Harbourview [2000] QBCCMCmr 416 (18 August 2000)

C G YOUNGREFERENCE: 0347-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23092
Name of Scheme:	Harbourview
Address of Scheme:	6 Harbourview Court CLEVELAND QLD 4163

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

Hermanus Antonius SNEL and Heather Roslyn SNEL, as co-owners of Lot 60,



C G YOUNGI hereby order that the co-owners of Lot 60, Hermanus and Heather SNEL, may temporarily retain the dog currently being kept by them on their lot until such time as the next general meeting of the body corporate is held when the body corporate must determine the following motion, to be placed on the agenda by the secretary, as an ordinary resolution –

“That the owners of Lot 60, Hermanus and Heather Snel have the consent of the body corporate under By-law 11 to keep the dog “Andy” on their lot.”

I further order that if the motion fails to pass, then within one (1) month of the date of the meeting Hermanus and Heather Snel must remove the dog, and keep it removed, from the scheme. 2y

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0347-2000

“Harbourview” CMS 23092

The applicants, Hermanus and Heather Snel of Lot 60, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

The order being sought is an order that we be given permission to retain our small pet dog within our lot.

The applicants have also sought the following interim order of an adjudicator, quote -

The interim order being sought is an order that the Body Corporate be prevented from requiring us to remove the dog prior to the making of the decision of the Commissioner with respect to this application.

Section 225(1) of the Act provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

This is an application by an owner against the body corporate regarding a decision made by its committee in the exercise of its powers under a by-law. It is therefore a dispute coming within the jurisdictional provisions of sections 182 and 183 of the Act for me to determine.

The applicants have submitted very brief grounds to support their application. They refer to the terms of a By-law 11 without quoting it; they speak of exchanges between themselves and the committee but do not provide copies of the documents or even the dates of the events; they refer to a committee meeting without giving its date or a copy of its minutes. These are matters within the power of the applicants to have obtained and their absence leaves consideration of the evidence on these matters to chance. For while this office does not expect applicants to have a detailed knowledge of the legislation or to present a court-standard application, an adjudicator cannot make out a case on the applicant’s behalf. Luckily for the applicants in this instance, the topic of pet ownership has drawn a large number of responses from other owners and a detailed submission by the committee and the Body Corporate Manager.

The facts of the matter appear to me as follows. By-law 11 states –

A proprietor or occupier of a lot shall not keep or take any animals (birds, fish, insects, reptiles, dogs, cats, livestock or poultry of any kind) upon the lot or the common property without first obtaining the consent of the committee of the body corporate whose consent may be given on such terms and conditions as it deems fit in its absolute discretion. The body corporate shall be entitled to withdraw any consent given pursuant to this by-law following a breach of any terms and conditions of such consent by the proprietor or occupier of a lot.

At the time of purchase of their lot, and for many months afterwards, the applicants did not own the dog subject of this application. Whether or not they were aware of the by-law when they purchased their lot, the applicants were immediately bound by it, and the other by-laws, immediately upon becoming owners. By letter dated 10 January 2000, Heather Snel wrote to the body corporate c/- chairperson Graham Coombe, seeking approval to keep a small dog. At its meeting on 12 January 2000 the committee determined to defer approval of the application. In its written reply of 23 January 2000 to the applicants, the committee (Coombe signing) said that many other applications to keep animals had been refused by the committee, except where the animal was brought onto the scheme at the “time of original purchase of the property.” The letter explained that the committee was guided by a “house rule” which states that “Permission is given only for the lifetime of the pet approved at the time of initial purchase/tenancy of the property and the right to keep the pet expires with the death or removal of that pet”.

The letter also referred to two groups of owners with opposing views regarding pet ownership: one group purchasing into the scheme in the belief that the aim of the body corporate was for an “animal free” environment; the other group believing that the committee was acting in a discriminatory manner in allowing pre-owned animals onto the scheme but refusing owners already resident to acquire and keep an animal. I note that the chairperson made the personal comment in the letter that he agreed the different treatment was discriminatory and also ended with the comment that “I would be personally surprised if we do not achieve approval, opening the way for you to then legitimately keep a dog”. Neither of these comments should have been included in a letter of this type, firstly because they were at variance with the decision of the committee on whose behalf he was reporting, and secondly because it offered an opinion that could raise false hopes. These comments would have provided, in my view, the impetus for the applicants next action.

Despite the decision of the committee, the applicants purchased a dog and brought it onto the scheme. This was in breach of the by-law (as no prior approval had been given) and in spite of the committee’s decision (deferring its consideration of their application). The applicants did not relate these facts in their grounds.

Since this decision, the committee has approved at least two other applications to keep an animal. The first was in respect of a dog already owned by the purchasers of a lot and brought with them. The second approval, however, was for an owner before purchase of a pet. A committee member has explained that this approval was made on compassionate grounds, as the owner was a widow. The same committee member has commented that it was always highly unlikely that the applicants would have been given approval for a pet dog as the committee had consistently refused approval to owners who were already residing in the scheme and did not already own the pet.

There were a number of submissions by owners in favour of the application and a number against. Those against cite a reported statement of the developer that, “In the interests of all residents, Villa Edgewater is designed to be an animal-free environment”. While the developer may have said that, the by-law is plain in its meaning that there is a discretion in the hands of the committee to approve pets. It would have been simple for the developer to make a by-law completely banning pets if indeed an “animal-free environment” was the aim – some schemes have such a by-law, which of course must necessarily exempt guide dogs for the sight and hearing impaired (see section 143 of the Act).

Those owners expressing favour with the application do so mainly on the ground that the committee is acting in a discriminatory manner in giving consent to only those owners who already have a pet animal at the time of purchase. Some have also added that both the small size and quietness of the applicant’s dog make it a suitable candidate for approval.

The legislation requires that bodies corporate must act for the benefit of owners in carrying its duty to administer, manage and control the common property. It must also enforce its community management statement, including the by-laws which form part of that statement. In doing so it must act “reasonably” (see section 87 of the Act).

The body corporate, through its administrative arm the committee, must enforce its animal by-law, By-law 11. If owners do not like this by-law then they may change it provided that the change is done in accordance with the procedures laid down in the legislation. Until it does so, the committee remains under a statutory duty to enforce the present by-law.

I have already pointed out that, contrary to the opinion of some owners as evidenced by their submissions, By-law 11 does not act to exclude animals but to regulate the admission of animals to the scheme. In exercising its power of discretion to admit or refuse animals, the committee is under the obligation to act “reasonably” in making its decisions and this must include acting without discrimination.

Formulating a non-discriminatory policy for an animal by-law is not an easy task. Some examples may assist. In my opinion, a policy could not be made to restrict the number of animals in a scheme; it would mean that owners would not be on an equal footing but would be successful depending on the number of animals already on the scheme. On the other hand, a by-law could be made to limit dogs to a particular size or weight -such by-laws are not uncommon.

Here we have a policy within a by-law which bases decisions (though not in all cases) on prior ownership. I find this policy a strange one, mainly because it can be easily abused by those purchasers with a foreknowledge of the policy who, with a pet in contemplation, would buy one sooner rather than later even if “later” was their preference.

There is another aspect to the by-law which appears to be misinterpreted by at least some owners. While the term “committee” is referred to in the by-law as being the decision maker, the legislation must be given effect in allowing the body corporate in general meeting, as the paramount body, to substitute its decisions for those of the committee. I think that putting the question to a general meeting is the best course to follow in this dispute for the following reasons.

There is no doubt that the applicants flouted the decision of the committee (to defer its consideration of their application to keep an animal) by purchasing and bringing the dog onto the scheme. They must have known they were breaching By-law 11. However, their action cannot be viewed as being one of outright defiance because of the remarks made by the chairperson in his letter of 23 January 2000 relaying the committee’s decision in the matter. Those remarks gave false hope to the applicants, not that this is an excuse for their subsequent action.

Also, the committee policy of prior ownership was not followed in the instance of a recent approval being given to a person (widow) already resident in the scheme. Apart from that, I have already remarked on the unsatisfactory nature of the policy because of how it can be unfairly used by persons with a foreknowledge. That is, I do not regard the policy as a discriminatory one but one that has little logic to recommend it.

I note also that the body corporate at its recent meeting failed to pass a motion seeking to prevent further animals be permitted onto the parcel.

Accordingly, I consider that the owners should make the decision themselves as to whether the applicant’s dog can remain or should be removed. It seems to me that a sizeable number of owners are willing to accept dogs and other animals onto the parcel, while there is also a number of owners who want no animals on the scheme at all. It is not clear though what is the majority opinion. I have therefore ordered that the dog may stay temporarily with the applicants until the next general meeting is held when the simple question is to be put as to whether the dog should stay or go. The body corporate might also consider revising either the committee policy or its by-law, on animals.

In the circumstances, it is not intended to invite further submissions regarding this matter, or to make a further order, since this decision, though an interim one as sought by the applicant, is final in its determination of this matter. If the applicant considers that an appeal of this decision is warranted, then it should appeal the interim order.