Pet owners in two of Sydney’s most prominent apartment buildings are now wondering if they will have to move out or get rid of their pets following a decision by the NSW Tribunal Appeals Panel to overturn a previous ruling that their blocks’ anti-pets by-laws were invalid.
Last year, by-laws in both the 260-apartment Horizon and the 280-unit Elan buildings, both in Darlinghurst, were struck down in separate NSW Civil Administrative Tribunal (NCAT) findings.
The by-laws in both buildings previously forbade the keeping of companion animals, except where they were registered support animals, such as guide dogs.
In the case of the Elan, one owner had challenged the building’s by-laws on the grounds that he would like to own a dog at some point in the future.
In the Horizon issue, an owner was challenging a Notice to Comply insisting that she remove her pet dog from the building as it was in breach of the block’s by-laws.
Separate tribunal Members in different hearings agreed with the pro-pet owners that the by-laws were “harsh, oppressive or unconscionable”, which would invalidate them under NSW strata law.
But the owners corporations of both buildings immediately appealed with the Elan case heard in December and the Horizon appeal heard in April, both by NCAT president Lee Armstrong and Deputy President Mark Armstrong.
Considering the potentially far-reaching consequences of the cases, Senior Member Lucinda Wilson sat in the Elan case, which also heard an appeal by an owner in a different block who had been denied permission to have a second dog when her by-laws only allowed one.
In both findings, the Appeals Panel rejected the idea that the by-laws in any of the three cases were “harsh, unconscionable and oppressive”, which would have rendered them invalid under NSW strata law, and overturned the previous decisions in the Elan and Horizon cases.
In the third case, they upheld the original Tribunal decision that the Owners Corporation could limit the number of pets, as per its by-laws.
In all cases, the Tribunal Members noted that the by-laws were clear, the owners should have been aware of them when they purchased their units and that by-laws could not be deemed “harsh, unconscionable and oppressive” simply by their existence.
In both cases, the Members invited the successful appellants to apply for costs, which could run into tens if not hundreds of thousands of dollars.
It remains to be seen how tough the Owners Corporations are prepared to be in pursuing pet owners in their buildings, now that several have been flushed out by the various tribunal hearings.
As for the rest of us, while basic tribunal decisions aren’t often considered significant legal precedents, even in the NCAT sphere, Appeals Panel rulings do have sway on cases further down the food chain.
These decisions reinforce the right of a majority of apartment owners to make their own rules for their blocks. Other owners who might have been planning to challenge by-laws on similar grounds might now be having second thoughts.
That said, the losing owners can always appeal to the Supreme Court where the legal stakes, and costs, are considerably higher.