Since the landmark Jo Cooper case in Darlinghurst’s Horizon building, refusing pet applications in NSW strata schemes has become significantly more challenging. Here’s a breakdown of the legal landscape and what it means for pet owners and owners corporations.

The NSW Court of Appeal in this case established that apartment owners have the right to enjoy their property as they wish, as long as it complies with by-laws. Importantly, by-laws must have a “rational connection with the enjoyment of other lots and the common property.”

The court ruled that refusing a pet application is unreasonable if keeping the pet does not cause undue interference with others’ use of their lot or the common property. This decision clarified how to assess whether a by-law is harsh, unconscionable, or oppressive. It also spurred specific amendments to the Strata Schemes Management Act 2015 (SSMA).

Under Section 137B(3) of the SSMA, regulations define “circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property”.

Regulation 36A specifies that unreasonable interference includes:

• makes persistent noise to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant
• repeatedly runs at or chases another occupant, a visitor or their animal
• attacks or otherwise menaces another occupant, a visitor or their animal
• repeatedly causes damage to the common property or another lot
• endangers the health of another occupant through infection or infestation
• causes a persistent offensive odour that penetrates another lot or the common property
• for a cat – the owner fails to comply with a Companion Animals Act order
• for a dog – the owner fails to comply with a Companion Animals Act order, or the dog is declared a menacing or dangerous dog, or is a restricted dog

We recently acted for an owner in an upmarket building in Bondi, whose pet application was refused. This required us to look closely at the newer pet provisions in the SSMA, and we noted the slightly circular provisions in s 137B create a deemed approval.

Previously, if an owners corporation unreasonably refused a pet application, the pet owner needed a Tribunal order to override the (unreasonable) decision. However, under the current law:

• Section 137B(1)(b): A refusal has no effect if it unreasonably prohibits keeping the pet.
• Section 137B(2): Keeping an animal is deemed reasonable unless it causes unreasonable interference.
• Section 137B(3): Regulation 36A defines the only circumstances where interference is deemed unreasonable.

What This Means:

• If none of the grounds in Regulation 36A apply, keeping the pet is considered reasonable.
• A refusal based on any other grounds is automatically unreasonable.
• In such cases, Section 137B(5)(a) deems the pet application approved, even if formally refused by the owners corporation.

If an owners corporation refuses a pet application for reasons outside those listed in Regulation 36A:

• The refusal is unreasonable under the law.
• The pet owner does not need to seek Tribunal intervention. The refusal automatically converts into an approval.

In our recent case, after legal clarification, the owners corporation allowed the pet (a dog) with conditions aligned with Regulation 36A, which are considered fair.

1. Owners corporations must carefully assess pet applications against the specific criteria in Regulation 36A.
2. Refusals outside these criteria will likely be deemed invalid, granting the pet owner approval by default.
3. Strata managers and owners should stay informed about these legal nuances to avoid unnecessary disputes.

For expert advice on strata matters, feel free to reach out to us.