No apartment building in NSW will now be allowed to have a blanket ban on pets following a surprise NSW Court of Appeal ruling that overturned the right of blocks to pass bylaws prohibiting animals.
The verdict follows a four-and-a-half-year battle by dog lover Jo Cooper to be permitted to keep her miniature schnauzer Angus in the prestigious Horizon building in Darlinghurst that has always had a pet ban.
“It’s such a fantastic outcome for her, and for everyone, and it’s such a weight off her shoulders. She hasn’t yet stopped sobbing.”
The court also ruled that the 43-storey Horizon should be liable for the costs of all the hearings, which could amount to as much as $500,000 in total for the owners.
The chair of Horizon, Marilyn Robertson, said she hadn’t had the chance yet to speak to her lawyer. “But it is what it is,” she said.
“And we can now get on with life. I had hoped for it go to one way, but it’s gone the other way, and it’s far too early yet to say what we’ll do next.”
The only possible avenue of appeal against the decision now is to the High Court of Australia, sitting in Canberra.
At the Elan apartment tower in Kings Cross, which also outlaws pets and has been the focus of another legal fight from some animal-loving owners to keep dogs, there will now be a meeting of the strata committee to decide what to do next.
“The decision affects everybody,” said Elan chair Gisela Ramensky. “It’s a surprising decision and the reasoning for the decision we find surprising, but there it is. It’s too early to say what we’ll do next.”
At the moment, the Elan is pursuing costs against one of its owners, Bob Roden, 73, who applied to the NSW Civil Administrative Tribunal (NCAT) for permission to keep a dog at some point in the future. Like Ms Cooper, he won his case at NCAT but it was then overturned by an NCAT appeal panel.
This latest decision overturned that original appeal, and has reinstated the original NCAT finding that a bylaw prohibiting pets was “harsh, unconscionable and oppressive”.
Mr Roden was due to refund his building around $30,000 of their costs, but now that is in doubt, too.
“If they don’t drop that, I will also go to the Court of Appeal if necessary,” he said.
“We’re all pretty delighted by this verdict. It’s really a poke in the eye to those who want to deny people their rights to keep an animal in their apartment.
“The judgment shows that they don’t have the right to interfere with what people want to do in their own apartments as long as they don’t affect others. I think everyone in the buildings that previously banned animals will now discover that the world won’t end, and that no one will be greatly inconvenienced by some of us owning animals.”
The Court of Appeal ruled that a blanket ban on animals infringed the limitation that a bylaw must not be “harsh, unconscionable or oppressive”, and that the bylaw also restricted the lawful use of each lot on a basis which lacked a rational connection with the enjoyment of other lots and the common property.
Barrister Richard Gration, who represented the Elan in court and is a resident of Horizon, said many buildings across Sydney and beyond would now be affected by this latest ruling.
“The effect of this is extremely far-reaching,” he said. “It’s now not possible to have a blanket ban on animals. If there is to be any ban, then it has to be tailored to protect the amenity of other lot owners, so a bylaw can only exist to restrict, say, barking dogs or screeching cockatoos.
“This does put limits on the extent that owners can democratically create rules for their own buildings, and bylaws now can’t be used for anything people do in their own lot that doesn’t affect others. It’s now going to be difficult for those who have genuine fears or dogs, or who are very allergic to dog and cat hair.”
As well as an appeal to the High Court, another avenue may be presented by the upcoming review of strata laws that the NSW Parliament is undertaking, where politicians could decide to enact new legislation about the keeping of animals.
A petition to the Parliament from pet lovers has currently around 13,000 signatures on it asking it to outlaw blanket bans on pets. “We’re still pushing our petition despite this verdict,” said Ms Hooper, who lives in the Elan.
“It’s wonderful for people who want to keep a pet, and such a great boost for their mental health.”
Ms Cooper set up a GoFundMe campaign, Fairness For Our Family Pets In Strata, to raise $50,000 to help fund her appeal. At the time, she said, “It’s costing me a lot of money and a lot of stress, but if I win, I win for everyone.”
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