Further evolution of the pet by-law
By Frank Higginson26 Sep 2011
Readers would be aware of our previous article written on pets in community titles schemes. This confirmed that a by-law containing an absolute prohibition on pets was unreasonable or oppressive. To read our previous article on pets, click here.
Many committees have initiated a review of their pet by-laws as a result of this decision. Many new by-laws now include conditions that owners have to meet to obtain an approval to keep pets.
A very recent commissioner's decision has considered the reasonableness of some of those conditions. Four conditions were considered in the context of the decision.
The by-law sought to prohibit the keeping of pets weighing more than 10 kilograms.
This was held to be unreasonable.
The adjudicator said that the better approach is for a committee to retain flexibility so that each animal can be assessed on its known propensities or likely attributes. The size or weight of an animal is not an indicator of whether it might be an annoyance or nuisance to other occupiers.
By-laws should allow a committee to consider an animal’s size and weight in providing any approval, as opposed to putting a maximum weight on an animal.
From a more humorous perspective, this now removes concerns about whether the animal had to be weighed wet or dry, and what happens when an animal goes over the approved weight. Owners now do not need to worry about having to ‘Jenny Craig’ their pets.
More than one pet
The by-law also sought to prohibit any more than one pet in a lot.
This prohibition was held to be unreasonable.
A committee needs to be able to assess the effect of combining two animals in a lot and whether their combination is likely to have a detrimental effect on neighbors or other occupiers.
Two dogs that might fight and bark all day are a completely different proposition from a fish in a bowl and a budgerigar in a cage.
Carrying animals over common property
The by-law sought to impose a condition that the pet needed to be carried across common property.
Surprisingly, this was stated to be a reasonable condition ‘in some circumstances’. This is no doubt subject to the weight of the animal and the ability of the owner to carry it. It would unreasonable (and perhaps impossible) to expect old Aunt Doris to carry her Labrador through the building to walk it.
Withdrawal of consent
The body corporate sought to impose a condition that if it received two substantiated complaints regarding the pet that the body corporate could withdraw its consent to the keeping of the pet.
This was determined to be an exclusion of the rights that each owner has under the BCCM Act. As was seen with respect to car parking if there is a breach of a by-law then there is a process under the BCCM Act for dealing with that. The imposition of a 'two strikes' rule in the by-law itself took away the legal rights of owners and proposed a standard of compliance which was higher than that provided for in the BCCM Act.
One condition that was commented on favorably by the adjudicator was the requirement for the provision of a report confirming the suitability of the pet to living in the complex being provided before approval was granted.
There will no doubt be further decisions in due course where other conditions will be considered. At the moment, it is simply very important to note the continuing obligation of reasonableness in any by-law.