored advice.

By Sharon Levy and Emma Boyce