Kenmore Views [2001] QBCCMCmr 469 (23 August 2001)

RA MeekREFERENCE: 0304-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19101
Name of Scheme:	Kenmore Views
Address of Scheme:	19 Merlin Terrace KENMORE QLD 4069

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

RA MeekI hereby order that the occupier of lot 36, Robert John McVey shall, within six (6) weeks of the date of this order, remove from the lot and the parcel generally, the cat presently being kept by him and other occupiers of the lot, and thereafter not keep any animal at the lot, or at the parcel, unless permission of the body corporate is first obtained. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0304-2001

“Kenmore Views” CTS 19101

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

That Mr McVie be directed to remove the cat from Lot 36.

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 –

The keeping of pets is against the body corporate by-laws. Mr McVey, the tenant of unit 36 has been advised that this is so and asked to remove the cat from his lot.

The body corporate then attaches various correspondence regarding this dispute, including various notices sent to the respondent, the occupier of unit 36, Robert John McVey.

Mr McVey has responded to the application by way of submission. Mr McVey has raised a number of matters in opposition to the decision of the body corporate. Firstly, he states that he was advised by the Real Estate Agent that “to their knowledge pets, such as cats, were tolerated as several other occupants had cats and other small animals ...”.

A further point raised by Mr McVey is that the cat “is my daughter’s pet and has been in the family for 15 years”. Mr McVey then states other reasons related to this for not wanting to remove the cat from the lot.

However, I consider that these are not aspects relevant to the determination of this application. It is irrelevant to the application of the by-laws what agents might say to induce persons to let or buy a lot. The body corporate is not bound by any representations the agent might have made. The agent does not have any authority to make representations on behalf of the body corporate. Mr McVey might have some basis for claim against the letting agent, but no basis for now raising this aspect as

As to the cat being a family pet of some 15 years, and that a family member would be distressed if the cat was removed, again, this is not a concern for the body corporate. Body corporate by-laws are required to be observed by all occupiers, whether owners or tenants. On taking up occupation, Mr McVey is deemed to have known of the by-laws and is required to observe them.

Mr McVey has raised one other aspect. He states that he is willing to “cooperate” when the committee could confirm that all other animals had been removed from the property. Mr McVey now states that –

Until receiving your correspondence I have not had any confirmation of other animals being removed as was indicated would occur, although I had a demand in writing from the body corporate management service, which I ignored in light of the agreement I believed existed.

This is a valid concern of the respondent. This office will not respond positively to applications seeking the removal of animals where it can be established that there is either acquiescence or discrimination on the part of the body corporate.

Acquiescence is where the body corporate is shown to have known of the existence of an animal for a sustained period of time, but has not chosen to have taken any action to remove the animal earlier. A finding of acquiescence on the part of the body corporate will depend on the particular facts of each case. It is impossible to state a general rule. However suffice to say, acquiescence has not been established here.

The second basis is discrimination. Discrimination may take many forms. However when it exists, it is relatively easy to identify. The respondent has alleged that he should not be required to remove the animal when others (owners and occupiers) are keeping animals at the scheme.

The difficulty I have with the respondent’s allegation is that it is not substantiated. It is simply a general allegation that other animals are being kept at the scheme. It is clear to me from other evidence available in this office that this is in fact the case (ie. that other animals are being kept), but this alone does not establish the respondent’s point. The question is, does this, in the circumstances, amount to discrimination.

At the same time as this application was made, the body corporate make a very similar application in respect of the occupier of lot 39 keeping a cat. That application was withdrawn by the body corporate as that occupier subsequently vacated the unit.

I am also aware of a further application (0524-2000) to this office by a Susan Mellor, an owner, in respect of which an order was made in January 2001. That application was somewhat complex as it involved the question of a change in the body corporate’s policy regarding pets, and certain approvals which had been given to owners for animals then existing at the scheme. It is clear from the reasons for that order, that several lots had been given approval for existing animals. From the terms of that order, it seems this approval affected at least 7 lots. Moreover, from a reading of that order, it is clear that the policy of the body corporate is now to refuse permission for the keeping of animals.

It is perfectly legitimate for a body corporate to change its policy regarding animals, and for example, to move from a position of permitting animals to prohibiting animals, provided it does so in a clear an unambiguous manner, in accordance with proper procedures (ie. requisite change of by-law or at minimum, a clear indication of a change to the application of an existing by-law). I consider that this is what the body corporate has done here, the full details of which are outlined in the adjudicator’s reasons for decision in application 0524 of 2000.

In the circumstances, whilst the respondent’s allegation is a valid one, I consider that it is unsubstantiated, and further, that there is sufficient evidence to establish that this body corporate is applying a clear and consistent policy towards the prohibition of animals. I intend to order that the occupier of lot 36, Robert John McVey shall, within six (6) weeks of the date of this order, remove from the lot, and the parcel generally, the cat presently being kept by him and other occupiers of the lot, and thereafter not keep any animal at the lot, or at the parcel, unless permission of the body corporate is first obtained. n