Brookville [2000] QBCCMCmr 229 (24 May 2000)

RA MeekREFERENCE: 0013-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7733
Name of Scheme:	Brookville
Address of Scheme:	66 Maryvale Street TOOWONG QLD 4066

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Caesar Bohdan Szonert and Krystyna Apolonia Szonert, the owners of lot 2



RA MeekI hereby order that within six (6) weeks of the date of this order, the owners of lot 2, Caesar Bohdan Szonert and Krystyna Apolonia Szonert, shall remove and keep removed from their lot, and the parcel generally, the dog presently being kept by them on their lot. y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0013-2000

“Brookville” CTS 7733

The applicants Caesar Bohdan Szonert and Krystyna Apolonia Szonert, the owners of lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Permission to keep our dog in lot 2 – unit 2, 66 Maryvale Street, Toowong, Brisbane.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that written permission to keep a dog in lot 2 was sought in a letter to the secretary of 19 November 1999. This was refused by letter of 10 January 2000. The applicants then provide several reasons for wanting to keep the dog, including that –

• Both applicants are “old age pensioners in poor health”;

• The dog is kept for security reasons;

• The dog is “seriously sick” and finding an alternative home could be difficult;

• The applicants state that there are no complaints about the dog, according to the secretary manager of the body corporate;

• The applicants state that they are very attached to the dog, and the dog to them.

Further in the letter to the body corporate the applicants stated –

• They were totally unaware of the existing by-laws regarding the keeping of animals;

• The dog had been kept for about a year “and nobody has complained to me about that. I have not been concealing the fact that I keep the dog in my unit”;

• The dog is of “good character, very obedient, clean and quiet and has not caused any trouble with other occupants”.

The applicants have attached other documentation relevant to this matter including a Notice of Contravention of by-law dated 17 November 1999, which clearly lead to the applicants requesting permission of the body corporate to keep the dog. In addition, there is a minute of a Flying committee meeting where the following motion was resolved as lost –

Moved that the written application from the owner of lot 2 to keep a dog within the lot be considered and in line with previous grounds for such permission forwarded to all owners with meeting agenda.

As part of its investigation, this office sought submissions from all owners regarding the application. There are five lots in the scheme, and I have received responses from 3 of the remaining 4 owners. These three owners all oppose the applicants being granted permission to keep the dog.

The relevant by-law provides that –

Keeping of animals.

1. The occupier of a lot must not, without the body corporate’s written approval –

a) Bring or keep an animal on the lot or the common property; or

b) Permit an invitee to bring or keep an animal on the lot or the common property.

2. The occupier must obtain the body corporate’s written approval before bringing or permitting an invitee to bring, an animal onto the lot or the common property.

I consider that the terms of the by-law are clear. Moreover, ignorance of a by-law is irrelevant. The policy of this office concerning applications regarding the keeping of animals may be stated as follows.

This office receives frequent applications relating to the keeping of animals, either by a body corporate seeking an order to have a unauthorised animal removed, or alternatively, by an owner or occupier seeking an order authorising the keeping of an animal contrary to the by-laws and notwithstanding the refusal of the body corporate to grant necessary authorisation.

There is often much emotion associated with such applications. Notwithstanding this however, the by-law relating to animals is merely one of the by-laws recorded for the scheme and therefore, is required to be observed by all owners and occupiers.

Given this, the usual practice adopted by this office in relation to applications regarding the keeping of animals, is to order the removal of animals unless either of two circumstances can be found to exist.

The first is discrimination. This is relatively simple although there are a number of ways discrimination might occur. Essentially, the body corporate refuses one owners or occupier, whilst allowing another. The basis of the body corporate’s refusal must therefore be clear, and if an element of discrimination is found to exist, then the body corporate’s decision to refuse the animal will be considered unreasonable. However this does not mean that a body corporate cannot change its policy on the keeping of animals over time, provided it does so in a clear an unambiguous manner, and ensures that all owners (and current occupiers) are informed of the change in policy. A change to the recorded by-law might also be required.

The second basis is acquiescence. This is essentially where a body corporate has known of an animal being kept for a significant period of time, but has failed to require compliance with the by-law. The scenario often arises where a dispute over another matter precipitates an application being made for removal of an animal kept by a party to the other dispute. Acquiescence is subjective but is determined by reference to the period of time which has elapsed between the date of the application and the time when the body corporate should reasonably have known of the keeping of the animal.

I now turn to the question of whether the body corporate committee has acted unreasonably in refusing the applicants permission to keep the animal. In considering this, I am fully aware of the contents of the submissions of the three owners.

With respect, I consider aspects of security, the relative health of the applicants, or the health of the dog, to be irrelevant in determining this application. There is a legal obligation for all occupiers to comply with by-laws (see section 53(2) of the Act). Non-compliance with by-laws cannot be justified for the reasons advanced by the applicants. Other owners are entitled to rely on the fact that there is a by-law prohibiting animals without the permission of the body corporate, and may in fact have been influenced to purchase their lot because of this fact.

The only basis advanced by the applicants which I consider might be arguable is the fact that they have kept the dog for a year or so, without apparent problem or complaint. This fact raises the issue of whether the body corporate has acquiesced regarding the applicant’s keeping of the dog. In this regard, one other owner has responded stating that –

When we asked Mr Szonert about the dog a year ago he said that he was just looking after it temporarily as it was his daughter’s dog. We therefore took no further action.

This suggests to me that perhaps other owners were initially mislead by the applicants regarding the keeping of the animal.

In any event, I do not consider the period sufficient to constitute acquiescence on the part of the body corporate. It seems to me that when a complaint was ultimately made regarding the dog, the body corporate responded with the issue of a by-law contravention notice. This is a reasonable response from the body corporate. The applicants, when they first started keeping the dog, should have taken immediate steps to seek permission from the body corporate. They did not. The body corporate ultimately served a notice of contravention regarding the keeping of the dog. There can be no doubt regarding the attitude of the clear majority of other owners to the keeping of the dog. In the circumstances, I intend to order the applicants to remove the dog from the lot and the scheme generally.