Queensland’s Strata Pet Tug of War
Pets v. strata buildings in the the sunshine state
Strata pets aren’t celebrating in every state yet, as some places [like Queensland] are still making and enforcing by-laws and rules that prohibit pets or impose very strict controls on them. Are they right or are they out of step with laws, social moods, and post-Covid times?
[5.5 minutes estimated reading time, 1084 words]
Introduction
Pets in strata buildings have been making a lot of noise over the last few years and things are changing fast in New South Wales and Victoria.
I’ve written already about the NSW Court of Appeal decision about pet ban by-laws in Cooper’s case [see The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law] and the new strata laws due to start later in 2021 [see A Few Strata Law Quickies in NSW] that prevent many kinds of restrictions on pets.
And, very soon I’ll be writing about the new pro-pet laws that have been made in Victoria and how they impact strata buildings there.
But, I’ve recently been contacted by a Queensland strata owner about how the pet restrictions work in strata buildings there. And, it’s a little the same and a little bit different.
So, here’s an overview of pet rules and procedures in Queensland strata buildings.
The Queensland strata laws
In Queensland, the default position about pets in strata buildings is set out under by-law 11 in Schedule 4 of the Body Corporate and Community Management Act 1997 which says that strata residents must have prior strata building approval to bring or keep an animal in the building.
And, like most strata building decisions, a refusal can be challenged on merits at QCAT.
But, Queensland strata buildings can change their by-laws in their registered Community Management Statement. Community Management Statements set out the operating rules for the building including any by-laws.
So, many Queensland strata buildings have imposed stricter controls on pets than the standard by-law. Those new by-laws range from adding some criteria or qualifications to the strata building’s permission processes, to banning pets entirely. Interestingly, by-laws limiting the number of pets in a strata apartment are very popular in Queensland.
By-laws are regulated under Part 5 of the Body Corporate and Community Management Act 1997 which prevents a strata building from making by-laws in some circumstances. Relevantly for pets they include the following controls:
A by-law is invalid to the extent that it is inconsistent with the strata laws or any other laws but that invalidity doesn’t apply in relation to a local law or PDA [priority development area] by-law] where it relates to keeping pets [so strata by-laws can override local planning controls on pets] [see section 180(1) & (2) of the Body Corporate and Community Management Act 1997]
A by-law must not discriminate between types of occupiers [see section 180(5) of the Body Corporate and Community Management Act 1997]
A by-law must not be oppressive or unreasonable [see section 180(7) of the Body Corporate and Community Management Act 1997]
A by-law cannot exclude or restrict a guide, hearing, or assistance dog [see section 181 of the Body Corporate and Community Management Act 1997]
So, the legal position in Queensland is similar to New South Wales with respect of pet by-laws: including some absolute limits on banning assistance animals, the freedom to make other by-laws, and, an overriding unreasonableness/oppression test.
The Queensland cases so far
But, unlike the clear statement about the unreasonableness of a blanket pet ban by-law made in Cooper’s case in NSW, the Queensland tribunals and Courts have made varied decisions on those kinds of by-laws.
In McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57 QCAT [Queensland’s strata Tribunal] decided that a pet ban by-law was invalid.
In The Inlet [2011] QBCCMCmr 309, an body corporate Adjudicator also found that a pet ban by-law was invalid and ordered a replacement [less restrictive pet by-law be made].
But, just 2 years later in Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 the same QCAT as in McKenzie member decided that not all pet ban by-laws would be invalid as it depended on the nature of the strata building involved.
The QCAT decision in McGarvey’s case has been widely misinterpreted in Queensland to be an authority for propositions in favour and against pet ban by-laws. But, so far both those interpretations are wrong and has led to widespread misinformation amongst Queensland strata owners, strata buildings and strata managers.
Recently, QCAT considered a more nuanced and complicated pet by-law in Crystal Waters Permaculture Village & Ors v Boyle [2020] QCATA 80 and decided that a more complex pet by-law that includes some total ban provisions was not oppressive or unreasonable and allowed it to remain in place. Interestingly though, in that case QCAT referenced and seemed to rely on an early decision in the Cooper’s case dispute as the NSW Court of Appeal decision had not yet been made.
So, it looks like there’s a bit of a tug of war going on about pets and pet by-laws in Queensland that is not yet resolved.
Strata pets in the news
That tug of war might get resolved soon as this recent ABC News report [Dog owner threatens High Court action to keep his 'babies' in luxury Gold Coast high-rise] reveals.
According to the reporting, it looks like two lucky Cocker Spaniels aren’t going anywhere despite Rivage Royale’s 1 dog limit in their by-laws and the Adjudicator’s order that they have to be removed.
Their owner has vowed to fight on [including all the way to the High Court if necessary] to keep the pets with him in the strata building. As he says ‘the dogs are my family, they’re my babies’.
And, if you know much about the history of strata legal disputes in Queensland, they have traditionally been very protracted and a surprising number have actually ended up in the High Court.
So, I’m not taking these threats or promises lightly.
Conclusions
It looks like Queensland strata stakeholders, Courts and regulators are out of step with the rest of Australia on pet controls in strata buildings.
But since the underlying strata laws are essentially the same, it seems very likely that sooner or later they end up in the same place; namely with absolute pet bans and hard and fast limits on pets being invalid and with strata buildings having to consider each strata owner or residents application to keep a pet on its merit.
It might take a few years and a wealthy and passionate pet owner to take things beyond QCAT but its very likely that will happen.
So, let’s watch out for the plight of Queensland’s strata pets and the higher Court’s interpretation of by-law controls.
May 11, 2021
Francesco ...