Great post. My OC has a no dogs or cats by-law. Simply put they believe they can make an owner remove an animal because it is a cat or dog.
The interesting part for you is that I took our by-law to NCAT and ask the Member to run the tests in Cooper (the famous Cooper case that led to the new pets by-laws).
Our by-law is dead in the water if the Member runs the test but the Member did not run the tests, instead the Member went all in on equity. A little something for everyone.
This is the crux of the decision.
9. The above section 137B invalidates any existing “blanket ban” in relation to keeping of animals as may presently exist within any strata scheme. It also places an onus upon neighbours or strata management to be able to satisfactorily demonstrate that actual unreasonable interference with other lot owners or users of common property has been caused by the keeping of a particular animal upon a lot.
10. Section 137B operates irrespective of any by-law. This does not however mean that the body corporate lacks power to make any particular relevant by-law and that the Tribunal should therefore make an order such as is presently sought. The section simply renders inoperative the application of any such by-law in relation to a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity.
K Rickards Tribunal Member
SC 21/48504 (unreported)
It seems a OC can have any old rubbish as a pet by-law but s 137B operates independent of the rubbish.
Had the Tribunal run the Cooper tests the by-law would have been invalidated, instead the by-law remains on the books but it is made clear in the decision the by-law does not effect the operation of s 137B.
Your by-law is not worth the paper it is written on as s 137B should prevail if the by-law is tested, but NCAT is not fit for purpose so that spices things up.