Tahmine Lodge [2001] QBCCMCmr 269 (17 May 2001)

CG YoungREFERENCE: 0186-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12928
Name of Scheme:	Tahmine Lodge
Address of Scheme:	52 Twentyfifth Avenue PALM BEACH QLD 4221

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

Prudence Shirley DIXON, the owner of Lot 2


I hereby order that the application for an order that the owner of lot 1 relax the by-law regarding animals, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0186-2001

“Tahmine Lodge” CTS 12928

The applicant, Prudence Shirley Dixon, owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote –

Seeking an ordinary order to have unit 1 owner (Ms Picknell) to relax her rigid invocation of the by-law which prohibits animals (pets) to accompany interested buyers of unit 2 which the owner (Mrs Dixon) is endeavouring to sell.

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 applicant states that she is experiencing difficulty selling her lot due to the refusal of the owner of Lot 1 (the respondent) to agree to potential purchasers’ requests to keep an animal on the scheme land. The applicant also states that a fellow occupier of a lot previously kept two dogs on scheme land.

The respondent has made a submission in response to the application. In the submission, the respondent addresses the issue of the dogs, and states that the applicant previously kept a cat on scheme land. The respondent also states that as the applicant’s lot is on the second floor, she feels that the presence of an animal would have an impact on her.

The Act requires all owners and occupiers to comply with the by-laws for the scheme. It would be inappropriate for an adjudicator to order a general relaxation of a by-law for a community titles scheme. If a particular dispute arises between two owners or occupiers regarding the application of a by-law to a specific situation, then an adjudicator could investigate and decide whether the by-law was being applied reasonably in that particular case. For this reason I must dismiss the application. If owners decide that a particular by-law is not suitable for the scheme then the body corporate is free to consider changing the by-law by registering a new community management statement.

I would like to provide both the applicant and respondent with some information on the by-laws that apply to this particular scheme. I note that at the end of the respondent’s submission she refers to By-law 11. I assume that she is referring to By-law 11 contained in the Third Schedule of the Building Units and Group Titles Act 1980 (“the 1980 Act”). This by-law provides the following:-

ú

Keeping of animals

11. Subject to section 30(12), a proprietor or occupier of a lot shall not,

without the approval in writing of the body corporate, keep any animal upon

his or her lot or the common property.

The records of the Registrar of Titles indicate that the “Tahmine Lodge” body corporate was created under a building units plan of subdivision registered on 26 July 1976.

At the time of registration the Building Units Titles Act 1965 (“the 1965 Act”) applied to the body corporate, not the 1980 Act. The Second Schedule of the 1965 Act contained a different set of by-laws which applied to bodies corporate. One of these second schedule by-laws relates to the keeping of animals on the scheme land:-

2. A proprietor shall not keep any animals on his unit or common property after notice in that behalf from the council.

(the term ‘council’ refers to the body corporate committee)

The 1980 Act commenced on 3 November 1980 and contained a number of by-laws in the Third Schedule. The Third Schedule by-laws of the 1980 Act did not automatically apply to schemes existing before the commencement of the 1980 Act. Rather, the transitional provisions provided that for those existing schemes, the by-laws in force before 3 November 1980 continued in force for the scheme. The by-laws in the third schedule of the 1980 Act only applied to the scheme if they were not inconsistent with the existing by-laws for the scheme.

Bodies corporate are able to change the by-laws that apply to the scheme by registering the details with a Land Registry Office. As our records indicate that no change in by-laws has been registered for this scheme, it appears that the second schedule by-law of the 1965 Act relating to animals outlined above continues to operate for the “Tahmine Lodge” body corporate.