Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Roden v The Owners-Strata Plan No 55773 [2019] NSWCATCD 61 Hearing dates: 20 May 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Consumer and Commercial Division Before: N Vrabac, Senior Member Decision: Pursuant to s 150(1) of the SSM Act an order is made declaring by-law 14 of Strata Plan 55773 passed at an EGM in 2013 invalid because it is harsh, unconscionable and oppressive in breach of section 139(1). The applicant's application to make an interim order pursuant to s 231 of the SSM Act on behalf of a 3d party is dismissed. Catchwords: By-law banning all animals Legislation Cited: Strata Schemes Management Act 1996 ("the former SSM Act") Strata Schemes Management Regulation 2010 ("the former SSM Regulation") Strata Schemes Management Act 2015 ("SSM Act") Strata Schemes Management Regulation 2016 ("SSM Regulation") Cases Cited: Allen v Townsend (1977) 16 ALR 301 Body Corporate for River City Apartments v McGarvey ((2012) QCATA-057). Edelston v Wilcox (1998) 83 ALR McKenzie v Body Corporate Kings Row CentreQCATA-57. Owners of Strata Plan3397 v Tate (2007) NSWLR 344 Owners SP67631 v Waters and Gardner [2010] NSWCTTT Qantas Airways Ltd v Cameron (1996) 66 FCR Rhode Island [2012] QBCC MCmr Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11. Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 Category: Principal judgment Parties: Robert Roden (applicant) The Owners-Strata Plan No 55773 (respondent) Representation: Mr R Roden (applicant in person) Ms G Ramensky (respondent-chairperson) File Number(s): SC 18/37522 Publication restriction: Nil REASONS FOR DECISION Background 1. The strata plan in this matter relates to a building called "The Elan" at Rushcutters Bay. 2. The Elan is a 40 storey building with 280 apartments in it. Approximately half the units are tenanted. 3. On 6 June 2013, by-law 14.1 was passed at an Extraordinary General Meeting (EGM). 4. By-law 14.1 is in the following terms: By-law 14. Keeping an animal 14.1 You must not keep an animal in your lot or on common property. However, you may keep a guide dog or a hearing dog if you need the dog because you are visually impaired. 14.2 You must not allow your visitors to bring animals into the Residential Scheme unless they are guide dogs or hearing dogs. 14.3 Notwithstanding 14.1, any resident who owned an animal that lived in "The Elan" as at 22 March 2013, may keep that animal provided it was registered with the Concierge staff by 15 April 2013 by the provision of the following details: type of animal and breed where known age of animal at date of registration name of animal photo of animal owner's details if the animal is an officially trained assistance dog, evidence of this. The owner of the animal may not, however, replace the registered animal with a different animal for any reason. 14.4 The owner or occupier must do all acts and things necessary to ensure a registered animal does not cause nuisance or hazard to any owner or occupier or unreasonably interfere with the use or enjoyment of lots or the common property. 14.5 Owners of animals who exit or enter the building with the animals are required to use the Level 4 access points and not move through the main entrance lobby with their pets. All animals must be carried or transported by a suitable alternative means while in common property areas, until they reach the car park or an exterior area. 14.6 The owner or occupier will be responsible for cleaning all areas of a lot or common property that are soiled by the animal. 14.7 The owner and/or occupier remain liable for any damage to a lot or common property arising out of the keeping of the animal and shall indemnify and shall keep indemnified the Owners' Corporation against any costs or losses arising out of or in connection with the keeping of the animal including any damage to any person, lot or common property and any costs of high pressure water cleaning. 14.8 Subject to clause 14.11, if an owner or occupier does not comply with any obligation under this by-law, the Owners' Corporation may (at its absolute discretion) revoke any obligation under this by-law or otherwise and give notice of such revocation to the owner occupier. 14.9 If any approval to keep an animal under this by-law or otherwise is revoked by the Owners' Corporation, then the owner or occupier shall remove the animal within 7 days from the date a written notice is given to the owner or occupier by the Owners' Corporation. 14.10 Any approval given by the Owners' Corporation under clause 14.1 may contain any reasonable conditions approved by the Owners' Corporation at the time the consent is given. 14.11 Any consent under this by-law may be modified, amended, revoked or rescinded by a meeting of the Owners' Corporation (or Executive Committee). 1. In 2017, the applicant moved a motion for a change of the by-law. Briefly summarised, the applicant sought to remove the no pet policy from by-law 14.1. His proposal was that the owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property. 2. The applicant's motion was defeated. 3. The applicant filed an application in the Tribunal on 28 August 2018 ("NCAT application"). 4. The applicant sought the following declaration: Sec 150: The Tribunal may declare a by-law invalid…. if that bylaw is harsh, unconscionable or oppressive. A request is made for a declaration that by-law 14 of Strata Plan 55773 banning all animals is invalid. A copy of the by-law is attached as annexure. 1. On 29 November 2018, the owners corporation moved a motion to defend the applicant's NCAT application. 2. The matter was listed for directions on 3 October 2018. The following directions were made: 1. By Determination of member, on 03 October 2018 the hearing was adjourned to a date to be fixed by the Divisional Registrar. 2. The Tribunal notes that the applicant relies upon the documents (including submissions) attached to the application and as contained in the Supplementary Submission dated 17 September 2018. 3. The Tribunal notes that the respondent's Annual General Meeting (AGM) is on 28 November 2018 and that the Chair of the Strata Committee, Ms Ramensky (who appeared today for the respondent) has indicated to the Tribunal the agenda for the meeting will consider the scheme's by-laws as to pet ownership in the light of this application. 4. The parties are encouraged to obtain advice and to have settlement discussions prior to the next hearing. The Tribunal may make consent orders in the absence of the parties on receipt of signed terms of agreement. 5. If the decision of the respondent at the AGM on 28 November 2018 is to oppose the application then the following further direction applies to enable the application to proceed to a formal hearing. 1. On 10 December 2018, there were directions made as follows: 1. The application for leave for legal representation will be considered by a member in chambers, following receipt of submissions. 2. On or before 21 December 2018, the Respondent is to provide to the Tribunal and the other party its submissions in support of its application for leave to be represented at the hearing by an Australian Legal Practitioner. 3. On or before 18 January 2019 the Applicant is to provide to the Tribunal and the other party his submissions in response to the Respondent's application for leave. There is no need to attend on the above date. 1. On 22 February 2019, leave was granted to both parties to be legally represented. 2. On 1 March 2019, the matter was listed for hearing. The following directions were made: 1. By consent, the applicant shall provide to the respondent and the Tribunal, either in person or by post, a proposed by-law (keeping of animals), which is to be put to the EGM by 22-Mar-2019. 2. By consent, the respondent shall arrange an EGM to consider the proposed by-law by 05-Apr-2019. 1. On 25 March 2019, the time table for the filing and serving of evidence was extended by the Tribunal by the above directions. 2. On 9 April 2019, the matter was listed for directions. The parties applied to the Presiding Principal Member to have the matter formally determined. The following orders were made instead: The application to have the matter heard at the directions hearing is refused for the following reasons: 1. The matter has been listed on 20 May 2019 to allow the parties an opportunity to reach an agreement at the general meeting to be held on 30 April 2019. 2. It may be necessary to give the parties a further opportunity to provide evidence or submissions in the event that the matter is not settled at the general meeting. 3. At the directions hearing on 20 May 2019 the parties will have an opportunity to make submissions as to whether the application can be determined on the papers. 4. If the matter is determined on the papers, this will happen as soon as possible after the directions hearing. 1. On 30 April 2019, the parties informed the Tribunal that the applicant's proposed amendment to by-law 14 which was put to the meeting was not passed. Applicant's case 1. At the hearing on 20 May 2019, the applicant submitted that the chairperson declined to put his motion to the meeting on 30 April 2019. Instead, a motion was put that no further legal cost be expanded on this matter. The motion was passed by a simple majority. 2. In effect, the applicant submitted, the majority's vote against further legal fees was regarded as defeat of the motion to consider and pass the applicant's proposed amendment to by-law 14 to keep a pet with owners corporation approval. 3. The applicant submitted and the respondent agreed that the matter should be determined on the papers filed and served to date. 4. The applicant submitted that Schedule 3, Clause 5 of the Strata Schemes Management Regulation 2016 ("SSM Regulation") contains model by-laws in respect of keeping of animals. 5. Clause 5 is as follows: Keeping of animals Note. Select option A or B. If no option is selected, option A will apply. Option A (1) An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot. (2) The notice must be given not later than 14 days after the animal commences to be kept on the lot. (3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal. Option B (1) An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation. (2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval. (3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal. (4) An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth. 1. The applicant stated that the 2016 Regulation no longer includes the option for a universal blanket exclusion of animals which existed in the former SSM Regulation. 2. Schedule 2, Clause 17 of the Strata Schemes Management Regulation 2010 ("former SSM Regulation") provided model by-laws for the keeping of animals as follows: Keeping of animals Note. Select option A, B or C. If no option is selected, option A will apply. Option A (1) Subject to section 49 (4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except fish kept in a secure aquarium on the lot) on the lot or the common property. (2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property. Option B (1) Subject to section 49 (4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium on the lot) on the lot or the common property. (2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property. (3) If an owner or occupier of a lot keeps a cat, small dog or small caged bird on the lot then the owner or occupier must: (a) notify the owners corporation that the animal is being kept on the lot, and (b) keep the animal within the lot, and (c) carry the animal when it is on the common property, and (d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal. Option C Subject to section 49 (4) of the Act, an owner or occupier of a residential lot must not keep any animal on the lot or the common property. 1. The applicant stated that, in August 2011, the New South Wales government established a Companion Animals Taskforce and produced a Discussion Paper. Submissions were due by 1 July 2012. 2. The report recommended that The Minister for Local Government and Minister for Primary Industries request that the Minister for Fair Trading review the barriers to dog and cat ownership in relation to residential tenancy laws. 3. The applicant's contention is that I should adopt in this matter the rationale given for the decision in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19 ("Yardy"). 4. In Yardy, the applicant sought an order pursuant to s 150 of the Strata Schemes Management Act 2015 (NSW) ("SSM Act") including a declaration that by-law 16, introduced in 2009, was invalid because it imposed a blanket prohibition upon pet ownership. Hence, the by-law, in the particular circumstances, was harsh, unconscionable or oppressive and contrary to s 139(1) of the SSM Act. 5. In Yardy the applicant contended that by-law 16 was invalid, or of no force or effect to the extent that it was in breach of s 159 (1) of the SSM Act. The applicant also applied for a declaration pursuant to s 157 of the SSM Act that he was entitled to keep a pet dog on the lot owned by the applicant and his wife. 6. By-law 16 in Yardy was in the following terms: Subject to section 49(4) of the Act and paragraphs 16.6 to 16.13 hereto, an owner or occupier of a lot must not keep any animal on the lot or the common property. 1. Section 49 of the former SSM Act was as follows: Restrictions on by-laws (1) By-law cannot prevent dealing relating to lot No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot. (2) By-law resulting from order cannot be changed If an order made under Chapter 5 has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution and, in the case of a strata leasehold scheme, with the consent of the lessor of the scheme. (3) By-law cannot restrict children A by-law for a residential strata scheme has no force or effect to the extent to which it purports to prohibit or restrict persons under 18 years of age occupying a lot. This subsection does not apply to a by-law for a strata scheme for a retirement village or housing exclusively for aged persons. (4) By-law cannot prevent keeping of guide dog A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of a dog used as a guide or hearing dog by an owner or occupier of the lot or the use of a dog as a guide or hearing dog on a lot or common property. 1. The applicant submitted that there has been a discussion of prohibition versus regulation in Body Corporate for River City Apartments v McGarvey (2012) QCATA-057. An analogy was drawn to state that a prohibition on playing music may be considered unreasonable whereas a regulation on how loud music can be played may or may not be unreasonable. 2. In Yardy, the Presiding Senior Member, Mr Bailey, referred (at [57]-[59]) to the decision in Rhode Island (2012) QBCC MCmr 2027 ("Rhode Island"). According to Mr Bailey, the observations of the Adjudicator in Rhode Island supported "the proposition that a blanket prohibition of animals within the strata premises is unnecessary, and at least unreasonable, and that a balanced considered approach can be adopted which has due regard to the interests of all owners and occupiers of lots within the scheme". 3. In Yardy, the Tribunal stated that a critical consideration in the proceedings was the evidence of the benefit of pet ownership to humans as a general rule, and how the recognition of this phenomenon has formed part of the community standards (at [26]). 4. The Presiding Senior Member quoted the following passages from an Expert Report as to how the issues involved with the keeping of animals, dogs in particular, within strata schemes can be addressed: 2. Suitability of Pets in Strata Premises 2.1 The keeping of animals (be they dogs, cats, fish, birds, reptiles, snails etc) is a normal domestic activity and has been for centuries. Dogs and cats are the main companion animals in Australia. Australia has one of the highest pet ownership levels in the world (62%). Currently 38% of households in Australia have a dog, and there is 1 dog to every 5 people in Australia ("Pet Ownership in Australia" (2016) Animal Medicines Australia p.10). 2.2 Traditionally, most pets have been in houses and owners have had to (sic) [the] option to keep the pet and decide if they were to be kept within the building structure or outside. 2.3 The growth of Strata accommodation in Australia's cities has focused on the issues around the keeping of animals (as with many other activities) as to ensure they do not become a nuisance to the enjoyment of others in a complex. 2.4 From my experience in dealing with Dog Training and Behaviour, I have noted that there are a number of issues that dogs may cause when they are living near other parties. It is not confined to Strata Properties, but the regular issues with dogs in the use and enjoyment of a Lot and Common Property are: (i) Noise. Excessive Barking is a recognised issue with dogs and it arises for a number of reasons (attention seeking, wanting something or anxiety) but it can be controlled by training and prevention measures such as behavioural correction, Calm responses, stimuli removal, noise (TV/Music) introduction and regular exercise. (ii) Size of an apartment. Dogs do not need much space to live. They sleep most of the day. If they are regularly exercised, they can generally live in small units without issue. (iii) Behaviour. Some Dogs and cats like to scratch in the dirt and gardens, which may affect gardens and lawns. This can generally be avoided by dogs being kept on the lot and required to be supervised whilst they are traversing common property. (iv) Loss of Amenity. Some people see the presence of pets on premises as a loss of amenity of common property. However, if dogs merely traverse over common property under supervision, it would be of less concern then motor vehicles, children, removalists or other users of the area. Whilst bordering Strata owners / owners may be concerned with animal hair, barking & smells, these can all be managed, like other activities, to reduce any nuisances. (v) Defecation. If a dog is walked regularly and trained to defecate away from Common property area, it generally will, if it is controlled properly. (vi) Security & Management. A common concern that there would be increased call outs if there are concerns for the welfare of animals on the premises and other animal related complaints. This is generally avoided by having good communication within a strata complex and proper arrangements during absences. (vii) Use of Common Property. Many people value a pet-free common property area. This is also controlled by ensuring responsible traversing of the animal over common property and having the animal kept in the unit. (viii) Design of the premises. The design of a dog's environment and the surrounding does affect the possibility of nuisances occurring. Good noise prevention in building and sight lines can reduce a lot of the noise and behavioural issues with dogs. 2.5 Pets and specifically dogs are (and have been) suitable for living in Strata Premises for many years and with training and effective management, they can be prevented from causing any nuisance or interference to any other lot user or common property. 3. The Benefits of Pet Ownership There is wide spread acceptance of the belief that responsible pet ownership can have positive and lasting benefits to people. Physical benefits include stress reduction, which may decrease blood pressure and promoting exercise for greater fitness. It is also correlated with fewer doctor visits. The level of companionship that a dog gives often makes people regard their dog as a member of their family and provides for greater social support. 1. In Yardy, the Presiding Senior Member stated that it was clear that the legislative intention in respect of s 139(1) was directed to by-laws such as by-law 16. The Minister's Second Reading Speech for the Strata Schemes Management Bill 2015 stated: New model by-laws will be introduced when the Regulations are made to deal with a number of issues that are important to strata residents. These include amending the by-laws relating to pets to make it easier for schemes to become more pet friendly. (emphasis added) 1. The applicant submitted that the model by-law introduced in the 2016 SSM Regulation no longer includes an option for a blanket ban of animals. The model by-law allows pets after notification to the body corporate, or with consent of the body corporate. 2. Option C, in Schedule 2 of the former SSM Regulation, which permitted a blanket prohibition of animals as pets, was removed in Schedule 3 of the 2016 SSM Regulation. 3. Further, the findings and observations of the Adjudicator in Rhode Island (see above at paragraph 32) support the proposition that a blanket prohibition against the keeping of animals within strata premises is unnecessary, and at least unreasonable. Respondent's case 1. The respondent submitted that the applicant wants by-law 14 replaced by that which he describes as a "more appropriate By-law" but he does not propose any particular by-law. 2. The respondent stated that the current by-law 14 was adopted on or about 16 June 2013. The by-law was passed with 81.85% majority of the poll vote. The by-law which was adopted acknowledged that there had been animals which had been kept in the building, despite the existing by-law, permitting those animals to stay but prohibiting their replacement. 3. In 2017, the applicant asked the respondent to accept a requirement to not unreasonably withhold the approval for the keeping of an animal on the lot or common property. The applicant provided "some detailed regulations for animals kept on a lot". The respondent stated the motion was defeated. Only 36% of owners voted in favour and 64% against the motion. 4. The respondent conducted a survey before determining its position in relation to the current proceedings. The purpose of the survey was to bring to owners' attention the question of pet ownership, and it enabled consideration of the issue in advance of a further motion to change by-law 14. 5. On 28 November 2018, the respondent held an Annual General Meeting (AGM). The respondent moved a motion to defend the applicant's NCAT application. The effect of passing this motion (55.6% to 44.5%) at the AGM was that the current by-law 14 be retained. 6. The respondent submitted that the owners have on three occasions in general meetings had an opportunity to exercise their democratic right to decide whether or not the strata plan should permit pet ownership beyond that provided for in the current by-law 14. The strata committee recently conducted a survey to enliven the issue, but even after that survey, there was not majority support for the change. 7. The respondent stated that the strata scheme was registered prior to 30 November 2016 and it was therefore not compelled to adopt either Option A or Option B in Schedule 3 of the SSM Regulation (the model by-laws), having undertaken the mandatory review of by-laws for strata schemes registered before 30 November 2016. 8. The respondent's contention is that there is no obligation to adopt a new pet friendly by-law. The respondent referred to the terms "harsh, unconscionable or oppressive" brought in in the 2015 SSM Act, s 139. The respondent stated that the terms can be used in relation to conduct of one person to another, and they can be used to describe the terms of a contract. 9. By-laws constitute a contract among lot owners, and they are also delegated legislation. The respondent cited Owners of Strata Plan 3397 v Tate (2007) 70 NSWLR 344 in support of its contention. A by-law which relates to conduct of one person towards another is of little assistance. The respondent stated that of "greater assistance is the application of the term of the contract, and even that assistance must be applied with caution given that the by-law constitutes delegated legislation". 10. The respondent cites a number of authorities in support of the argument that "By-law 14 does not come close to falling outside the approved statutory purpose". In Qantas Airways Ltd v Cameron (1996) 66 FCR 246, the Court noted that there were a range of possible denotations of the term "unconscionable". The Court referred to the definition of unconscionable in the Shorter Oxford dictionary in its decision which is as follows: "Showing no reasonable regard for conscience; irreconcilable with what is right or reasonable". The term "unconscionable" and its many synonyms all imported a "pejorative moral judgment". 11. In Allen v Townsend (1977) 16 ALR 301, the Court stated that rules of an organisation could be held to be "oppressive, unreasonable and unjust" where they are designed to harass members. The respondent submitted that by-law 14 does not come close to harassing lot owners. 12. The respondent referred to s 136(1) of the SSM Act which is as follows: Matters by-laws can provide for (1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme… 1. The respondent submitted that by-law 14 does not come close to falling outside the approved statutory purpose. The respondent cited Edelston v Wilcox (1998) 83 ALR 99 in which the Court held that an instrument of oppression is one which is utilised for a collateral purpose. That is, a by-law can only be oppressive if it is not for that approved statutory purpose (also see Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11). 2. The respondent argued that Yardy disclosed significant legal error, but in any event is distinguishable on its facts. In Yardy, the Tribunal invalidated the by-law because it imposed a blanket prohibition upon pet ownership and because it did not comply with s 139(5) of SSM Act, which does not allow by- laws to prohibit the keeping of assistance animals as referred to in s 9 of the Disability Discrimination Act 1992 (Cth). 3. The respondent stated that in Yardy an order was made by the Tribunal under s 157 of the SSM Act that a lot owner was able to keep his pet on his lot or on the common property despite it being a prerequisite to such an order that "the by-laws permit the keeping of an animal with the approval of the owners corporation", which the relevant by-law in that case did not. 4. In Yardy, the Tribunal made an order that a lot owner may keep his Maltese Cross Terrier on his lot. The applicant in these proceedings seeks no similar order for any animal. 5. The central argument of the respondent's case is that given that it is a condition of the Tribunal's power to make an order under s 157 of the SSM Act that "the by-laws permit the keeping of an animal with the approval of the owners corporation", the legislation is premised upon the proposition that after the passage of the 2015 SSM Act there will continue to be schemes in existence which have valid by-laws prohibiting the keeping of animals. 6. The respondent contends that in Yardy, the Presiding Senior Member referred to the Minister's Second Reading Speech and the Department of Fair Trading's Position Paper 4.7, which reflected a position that the Government would not require strata buildings to accept pets, but rather expressed an aspiration that more strata buildings would do so over a period of time. 7. The respondent concluded that the decision in Yardy fell into error because it rendered invalid by-laws of which the legislative intent was to leave in place and validly so. 8. The respondent quoted from the Second Reading Speech (cited above at paragraph 35), where the Minister also said: While a scheme can make its own by laws, it cannot unreasonably refuse the keeping of the animal, nor can it prevent a resident from keeping an assistance animal. The Tribunal still retains the power to make an order for the removal of an animal from a strata scheme if the animal is a nuisance or a hazard. 1. The respondent stated that the Minister's comments are plainly premised on strata schemes continuing to have the power to exclude pets. Decision 1. The jurisdiction to hear and determine and invalidate a by-law is found in s 150 of the SSM Act. The section is as follows: Order invalidating by-law (1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive. (2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court). (3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order. 1. There was no issue between the parties that the 2013 by-law 14 prohibiting keeping of animals may be considered under the provisions of the 2015 SSM Act. 2. Pursuant to s 150 of the SSM Act, I make an order and declare that that by-law 14, which was passed at an EGM in June 2013, is invalid because it is harsh, unconscionable or oppressive. 3. The reasons for the decision above are as follows below. 4. As noted above (at paragraph 32), the Presiding Senior Member in Yardy referred to the observations of the Adjudicator in Rhode Island, which stated that a blanket prohibition against the keeping of animals within the strata premises is unnecessary and at least unreasonable, and that a balanced and considered approach can be adopted which has due regard to the interests of all owners and occupiers of lots within a scheme. 5. It is common ground between the parties that the respondent's 2013 by-law 14 has a blanket prohibition for the keeping of animals. The blanket ban has been in force since the inception of the strata scheme in 1997. 6. Section 150 of the SSM Act provides jurisdiction to the Tribunal to invalidate a by-law (see paragraph 60 above). 7. Section 157 gives the Tribunal power to make an order permitting an owner or occupier to keep an animal. The section is as follows: 157 Order permitting keeping of animal (1) The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property. (2) The Tribunal must not make the order unless it is satisfied that: (a) the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and (b) the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property. 1. The model by-laws introduced in the 2016 SSM Regulation, Schedule 3, Clause 5, permit in Option A an owner or occupier of a lot to keep an animal with certain conditions such as giving written notice to the owners corporation that an animal is being kept on the lot. In Option B, an owner or an occupier of a lot may keep an animal on the lot or traverse the common property with the written approval of the owners corporation (see paragraph 21 above). The owners corporation must not unreasonably withhold its approval of the keeping of an animal. The owners corporation must give an owner or an occupier written reasons for any refusal to grant approval. 2. Under the former SSM Act, s 49, Schedule 1, Clause 16, an owner or an occupier could keep an animal on the particular lot if the owners corporation approved in writing keeping an animal on the lot or the common property. 3. Under Schedule 2, Clause 17, of the former SSM Regulation, Option A allowed keeping of animals, subject to approval by the owners corporation. The approval could not have been unreasonably withheld. Option B allowed an owner or occupier to keep a cat, a small dog, a small caged bird, or fish kept in a secure aquarium, on the lot without the prior written approval of the owners corporation. Option C allowed, subject to s 49(4) of the former SSM Act wherein a by-law could not the prevent keeping of a guide dog, to have a blanket ban on the keeping of any animal on the lot or the common property. 4. The above summary of the legislative provisions illustrates that, under the former SSM Regulation, which was in force from 1 September 2010 until the change in the legislation on 30 November 2016 and the passing of the 2016 SSM Regulation, it was permissible for a strata scheme to ban keeping animals on the lot or the common property. The new by-laws did not apply to the strata scheme unless they were adopted by the owners corporation. 5. However, under the SSM Act, s 150, the Tribunal was given power to declare a by-law invalid if it considered that the by-law was harsh, unconscionable or oppressive. 6. The applicant argued, referring to Yardy, that a blanket prohibition against the keeping of animals within the strata scheme is unnecessary and at least unreasonable. A balanced approach ought to be considered with due regard to interests of all owners in particular in cases of special hardship. 7. The applicant filed two Affidavits in support of its contention that a by-law with a blanket prohibition of animals is unreasonable because it does not allow for cases of special hardship. 8. In the first Affidavit, Ms C Hooper was told in January 2017, when she purchased her apartment, that there was "no pet policy". She has one child aged 18 months through surrogacy. Having a second child is not possible for her. She would love to provide for her son a loving companion dog in the event The Elan became pet friendly. 9. In the second Affidavit, Ms C Cranney purchased her apartment in December 2017. She and her husband own a 13 year old dog, Brinsley. They were told that strata scheme by-laws prohibit an owner bringing a dog to any part of the building. Ms Cranney did not move into her apartment. She is occupying rented accommodation waiting for Brinsley to pass away. 10. In his submission, the applicant stated that the Tribunal should grant an Interim Order pursuant to s 231 of the SSM Act, similar to what was ordered in Yardy, to permit the owners of Unit 1405 to keep their pet dog Brinsley. 11. The applicant submitted that, in Yardy, the Presiding Senior Member concluded that the evidence establishes that the right to keep an animal as a pet within strata units, under suitable conditions, subject to regulation and control by the owners corporation, which has due regard to the rights of all unit owners, is part of community standards. 12. The applicant submitted that, in Yardy, it was held that a critical consideration regarding a by-law prohibiting keeping of animals is the evidence of benefit of pet ownership to humans as a general rule, and how the recognition of this phenomenon has formed part of contemporary community standards. 13. The applicant cited in support of his case McKenzie v Body Corporate Kings Row Centre QCATA-57. The Adjudicator held: Cats and dogs are ordinary domestic pets, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions. In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable. 1. The applicant submitted that to have a rule without reason to the rule is unreasonable, and is harsh, unconscionable and oppressive. 2. The applicant stated that The Elan has had a universal pet ban since its inception in 1977. In March 2013, a new by-law was passed. The new by-law continued the blanket ban of pats. However, the by-law permitted the existing pets, of which there were about 25, to stay, after registering with the Concierge. The applicant contended that the 2013 by-law discriminates between lot owners. 3. The applicant referred to the Second Reading Speech (cited above at paragraphs 35 and 58) where the Minister relevantly said that, "[w]hile a scheme can make its own by laws, it cannot unreasonably refuse the keeping of animal, nor can it prevent a resident keeping an assistance animal." The applicant submitted that the term "unreasonably", as used in the Minister's speech, is a lower test than "harsh, unconscionable and oppressive". 4. In Yardy, the Presiding Senior Member stated that, to the extent that the legislative intention might be relevant to the issues of interpretation, it was clear to the Tribunal that the introduction of s 139(1) in the SSM Act was directed to a by-law which allowed for a blanket ban of animals. 5. I am not compelled to follow Yardy because it is not a precedent binding on me, the decision not being of a superior court or tribunal. However, the decision in Yardy may be referred to and adopted for the purposes of consistency of the Tribunal's decision making. The arguments and principles referred to in Yardy may be used as a useful guide in making the decision in this case because there was a blanket ban by-law in Yardy (by-law 16) which is not dissimilar to blanket ban in by-law 14 in these proceedings. 6. I disagree with the respondent's argument that the decision in Yardy disclosed significant legal error because under the 2015 SSM Act there will continue to be schemes in existence which have valid by-laws prohibiting the keeping of animals. My view is, but not to be decided here, that there may be strata schemes with by-laws prohibiting the keeping of animals. However, those by-laws may be challenged in the Tribunal under the 2015 SSM Act, ss 139 and 150, as was the case in Yardy and in this matter. 7. I disagree with the respondent's argument that the decision in Yardy may be distinguishable on its facts. In Yardy the applicant purchased a unit in a block where the published by-laws permitted the keeping of an animal with the approval in writing of the owners corporation. The unpublished by-laws in Yardy prohibited keeping of an animal. 8. The applicant in Yardy was able in 2015 to keep the dog Baxter because the strata manager said to the applicant that pets were no problem. In 2017 the applicant in Yardy purchased a different apartment in the building believing there would be no problem in keeping Baxter. The applicant discovered in the course of conveyance that there has been a by-law in force since 2009 prohibiting keeping of pets. 9. The applicant in Yardy moved a motion to change the prohibitive by-law. The majority of the voters at the meeting supported the motion, but not the 75% required to amend the by-law by way of special resolution. The respondent stated that in this matter the applicant was not able to secure majority support at a general meeting to amend the by-law prohibiting the keeping of animals. 10. I do not agree with the respondent that Yardy may be distinguished on the facts because the majority in Yardy voted to amend the by-law prohibiting keeping of animals whilst in this matter the majority voted against the amendment. The ultimate question for decision in both matters was whether a by-law prohibiting keeping of animals may or may not be enforced by the owners corporation in view of the changes in law made in the 2015 SSM Act. 11. The respondent stated that the residents living in a strata scheme in very close proximity to each other, wishing to live in a pet free environment, should be afforded an opportunity in accordance with the majority's vote to do so. I think this position may be challenged following the provisions of the 2015 Act. 12. The respondent stated that, while there appears to be a change in attitudes towards pets in The Elan where the approval for the current by-law has fallen from 81% in 2013 to 64% in 2017 to 55%, the majority of owners still want to keep the current by-law. 13. The respondent submitted that the decision of the majority not to allow keeping of animals is neither unconscionable nor unreasonable, and neither is the current by-law. The respondent cited in support of this contention the decision in Owners SP67631 v Waters and Gardner [2010] NSWCTTT. The Tribunal observed as follows; "a decision of the Owners Corporation to withhold consent could be seen as reasonable if there was on the material before the Owners Corporation a sound basis for making that decision. Conversely if there was no such basis it would be unreasonable". 1. In this matter the question to be decided is not whether the decision to have a by-law banning animals is unreasonable. The question to be decided is whether the current by-law is harsh, unconscionable or oppressive. 2. My view is for the reasons previously given in this matter, by-law 14 which bans keeping of animals is harsh, unconscionable and oppressive. I agree with the argument and the conclusion of the Presiding Senior Member in Yardy that a by-law which prevents keeping of any animal as a pet is contrary to owners' basic habitation rights and their use and enjoyment of their respective lots. This conclusion is reached having in mind the totality of the reforms under the SSM Act and SSM Regulation. 3. By-law 14 is oppressive, as stated in Yardy, because it does not involve or reflect a balanced consideration of all lot owners or occupiers and it operates only in the interests of lot owners who are opposed to pet ownership. By-law 14, I find, is invalid in that it is harsh, unconscionable and oppressive because it provides no mechanism under which a lot owner could under certain conditions keep an animal as a pet. 4. The applicant's application to the Tribunal to make an interim order pursuant to s 231 of the SSM Act to permit lot owner of unit 1402 to keep her pet Brinsley, is dismissed. The application was made in the applicant's submissions in reply filed in the Tribunal on 8 May 2019 on behalf of the 3rd party, Ms Cranney, owner of apartment 1402. 5. The owner of lot 1402 ought to have filed an application for an interim order herself as required under s 231 of the SSM Act together with a substantive application. In any event, the owners corporation has not been afforded an opportunity to make submissions in reply in respect of the interim application because its submissions in response to the applicant's case were filed in the Tribunal on 7 December 2018. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2019