Question: Can a bylaw restrict the size of a dog to no larger than 10 kgs and require pets to be carried on common property?
Answer: Regarding restricting the size of the dog, my answer is no, it’s not possible to do that, and if you do that, that aspect of your bylaw will not be enforceable.
This is a double barrelled question. Let me address the second aspect of it.
Can you put in place a bylaw that says ‘If you’ve got a cat or a dog, you’ve either got to carry it when it’s on the common property or put it in a cage or, in the case of larger animals, make sure that tethered to the leash?’
The answer is yes, provided it’s reasonable to do that in your building. In most buildings, it would be reasonable.
The first part of that question, however, is a bit more tricky. Can you have a bylaw that says ‘You are not allowed to keep large dogs in our building? For example, a dog that weighs or when fully grown will weigh more than 10 or 15 Kilos?’ My answer to that question is no, it’s not possible to do that, and if you do that, that aspect of your bylaw will not be enforceable. Why? Because if we go back to what the court said, it may well be possible for someone to keep a large dog in your building in a way that doesn’t have a detrimental impact on the amenity of other residents.
For that reason, owners and tenants should at least have the right to apply to their owners corporation for permission to keep the large dog. The owners corporation or the committee can then assess that application on its merits, deal with it reasonably and decide yay or nay.
Now can we just digress for a brief moment, this is probably going to be the next hot topic in this area. What we’re going to see are a lot of bylaws that say ‘If you want to keep a pet in our building, you need to get our approval’, and a lot of those bylaws will go on to say as they need to do now, ‘We can’t unreasonably withhold that approval’.
So what does that mean? It means that if your strata committee is confronted with an application by an owner or a tenant to keep a pet, and they want to say no, because for example, someone wants to bring a Great Dane into the building (a large dog), and everyone’s concerned or the committee is concerned that the Great Dane is going to take up all the lift space and it’s going to just be impossible for other people to ride in the lift with the dog, or it’ll make it extremely uncomfortable for people to do so. What does the committee do? And my answer is this: you have to have a good or sound reason for rejecting that pet application.
Saying ‘We do not want pets in our building. This is a pet free building’, is not a good reason. If that’s the reason the committee rejects the pet application, then the owner or tenant will be entitled to challenge that decision in NCAT and they’ll win.
Saying, for example, ‘We don’t want large dogs. Large dogs aren’t suitable for our building full stop’. Again, that’s probably also not a reasonable decision. Because it may well be possible for a large dog to live in an apartment building in a way that doesn’t have a detrimental effect on the amenity of other residents.
The committees need to be a bit smart about this, leave their emotion at the door, think about it rationally and think, ‘Is there a good reason for us objectively to reject this pet application?’
Now, what would be some good reasons? Well, if there’s evidence that this dog, for example, used to live in another apartment building, and attacked a resident in that building, barked throughout all hours of the day and night and caused a general nuisance, then you would have a good reason to reject the application for permission for that dog to be kept. If there was other evidence about the problems that pet had created elsewhere, or in your building, for example, if someone had brought that pet into the building illegally, previously and then applied for permission to keep the pet, you can say ‘Sorry, this pet has actually run a muck. It has defecated all over the common property. It’s dug holes in our gardenI. It’s barked from your balcony while you’re at work’. That’s a sensible, reasonable basis to knock back the application to keep that pet.
This post appears in the June 2021 edition of The NSW Strata Magazine.
Adrian Mueller
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266
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