In Victoria, it is unlikely that a blanket prohibition on pets is within the Owners Corporation’s power.
Model rule 3.1(4) set out in the Owners Corporations Regulations 2007 provides that if the Owners Corporation has resolved that an animal is a danger or is causing a nuisance to the common property, it must give reasonable notice of this resolution to the owner or occupier who is keeping the animal. Model rule 3.1(5) requires an owner who is served with such a notice to remove the animal.
Under s.140 of the Owners Corporations Act 2006 (OCA) a rule is of no effect if it is inconsistent with or limits a right any Act or Regulation. That includes the Owners Corporations Regulations, and consequently the model rules.
Whether or not a pet has caused nuisance will be a matter of fact. The Owners Corporation, usually through the committee, is charged with the duty of deciding whether or not a pet constitutes a nuisance before making a decision whether or not the animal should be removed. As a part of that process, the Owners Corporation and its committee must act fairly, and exercise natural justice to all parties when considering the alleged breach before it.
To be valid a rule must:
· fall within the rule-making powers set out in Schedule 1 of the OCA;
· be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot.
The Supreme Court’s decision in Owners Corporation PS 501391P v Balcombe [2016] VSC 384 is the current yardstick for rule-making power. In that case, the court considered the Statutory Purpose of Owners Corporations in the context that there must be a sufficiently direct and substantial connection between the Statutory Purpose and any given rule. The proper approach to the determination of the validity of a rule was described as follows:
First, it is necessary to determine the statutory object to be served by, and the ‘true nature and purpose’ (‘the Statutory Purpose’) of, the power to make regulations. The relevant inquiry as to the Statutory Purpose of the power is considered by reference to the scope, object and subject matter of the empowering Act.
Secondly, it is necessary to characterise the impugned regulation by reference to the circumstances in which it applies, in particular, its operation and effect. The evidence of the circumstances in which the regulation will operate will enable the court to form a view about the nature and apparent purpose of the regulation, and the existence and dimensions of the actual or threatened mischief sought to be addressed by the impugned regulation.
Thirdly, ‘once armed with the knowledge of these facts’, the court then makes its own assessment of:
i.whether the connection between the likely operation of the regulation and the Statutory Purpose of the power is sufficiently direct and substantial; or
ii.whether the regulation could not reasonably have been adopted as a means of attaining the Statutory Purpose, in which case it will be so lacking in reasonable proportionality as not to be a real exercise of the power
It is relevant that Balcombe concerned rules which were made prior to the commencement of the OCA on New Years Eve 2007. On one view – a view adopted by VCAT in the initial decision – rule-making power under the OCA was extended under the OCA. There is now power to make special rules under Schedule 1 of the OCA inter alia in regards to:
1.1 Health, safety and security of lot owners, occupiers of lots and invitees.
1.2 Safety of children, including their exclusion from areas that may be unsafe for them or restricting activities that may be unsafe.
7.2 Noise and other nuisance control.
And so perhaps rule-making power now exists whereas it did not hereinbefore exist. But because a rule must be for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot it seems plain that to be valid a rule:
· Must be regulatory, not prohibitive (even if the consequence of regulation is prohibition after the Owners Corporation exercises natural justice);
· Insofar as the rule circumscribes behaviours within a lot which would be lawful but for the rule, have some connection to common property.
Examples of appropriate regulation include that owners must ensure that:
· noises, smells and allergens created or caused by pets must not extend beyond a lot;
· must be kept properly, inside and hygienically;
· pets do not carry communicable infections or disease;
· when traversing common property pets are restrained (or better still transported in closed carriers).
A rule will also be invalid if it unfairly discriminates against a lot owner or occupier. Even if a rule is made within rule-making power it will be of no effect if it unfairly discriminates or is inconsistent with other laws. In Owners Corporation SP24474 v Watkins (Owners Corporations) [2016] VCAT 1312 (11 August 2016) the tribunal found that the pet rule discriminated against animal owners because it treats animal owners less favourably than non-animal owners.
The tribunal noted that discrimination of itself does not make a rule invalid – the issue for determination is whether the rule unfairly discriminates against a lot owner or occupier of a lot, noting that other lot owners and occupiers have the right to enjoy common property without the interference of animals. To determine if a rule unfairly discriminates, the rule needs to be examined in the context of the particular subdivision. Ultimately, VCAT ordered that Ms Watkins must keep her dog on a leash or otherwise restrain the dog whilst on common property for the period of six months, in which time the Owners Corporation had the opportunity to pass and register an effective rule if it chooses to do so.
I have not yet received instructions to act in a rule breach case against the owner of an ant farm or goldfish. Based on anecdotal experience, however, it is only a matter of time.
