Bruce v SP98803: plurality of an animal
Bruce v The Owners – Strata Plan No. 98803 [2022] NSWCATCD 83
In short
A reference to “an animal” in the Act includes its plural form of “animals”.
A pre-emptive decision to preclude a second animal, to avoid creating a precedent, was found to be unreasonable.
Background
The applicant owners had approval to keep one French Bulldog and a bird on the lot. They sought the owners corporation’s approval to keep a second French Bulldog.
The scheme had adopted the SSMR 2016 model by-law 5 option B, which permits an owner or occupier to keep an animal with written approval, which must not be unreasonably withheld.
The committee refused the request for the second dog on the basis of the by-law referring to “an animal”, further citing concern of creating a precedent.
The law
Section 157 of the Strata Schemes Management Act 2015 provides that the Tribunal may make an order declaring that the applicant may keep an animal on the lot, unless satisfied that the by-laws prevent the unreasonable refusal to keep an animal and the owners corporation’s refusal was unreasonable.
Decision
In establishing power under s 157, the Tribunal must first satisfy itself that the by-laws both permit the keeping of animals and prohibit the owners corporation from unreasonably refusing the keeping of an animal. Both were present in this matter.
The Tribunal held that the refusal was unreasonable on the basis that:
no written reasons were provided; and
the refusal was to prevent creating a precedent in the building of allowing more than one animal.
In considering those matters, the Tribunal found that the wording of the model by-law, and sections 137B and 157, in referring to “an animal” is not to be read down as a reference to a singular animal. In reliance of section 8 of the Interpretation Act 1987, which provides that a reference to a word in the singular includes the plural, the singular term in the Act and model by-laws is to be read to include the plural form.
That interpretation was found to be consistent with the purpose and object of the Act and Regulations and subsequent parliamentary amendments in light of Cooper v The Owners ̶ Strata Plan No 58068 [2020] NSWCA 250.
Additionally, the preconception that two dogs on the lot would create an interference was determined prior to considering the animal the subject of the application and the circumstances of it being kept on the lot.
The pre-emptive decision to refuse a second animal was held analogous to a blanket ban on a second animal, contrary to Cooper.