Oasis [2001] QBCCMCmr 219 (11 April 2001)

P J HANLYREFERENCE: 0677-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue RUNAWAY BAY QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Oasis CTS 20870

I hereby order that within three (3) months of the date of this order, the occupiers of lot 10, Michael Gibson and Brigitte Gibson, shall remove and keep removed from the lot and from the scheme generally the dog presently being kept by them on lot 10 unless within such time the body corporate consents to a new community management statement incorporating a new by-law 32 by which the body corporate can authorise the keeping of the dog.





STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0677-2000

“Oasis” CTS 20870

The applicant, the Body Corporate for Oasis, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

The order sought by the body corporate is to have the animal presently residing upon lot 10 removed in accordance with body corporate by-law 32.

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 applicant states that on several occasions it has sought the removal of the dog from lot 10, by way of correspondence and finally by way of a Notice of Continuing Contravention of a body corporate by-law. The applicant further states that the occupiers of the lot have failed to remove the dog, because the owner has allegedly directed the occupiers not to remove the dog.

The occupiers of lot 10, and the owner of lot 10 were invited to respond to the application.

One of the occupiers of lot 10, Mr Mike Gibson, stated that he and his wife were given permission by their landlord, Mr Ken Oliver, the owner of lot 10, to keep their small dog within the lot. Mr Gibson further stated that it would cause extreme hardship to his family if the dog were not permitted to remain in the lot.

The owner of lot 10, Mr Ken Oliver, stated that he purchased his lot from the previous owners, the Pooles, in December 1999. Mr Oliver further stated that at the time of purchase the Pooles advised him that they had special approval to keep a dog in their lot, because a magistrate had ruled in their favour in this regard, and it was on this understanding that Mr Oliver proceeded to purchase the property. Mr Oliver explained that he intended ultimately to live in the lot himself, but has in the interim rented the premises. Mr Oliver advised his tenants that they could keep an animal in the lot. Mr Oliver further stated that he had proposed a motion for the forthcoming annual general meeting to change the by-law relating to the keeping of animals within lots, and that it would therefore be most inappropriate to make an order before the body corporate had considered that motion.




The history of the animal by-law in this scheme is as follows:

17 November 1988 – body corporate resolves that an owner or occupier of a lot shall not without the approval in writing of the body corporate committee keep any animal upon the lot or the common property, which consent may be withdrawn at any time.

18 December 1989 – body corporate resolves that, subject to section 30(12) (of the Building Units and Group titles Act – BUGTA) an owner or occupier of a lot shall not without the approval in writing of the body corporate committee keep any animal upon the lot which consent may be withdrawn at any time and which shall be automatically withdrawn upon the death of any animal to which the approval relates.

18 December 1990 – body corporate resolves, subject to section 30(12) of BUGTA, that there be no animals permitted within the parcel except for those with existing authorities, and upon the death of those authorised animals, they are not to be replaced.

15 May 2000 –new community management statement recorded by the Registrar, which includes by-law 32, that states that an owner or occupier shall not bring any animal to or keep any animal upon his lot or the common property. The by-law does not apply to persons with authorities to keep an animal if the authority was validly given prior to 18 December 1990 but upon the death of any authorised animal it is not to be replaced.

In 1995 the body corporate sought to have a dog owned by the then owners of lot 10 removed from the scheme. The referee made an order that the dog be removed, and then the matter was appealed to the tribunal. I have read the decision of the tribunal made on 13 March 1996. The magistrate, Mr G.A. Wilkie S.M., revoked the order of the referee made on 2 October 1995, and substituted an order dismissing the application of the body corporate dated 3 August 1995.

Mr Oliver, the present owner of lot 10, relied upon the tribunal’s decision, and the assurance of the previous owners of lot 10, as evidence that he, and his tenants, the present occupiers of lot 10, are authorised to have an animal in or upon lot 10. I do not agree that the tribunal decision gave such a blanket authorisation. The magistrate concluded the reasons for his decision as follows:

“Now for the benefit of the parties before me here today, I indicate there are specific or special circumstances, I have indicated, in relation to this particular dog and it is not intend(sic) or should not be used as a landmark decision in relation to other animals.” (emphasis added by adjudicator)

I also do not agree that the alleged assurance given by the previous owners, the Pooles, to Mr Oliver was a valid authorisation to keep an animal on lot 10. The by-laws are created for the proper regulation of a scheme. It is apparent from the evolution of the by-law relating to animals that this body corporate is desirous of ridding the scheme of animals altogether. At the time that Mr Oliver purchased lot 10, the by-law had evolved to the point at which no animals were permitted in the scheme, except those animals with existing authorities. The animal owned by the Pooles had an existing authority, albeit by order of the tribunal. However, the authorisation was not capable of transference to an animal owned by an incoming purchaser, Mr Oliver, or incoming occupiers, the Gibsons. It was incumbent upon Mr Oliver to acquaint himself with the applicable by-laws at the time that he purchased his lot. It seems he did not do this. If he has relied upon a representation of the previous owners to his detriment, then that is a matter that he may wish to take up with them. The body corporate, however, is not bound by any such representation, and is entitled to enforce its by-laws.

I note that at the annual general meeting held on 23 February 2001, a motion proposed by Mr Oliver to amend the animal by-law was ruled out of order by the chairperson because alteration to the by-laws requires alteration to the community management statement, and a new community management statement was not submitted with the notice of meeting to enable owners to give their consent to it. The body corporate manager has today informed me that since that meeting, Mr Oliver has not proposed a further motion seeking the consent of the body corporate to a new community management statement incorporating the change he seeks to by-law 32.

This office receives frequent applications relating to the keeping of animals, either by a body corporate seeking an order to have an 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, 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, if the body corporate refuses one owners or occupier, whilst allowing another, then the basis of the body corporate’s refusal must be clear. 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 and 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 do not consider that the body corporate has discriminated against the Gibsons. I am also satisfied that there is no evidence of acquiescence to the presence of the Gibson’s pet.

I am not unsympathetic to the position in which the Gibsons are now placed. They have, in good faith, entered into a tenancy agreement with Mr Oliver by which they are permitted to have their pet dog reside in the lot with them. The Gibson family is obviously very fond of the dog. It appears that no specific complaint has been made about the dog, except that on one occasion she ventured unescorted onto common property, from where she was observed by a committee member before being retrieved by a concerned neighbour and returned to the Gibsons. The applicant does not allege that the dog has created a nuisance. However, all owners and occupiers are bound by the by-laws of the scheme, and, in this instance, the by-law relating to animals is quite clear.

I have ordered that the occupiers of lot 10 remove the animal from their lot within 3 months of the date of the order. I have allowed this period of time to give Mr Oliver the opportunity to prepare a new community management statement with the amended animal by-law and propose a motion to enable the body corporate to consent to it.

2n