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In a high-profile decision in March 2021, NCAT upheld a by-law in a community management statement that banned dogs in a community association.
The case highlights that the recent developments in the law on pet by-laws in strata schemes may not apply to community associations or the by-laws contained in a community management statement.
In McGregor v The Owners – Strata Plan No 74896  NSWCATCD 1, the applicants (an ex-Home & Away actor and his partner) sued their owners corporation because it had refused permission to keep a dog. The owners corporation was part of a community association that had a by-law in its community management statement that banned dogs. The owners corporation itself did not have a pets by-law in its own strata scheme by-laws. Under the Community Land Management Act 1989, by-laws in a community management statement (that may only be changed by the community association) are binding on owners corporations and apartment owners in the community.
The applicants sought permission from NCAT to keep the dog however NCAT held that it could only give that permission if the owners corporation had a pets with permission by-law (under section 157 of the Strata Schemes Management Act 2015). NCAT dismissed the case because there was no such by-law and therefore it did not have the power under section 157 to make an order granting permission.
Along the way, NCAT noted that the applicants had not sued the community association but arguably should have. Another point to note is that the applicants did not bring a case to have the by-law in the community management statement declared invalid. These were probably mistakes on their part which lead to NCAT dismissing their case. Indeed, NCAT found that the applicants’ case was misconceived.
The applicants self-represented in NCAT. Perhaps with the assistance of a lawyer, they would have had better prospects of success and could have had stronger arguments to put to NCAT based on the leading case on this topic, Cooper v The Owners – Strata Plan No 58068  NSWCA 250.
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