By ALLISON HORE
No apartment building in NSW will be allowed to have a blanket ban on pets following a NSW Court of Appeal decision which overturned the right of strata committees to pass bylaws prohibiting animals.
The decision comes after an expensive four-and-a-half-year long legal battle by Johanna and Leo Cooper who live in an apartment building in Darlinghurst. Johanna Cooper’s miniature schnauzer, Angus, was prohibited from living with them in their apartment in the prestigious Horizon apartment complex where strata scheme by-laws prohibited all pets.
Ms. Cooper decided to bring Horizon’s strata committee to court to contest the laws.
In a case before the NSW Civil and Administrative Tribunal the Horizon building as well as the 280-unit Elan in Kings Cross lost the right to ban pets. However, in an appeal to the NCAT in May of 2020 the decision was overturned, granting both buildings the right to uphold their pet bans. A decision Elan’s legal team described as “a victory for democracy”.
Not one to back down, Ms. Cooper continued her fight.
“I’m absolutely going to appeal this. [NCAT] has got it wrong, and I don’t know how they could get it so wrong,” she said at the time.
Finally, Ms. Cooper brought the case before the NSW Court of Appeals. The three judges hearing the case unanimously agreed that pets do not adversely impact other occupants’ properties. They said rules banning pets in buildings were made mostly for the convenience of the strata committee rather than the benefit of residents.
“This decision effectively changes the way owners’ corporations can govern their strata schemes,” said Sharon Levy, a Bartier Perry partner who represented Ms. Cooper in her case.
“The court has found that banning animals breaches strata scheme legislation which provides that by-laws can’t be “harsh, unconscionable or oppressive.”
Ms. Cooper said the lengthy and expensive legal battle which set her back $250,000 has been very difficult for her but she stands by her decision to pursue the case. She said the precedent it sets has ramifications for apartment dwellers across the state.
“The emotional toll from pursuing this case has been incredibly hard. Yet throughout the last five years I’ve also lost count of the number of pet and apartment owners who have reached out and supported our stance,” she said.
“Today is a win for Angus but it’s also a decision that will hopefully ensure owners corporations take a more balanced approach to the governing of apartment owners.”
Ms. Levy agreed that the ruling would have “far wider ramifications” for the bylaws that strata committees will be allowed to impose on owners.
“Every dog has its day but Angus’ win could mean some significant changes and legal challenges to by-laws for years to come,” she said.
In August of 2020, the NSW Legislative Council voted to make it near impossible for apartment buildings to prohibit pets. When an unrelated piece of apartment legislation was being discussed, the Animal Justice Party tacked on a last minute “Keeping of Animals” amendment which said buildings should not be allowed to “unreasonably” prohibit pets.
The law will not come into effect until it is approved in the Lower House, but with the precedent set by Ms. Cooper’s case, the parliament’s decision may not matter.