Bruce v The Owners - Strata Plan No. 98803

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bruce v The Owners – Strata Plan No. 98803 [2022] NSWCATCD 83

Hearing dates:

14 February 2022

Date of orders:

11 April 2022

Decision date:

11 April 2022

Jurisdiction:

Consumer and Commercial Division

Before:

S Hanstein, General Member

Decision:

The Tribunal declares that the applicants may keep the French Bulldog Peach on their lot, on the condition that the applicants comply with the requirements set out in paragraph 42 of the reasons for this decision.

Catchwords:

LAND LAW — Strata title — Keeping of animals — Where approval refused — Whether refusal unreasonable — Whether by-law prohibits keeping of more than one animal — Whether keeping of animal interferes with other occupant’s use and enjoyment

Legislation Cited:

Interpretation Act 1987 (NSW)

Strata Schemes Management Act 2015 (NSW)

Strata Schemes Management Amendment (Sustainability Infrastructure) Act 2021 (NSW)

Strata Schemes Management Regulation 2016 (NSW)

Cases Cited:

Cooper v The Owners ̶ Strata Plan No 58068 [2020] NSWCA 250

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Andrew Bruce (First Applicant)
Alice Barclay (Second Applicant)
The Owners – Strata Plan No. 98803 (Respondent)

Representation:

Hunter Strata Management (Respondent)

File Number(s):

SC21/46146

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicants, being owners of a lot in the strata scheme, seek an order under s 157 of the Strata Schemes Management Act 2015 (“Act”) that they be permitted to keep a French Bulldog named Peach on their lot. They have previously received approval from the respondent (“Owners Corporation”) to keep on their lot their other French Bulldog, Zodiac, and a bird.

2. Section 157 of the Act provides:

157 Order permitting keeping of animal

(1) The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property.

(2) The Tribunal must not make the order unless it is satisfied that—

(a) the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and

(b) the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.

3. I am satisfied the Tribunal has jurisdiction to hear and determine the application.

Facts

4. The relevant facts are not in dispute, and I am satisfied of the following matters.

5. The by-law adopted by the Owners Corporation in respect of the keeping of pets is option B of by-law 5 of the Model By-laws contained in the Strata Schemes Management Regulation 2016 (“Regulation”), which provides relevantly:

Option B

(1) An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation.

(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the…