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Cats, Dogs and Bodies Corporate – Adjusting the Balance Between the Right to Animal Ownership and the Powers of Bodies Corporate
Bede Harris[1]*
Abstract
Conflicts between animal owners and bodies corporate are a notorious feature of communal living and have generated a significant body of case law. The power that bodies corporate have over animal ownership varies widely between Australian jurisdictions. In some, animal ownership is given statutory protection, whereas in others the rights of unit owners are wholly determined by bodies corporate. A new issue that affects what unit owners may do with their property is the increasing trend towards the enactment by local governments of animal containment measures – a development that puts unit owners in the position of having to navigate the interaction between containment legislation on the one hand and body corporate prohibitions on alterations to the external appearance of lots on the other. This paper argues that the wide by-law making power enjoyed by bodies corporate has undermined the common law principle that owners are free to use and enjoy their property as they see fit, subject to the equal rights of other property owners, and that a re-balancing of the law is necessary. The paper ends by offering model statutory provisions that could be used to reform this area of the law.
I Introduction
Disputes between animal owners and bodies corporate are a notorious feature of property law in Australia. Part II of this paper surveys the law relating to strata and community title schemes in Australia’s various jurisdictions and the legal status of by-laws made by bodies corporate. Part III examines how legislation treats the issue of animal ownership and the extent to which bodies corporate have the power to either prohibit or regulate it. The paper then discusses recent case law in New South Wales and Queensland which, it is argued, provides persuasive authority that could be used in other jurisdictions to challenge by-laws that are unreasonably restrictive of animal ownership. Part IV discusses the increasing trend among local authorities of enacting legislation requiring animals to be contained within their owners’ property, and the difficulties that can arise out of the interaction between this legislation on the one hand and restrictive unit scheme by-laws that prohibit the installation of structures that alter the external appearance of units on the other. Part V draws on the theory underlying property law to argue that the conferral of broad by-law making powers on bodies corporate is inconsistent with the numerus clausus principle which limits the burdens that can be placed on the ownership of real property. It goes on to assert that the breadth of such powers is also inconsistent with the principle that an owner’s rights to use and enjoy their property should be restricted only to the extent necessary to protect the similar rights of other property owners. The paper ends with two model sections addressing animal ownership and animal containment respectively which, it is argued, strike the correct balance between the right to own animals as a normal incident of ownership of property and the rights of other residents of strata schemes.
II Strata and Community Title in Australia
A The Trend Towards Strata and Community Living
In line with many other countries, residential property prices in Australia have risen at a rate that is making housing increasingly unaffordable. The median value of houses in Australia in 2024 was $ 944 229,[1] which is more than nine times the average annual salary of $ 98 176.[2] This has led many home-seekers who might have preferred to buy a free-standing house to buy an apartment or other type of lot in a multi-resident scheme, the median price of which was $ 650 279 in 2024, accepting that in doing so they become subject to constraints associated with communal living. The scale of this trend is illustrated by the fact that as of 2022 it was estimated that 16% of people in Australia lived in strata title developments, including 21% of residents of the Australian Capital Territory, which had the highest proportion of strata residents.[3] The New South Wales Office of Fair Trading estimates that 50% of the residents of greater Sydney will live in strata developments by 2040.[4]
In Australia, the title under which communal development properties are held is known either as strata title or community title.[5] In the case of strata title, ownership is divided into lots, each of which consists of a cubic space with horizontal boundaries (defined by the walls, floors and ceilings that separate a lot horizontally or vertically from adjacent lots), and common property, ownership of which vests in a body corporate of which each lot owner is a member. The common property typically consists of areas such as corridors, lifts, driveways and gardens. Strata title is most commonly used in the case of apartment blocks. In community title schemes, each owner’s property is defined according to allotments of parcels of land, rather than by boundaries within buildings. As in the case of strata title developments, community title schemes also have common property, ownership of which is shared between the owners and is managed by a community corporation of which they are members. Because it is based on individual parcels of land, community title is most often used for residential village developments, but it can also be used for the creation of developments consisting of several parts, each on its own piece of land, with strata schemes forming one of those parts.
B An Overview of Strata Scheme Legislation
Legislation governing strata and / or community schemes has been enacted in every Australian state or territory. In some states, one Act establishes strata title as a type of real property while the regulation of schemes is governed by another.[6] The discussion in this article is confined to the latter class of legislation. In some states the regulation of strata and community title schemes is governed by separate Acts, in which case this article references both Acts.[7]
In all jurisdictions, the relevant Acts distinguish between the property comprising individual lots and common property and provide that the management of common property is vested in a body, known as the body corporate, owners’ corporation or strata corporation of which each unit owner is a member. [8] The legislation provides that a scheme must have internal rules, known variously as rules or by-laws, which are adopted by the body corporate,[9] and which regulate the use of the common property and / or individual units.[10] In some jurisdictions, the legislation states that owners must obtain the consent of the body corporate before making alterations affecting the exterior appearance of their lot,[11] while in others this is commonly stated in body corporate rules. In accordance either with express statutory provisions or general principles governing delegated legislation, by-laws will be invalid if inconsistent with statute law,[12] and in some jurisdictions may also be invalidated if they are unreasonable and / or oppressive.[13] The day-to-day exercise of a body corporate’s powers is vested in a body elected by the members of the body corporate and known as the executive committee, strata committee, management committee or council.[14]
For the sake of convenience, given the difference in terminology not only as between strata and community title schemes but also between jurisdictions, this paper uses the terms ‘strata scheme’, ‘lot’, ‘by-law’ and ‘body corporate’ when discussing the law generally, while the terms appropriate to specific jurisdictions is used when discussing case law arising from them.
There has been uncertainty regarding the way in which by-laws adopted by bodies corporate should be classified. In Owners of Strata Plan No 3397 v Tate[15] McColl JA stated that by-laws could be conceived of either as delegated legislation or as a statutory contract. However, the dominant view now is that adopted by the High Court in Dainford Ltd v Smith[16] that the power to make by-laws is an administrative one, delegated to bodies corporate by strata legislation and that by-laws are accordingly subject to invalidation under administrative law principles governing ultra vires and reasonableness.[17] As was stated by Young JA in Casuarina Rec Club Pty Limited v The Owners – Strata Plan 77971[18] (quoting with approval the words of Lindley LJ in London Association of Shipowners and Brokers v London and India Docks Joint Committee[19]) ‘a by-law is not an agreement, but a law binding on all persons to whom it applies.’
Unfortunately, strata title legislation confers the by-law making power in broad terms. In New South Wales, for example, s 136(1) of the Strata Schemes Management Act 2015 (NSW) states that ‘By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.’ This phraseology is so wide as to make it very difficult to challenge by-laws on grounds that they are ultra vires.[20] More promising is the fact that in some jurisdictions by-laws and / or decisions taken under them are challengeable if they are unreasonable.
III The Law Governing the Keeping of Animals in Strata Schemes
A The Position in the Different Jurisdictions
According to the RSPCA, 69% of households in Australia own a pet.[21] Pet ownership is thus an integral part of Australian life and so, given the increase in strata and community living discussed in Part I, there is an obvious need for the law to balance the rights of pet owners and of other residents in strata schemes. The rights of unit owners to keep animals differs between jurisdictions and sometimes between strata title and community title legislation within jurisdictions. In the ACT and in Queensland in schemes regulated by the Body Corporate and Community Management Act 1997 (Qld), an owner must apply to the body corporate for permission to keep an animal, but such permission may not be unreasonably denied.[22] In New South Wales, the Strata Schemes Management Act 2015 (NSW) prohibits by-laws that unreasonably prohibit the keeping of animals and presumes that the keeping of pets is reasonable unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of that occupant’s lot or the common property.[23]
In Victoria, the legislation is silent on the right of an owner to keep pets. However, that right was established as a result of the decision in Owners Corporation SP24474 v Watkins.[24] In that case, a lot owner challenged the validity of a rule passed by the owners corporation prohibiting owners of units from keeping pets and prohibiting pets from the common property. The Tribunal held that while s 138(1) of the Owners Corporations Act 2006 (Vic) conferred a power on the owners’ corporations to make rules relating to ‘the control, management, administration, use or enjoyment of the common property or of a lot’, that power was confined in so far as the use of lots was concerned, to the matters contained in s 5 of Schedule 1 of the Act. The Tribunal also noted that s 140(1) of the Act stated that a rule would be invalid if it was ‘oppressive to, unfairly prejudicial to or unfairly discriminate[d] against, a lot owner’.[25] The Tribunal held that s 5 of Schedule 1 did not mention the keeping of animals, nor did the keeping of an animal in a lot have any connection with the use of common property, and that therefore the owners’ corporation did not have the power to make the rule. The Tribunal also found that the rule prohibiting owners from bringing pets onto the common property unfairly discriminated against them, because they would need to traverse the common property with the pet in order to bring the pet into their unit, and so the rule had the practical effect of prohibiting pet ownership. The Tribunal contrasted this with a hypothetical rule which regulated the bringing of pets into certain areas of common property such as a pool or gymnasium which would be discriminatory but not unfairly so.
In other jurisdictions the legislation does not protect the right to keep animals. In the Northern Territory, and in the case of community title schemes in the ACT and New South Wales, the legislation is silent on the issue, which means that the rights of pet owners are wholly subject to what is stated in body corporate rules. In South Australia, Western Australia, Tasmania and in Queensland in schemes falling under the Building Units and Group Titles Act 1980 (Qld), the legislation protects only the right to keep assistance animals.[26]
B Grounds on Which Restrictive By-laws Can Be Challenged
It is arguable that by-laws which impose a prohibition on the keeping of animals in the jurisdictions discussed in the preceding paragraph are open to challenge where legislation provides that by-laws are invalid if they are unreasonable, unfair, oppressive, discriminatory or unjust.[27] Case law from New South Wales and Queensland provides persuasive authority that demonstrates how this might be achieved.
1 New South Wales
The most important case in which a by-law imposing a blanket ban on the keeping of animals was challenged was Cooper v The Owners – Strata Plan No 58068,[28] (Cooper) a case which was decided before New South Wales legislation was amended so as to confer a right to keep animals.[29] In Cooper, the New South Wales Court of Appeal held that a by-law imposing a blanket ban on the keeping of animals (other than assistance animals) breached s 139 of the Strata Schemes Management Act 2015 (NSW), which provides that a by-law must not be ‘harsh, unconscionable or oppressive.’ Basten JA came to this conclusion on the basis that the test for whether a by-law was harsh, unconscionable or oppressive is whether:[30]
it interferes with the property rights of a lot owner by controlling or prohibiting a particular use in circumstances where that use does not materially and adversely affect the enjoyment of any other lot.
Basten JA also held that where s 9(2)(a) of the Act stated that the owners corporation ‘shall, for the benefit of the lot owners, manage and control the use of the common property,’ the phrase ‘for the benefit of the lot owners’ was to be interpreted as imposing a purposive constraint on the exercise of power, including on the creation of by-laws, and that:
... a by-law which restricts the lawful use of each lot, but on a basis which lacks a rational connection with the enjoyment of other lots and the common property, is beyond the power to make by-laws[31]
He further held that:
A by-law which restricts the rights of all owners as to the use and enjoyment of their lots in circumstances where the prohibited use would not interfere with the use and enjoyment of any other lot, is not a by-law which has regard to the interests of all lot holders; nor is it “for the benefit of the lot owners,” within the terms of s 9(2).[32]
Similarly, MacFarlan JA held that:
The by-law at issue in the present case (By-law 14) imposes a blanket prohibition (save in respect of assistance animals) on keeping any animal, or permitting it to be, on any lot or the common property. Its scope is broad enough to prevent lot owners using their lots in a way which could not, on any rational view, adversely affect other lot owners’ enjoyment of their lots or the common property. The keeping of goldfish in a secure aquarium was an obvious example given in the course of submissions in this Court. Other examples, such as the keeping of a small bird in a cage, could also be given.[33]
Fagan J held that:
By-law 14.1 is “oppressive” contrary to s 139(1) because it prohibits an aspect of the use of lots in the strata plan that is an ordinary incident of the ownership of real property, namely, keeping a pet animal, and the prohibition provides no material benefit to other occupiers of the building in their use or enjoyment of their own lots or of the common property. In an apartment building such as that to which Strata Plan 58068 applies, an animal could be kept within a lot without creating the least interference with other lot owners. The by-law is oppressive because it prohibits the keeping of animals across the board, without qualification or exception for animals that would create no hazard, nuisance or material annoyance to others. By-law 14.1 thus interferes with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building.[34]
Cooper is also important because of the broad general principles laid down by the justices:
MacFarlan JA adopted as his starting point the principle that property owners are entitled to ‘enjoy and exercise the ordinary incidents of ownership of property’[35] and that:
For a by-law to restrict a lot owner in the enjoyment or exercise of his or her rights incident to ownership would in my view be “harsh, unconscionable or oppressive” at least where the restriction could not on any rational view enhance or be needed to preserve the other lot owners’ enjoyment of their lots and the scheme common property.[36]
Similarly, Fagan J said that a reason why the by-law under consideration was oppressive was because it prohibited an ‘ordinary incident of ownership of real property.’[37] It can be argued that these dicta represent a shift in approach, subordinating the rule-making power of bodies corporate to the inherent rights of lot owners as owners. This, it is submitted, is correct – it should be presumed that owners of a lot in a scheme have the same rights as owners of non-strata properties and that, in accordance with common law principles of nuisance, those rights are subject to curtailment by virtue of community living only when reasonably necessary to protect the equal rights of other lot holders.
The dicta in Cooper suggest that the courts will interpret body corporate rules restricting the rights of owners in their use of their property as being subject to the requirement that bodies corporate be able to discharge the onus of proving that rules meet that test. Importantly, this approach does not depend on the existence of a legislative provision prohibiting rules or body corporate conduct which is unreasonable, unconscionable, unfair or oppressive (although such provisions provide additional grounds for invalidating rules that unreasonably intrude upon owners’ rights). Rather, it rests on an interpretation that statutory provisions conferring rule-making power in relation to the use of individual lots and common property exist only for the purpose of protecting the rights of unit owners to use and enjoy their property, and that exercises of that power beyond that purpose are invalid.[38]
The case is also interesting because of the approach adopted to the interaction between majoritarian decision-making and oppression.[39] Basten JA held that a liberal democracy is not a majoritarian dictatorship; it operates under legal constraints designed to protect minorities from oppression.’[40] Similarly, Fagan J held that
The inherent qualities of the by-law and the way it impacts upon lot owners make it oppressive if, as in the case of by-law 14.1, it forbids a common incident of property ownership without providing benefit to others. Accordingly, it is immaterial whether the by-law in question may have been adopted or maintained by a large majority or even unanimously. If a by-law that contains an oppressive prohibition were adopted unanimously, that would suggest that no lot holder at the time of the vote wished to undertake the prohibited use. That would not detract from the quality of oppression, which does not depend upon whether any current lot holder desires to act contrary to the by-law. By-laws bind incoming purchasers. The oppressive character of a by-law, inherent from the time of its adoption, unanimous or not, may come to be felt by a person who acquires a lot at a later date.[41]
Following the decision in Cooper, the Strata Schemes Management Act 2015 (NSW) was amended by the insertion of s 137B which prohibits by-laws that unreasonably prohibit the keeping of animals and creates a presumption that the keeping of pets is reasonable, unless the keeping of the animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property. Section 137B has a dramatic effect on onus. Whereas previously applicants seeking to overturn a by-law or body corporate decision bore the onus – and thus the inconvenience and expense – of proving the by-law or decision was unreasonable,[42] s 137B(2) reverses that position by presuming that the keeping of an animal is reasonable, thereby casting upon the body corporate the burden of demonstrating that unreasonable interference would occur.
It is also important to note that although the by-law in Cooper imposed a blanket ban, that does not mean that the finding of the court applies only in such circumstances. The principle that by-laws will be intra vires only where they protect the legitimate interests of others means that even by-laws falling short of an absolute ban on an activity will be found to be invalid if they are not necessary to protect the rights of other occupiers. However, this point was not appreciated in McGregor v The Owners, Strata Plan No 74896,[43] where a by-law permitted the keeping of cats, fish and birds but permitted only assistance dogs. In that case, the Tribunal held that, notwithstanding the decision in Cooper, the by-law was not invalid as it did not impose a blanket ban on the keeping of animals. In light of Cooper this was, with respect, incorrect in that the ban on dogs other than assistance dogs had no rational connection with the protection of the interests of other occupants.
2 Queensland
In Queensland (where the legislation protects only the right to keep assistance animals) such an attempt to restrict animal ownership without implementing a blanket ban was at the core of the matter in in McKenzie v Body Corporate for Kings Row Centre CTS 11632,[44] where the Tribunal found that a by-law which prohibited the keeping of cats and dogs but permitted other animals (subject to body corporate approval) was oppressive and thus contrary to s 180(7) of the Body Corporate and Community Management Act 1997 (Qld), which prohibits by-laws which are ‘oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.’ Similarly, in Rhode Island[45] the Tribunal held that a by-law prohibiting the keeping of animals was invalid on two grounds.
The first of these was that as s 169 of the Body Corporate and Community Management Act 1997 (Qld) states that by-laws could ‘regulate’ the use of lots and the common property, the power to make by-laws did not extend to imposing an outright prohibition on a particular use of a lot.
The second ground was that the by-law contravened s 180(7). McKenzie was followed in Body Corporate for River City Apartments CTS 31622 v McGarvey,[46] Condor,[47] and Portmeirion Village.[48] Similarly, in Liberty[49] the Tribunal applied McKenzie in holding that a by-law limiting pet ownership to either one cat or one dog was oppressive, while in Marina Residences[50] the Tribunal held that a by-law that imposed a limit of two animals per unit, required them to be de-sexed and imposed upper limits on height and weight were oppressive in that while number, de-sexing and size were factors that might be considered by a body corporate in determining whether to grant permission for them to be kept in individual cases, the imposition of general criteria of that type was oppressive and unreasonable. In Gemini Court,[51] McKenzie was applied in invalidating yet another example of a body corporate rule that set a weight limit on animals and prohibiting them from touching common property.[52]
There may however be unusual circumstances in which, as was held in Body Corporate for River City Apartments CTS 31622 v McGarvey,[53] a complete ban may be justified. An example of this is Crystal Waters Permaculture Village v Boyle,[54] in which the issue was whether a by-law which permitted the keeping of animals other than dogs and cats in a scheme that operated a wildlife sanctuary was invalid for on grounds of being oppressive. In that case, the unique nature of the scheme as a rural one which encompassed an area on which biodiversity was protected, and where the lots were unfenced so as to allow native fauna to move freely meant that the by-law which prohibited predatory animals (such as dogs and cats) was not oppressive.[55]
There is therefore a trend in Queensland under which blanket bans on animals and by-laws imposing invariable conditions on keeping them will be found to be oppressive and that bodies corporate must consider each application on its merits. As was held by the Adjudicator in On the River,[56] decisions must be specific to the circumstances of each case:
I note also that approval is often withheld on the basis of hypothetical concerns: apartments are not suitable for dogs; the dog may be noisy; another occupier may have a fear of dogs; or another occupier may be allergic to them. It is not reasonable to refuse approval on the basis of merely hypothetical concerns. In any event, in my experience these concerns are rarely well-founded. Keeping a dog is an ordinary part of living in a strata community.[57]
3 Conclusion on By-laws Restricting Animals
The cases from New South Wales and Queensland provide persuasive authority that could be used to overcome blanket bans or bans which unreasonably restrict animal ownership rights in jurisdictions where the by-law making power of bodies corporate is limited by a requirement that such by-laws not be discriminatory, unreasonable and or oppressive.
IV Animal Containment Legislation And Its Significance For Strata Living
A The Trend Towards Animal Containment
An issue which has become an increasingly important issue for pet owners, and which has the potential to give rise to particular difficulty for pet owners living in strata schemes, is the trend in some jurisdictions towards the enactment of pet containment legislation. Such legislation requires owners to contain their animals within their property either completely or within designated hours. The motive for this is the protection of wildlife which has long concerned zoologists.[58] Cat containment laws are also beneficial for cats themselves in that they avoid dangers posed by vehicles, attacks by other animals and the transmission of diseases.
Although cat containment legislation was enacted decades ago in some overseas jurisdictions,[59] it is comparatively new in Australia. Thus far, the ACT is the only state or territory to have introduced jurisdiction-wide legislation of this type. Section 84AN of the Domestic Animals Act 2000 (ACT) empowers the relevant minister to make declarations requiring that cats must be confined within their carer’s premises. The power has been used to declare that all cats born after 1 July 2022 be contained 24 hours per day.[60] In other states and territories, containment laws have been enacted by local authorities.[61] In Victoria, 38 out of 79 local government districts have implemented either dusk to dawn or 24-hour curfews, while in Queensland 74 out of 77 local councils have adopted 24-hour containment measures.[62] It is estimated that nation-wide, one third of local governments have enacted containment rules of some type.[63]
B Animal Containment Legislation and Strata By-laws on the External Appearance of Lots
The increasing number of local government areas adopting cat containment measures means that body corporate rules regulating the keeping of pets and those regulating the alteration of the exterior of units are increasingly likely to come into conflict. This will occur where, although the keeping of an animal has been approved under the by-laws, the body corporate has denied an animal owner permission to instal a containment structure over their garden or balcony on the ground that such an installation would conflict with a by-law prohibiting the alteration of the exterior of units. The installation of containment structures can also come into conflict with by-laws prohibiting alterations to common property because, depending on whether the balcony walls are part of the unit or of the common property, the installation of hooks and screws needed to secure containment structures may cause damage to common property, even though such damage may be minor in nature.
It is true that a body corporate that does not permit pet containment structures does not thereby prevent animal owners from complying with animal containment legislation because they can simply confine their cat indoors. In addition, some owners may keep their cat inside because they cannot afford to instal containment structures. However, while it is certainly possible to keep an animal wholly indoors, it is obviously of benefit to the animal if it has access to open air where that is possible. For example, s 6B(1)(h) of the Animal Welfare Act 1992 (ACT) states that a person in charge of an animal is required to allow an animal ‘appropriate opportunities to display behaviour that is normal for the animal’ – ‘appropriate’ being defined as ‘suitable with regard to the species, environment and circumstances of the animal.’
One could argue that maximising free movement would be recognised as a good under this legislation and that therefore animals should have appropriate opportunities to control their own access to the outside, at least for some portion of time during the day. Even in those jurisdictions where the law does not contain a provision of the type in effect in the ACT, this factor could be taken into account when tribunals are called upon to decide whether prohibitions on external structures satisfy the test of reasonableness where the conduct of bodies corporate and / or the content of by-laws must meet that test.
It can also be argued that the decision in Cooper[64] provides a broader ground upon which a by-law prohibiting animal containment structures could be invalidated, namely that the enjoyment of an animal’s company in the entirety of a unit, outdoor areas included, is an ordinary incident of ownership of real property which should not be curtailed other than on grounds that are rationally connected to other unit owners’ use and enjoyment of their property.[65] Since the installation of a containment structure could not be said to interfere with other owners’ use and enjoyment of their property, one reaches the conclusion that owners have a presumptive right to make such alterations.
An argument which bodies corporate have raised is that by disrupting the uniformity of a scheme, the installation of containment structures adversely affects the value of owners’ property. This issue was raised in Tranquility Garden City Residences,[66] in which the applicant had sought permission from the body corporate to instal a net designed to contain the cat she owned. She did this in order to enable the cat to obtain fresh air while still being contained within her lot. The applicant said that the netting was of a low-visibility design which would comply with the strata rule prohibiting structures that detracted from the building’s façade. The body corporate granted permission for her to erect an external structure but subject to the condition that it have the same appearance as a retractable sunshade that had been installed by residents of another lot. The applicant appealed against the decision, alleging that the decision of the body corporate was unreasonable and thus contrary to ss 94 and 100(5) of the Body Corporate and Community Management Act 1997 (Qld), which required the body corporate and its committee to act reasonably, because there were no retractable nets available that were suitable for animal containment and that a sunshade would not contain her cat.
Unfortunately, although the applicant raised in argument the fact that s 27(1) of the Brisbane Animals Local Law 2017 requires that owners enclose animals, the Adjudicator did not address this point in the decision, which was based solely on the question of whether the body corporate had breached its duty to act reasonably by making consent for an enclosure subject to the condition that the applicant to instal a sunshade instead of a net.
The grounds that the body corporate advanced for imposing the condition were two-fold: that the net would detract from the uniformity of the external appearance of the building and that scheme by-law 37.2(b) prohibited the enclosure of balconies. The Adjudicator held that the net did not constitute an ‘enclosure’ under scheme by-law 37.2(b). So far as uniformity of appearance was concerned, the Adjudicator noted that by-law 18 of the scheme stated that an owner had to seek body corporate approval for improvements to their lot except in cases where an improvement was ‘minor cosmetic work that does not in any way affect, alter or otherwise impact the Common Property or another Lot’ - which is a common way for rules regarding external improvements to be phrased. The Adjudicator also noted that by-law 19 prohibited an owner from doing anything ‘which changes the external appearance of the Lot (including without limitation, an improvement or the placement of an item), if it will result in a change of the appearance of the Lot being visible from another Lot or the Common Property, or from outside the Scheme Land, without the Body Corporate’s written approval.’
Since both parties agreed that the cat net was not minor or cosmetic in nature, the case revolved around whether or not the body corporate had acted reasonably in taking the view that the net detracted from the uniform appearance of the scheme. The Adjudicator stated that by-law 19 did not prohibit improvements which changed the appearance of the scheme but rather permitted such changes to be approved by the body corporate, and that the question was therefore whether the change of appearance was such as to have an adverse impact on the scheme or other owners. This was a matter of degree and depended on a wide range of factors such as ‘
... the nature and extent of the alteration to the external appearance of the lot, the reason for the change, the visual impact of the change in the context of the appearance of the surrounding lots and common property and the appearance of the scheme generally, and the impact of the change on others.
On the facts, the Adjudicator found that the net was not sufficiently visible to impact the uniformity of the scheme to any real degree and held that the condition imposed by the body corporate that the applicant instal a blind rather than a net was unreasonable and thus void.
The decision in Tranquility Garden City Residences is a positive development in that it established a precedent that a net, at least prima facie, does not detract from the uniformity of a scheme to an extent that adversely affects the interests of other owners.[67] However, the problem remains that whether a net or other containment measure will be approved ultimately depends on a determination of its aesthetic effect in the context of the particular scheme.
The risk therefore remains that a Tribunal might find that a net unreasonably disrupted the uniformity of a scheme’s façade, in which case an animal owner would be left in the position of having either to dispose of their animal or keep it wholly inside, contrary to the normal usage of their property that a pet-owner would expect. The decision in Tranquility Garden City Residences would have been on firmer grounds had the Brisbane City Council’s Animals Local Law 2017 been given primacy and had the Tribunal interpreted the requirement that bodies corporate act reasonably to find that the fact that animal owners are obliged to comply with the Local Law means that the obligation to contain over-rides questions of uniformity, and that reasonableness in relation to this issue means that bodies corporate cannot deny permission to owners to instal such structures as are necessary to comply with the Local Law or similar legislative requirements. Under this approach it would still be open to a body corporate to make a by-law that prescribed reasonable specifications for such structures – relating, for example, to permissible materials, so as to ensure that they are as unobtrusive as possible – but blanket prohibitions would not be permissible.
Another interpretative avenue would be that when deciding whether restrictions placed by bodies corporate on external structures are reasonable, tribunals should subordinate aesthetic considerations to consideration of what is an effective method of containment. A similar argument is made by Sherry, who opines that the installation of safety netting to protect children should not be prohibited on aesthetic grounds.[68] It is submitted that the correct approach should be to presume that animal owners have a right to instal such structures and that what a reasonable structure is would depend on whether the structure had the least adverse effect on the appearance of a scheme while still achieving the objective of containing animals. This would be in contrast to the current position, where there is no presumptive right to instal a structure, and structures will be permitted only when they do not unreasonably alter the appearance of a scheme. In many, perhaps most, instances nets will, because of their transparent nature, be found to have the least effect on external appearance. However, as the Tranquility Garden City Residences case shows, there are bodies corporate which adopt the stance that nets are impermissible, thereby putting owners to the inconvenience and expense of mounting a challenge. A new interpretative approach in terms of which containment has priority over aesthetics in determining what is reasonable would establish a precedent that would deter bodies corporate from adopting such a position.
V Reform of Strata Law
A Body Corporate By-laws as a Restriction of Ownership Rights
The issue of animal ownership – and the sheer volume of case law it has generated - is just one among the many areas of dispute that can arise between lot owners and bodies corporate. It also reflects a general problem, which is that the vesting of wide by-law making power in bodies corporate has created a new and limitless type of burden that can be attached to property. In her theoretical analysis of body corporate power, Sherry argues that the vesting of wide rule-making power in bodies corporate runs counter to the efforts that courts have made since the 13th century to reduce the number of interests that can be attached to real property through the development of the numerus clausus principle. She states that the regulatory power of bodies corporate fragments interests in property because lot owners (and their successors in title) take property whose usage is subject to the changing interests of third parties.[69] She further argues that the subordination of ownership rights to the will of third parties runs contrary to Mill’s harm principle that a person is free to act so long as they do not harm others,[70] and that the subjection of ownership to restrictive by-laws has the significant economic effect of reducing the saleability of lots, deterring potential purchasers who object to existing by-laws and who also do not want to run the risk of further (and unpredictable) by-laws being adopted in future. Referring specifically to restrictions on the keeping of animals she states[71]
Examples of by-laws that regulate self-regarding behaviour are by-laws that implement blanket restrictions on pets or pet restrictions based on size or weight. If readers will excuse the pun, pets are not a petty issue. The freedom to keep a companion animal is central to many people’s daily lives and wellbeing and the inability to keep a pet is a source of significant distress and litigation in strata schemes....If [a] dog barks all day and night, that...would be an ‘other-regarding act’, a use of private property which harms others and thus can legitimately be regulated. However, a goldfish, a cat that never leaves the house, or even a labrador who lies comatose on the sofa all day, is a use of one’s property that has no effect on the neighbours and is thus not a subject of legitimate regulation. To illustrate this point, let us imagine that a local council banned all pets in residential areas on the grounds that as some pets are a nuisance, it is easier and more certain to ban all. This decision would not be tolerated. People would argue that regulation of land use is only justifiable to prevent harm to others, and must not sloppily scoop up harmless behaviour as well. We do not sanction that kind of legislative overreach in the public sphere, so why should strata schemes be any different?
The scope of body-corporate rule-making power thus has significant implications for the nature of property rights. So far as the right to keep animals is concerned, law-makers face a policy choice between two competing positions. These are, on the one hand and in the words of McFarlan JA in Cooper,[72] that the keeping of animals is a ‘normal incident of ownership of property’ or, on the other, that body corporate majorities can strip owners of this and other incidents of ownership. The issue, as Kotwal states, is that:
People’s homes are enshrined in the principles of liberal democracy as a place of refuge from the outside world, where people should be free to live, with legal limits, according to their own conscience. Strata title, by its inherent character, involves the surrender of these rights to a statutorily created body....[73]
But the effects of the by-law making powers of bodies corporate extend far beyond the bounds of property law because they confer upon bodies corporate the power to regulate the way in which owners live their lives, with all the implications for individual autonomy that such a position entails. Bodies corporate are, in effect, private governments, with powers akin to those conferred on public law institutions.[74] This provides another, and perhaps more fundamental, ground than interference with property rights that justifies reform of this area of the law.
B The Need for Reform
In discussing how strata law might be reformed, it is important to pay attention not only to the rights of the individual strata dweller to keep animals but also to the wider social factors. The psychological benefits of pet ownership are well documented,[75] but animal companionship is also important for physical health in that it counters the effects of loneliness which are linked to increased rates of greater risk of coronary heart disease, high blood pressure, stroke and poor sleep.[76] This is all the more significant given the fact that the high cost of housing is causing people to postpone having children and to rely on animal companionship instead.[77] Thus adopting policies which reduce loneliness directly assists in reducing demands on the health system, and this, no less than the rights of animal owners, must be weighed against the rights of majorities as expressed through bodies corporates.
The facts of the cases indicate the need for reform. Some of them reveal a paranoid attitude towards animals laced with what appears to be pettiness and malice. For example, in Gemini Court,[78] where the by-law prohibited animals from even touching common property, the body corporate prescribed as a condition of keeping an animal that:
You would have to have some form of trolly made to carry and secure the dog in this journey, and possibly 3 or 4 times per day. This trolly would have to be of soft exterior as to not damage any of the lifts, yet strong enough to secure the 33kg dog. This transport will inconvenience owners but our major concern is damage to the lifts which would totally be your responsibility. Our extra concern is lift use where 2 lifts service 60 plus units, yet up to 8 times a day a lift will be out of service for your use and further consideration, is that some owners are petrified and allergic to the presence of dogs which could require some form of sanitisation as any soft surface will retain odour. [79]
Another example is provided by Kary v B'nai B'rith Retirement Villages Ltd,[80] where the rules of a scheme prohibited the keeping of animals other than fish and where the scheme operator refused to amend the rules so as to allow the applicant, who suffered both from depression and lung cancer, from keeping two budgies in a cage.
C Avenues Towards Reform
With this in mind, how could strata law be reformed, noting that that law reform is difficult, and even more so in areas of law that are controlled by multiple jurisdictions?[81] One avenue lies in the hands of tribunals that determine body corporate disputes. Cooper[82] provides persuasive authority that could be used to overturn by-laws that either prohibit animals or impose conditions that amount to a de facto no animal policy. Similarly, the decision in Tranquility Garden City Residences,[83] coupled with the interpretative approach to reasonableness advocated in Part III of this paper, could be used to overturn body corporate prohibitions on animal containment structures. The disadvantage of attempting reform through litigation is, however, that it is incremental. It also depends on a lot owner having the resources to initiate a suit (bearing in mind that Cooper went to the New South Wales Court of Appeal) and it may, of course, lead to failure if a tribunal establishes a precedent contrary to that which is desired.
Far more effective would be the establishment of animal owner rights through amendment of the various state and territory Acts. As Sherry states:
... the legislature must not give private citizens carte blanche to write any by-laws they please, but for the sake of individuals within schemes and the wider community, it must explicitly provide courts with the ability to reject by-laws that do not embody the values of a liberal democratic society with a free land market.... As the law currently stands, strata and community title by-laws create ‘an open-ended bundle of property rights’. They do this by allowing private citizens to attach negative and positive obligations to freehold land in the form of by-laws, with the only general limit being that by-laws relate to the use or enjoyment of lots or common property...by-laws regulating personal autonomy or authorising financially burdensome contracts will all meet that description.[84]
A general rule of the common law is that everything which is not forbidden is allowed.[85] When applied in the realm of property law, this means that in the absence of some prohibitory legal rule, a person has the right to determine the use of their property, interference with which by another constitutes a nuisance.[86] The balance between the competing interests of unit owners and bodies corporate should be altered so as to reflect this doctrine, which means that an owner’s right to use and enjoy the normal incidents of ownership of their property – the keeping of animals included - can be limited only to the extent that is reasonably necessary to protect the similar rights of other owners. To give effect to this, the legislation should expressly confirm the right of scheme residents to keep animals. This would then leave it up to the body corporate, in circumstances where an animal is unreasonably disturbing the right of other residents to enjoy the use of their property, to seek a remedy from the relevant tribunal for the abatement of that particular nuisance, in the same way as it would in the case of any other, non-animal related, conduct.
The legislation should also take into account the legitimate interests that potential purchasers have in applying for permission to keep animals. None of the state or territory acts give potential purchasers the right to do this, and although it may be the case that bodies corporate will respond to such applications from people who are considering making an offer to purchase a lot, the case law indicates that sometimes purchasers who own animals have been able to apply only after taking transfer of a property, finding themselves in an impossible position if permission to keep the animal is denied.
So far as containment structures are concerned, although it is possible for animals to be kept wholly indoors, it is submitted that the normal incidents of ownership include an owner’s right to enjoy their animals’ company on balconies and in gardens forming part of their lot as much as inside a lot, and that therefore legislative reform should include a presumptive right on the part of animal owners to instal containment structures in these areas.
There is a precedent for this in existing legislation. In Victoria, s 138B of the Owners Corporations Act 2006 (Vic) provides that by-laws must not unreasonably prohibit the installation of sustainability items (defined as anything that eliminates or reduces a reliance on non-sustainable energy sources) on the exterior of a lot, and that a prohibition of the installation of sustainability items only on aesthetic grounds is taken to be unreasonable. This provision serves the social good of encouraging the installation of devices such as solar panels which reduce reliance on fossil fuels. Given the health benefits of animal companionship discussed above, it is submitted that a permissive regime governing the installation of animal containment devices is equally justifiable on social grounds.
The following model statutory provision, which draws on elements of legislation in New South Wales and Victoria while also incorporating novel features, embodies the reforms recommended in this paper:
Keeping of animals
(1) In this section the word ‘animal’ refers either to a single animal or to more than one animal
(2) Each of the following has no force or effect to the extent that it would unreasonably prohibit the keeping of an animal on a lot
(a) a by-law,
(b) a decision by a body corporate under a by-law.
(3) It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with another occupier’s use and enjoyment of their lot or the common property.
(4) A body corporate may apply to the Tribunal for a remedy in cases where it is alleged that the keeping of an animal interferes with another occupier’s use and enjoyment of their lot or the common property, and the Tribunal may make such orders as are reasonably necessary to terminate such interference.
Animal containment structures
(1) In this section
(a) the word ‘animal’ refers either to a single animal or to more than one animal,
(b) the word ‘lot’ includes common property attached to a boundary of a lot.
(2) Each of the following has no force or effect to the extent that it would unreasonably prohibit the making of alterations to, or the installation of structures in or on, a lot for the purpose of containing an animal
(a) a by-law,
(b) a decision by a body corporate under a by-law.
(3) It is taken to be reasonable to make alterations to, or the instal structures in or on, a lot for the purpose of containing an animal unless it unreasonably interferes with another occupant’s use and enjoyment of their lot or the common property.
(4) If a by-law requires that an occupier obtain permission from a body corporate for the making of alterations to, or, or the installation of structures in or on, a lot for the purpose of containing an animal, and an occupant or, if a unit is advertised for sale, a person who is a potential purchaser of the unit, seeks such permission from the body corporate, the body corporate will be taken to have granted such permission if it makes a decision contrary to subsection (2)(b) or fails to make a decision within 7 days.
(5) A by-law may authorise the body corporate to attach such conditions to the making of alterations to, or the installation of structures in or on, a lot for the purpose of containing an animal as are reasonably necessary to prevent interference with other occupiers’ use and enjoyment of their lot or the common property.
(6) For the purposes of subsection (4) denial of permission only on aesthetic grounds is taken to be unreasonable.
(7) If a body corporate decides to deny permission under subsection (4) or to attach conditions under subsection (5), the burden of proving that such a decision was reasonable rests on the body corporate.
The conferral of statutory rights both to keep animals and to instal containment structures would lead to a decrease in litigation. It would negate an argument often advanced by bodies corporate that a ‘no pets’ policy serves to maintain the value of units in a scheme by making them attractive to buyers who prefer to live in an animal-free environment: if the law required all schemes to allow the keeping of animals and the installation of containment measures, there would be nothing to distinguish one scheme from another, and so the property value argument would become irrelevant. Placing the burden on bodies corporate to prove the reasonableness of conditions attaching the installation of containment structures would reverse the current balance of power between owners and bodies corporate and would reduce the number of cases that burden tribunals.
The rationale for reform of this area of the law can be summarised by this simple proposition: Since the owner of a free-standing property has the right, subject to state and local laws and the common law of nuisance to keep an animal, why should the law be any different in strata schemes? The mere fact that strata owners live in close proximity to each other has led legislatures to confer excessively broad powers on bodies corporate which the latter have used to make increasingly intrusive by-laws governing the lives of scheme residents. The falsity of the underlying premise upon which that allocation of power is based needs to be recognised, and the law reformed accordingly.
* BA (Mod) Dublin, LLB (Rhodes), DPhil (Waikato), Senior Lecturer in Law, School of Business, Charles Sturt University. This article is dedicated to all the animals who have shared their lives with our family.
[1] Kate Ainsworth, ‘Price gap between houses and apartments widens to new record as land values surge in capital cities’ ABC News (Web Page, 20 February 2024) <https://www.abc.net.au/news/2024-02-20/house-apartment-price-gap-widens-record-high-property-market/103484076>.
[2] Australian Bureau of Statistics, Average Weekly Earnings, Australia (Web Page, 22 February 2024) <https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/average-weekly-earnings-australia/nov-2023>.
[3] City Futures Research Centre, University of New South Wales, Australasian Strata Insights 2022 (Report, June 2023) 6, 16.
[4] New South Wales Office of Fair Trading, Buying a strata property (Web page, 12 December 2023) < https://www.nsw.gov.au/housing-and-construction/strata/buying-a-strata-property>.
[5] For an overview of types of title see Cathy Sherry, Strata Title Property Rights – Private governance of multi-owned properties (2017, Routledge) 16-26 and Hossein Esmaeli and Brendan Grigg (eds), The Boundaries of Australian Property Law (Cambridge University Press, 2016) 163-7.
[6] For example, in New South Wales the Strata Schemes Development Act 2015 (NSW) creates strata title while the Strata Schemes Management Act 2015 (NSW), the Community Land Management Act 2021 (NSW) regulate strata and community schemes respectively.
[7] See the Unit Titles (Management) Act 2011 (ACT), the Community Titles Act 2001 (ACT), the Strata Schemes Management Act 2015 (NSW), the Community Land Management Act 2021 (NSW), the Owners Corporations Act 2006 (Vic), the Building Units and Group Titles Act 1980 (Qld), the Body Corporate and Community Management Act 1997 (Qld), the Strata Titles Act 1988 (SA), Community Titles Act 1996 (SA), the Strata Titles Act 1985 (WA), the Community Titles Act 2018 (WA), the Unit Title Schemes Act 2009 (NT) and the Strata Titles Act 1998 (Tas). In subsequent footnotes, legislation is referred to by jurisdiction only rather than by full title. Where there are separate strata and community title Acts in a jurisdiction, the different Acts are referred to by abbreviations before section numbers.
[8] ACT UTMA s 16(1), CTA s 30(1); NSW SSMA s 9(1), CLMA s 7(1); Vic s 4; Qld BUGTA s 27, BCCMA s 30; SA STA s 18, CTA s 71; WA STA s 14(1), CTA s 17(1); NT s 27(1); Tas s 71(1).
[9] ACT UTMA s 108(1), CTA s 48; NSW SSMA s 141, CLMA s 131; Vic s 138(1); Qld BUGTA s 30(2), BCCMA ss 62 and 66(1)(e); SA STA s 19(2), CTA s 39(1); WA STA s 44(1), CTA s 43(2); NT s 95; Tas s 90(1).
[10] By-laws can regulate the use both of the common property and individual units under NSW SSMA s 136(1), CLMA s 128(2)(e)); Qld BUGTA s 30(2), BCCMA s 169(1)); SA STA Schedule 3, CTA s 34(2)(c)-(d); WA STA s 45(1), CTA 45(2)(a); NT s 95A(2) and Tas s 90(1). The same is true in Victoria under s 138(1) of the Openers Corporations Act 2006 (Vic), although s 5 of Schedule 1 of the Act lists only a limited number of matters pertaining to the use of individual units that can be regulated by by-laws. In the ACT s 108(3)(d) of the Unit Titles (Management) Act 2011 (ACT) says that the body corporate may not make rules that are not ‘incidental or ancillary to the exercise of its functions under this Act’ but does not otherwise specify the scope of the matters that rules may relate to (other than in the case of retirement villages). However, the model rules contained in Schedule 1 of the Unit Titles (Management) Regulation 2011 (ACT) specifies certain matters pertaining to the use of units that by-laws may regulate. Section 48(1)(a) of the Community Titles Act 2001 (ACT) provides that by-laws can regulate the use of both the common property and individual units.
[11] Such provisions exist in the Owners Corporations Regulations 2018 (Vic) Schedule 2, cl 5.3, in s 29(1) of the Strata Titles Act 1988 (SA), and in s 87(5)(b)(i) of the Strata Titles Act 1985 (WA).
[12] ACT UTMA s 108(3)(a); NSW SSMA s 136(2), CLMA s 128(3); Vic s 140(b); Qld BCCMA s 180(1); SA CTA s 41(1)(a); WA UTA s 46(b), CTA s 47(b); NT s 95(3)(a). Inconsistency is not expressly mentioned in the other Acts, but given the prevailing view that by-laws are a species of delegated legislation, it is suggested that inconsistency is prohibited where by-laws are inconsistent with any primary legislation. The only exception to this is in Western Australia where s 45(5) of the Strata Titles Act 1985 (WA) and s 44(5) of the Community Titles Act 2018 (WA) state that by-laws are not subsidiary legislation.
[13] ACT UTMA s 108(3)(c), CTA s 49; NSW SSMA s 139(1), CLMA s 130(1); Vic s 140(a); Qld BCCMA s 180(7); SA STA s 19A(9), CTA s 38(1)(b); WA UTA s 46(j)(ii), CTA s 47(l); NT s 84(1)(c); Tas s 91(3).
[14] ACT UTMA s 34, CTA s 43(1); NSW SSMA s 29(1), CLMA s 30(1); Vic s 100; Qld s 42(1) BUGTA, s 98 BCCMA; SA UTA s 35(1), CTA s 90; WA UTA s 135(1), CTA s 112 (1); NT s 94(1); Tas s 79(1).
[15] [2007] NSWCA 207; (2007) 70 NSWLR 344, 347-8 (McColl JA).
[16] (1985) 155 CLR 342, 349 (Gibbs CJ), 351 (Mason J), 355–8 (Wilson J).
[17] Giridhar Kotwal, ‘The Use of Administrative Law Principles to Limit the Decision Making Powers of Owners Corporations’ (2014) University of New South Wales Law Journal Student Series No, 14-09, 2.
5-6. The only exception to this is in Western Australia where s 45(5) of the Strata Titles Act 1985 (WA) and s 44(5) of the Community Titles Act 2018 (WA) state that by-laws are not subsidiary legislation.
[18] [2011] NSWCA 159; (2011) 80 NSWLR 711, [46] (Young JA).
[19] [1892] UKLawRpCh 125; [1892] 3 Ch 242, 252 (Lindley LJ).
[20] Sherry (n 5) 31-2, 124, 128-9.
[21] RSPCA ‘How many pets are there in Australia’? RSPCA Knowledge base 2024 <https://kb.rspca.org.au/knowledge-base/how-many-pets-are-there-in-australia/#:~:text=There%20are%20currently%20an%20estimated,Figure%201>.
[22] ACT UTMA s 32(4), Qld BCCMA s 169B. However, in the ACT and Queensland the right to keep animals is not protected in schemes falling under the Community Titles Act 2001 (ACT) or the Building Units and Group Titles Act 1980 (Qld) respectively.
[23] NSW SSMA s 137B. By contrast, the rights to keep animals is not protected by the Community Land Management Act 2021 (NSW).
[25] Section 140 was subsequently amended in 2021 and now prohibits any rule that ‘is oppressive to, unfairly prejudicial or unfairly discriminates against, an owner or occupier of a lot.’
[26] Qld BUGTA s 30(12); SA STA s 19(4)(c), CTA s 37(1); WA UTA s 46(h), CTA s 47(k); Tas s 7(2).
[27] ACT STA s 49; NSW CLMA s 130(1); SA STA s 19(4)(c), CTA s 37(1); WA UTA s 46(h), CTA s 47(k); Tas s 7(2). In the Northern Territory s 84(1)(c) of the Unit Title Schemes Act 2009 (NT) prohibits a body corporate from taking a decision which is unreasonable, oppressive or unjust, which would include decisions taken in the enforcement of by-laws.
[28] [2020] NSWCA 250; (2020) 103 NSWLR 160.
[29] For an analysis of the case see Cathy Sherry, ‘Judicially Identified Limits on the Body Corporate By-law Making Power – Cooper v The Owners – Strata Plan No 58068 (2022) 96 Australian Law Journal 125.
[30] Cooper (n 28) [56] (Basten JA).
[31] Ibid [57]-[61] (Basten JA)
[32] Ibid [63] (Basten JA).
[33] Ibid [79]-[80] (MacFarlan JA).
[34] Ibid [88] (Fagan J).
[35] Ibid [76] (MacFarlan JA).
[36] Ibid [78] (MacFarlan JA).
[37] Ibid [88] (Fagan JA).
[38] This argument is made by Sherry (n 29) 131-2.
[39] Cooper (n 28) [88] (Fagan JA).
[40] Ibid [48] (Basten JA).
[41] Ibid [94] (Fagan JA).
[42] Bramley and the Owners of 52 Wickham Street Strata Plan 59237 [2013] WASAT 127, [31] (Member Owen-Conway).
[52] There is a previous decision by the Tribunal in Mariners Peninsula Subsidiary No. 100 [2022] QBCCMCmr 159 in which the Adjudicator held that a condition attached to permission to keep a dog prohibiting the animal from touching common property was reasonable. However, it is submitted that Mariners is no longer good authority, given that Gemini is a more recent decision and that Gemini concerned the validity of a body corporate rule rather than only a condition attached to a decision.
[55] A similar case to this was Steele v The Owners of Cocos Beach Bungalows Survey Strata Plan 42074 [2021] WASAT 101 where the tribunal considered the decision in Cooper but found that a by-law governing a scheme consisting of holiday accommodation units was not unreasonable and oppressive in prohibiting people from bringing animals into units unless the unanimous consent of all owners had been obtained. Tribunal Member McGiven said that he was unaware of any Western Australian case law to the effect that animal ownership is an incident of property ownership, but that even if it was, the New South Wales decision in Cooper related to residential property, rather than to holiday accommodation, and that the effect of the by-law was therefore not to prevent people from owning animals but rather from bringing them on holiday, and was also qualified in nature because there was scope for consent to be given.
[57] Ibid [24] (Adjudicator Sutherland).
[58] John Woinarski, Sarah Legge and Chris Dickman, Cats in Australia: companion and killer (CSIRO Publishing, 2019).
[59] As an example of this from the former DDR see the discussion in ‘Naturschutz – Sinnvolle Katzenhaltung’ (1988) 28 Neue Berliner Illustrierte 33.
[60] ACT Government City Services, Cat containment (Web Page)
<https://www.cityservices.act.gov.au/pets-and-wildlife/domestic-animals/cats/cat-containment>.
[61] Tida Nou, Sarah Legge, John Woinarski, Jaana Dielenberg and Georgia Garrard The management of cats by local governments of Australia (2021, Threatened Species Recovery Hub).
[62] Donna Lu, ‘Keep your cat indoors’: why conservationists are pushing for pet containment in Australia’ The Guardian (12 September 2023, Web Page) <https://www.theguardian.com/australia-news/2023/sep/12/should-you-keep-your-cat-indoors-australia-native-animals>.
[63] Jaana Dielenberg, ‘Two-thirds of us support banning pet cats from roaming. A ban would save millions of native animals — and billions of dollars’ The Conversation (15 May 2024, Web Page) <https://theconversation.com/two-thirds-of-us-support-banning-pet-cats-from-roaming-a-ban-would-save-millions-of-native-animals-and-billions-of-dollars-229180>.
[64] Cooper (n 28).
[65] Sherry (n 5) 178-90.
[67] Denial of permission to instal a cat enclosure was also found to be unreasonable in River Walk [2008] QBCCMCmr 364.
[68] Sherry (n 5) 218-20.
[69] Cathy Sherry, ‘Lessons in Personal Freedom and Functional Land Markets: What Strata and Community Title Can Learn from Traditional Doctrines of Property’ [2013] UNSWLawJl 13; (2013) 36 University of New South Wales Law Journal 280, 289-91.
[70] Ibid 293-4.
[71] Ibid 310-11.
[72] Cooper (n 28) [76] (McFarlan JA).
[73] Kotwal (n 17) 2.
[74] Sherry (n 5) 165-9.
[75] Allen McConnell and Christina Brown, ‘Friends With Benefits: On the Positive Consequences of Pet Ownership’ 2011 (101) Journal of Personality and Social Psychology 1239.
[76] Vivek Murthy, Together – Loneliness, Health & What Happens When We Find Connection (Profile Books, 2020) 14.
[77] Oliver Gordon and Georgia Roberts ‘More than half of young Australians are putting off having children. What does that mean for future growth?’ ABC News (Web Page, 4 June 2024) <https://www.abc.net.au/news/2024-06-04/why-australians-arent-having-children/103930594>.
[79] Ibid [13] (Adjudicator Davidson).
[81] Nicole Johnston, ‘Law Reform Challenges – An evaluation of Australia’s strata law trends and implications’ in Randy Lippert and Stefan Treffers (eds), Condominium Governance and Law in Global Urban Context (2021, Routledge) 220, 224-5.
[82] Cooper (n 28).
[83] Tranquility Garden City Residences (n 66).
[84] Sherry (n 69) 303.
[85] Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, [85] (Gleeson CJ), Charles Sampford, ‘Law, Institutions and the Public/Private Divide’ (1991) 20 Federal Law Review 185, 201, Aaron Timoshanko, ‘Could Existing Anti-Cruelty Laws Ban Whip Use in Horse Racing?’ [2022] AdelLawRw 16; 2022 (43) Adelaide Law Review 439, 443 and John Laws, ‘The Rule of Law: The Presumption of Liberty and Justice’ (2017) 22 Judicial Review 365, 368.
[86] Razeen Sappideen, Prue Vines and John Eldridge, Torts, Commentary and Materials (Thompson Reuters, 13th ed, 2021) 781.
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