It's an NSW Pets Fest
Join the long queue of strata pets in NSW strata buildings ...
The last few years have been a bit of a pets-fest in New South Wales strata buildings with disputes, decisions, surveys, and law reforms. But, it’s not over yet as a government report, some survey results, and, the latest changes to strata laws are released and take effect.
[7:75 minutes estimated reading time, 1524 words]
Introduction
As a result of changes to the New South Wales strata laws earlier this year [see my article ‘A Few Strata Law Quickies in NSW’], the New South Wales government commissioned a study, public consultation, and report under section 267A of the Strata Schemes Management Act 2015 on the issue of pets in strata buildings.
Plus, in March 2021, the NSW Department of Fair trading launched the Pets in Strata Survey to also get everyone’s opinion about pet issues.
That report and the survey results have now been released. The new strata laws that were made in March 2021 have started and some new strata regulations to accompany the strata pet law amendments were proclaimed.
So, what do the report and survey say, what’s changed in the strata laws and how does it work now for pets and their owners in New South Wales strata buildings?
The S.276 report
The highlights of the NSW Department of Fair Trading’s report ‘Review of the keeping of animals in strata schemes in NSW’ are as follows.
The report is based on the following things:
An earlier NSW Fair Trading discussion paper.
Submissions by a range of interest groups including:
Domestic Violence NSW
Animal Care Australia
RSPCA NSW
Cat Protection Society of NSW
Women’s Legal Service NSW
Owners Corporation Network
Mars Petcare Australia
NSW Young Lawyers (Animal Law Committee)
Western Sydney University Institute for Culture and Society
The 1,601 responses to the Pets in Strata Survey.
Research by NSW Department of Fair Trading staff.
It includes 15 findings, 2 recommendations, and, a few conclusions as follows.
Finding 1: That there are 10 circumstances where it would be reasonable to not permit a pet to reside in a strata building [which are embodied in the new strata regulations which I explain below].
Finding 2: Strata buildings should be able to impose reasonable conditions on keeping pets.
Finding 3: Pets in strata buildings have positive and negative impacts.
Findings 4 & 5: The new strata pet laws they’ve made will fix things for everyone [oh really ???].
Finding 6: Imposing barriers to pets in strata buildings can have unexpected negative impacts on strata owners and residents.
Findings 7, 8 & 9, 10: There’s no evidence that living in strata buildings is bad for pets, there are other mechanisms to handle pet cruelty and suffering issues, and, so that doesn’t need to cover those things and strata buildings aren’t qualified to assess those things.
Findings 11, 12 & 13: The strata laws around by-laws will incorporate the new pet controls and will also get reviewed as part of the wider NSW strata law review that is currently underway.
Findings 14 & 15: Previously approved pets in strata buildings should not be excluded under by-laws or policy changes.
Recommendation 1: That the 10 circumstances in Finding 1 should be incorporated in strata regulations.
Recommendation 2: The new regulations should complement strata and other laws about pets.
A few other noteworthy comments from the report include the following gems.
Pet approvals and conditions should be based on objective considerations and not objective assessments [like how many pets are too many in strata buildings or how big or small a pet should be].
Pet waste management rules should be matched to each strata building’s circumstances.
Comparing the health benefits pets bring against the allergic impacts on other residents [under their interpretation of Cooper’s Case] means it would be difficult to justify allowing allergies to be a basis for refusing pet approval.
A significant proportion of responses suggested a different, specialised, and/or less formal process for resolving pet or animal disputes rather than using the existing adversarial strata dispute mechanisms.
The report stated [unsurprisingly] that the pet issue ‘attracts strong views’ [no kidding?].
Plus the report includes a nice summary of the existing NSW strata laws about pets and the NSW Court of Appeal decision in Cooper’s Case which I wrote about in ‘The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law'.
The survey results
There were 1,601 survey responses which represent stakeholder groups as follows:
77% were from strata building residents [owners and tenants].
71% were from strata owners [resident and non-resident].
1.75% were from strata managers.
1% were from lawyers.
11% were from a mixed brunch of prospective strata owners/residents, interested stakeholders, and veterinarians.
* Those percentages don’t add up to 100%, but they’re not mutually exclusive categories.
Strata residents [owners and tenants] split over whether they want or don’t want a pet in their building 72% for and 28% against.
The top 5 problems responders identified in relation to pets in strata buildings were [in order of frequency]:
Noise.
Smell.
Damage to property.
Health and wellbeing impacts.
Soiling.
The top 5 reasons responders identified that justified prohibiting pets in strata buildings were [in order of frequency]:
Noise.
Animal welfare considerations.
Dangerous pet breeds.
Too many animals in the building.
Resident health issues.
The top 5 conditions responders identified the conditions they thought were appropriately required in pet approvals in strata buildings were [in order of frequency]:
Pet owners’ responsibility for damage or loss.
Animal to be on a leash or carried.
Use of designated areas/entrances only.
Supervision of the pet.
Training the pet.
Whether or not these survey results accurately represent strata stakeholders’ views is anyone’s guess. After all, according to UNSW City Futures Centre latest research, there are 961,544 strata lots and at least 1,124,464 strata residents in NSW, so the survey samples only 0.0016% of them, at best.
The new strata [pet] laws
The new NSW strata laws about pets operate under a few co-dependent parts as follows to create a new pets in strata regime in NSW strata buildings.
Part A: Limits on pet by-laws
Section 137B(1)(a) of the Strata Schemes Management Act 2015 makes by-laws that unreasonably prohibit keeping a pet ineffective and unenforceable.
So, even if such by-laws exist or are made, they won’t work.
Part B: Limits on pet approval decisions
Section 137B(1)(b) of the Strata Schemes Management Act 2015 makes decisions about pet approvals that unreasonably prohibit keeping a pet ineffective and unenforceable.
So, if a request for pet approval it won’t work.
Part C: Deeming pet approval
Section 137B(5)(a) of the Strata Schemes Management Act 2015 deems an unreasonable refusal of pet approval to be an approval. Effectively reversing the decision.
Section 137B(5)(b) of the Strata Schemes Management Act 2015 applies when a strata building unreasonably delays a decision about pet approval to deem it to be approved. Forcing strata buildings to make quick decisions.
Part D: Defining what’s unreasonable [and reasonable]
Sections 137B(2) and 3 of the Strata Schemes Management Act 2015, and regulation 36A of the Strata Schemes Management Regulations 2016 operate together and in a legally backwards way to allow for the reasonable refusal of a pet approval when the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property by defining circumstances when that unreasonable interference exists as follows [quoted mostly verbatim since I don’t want to misinterpret them]:
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
the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or
the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant, or
the animal repeatedly causes damage to the common property or another lot, or
the animal endangers the health of another occupant through infection or infestation, or
the animal causes a persistent offensive odour that penetrates another lot or the common property,
for a cat, the owner of the animal fails to comply with Companion Animals Act 1998 orders, or
for a dog, the owner of the animal fails to comply with \ Companion Animals Act 1998 orders.
The regulation is based on the recommendations in the Review of the keeping of animals in strata schemes in NSW report and, as you can see, these provisos are quite narrow and require ongoing, rather than one-off, behaviours.
Those specific matters also appear to be exclusive so no other bases can be relied on for refusals [but that may end up being tested in future legal cases].
Conclusions
So, the new strata pet laws make it harder for strata buildings to prohibit pets and refuse applications for pet approval by forcing decisions, invalidating and reversing non-compliant decisions, and, limiting the bases for pet application refusals.
They represent a significant change to the old ways with pets in strata buildings where a pet owner had to overcome hurdles. Instead, strata buildings have to justify attempts to prohibit or refuse pets within these new legally defined parameters.
It’s definitely a brave new world for pets and pet owners in strata buildings. So, join the strata pets queue here.
September 08, 2021
Francesco …