Question: Would a bylaw banning dogs in case they dug up the proposed new lawn be considered ‘harsh, unconscionable and oppressive’?
We live in a small, 12 unit pet-friendly building in Sydney. One owner is trying to ban dogs from our communal backyard or at a minimum insist they be leashed. The courtyard is fully enclosed and this is a big drawcard for those moving in with a dog.
The reason for the change is that ‘if’ we lay new grass, dogs will dig it up. There are 5 dogs in the building and none have dug up any of the gardens to date. All the resident dogs are small and cause no bother. I assume that to change the rules of the use of communal space, a by-law is required but would this type of bylaw be considered ‘harsh, unconscionable and oppressive’?
Answer: It is unlikely that a by-law based on such a hypothetical situation where there is no history to back it up, would be valid.
A by-law approved by special resolution of a general meeting is required to legally regulate activities that occur in a common area such as stipulating binding rules on the conduct and supervision of dogs on a common area such as the communal backyard. However, the rules would have to be reasonable.
You have indicated that there is no history of any dog damaging the communal backyard, and there is only a hypothetical situation that at some unknown point in the future the owners corporation may want to law new grass which could be damaged by a dog based on the view of one owner out of 12.
In line with the principles discussed in the decision in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250, it is unlikely that a by-law based on such a hypothetical situation where there is no history to back it up, would be valid and such a by-law would likely be ruled invalid because it is harsh, unconscionable or oppressive (see sections 139(1) and 150(1) of the Strata Schemes Management Act 2015 (SSMA 2015)).
This is backed up by section 137B of the SSMA 2015 and clause 36A of the Strata Schemes Management Regulation 2016 which basically say that if a dog repeatedly causes damage to common property (ie the damage has already occurred and is not a hypothetical situation) then it is deemed to unreasonably interfere with another occupant’s use and enjoyment of the common property.
A by-law could probably be made regulating dogs in the communal backyard as long as it is not over-reaching eg requiring a dog to be leashed when no one else is present such as children or elderly people may be over-reaching and result in the by-law being held to be is harsh, unconscionable or oppressive. A requirement in a by-law that a dog in the communal backyard be supervised by a responsible person would probably be valid.
Practically speaking, you have indicated that there are enough dog-friendly owners in your strata scheme who if they vote together can probably block a special resolution for a by-law being passed, so even if a by-law is proposed that would be harsh, unconscionable or oppressive if made, it is likely that by-law would never be passed.
There is probably no need to have a bespoke by-law dealing with the risk of dogs damaging the communal backyard because there are other provisions in the SSMA 2015 and model by-laws that can deal with that situation including:
- Model by-law 4 for pre 1996 strata schemes and the current model by-law 3 that prohibit owners and occupants from damaging lawns and gardens.
- Model by-law 5 for pre 1996 strata schemes that prohibits owners and occupants from damaging common property.
- Section 153 of the SSMA 2015 that prohibits owners and occupants using common property in a manner or for a purpose that interferes unreasonably with the use of the common property by another occupant.
If your owners corporation is considering passing a by-law to regulate dogs in the communal backyard, then it should obtain legal advice on the proposed by-law.
This post appears in the February 2022 edition of The NSW Strata Magazine.
Carlo Fini
Lawyer (NSW)
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