Royal Palm [2000] QBCCMCmr 489 (27 September 2000)

PJ HanlyREFERENCE: 0340-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9098
Name of Scheme:	Royal Palm
Address of Scheme:	973 Gold Coast Highway PALM BEACH QLD 4221

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

I hereby order that within two (2) months of the date of this order, Maureen Chantal SCHOCH, the owner of Lots 80 and 81, and the occupier of Unit 21C, shall remove, and shall keep removed, from the scheme, the cat or cats being kept by her on the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0340-2000

“Royal Palm” CTS 9098

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That under section 223(3)(g)(ii) of the Body Corporate and Community Management Act 1997 that Mrs Maureen Schock remove from her lot within 14 days of the date of the order a cat or cats and to keep the cat or cats permanently removed from the lot.

Section 223(1) of the Act 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 body corporate states that Mrs Schock is keeping a cat or cats without the approval of the committee in contravention of By-law 14. The body corporate states that the cat or cats are causing a nuisance and interfering with the use or enjoyment of persons in other lots because of the stench of cat urine. The body corporate included a copy of a letter dated 23 May 2000 from Mr J Browne of unit 13E complaining about the smell of cat urine from unit 13D. The body corporate also included a copy of a “Notice of Continuing Contravention of a Body Corporate By-Law” dated 2 June 2000 which was given to the respondent.

A copy of the application was given to the respondent and to the secretary for distribution to all owners. In her response to the application, Ms Schoch states that the cats are very important to her, especially for medical reasons. She states that when made aware of the complaints about the cats, she had the units cleaned and apologized to Mr Brown of unit 13E. Ms Schoch claims that there must be other cats in the building as she has never disposed of kitty litter in the common property garbage shute. She believes that it would be pointless seeking body corporate approval as the committee is prejudiced against her. The owners of seven lots have supported the application and the enforcement of the relevant by-law for reasons such as the potential health hazard created by the existence of animals within the scheme, and the need to ensure that all occupiers are able to enjoy the use of their lot and the common property.

The applicable by-laws are those contained in Schedule C of the community management statement for the scheme. The relevant by-law concerning animals is By-law 14 which states-

14. Keeping Animals.

(a)	Subject to Section 143 of the Act, an Occupier must not, except with the consent in writing of the Body Corporate Committee:
(i)	bring or keep an animal or bird on the Lot or the Common Property, or
(ii)	permit an Invitee to bring or keep an animal or bird on the Lot or the Common Property.
(b)	Any consent of the Body Corporate Committee may be:
(i)	given on conditions, and
(ii)	withdrawn at any time.

My order is to allow the application of the body corporate for the respondent to remove her cat or cats from the scheme. The reasons for this decision follow.

Firstly, I would like set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws.

Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are continuously being approached with requests for orders seeking either that an animal be removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal, be overturned. Often these owners claim there are "special circumstances" why they should be allowed to keep an animal. The view of adjudicator’s, as with the Referee, is that the by-law regarding animals, like all other by-laws, is there to be observed. It should not be afforded any special significance simply because it is often the subject of much emotion.

General practice is therefore to either order compliance with the by-law (where removal is sought by the committee) or to dismiss the application (where an owner wants the committee's refusal overturned), except where the owner can establish one of two things to the satisfaction of the adjudicator -

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Firstly, that there has been acquiescence on the part of the body corporate in not taking steps to seek the removal of the animal for a reasonable period of time. For example, the body corporate has failed to act on the matter for some time causing the owner to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for an owner to have to remove an animal that they have been allowed to keep over a period of time.

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Secondly, that the body corporate is acting in a discriminatory manner in seeking to remove the animal. Discrimination in this context can take various forms. The clearest example is where the committee refuses the request of one owner to keep an animal but grants approval to another, and there is no logical or reasonable basis for the distinction to be made. An alternative example is where the body corporate seeks an order against one owner keeping an animal when there are one or more other owners who are also keeping animals on the scheme, again with no logical or reasonable basis for the different treatment. The basis for this exception is obviously that bodies corporate must treat all owners equally.

In this instance the respondent has had a cat or cats on the scheme for sometime. Ms Schoch has not shown that she has kept the animals on the scheme with the knowledge of the body corporate. The body corporate has provided evidence that it has only recently sought to enforce By-law 14. In her submission in support of the body corporate’s current application, Mrs Easton from unit 21F included a copy of her letter to the body corporate chairperson dated 6 October 1998 in which she complains about a cat or cats being kept in unit 21C. Based on the fact that the animals are still being kept on a lot or lots in the scheme, I would suggest that for whatever reason there was no action taken in relation to Mrs Easton’s complaint. Certainly, Ms Schoch has not referred to any communications with the body corporate at this time, and she has not claimed that the body corporate or other owners have been aware of the cat or cats for an extended period of time and have only recently taken a stance against the animals. However, in a large accommodation complex such as “Royal Palm”, it is conceivable that the absence of permanent residents could reduce the likelihood of complaints regarding the existence of a cat or cats in a unit. Therefore, I am not satisfied that the body corporate has acquiesced to the presence of the animals over a period of time and has not pursued their removal until the “Notice of Continuing Contravention of a Body Corporate By-Law” was given to the respondent.

Additionally, Ms Schoch has not suggested that in the time she has kept a cat or cats in the building, she has sought approval in accordance with the relevant by-law. This by-law places the obligation on the owner or occupier intending to keep an animal to seek and obtain the necessary authorisation. In relation to obtaining approval, Ms Schoch states “I know that the former Chairman of the Body Corporate, Ken Ingall, kept a cat with the knowledge of the then Building Manager, and I considered that to be consent for me to keep cats”. It is wrong to make such an assumption, and it is clear that Ms Schoch has not attempted to comply with the “Keeping Animals” by-law.

Further, while Ms Schoch has claimed that she does not dispose of the kitty litter in the common property garbage shute, I am not satisfied that there other cats being kept in the building. The secretary was required to forward a copy of the application to all owners, and there has not been any evidence provided regarding the existence of other cats in the building. Therefore, I do not consider that the body corporate has discriminated against the respondent in this application. Of course, if there were other cats being kept on lots in the building, then I would expect that the body corporate would act in accordance with its obligation to act reasonably and for the benefit of owners.

Lastly, the body corporate and a number of lot owners have expressed concern about the potential health hazard created by the cat or cats being kept in the building. In a large holiday accommodation complex, I would expect that an issue such as the smell of cat urine is relevant and is a genuine concern. A lot owner on level 13 has complained about the problem, and a lot owner on level 21 has complained about the adverse effect on the enjoyment of the lot.

The respondent is the owner of two lots on level 13 and has confirmed that she wants to keep the cats permanently on level 21, where she currently rents a lot. In my view, it is reasonable for the body corporate to now attempt to enforce the by-law and require Ms Schoch to remove the animals from these lots. My order has been made for the above reasons.