Residents in one of Sydney’s top apartment blocks have been warned they may have to have their newly bought or adopted dogs and cats put down, or move out themselves, if their building wins its appeal against a Tribunal decision to revoke a blanket ban on pets.
The strata committee of Sydney’s elite Elan building has told owners and tenants who are tempted to buy or adopt companion animals while the block’s no-pets by-law is on ice that they may need to “have their newly acquired pets euthanased (sic)”.
Otherwise, if they can’t bring themselves to be separated from their pets, they’ve been told they might have to move home, selling their apartments or breaking their leases.
Earlier this month the 248-unit Elan building in Kings Cross had its long-standing pet ban wiped out by the NSW Civil Administration Tribunal (NCAT) which ruled that the by-law was ‘harsh, unconscionable and oppressive’.
The Elan strata committee is now appealing this and in a memo to residents has warned them not to rush out and acquire pets but to wait until after the Appeal is heard, “because if the appeal is successful, anyone who has bought a pet now, will have to remove the pet from the building.”
The death threats have infuriated pro-pet campaigners in the building but the committee is clearly trying to head off a rush of pet acquisitions while their anti-pet by-law is effectively moribund, advising that the rule should be observed in the period while the appeal is heard and adjudicated.
“The blanket ban has been in force since the inception of the strata scheme in 1997,” the memo says. “A delay of another month or two pending the outcome of the appeal would be immaterial in that context.”
However, until there is a “stay” of the Tribunal ruling, or it is overturned on appeal, it may be that there is effectively no pet by-law in place at all – giving determined pet-lovers a window of a couple of weeks in which to possibly fulfil their dreams of welcoming a fur-baby into their lives.
And the pre-emptive caution against acquiring pets may well be motivated by concerns that the building could face years of litigation and cross-claims from owners who bring in pets while there is no by-law in place.
That grace period might only last for a couple of weeks. The committee has applied for a “stay” of the decision – meaning it would no longer be effective – while the appeal is being heard.
The strata committee’s memo to owners details legal advice they have had that the NCAT decision was “riddled with error”, saying their lawyer advised the committee to appeal, “given that the majority of owners want to keep the current by-law.”
That “majority” is disputed by the pro-pet lobby in the building who say a recent survey revealed the one-third of owners were against pets, one-third in favour and the other third didn’t mind either way or didn’t respond.
The committee says they have filed an urgent Notice of Appeal and an Application for a Stay of the Decision, keeping legal fees below the permissible $15,000 limit after which they must seek general meeting approval for further spending.
“If the appeal is successful, anyone who has bought a pet now, will have to remove the pet from the building,” says the notice.
But that too is being disputed as, until a “stay” is allowed, there is no effective by-law in place, and any pets brought into the building may well be there legitimately.
“Despite lodging an appeal, the original decision from the Tribunal still operates unless the Tribunal makes an order stopping it being enforced,” say strata lawyers (and Flat Chat sponsors) Sachs Gerace Broome in a fact sheet on their website. “A stay order will not be made simply because an appeal has been lodged.”
So it is possible that any attempts to remove pets brought in during the period between the by-law being revoked and the stay being imposed would be considered retrospective.
The nightmare scenario for the anti-pet lobby would be a finding by the NCAT appeals board that they could, indeed have a “no-pets” by-law, but the one that has been revoked was flawed and they needed a new one.
If it’s true that at least 30 per cent of owners are in favour of pets, the committee’s chances of getting the required 75 percent vote in favour of a new no-pets by-law are about as slim as the real chance of Fido or Tiddles being taken out the back and shot.
Murdering pets aside, we aren’t saying who’s right and who’s wrong, let alone who would win a legal battle. However, there’s enough grey area and loopholes to guarantee that were will be at least one court battle and possibly more.
That’s because, when you get two groups of impassioned people who have opposing views, you should recall the favourite phrase in many lawyers’ vocabularies: “It’s a matter of principle.”