More pet turmoil as NCAT backs no-dogs by-law

The endless pets-in-apartments saga took another twist last week when a tribunal ruled that a no-dogs by-law was acceptable, even though last year the NSW Court of Appeal decreed that a no-pets by-law was “harsh, oppressive and unconscionable” and therefore invalid.

TV celebrity Scott McGregor and his partner Bernadette Eichner had tried to overturn a dog ban in the Altro building in Camperdown, compelling the strata scheme to allow them to keep their pet.

Last week NSW Civil and Administrative Tribunal (NCAT) Senior Member Robert Titterton found that  the part of strata law under which they raised the action – Section 157, to overturn an unreasonable refusal of a pet application – didn’t apply

Mr Titterton also said that the Court of Appeal ruling was irrelevant, because that had been about a ban on all pets, not just dogs.

And he noted that new laws on “unreasonable” refusal of pet applications haven’t come in yet, so Jimmy the fox terrier had been legitimately banned from the apartment complex.

In response, Mr McGregor and Ms Eichner told Domain in this story that they have no intention of giving up the dog or moving out, and that the Altro committee can take them to NCAT to try to enforce their by-laws, if they wish.

Over-arching by-law

The Altro is one of 11 blocks in the City Quarter scheme in Camperdown, all of which have their own by-laws but come under the regulatory umbrella of a Community Management Statement.

Section 22.2 of that document states that owners must not keep an animals in their apartments other than one cat, a goldfish or other fish in an indoor aquarium, canaries, budgerigars or similar birds or “a guide dog or a hearing dog if you need the dog because you are visually or hearing impaired.”

Jimmy the fox terrier’s owners claimed that the Altro was the only building in the scheme that enforced the by-law and that there many dogs in the Altro and in other blocks.

They also told the tribunal that Jimmy, a 12-year-old miniature fox terrier, was a very quiet and well-trained dog, weighing 4kgs, and with no history of noisy, aggressive or anti-social behaviour.

Their testimony was supported by neighbours, some of whom claimed that there had been other dogs living in the complex as the no-dogs rule wasn’t rigidly enforced.

Disputed

This was disputed by Maddi Sinclair, the complex’s strata manager for the last five years, and Glenn Farquhar, Altro strata committee secretary for 10 years, who said the rules had been enforced many times and that dogs were only allowed in the townhouse section.

Section 157, under which Jimmy’s owners brought their case, is about overturning a decision to refuse an animal when there is a by-law that allows pets, which may not be unreasonably refused.

Member Titterton said that, due to this over-arching by-law’s existence, the strata committee of Altro apartments were not in a position to allow dogs, even if they wanted to.

He also commented that since the by-law allowed some pets it was neither harsh, unconscionable nor discriminatory.

Meanwhile in an open letter, strata secretary Glenn Farquhar has lashed out at “a flood … of hearsay from certain media who wrote columns with false and inaccurate information, misleading the general public” about no-dogs by-laws in apartment buildings.

“As you would be aware, there has been a recent surge in discussion to allow dogs to reside in apartment buildings, even if they have by-laws stating they are not allowed,” he wrote. 

“This has come about largely because of the Horizons/Coopers decision in October 2020 which allowed an overturning of their No Pets By-Law as it was deemed harsh and oppressive, this was only because it was a blanket ban on all pets.”

Almost two years ago, singer Jo Cooper, challenged an order enforcing a by-law at the up-market Horizon building in Darlinghurst, telling her to remove her dog Angus.

An NCAT Member agreed with Ms Cooper that the Horizon by-law was harsh and therefore invalid.  The Horizon owners corporation appealed and won at the NCAT Appeals board.  But Ms Cooper fought on and won her case at the Court of Appeal, the highest court in NSW.

This led to a flurry of activity in strata with some pet owners thinking the law had been changed (it hadn’t, but a legal precedent had been established) and MPs rewriting state laws to find a level of compromise to chime with widespread community feeling that pets should not be banned from strata blocks.

The point was made during the Tribunal hearing that Jimmy’s owners had known about the ban before they moved into the block. However, the same prior knowledge applied in the Cooper case and clearly didn’t carry too much weight there.

Media, estate agents blamed

Just last month NSW strata law was amended to say that pets could not be unreasonably refused in strata schemes – with consultations now underway to define “unreasonable”.

In the meantime, the situation became even more confused and Mr Farquhar lashed out at media and estate agents who said otherwise.

“The laws re owning dogs in apartments has not changed as yet and for the media to imply that it has, is not only unethical, but legally incorrect and misleading,” wrote Mr Farquhar.

“This has resulted in uneducated real estate agents misinforming their clients, owners/tenants that they can now legally bring a dog into any apartment building without consequence. 

“This is false and unethical information from real estate agents which can have very damaging consequences on their licences, as it is classed as misleading conduct on their behalf and is an offence punishable by law.”

That may be stretching it, especially as that’s not how Fair Trading views the issue. In fact, its website suggests that pet owners do exactly what Mr MacGregor and Ms Eichner did – test pet by-laws at NCAT.

Fair Trading advice

But the advice on the Fair Trading website is far from definitive although it at least agrees that it was a “no-pets” by-law that fell foul of the Court of Appeal, not a “no-dogs” rule.

“The Court of Appeal decision overturned the particular by-law that was in dispute and provided a general ruling about how the law on “harsh, unconscionable or oppressive” is to be applied,’ says the Fair Trading website section on by-laws.

“The ruling states that a by-law can be oppressive if it limits the ability of an owner to use their property, without exception or qualification, on a basis that has no connection to the impact on other lot owners.

“The ruling sets an important precedent which is binding on lower Courts and Tribunals. Except for blanket pet bans that are similar to the Horizon’s former by-law, it is difficult to know how widely the precedent will apply.

“Where parties are unsure or disagree about whether a particular by-law is oppressive, they may apply to the NSW Civil and Administrative Tribunal to decide the matter.”

Despite that invitation to test the law, Mr Farquhar goes on to criticise Jimmy’s owners vividly (albeit without naming them), describing them as self-styled “mavericks”.

But he empathises with residents who believed that the law had changed, and spent several thousand dollars on a new puppy. They have since had to move out, he says, while owners and committee members have been inundated with requests from people to bring their own pets into the block.

Harsher

While a “no-pets” by-law is indisputably harsher than a “no dogs” rule, at the heart of the Court of Appeal ruling in the Cooper case, was the concept that you can’t dictate what people do in their own apartments if it doesn’t affect anyone else. 

Perhaps, if that had been the thrust of Jimmy’s owners’ argument, (they represented themselves), there might have been a very different outcome in their case. 

There are strata lawyers looking at this decision and wondering if Jimmy’s owners failed because they challenged the wrong aspect of the law.

As it is, Jimmy’s owners told Domain they aren’t planning to remove him any time soon, and if the Altro Owners Corporation wants them to do so, they can take them to NCAT.

Pro-dog owners will doubtless hope that the Altro falls into line with the other buildings where the no-dogs rule is allegedly not enforced.

Pro-regulation owners will ask why there can’t be one block in the 11 that complies with the scheme’s by-laws and chooses to be dog-free.

This one could run and run.