The Owners - Strata Plan No. 56587 v White

The procedural history

1. On 7 May 2020, the applicant commenced proceedings SC 20/24679 against the respondent by filing a strata schemes application in which it seeks an order under the SSM Act for removal of her two dogs and which attaches the 1998 by-law 16, the 2004 by-law 16 and the 2020 by-law 16.
2. On 17 August 2020, the Tribunal made procedural directions for the filing of evidence by each of the applicant and the respondent.
3. On 28 October 2020, the Tribunal sent by post a letter entitled "Notice of contested hearing by telephone" to the respondent in which she was given notice that she was required to appear by telephone on Thursday 28 January 2021 at 1.15pm AEDT (the 28 October 2020 letter). This letter was not returned to the Tribunal.

The hearing

1. On 28 January 2021, the hearing was held by telephone. Ms Bachas represented the applicant. There was no appearance by the respondent. I telephoned the respondent on the number 0407073852 at 1.18pm and left a message for the respondent in which I identified the proceedings and stated that I would be proceeding with the hearing in her absence.
2. The applicant relies on a bundle of documents which was provided to the Tribunal and the respondent by email on 18 November 2020 and was admitted into evidence (exhibit A1). This bundle of documents includes the following documents in addition to the 21 May 2019 letter, the 15 January 2020 letter, the 28 February 2020 letter the 27 May 2020 resolution and the 6 November 2020 letter: 1. the signed statement/submission of Ms Bachas dated 6 November 2020 (the Bachas statement/submission); 2. the email sent on 13 January 2020 from a neighbour of the respondent to Ms Bachas (the 13 January 2020 email) which relevantly provides: "Hope your well? I just wanted to get your views on the attached picture of the two dangerous oversized dogs being kept at [addrss omitted]. This has been an ongoing nightmare for myself and surrounding neighbours for numerous years now, we have had to endure the barking, the stench of dog urine and the dust from the below yard for far too long now. Only this morning at 12.15am the dogs were out in the back yard barking, the situation is an absolute disgrace. My wife and i are living in constant fear of the dogs escaping from the apt, at the same time my 4yr old daughter is walking in the common areas, not a nice situation to live in praying your child doesn't get attacked by two large dobermans. The owner never applied to the EC to have these dogs and is clearly in breach of all bye laws regarding the keeping of pets. Your opinion would be much appreciated." 1. the email sent on 2 June 2020 from a neighbour of the respondent to Ms Bachas (the 2 June 2020 email) which relevantly provides: "I am just contacting you to let you know the disgraceful situation regarding the dogs at [address omitted] is getting worse than ever. I was woken again at 4.30am by the dogs barking and then attacking each other, every night we have to listen to the dogs barking at different times, then at 10.30pm we have to listen to the daily ritual of the dogs barking, then crashing out of the apt to use the toilet (destroyed back garden), this is then sometimes repeated around 1am. As mentioned before the whole situation is an absolute disgrace especially considering the size and aggressive nature of these two dogs, which is clearly a breach of the strata rules." 1. the email sent on 11 July 2020 from a neighbour of the respondent to Ms Bachas (the 11 July 2020 email) which relevantly provides: "…I am writing to register my complaint in regards to the dogs in unit 15 - the unit next to me on the ground floor. These dogs are constantly fighting and making a very loud disturbance 7 days a week at all hours. It is disturbing myself, my family and my neighbours. There is a constant smell of dog urine and because the dogs have dug out the entire back yard - see attached picture - when there are dry conditions, dog urine scented dust is coated over the Surrounding units. I have attached a photo of my back yard and also a photo of unit 15 for contrast so you can see what we are living with - my unit is the first photo - the one with the grass. Is there anything you can do to assist here ?" 1. the email sent on 12 July 2020 from a neighbour of the respondent to Ms Bachas (the 12 July 2020 email) which relevantly provides: "I am the owner/occupier of [address omitted] and i am confirming there are two large aggresive dogs housed at unit [address omitted], which is an absolute disgrace considering the by laws at this unit complex clearly state that, one dog of a small breed only is allowed on a lot. Myself and surrounding neighbours are totally fed up with the noise disturbance caused by the dogs barking and attacking each other, this occurs 7 days a week at all hours of the day and night. The situation is disgusting, myself and surrounding neighbours are laying in bed listening to barking late at night and in the early hours of the morning, the dogs are then let out into the yard which usually results in further barking outside of the apt, not good at 1.30am. The main reason for this email is to advise you of the fear myself and surrounding neighbours are living with, there are numerous families in this block with young children myself included. What would be the consequences if these two aggressive dogs escaped from the unit while children or adults are passing in the common area? The dogs are never walked and are couped up on this lot 24/7, they have never interacted with other children or adults and after witnessing there behaviour i am in fear that they would attack. It is a disgrace that owners cannot use there gardens or balconies without having two aggressive dogs constantly barking at you. The situation is worse when the owner leaves the dogs unattended inside the apt, we are faced with hours of non stop barking and dogs attacking each other, also when passing the unit you are faced with aggressive barking coming from behind the front door. I bought a unit at this complex knowing that the bye law stated, one small dog was allowed if permission was granted, myself and surrounding neighbours now find ourselves living with two non-compliant oversized aggressive dogs, which is a disgrace. We also have the horrendous situation of having to look at a trashed back yard full of dog excrement, the yard consists of nothing but soil/dust which is a health hazard especially in the summer when the yard is dry. The yard stinks of dog urine, when the dogs disturb this dust pit it sends plumes of dust onto surrounding balconies, this can be confirmed by all surrounding neighbours if you require. How this owner can live in a small two bed apt with these dogs is beyond me, the total disregard by this owner, for myself and surrounding neighbours is disgusting. It's not too much to ask is it? not having to listen to aggressive dogs barking while you try and sleep." 1. photographs of the two dogs and the respondent's backyard.
3. The respondent did not adduce any evidence.
4. The applicant relies on the submissions in the Bachas statement/submission, and made oral submissions including that the respondent should be allowed one month to remove the two dogs.

The issues

1. The following issues arise for determination: 1. whether the hearing should proceed in the absence of the respondent; 2. whether an order should be made for the removal of the two dogs.

Whether the hearing should proceed in the absence of the respondent

1. I am satisfied that the 28 October 2020 letter was served on the respondent. As the condition in r 35(2)(a) of the Civil and Administrative Tribunal Rules 2014 (NSW) has been satisfied, I have decided to exercise the discretion under this rule to proceed with the hearing of the proceedings in the absence of the respondent.

Whether an order should be made for the removal of the two dogs

Introduction

1. The applicant seeks an order for the removal of the two dogs under s 156 or s 158 of the SSM Act. Before considering the evidence it is appropriate to set out the applicable provisions of the SSM Act.
2. Section 139(5) of the SSM Act, which specifies that a by-law cannot prevent the keeping of assistance animal and is referred to cl A(i) of the 2020 by-law 16, is not relevant to the determination of these proceedings.
3. If I am satisfied that the respondent has been keeping the two dogs on her lot in contravention of cl B(iii) of the 2020 by-law 16, it will be unnecessary to consider whether to make an order under s 158(1) of the SSM Act as the circumstances for the making of such order do not exist.

The applicable provisions of the SSM Act

1. The SSM Act commenced on 30 November 2016.
2. Part 1 (ss 1-7) contains provisions dealing with preliminary matters, and includes s 4 which contains definitions and relevantly provides: 4 Definitions (1) In this Act - … parcel means - (a) in relation to a strata scheme, the land from time to time comprising the lots and common property in the scheme, and
3. Part 7 Division 2 (ss 134-141) contains provisions dealing with the establishment and effect of by-laws, and includes s 135 which deals with the requirement to comply with by-laws and relevantly provides: 135 Requirement to comply with by-laws (1) The by-laws for a strata scheme bind the owners corporation and the owners of lots in the strata scheme …, of a lot to the same extent as if the by-laws - (a) had been signed and sealed by the owners corporation and each owner …, and (b) contained mutual covenants to observe and perform all the provisions of the by-laws.
4. Part 8 Division 1 (ss 151-153) contains provisions dealing with the obligations relating to lots, and includes s 153 which creates an obligation on various persons not to create a nuisance and relevantly provides: 153 Owners, occupiers and other persons not to create nuisance (1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not - (a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
5. Part 8 Division 3 (ss 156-159) contains provisions dealing with the keeping of animals on lots, and the following provisions: 1. section 156 which deals with the making of an order for removal of an animal not permitted under by-laws, and relevantly provides: 156 Order for removal of an animal not permitted under by-laws (1) The Tribunal may, on application by an interested person, order a person to cause an animal to be removed from a parcel within a specified time, and to be kept away from the parcel, if the Tribunal considers that the person is keeping an animal on the parcel in contravention of the bylaws. 1. section 158 which deals with the making of an order for removal of an animal not permitted under by-laws, and relevantly provides: 158 Order for removal of an animal permitted under by-laws (1) The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.
6. Part 12 Division 3 (ss 226-228) contains provisions dealing with procedures for applications to the Tribunal, and includes s 226 which specifies the categories of persons who are interested persons and relevantly provides: 226 Interested persons (1) The following persons are interested persons for the purpose of making an application to the Tribunal under this Act - (a) the owners corporation,

Consideration

1. I am satisfied that the applicant is an interested person within s 226(1)(a) of the SSM Act and accordingly has standing to make an application for an order under s 156 of this Act.
2. I am also satisfied that the respondent kept the two dogs on her lot in contravention of cl B(iii) of the 2004 by-law 16 and has been keeping the two dogs on her lot in contravention of cl B(iii) of the 2020 by-law 16 since its commencement on 10 March 2020 because she has never had the prior written permission of the strata committee to keep the two dogs on her lot. Pursuant to s 135(1)(b) of the SSM Act the respondent has been bound to observe the 2020 by-law 16 and previously the 2004 by-law 16. Accordingly, the precondition to the exercise of the discretion under s 156(1) of the SSM Act has been satisfied.
3. Section 156(1) of the SSM Act does not specify any factors to be taken into account in the exercise of the discretion to make an order. Having regard to the terms of s 153(1)(a) and 158(1) of the SSM Act I consider that whether the animal causes a nuisance or hazard to the owner or occupier of another lot and/or unreasonably interferes with the use or enjoyment of another lot or of the common property are relevant factors to take into account in the exercise of the discretion under s 156(1) of this Act.
4. In The Owners Strata Plan No 2245 v Veney [2020] NSWSC 134 (Veney) at [45]-[47] Darke J accepted that nuisance within the meaning of s 153(1)(a) of the SSM Act should be interpreted in accordance with the common law meaning of an actionable nuisance.
5. In Chehelnabi v Gourmet and Leisure Holdings Pty Ltd [2020] NSWCATAP 102 at [49]-[60] the Appeal Panel further considered the meaning of nuisance in s 153(1)(a) of the SSM Act and referred to several authorites including Veney at [45]-[47]. The Appeal Panel at [73]-[75] went on to find that noise can constitute a nuisance: "[73] As can be seen from the cases referred to above, for an actionable nuisance in respect of noise to be established, there are two primary elements which need to be satisfied. [74] The first is that there must be some noise that can be heard by the complainant (here the appellants) in the use of their lot which emanates from the respondents' lot, allegedly causing damage or interference. This may readily be established by the subjective evidence of the appellants as to what they hear or experience. [75] The second element, though, is that there must be evidence to establish to the satisfaction of the Tribunal that the noise is caused by a use of the respondents' land which is excessive or unreasonable and "causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, considering the prevailing standard of comfort of the time and place" (Bayliss), or that what is experienced by the appellants is not "reasonable according to the ordinary usages of mankind living in … [our] society": Sedleigh-Denfield v O'Callaghan ibid. This is an objective test: Marsh v Baxter [2015] WASCA 169 at [247], referred to with approval in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [427]."
6. In the case of noise, it has been accepted that that the loss of even one night's sleep was sufficient to constitute a substantial interference, and was not to be regarded as merely trivial, even though of a short duration: Van Son v Forestry Commission of New South Wales (1995) 6 BPR 13,945 (Van Son) at 13,961.
7. It has also been accepted that smells may constitute an actionable nuisance: Van Son at 13,967.
8. I also consider that whether the respondent may obtain permission for the keeping the two dogs on her lot under the 2020 by-law 16, and whether the respondent having known of the complaints about the two has failed to take reasonable steps to prevent the nuisance, are relevant considerations to take into account in the exercise of the discretion under s 156(1) of the SSM Act.
9. I am satisfied that the respondent would not be able to obtain permission for the keeping the two dogs on her lot under the 2020 by-law for the following reasons: 1. each of the two dogs is not a specimen of a small breed with cl B(iv)(a); 2. there is a limit of keeping one animal at any given time under cl B(vi).
10. I am also satisfied on the basis of the evidence of neighbours of the respondent in the 13 January 2020 email, the 2 June 2020 email, the 11 July 2020 email and the 12 July 2020 email, which I accept, that the two dogs caused a nuisance to the owner or occupier of other lots, and/or unreasonably interfered with the use or enjoyment of other lots or of the common property, of SP56587 in the following respects: 1. their loud and constant barking at all times of the day especially during the night and when the respondent has not been not in her apartment has constituted a nuisance and unreasonably interfered with the use or enjoyment of other lots or of the common property as the noise has been excessive; 2. the odour from their urine and faeces has constituted a nuisance and unreasonably interfered with the use or enjoyment of other lots or of the common property; 3. the settling of dust from the respondent's backyard containing the odour from their urine and faeces has unreasonably interfered with the use or enjoyment of other lots or of the common property; 4. the aggressive nature of the two dogs has unreasonably interfered with the use or enjoyment of other lots or of the common property, particularly for those owners and occupiers who have young children.
11. I am further satisfied that the applicant has given notice to the respondent of complaints about the two dogs in the 21 May 2019 letter, the 15 January 2020 letter and the 6 November 2020 letter, and that the respondent has not taken any effective steps to prevent the nuisance and unreasonable interference with the use or enjoyment of other lots or of the common property. While, I infer from the 28 February 2020 letter that the respondent has declined to participate in a mediation with the applicant, I do not regard this as a factor to be taken into account.
12. Having regard to all these circumstances and the definition of parcel in s 4(1), I am satisfied that it is appropriate to make an order under s 156(1) of the SSM Act that the respondent is to cause the two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587. I am also satisfied that one month is a sufficient amount of time for the respondent to effect the removal of the two dogs.

Order

1. I make the following order: 1. the respondent is to cause her two dogs to be removed, and to be kept away, from the land comprising the lots and common property in SP56587 by 29 February 2021.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2021