Another Dog Gets Lost in the NSW Strata Pet Wilderness
Or, is Jimmy just another victim of NCAT’s poor decision making …
After the dramatic and clear changes that Cooper’s Case and the 2021 strata pet law reforms have made to the situation for strata pets in NSW, it seems not everyone got [or read] the memo. So, in this article, I look at a recent NCAT decision that looks to be a bit out of kilter [at least to me].
[7.0 minutes estimated reading time, 1381 words]
I usually don’t bother with NCAT decisions made by individual tribunal members since they are not binding on anyone including NCAT [amongst other reasons]. But, one about strata pets caught my attention.
After all, in the last 9 months in New South Wales, we’ve had the NSW Court of Appeal decision that by-laws restricting animals [as well as anything else] need to be carefully framed and based on competing owners’ property rights [see my article ‘The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law’] and then the NSW Government made changes to strata laws to start later this year about pets that limit prohibitory by-laws and unreasonable approval refusals [see my article ‘A Few Strata Law Quickies in NSW’.
So a March 2021 NCAT decision upholding a no dogs by-law and refusing a strata owner approval to keep their dog in their building seems odd.
What’s going on in NSW and why was Jimmy not welcome to this strata building?
What’s going on in NSW and why was Jimmy not welcomed by NCAT to the Altro strata building?
McGregor’ Case details
On 1 March 2021, the NSW Civil and Administrative Tribunal decided a case between Strata Plan 74896 and Mr. McGregor and Ms. Eichner about their dog, Jimmy, which involved the following key facts.
Mr. McGregor and his partner lived [part time] in their apartment at the Altro strata building in Camperdown and wanted approval for their 12-year-old miniature fox terrier ‘Jimmy’ stay when they were there.
Altro is part of the City Quarter Complex which is a community title scheme and comprises apartments and townhouses [see my article explaining community title ‘An Introduction to NSW Community Title: Updated for 2021’.
The City Quarter Complex had by-laws in the Community Management Statement that permitted some animals in apartments [1 cat, fish, small birds, and guide or hearing dogs] and also allowed 1 small dog in the townhouses too. So, no dogs in apartments. Otherwise, all other pets were banned and there was no mechanism for community association or strata building approval.
Jimmy was coming to Altro with Mr. McGregor from time to time. That resulted in communications between the strata building manager and Mr. McGregor that didn’t resolve things.
So, Mr. McGregor asked NCAT to make orders allowing Jimmy to stay at Altro or, alternately, that the by-law prohibiting dogs in the Altro apartments was invalid.
There was a lot of evidence in the NCAT case by strata owners and residents in favour of keeping Jimmy and also against him, about the history of pets at Altro, and about the differing stakeholder views about the desirability of dogs at the City Quarter Complex.
NCAT refused to make orders that the pet by-law in the CMS was invalid and/or that Jimmy could stay at Altro.
In doing so, NCAT relevantly said the following things.
The circumstances surrounding the strata owner, the dog, and the strata building’s objections were not relevant to the dispute since it depends entirely on assessing the by-law, relying on Cooper’s Case.
There is no power to make an order under section 157 of the Strata Schemes Management Act 2015 since there was no discretion about keeping a dog in the relevant by-law and that was fatal to Mr. McGregor’s case.
Mr. McGregor could also not challenge the Community Management Statement by-laws under section 150 of the Strata Schemes Management Act 2015.
The Community Association should have been a party to the case.
There was no need to consider whether Cooper’s Case applied to and/or how it applied to pet by-laws that were a partial but not complete ban on pets.
So, NCAT effectively said it had no power to decide the issues.
McGregor’s case in the news
There’s also been a bit of media coverage about the NCAT decision too as follows:
An article in the Sydney Morning Herald by Micahel Kpziol ‘Let the games begin’: All out war between pet owners and strata bosses’.
An article in Flatchat by Jimmy Thomson ‘More pet turmoil as NCAT backs no-dogs by-law’.
A blog by Carlo Fini at Lewis & Charles ‘Pets in strata: more confusion from NCAT’.
My take on this NCAT strata pet decision
As often occurs in strata title, the apparent anomalies with this NCAT decision exist for reasons that are different from what’s been reported or suggested by most commentators.
And, whilst this NCAT decision appears contrary to the NSW Court of Appeal decision in Cooper’s Case there are a few good [but bad] reasons for that.
So, my take on NCAT’s decision in McGregor’s case is as follows.
NCAT rightly identified that there were complications arising from the fact that the by-law that prohibited dogs in City Quarter Complex apartments was actually in the Community Management Statement and not the strata building’s by-laws. But, NCAT only partly identified the true issues, misapplied a few others, and didn’t clearly address them.
It’s very likely that both enforcement of a by-law in a Community Management Statement about pets and/or a dispute about its validity must occur between the strata owner and the community association and not with the strata building. So, that means using the dispute resolution procedures under the Community Land Management Act 1989 for that dispute which are quite different.
It’s correct that there are no mechanisms available under the Strata Schemes Management Act 2015 or the Community Land Development Act 1989 to require a strata building or a community association to approval a pet [of any kind] where the applicable by-laws don’t allow provide for such decisions or discretions. But, that of itself, is probably a reason why the by-law is harsh, unconscionable, or oppressive according to Cooper’s Case.
Unlike section 150 in the Strata Schemes Management Act 2015, there is no equivalent qualification or requirement in the Community Land Development Act 1989 or Community Land Management Act 1989 that requires Community Management Statement by-laws not to be harsh, unconscionable, or oppressive. So, there’s no direct ability to apply the reasoning in Cooper’s Case to this by-law.
However, there’s a viable argument that where a strata building by-law requires compliance with a Community Management Statement by-law [like by-law 2.3 in the Altro by-laws] that is harsh, unconscionable, or oppressive, then the strata building by-law is itself harsh, unconscionable, or oppressive.
There’s also a fascinating [for lawyers at least] debate to be resolved about which laws prevail about the validity and enforceability of by-laws when the Strata Schemes Management Act 2015 imposes controls, the Community Land Management Act 1989 doesn’t but requires strata owners in subsidiary strata buildings to comply with the Community Management Statement by-laws. Do the community title laws trump the strata laws or vice versa?
Finally, the NCAT decision and these legal complications for strata buildings in community schemes and community title buildings, highlight that the recent NSW strata law reforms don’t cover pets in these situations. Plus, the recent and long-awaited community title law reforms didn’t address pets at all. So, there’s still a gap in the proposed pro pet strata laws.
This NCAT decision highlights that sometimes apparently simple strata disputes can be very complex and involve quite sophisticated legal issues which unrepresented parties and less experienced lawyers don’t see and that NCAT doesn’t and/or can’t fill those gaps in knowledge and understanding.
Plus, it’s a timely reminder to the NSW state government that it needs to widen its review of laws about pets in strata and similarly titled high and medium density buildings to avoid anomalies like this one.
Sadly though another strata pet and its family have been left out in the strata law wilderness.
May 26, 2021
KEY DETAILS OF THE CASE
Case Name: McGregor v The Owners – Strata Plan No 74896  NSWCATCD 1
Strata Owners - Scott McGregor & Bernadette Eichner
Strata Building – The Owners – Strata Plan No 74896