Bagara Place [2001] QBCCMCmr 474 (24 August 2001)

DJ ReardonREFERENCE: 0348-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8914
Name of Scheme:	Bagara Place
Address of Scheme:	4 Griffith Road SCARBOROUGH QLD 4020

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

Ms Tracy Jane Whiteley, the co-owner of Lot 1



DJ ReardonI hereby order that the owner of Lot 1 may continue to keep the dog currently being kept in Lot 1 PROVIDED THAT the dog is at all times kept within the boundaries of Lot 1 and the area of common property allocated for the exclusive use of Lot 1, and that the owner of Lot 1 ensures that the dog does not cause a nuisance or does not otherwise interfere with the lawful use of lots or common property by other owners or occupiers of lots in the scheme. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0348-2001

“Bagara Place” CTS 8914

The applicant Tracy Jane Whiteley, the co-owner of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

Per application to keep a specified dog within the confines of my property.
Written consent has been obtained by myself from the other lot owners (enclosed herein)
My motion is stated on the consent forms attached.

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 has kept the dog on Lot 1 since commencing residence of the lot in March 2000. She goes on to state that she has obtained body corporate approval to keep the animal within the lot. The applicant includes a number of attachments including written approvals from 4 lot owners, and the minutes of a meeting held on 1 September 2000.

In the course of investigating the application, this office invited all owners of lots in the scheme, the committee and the body corporate manager to make a written submission in response to the application. One of the co-owners of Lot 5 has made a written submission, as has one of the co-owners of Lot 2.

The submission written on behalf of the owners of Lot 5 indicates that at the time of purchase the owners of Lot 5 were aware that the applicant was keeping a dog on scheme land, and viewed written documentation confirming the body corporate’s approval. Further, the submission indicates that the owners of Lot 5 have not had any problems with the dog and do not object to it remaining on scheme land.

The co-owner of Lot 2 has provided a detailed submission objecting to the keeping of a dog on scheme land. I intend to consider the reasons for this objection through the following reasons for decision.

It appears to me that there are three main issues to consider in the application. Firstly, whether or not the body corporate has given the applicant approval to keep a dog on scheme land. Secondly, whether there is any other basis upon which the applicant should be allowed to keep the dog. Finally, whether the dog is creating a nuisance to other owners and occupiers such that the dog should be removed, despite the fact that approval may have been given, or that there is another valid reason for allowing the dog to stay.

The community management statement for the scheme contains the following by-law regarding animals.

KEEPING OF ANIMALS

11. (1) The occupier of a lot must not, without the body corporate’s written approval-

(a)	bring or keep an animal on the lot or the common property; or
(b)	permit an invitee to bring or keep an animal on the lot or the common property.

(2) The occupier must obtain the Body Corporate’s written approval before bringing or permitting an invitee to bring an animal on to the lot or the common property.

Body corporate approval

The applicant states that around the time of purchasing the lot, she obtained written approval from 4 of the 5 lot owners to keep the animal. She goes on to state that this approval was ratified at an “informal” committee meeting held on 1 September 2000. Minutes of this meeting were attached to the application.

The co-owner of Lot 2 questions that validity of this approval on two main grounds. Firstly, previous owners of lots in the scheme (not the present owners) gave the individual approvals described. In this regard, I consider that if a body corporate grants permission for an owner to keep an animal, then the approval continues to be valid and binding on the body corporate despite the fact that membership of the body corporate may change over time.

The other issue raised by the co-owner of Lot 2 is that the minutes of the “informal” meeting described did not form part of the body corporate records. As a result, potential purchasers are unable to search body corporate records to establish whether owners or occupiers have been given approval to keep animals on scheme land.

The failure of the body corporate to keep proper records does not necessarily demonstrate that the body corporate did not give approval for the applicant to keep her dog on scheme land. On the basis of the documents provided to me by the applicant, and given that the co-owner of Lot 5 has indicated that they were aware of the approval at the time of purchase, I am satisfied that approval was given for the owner of Lot 1 to keep the dog.

However, while I consider that this approval was given, I would point out to the body corporate that it has a statutory obligation to provide complete and correct information to interested parties (including potential purchasers) in accordance with section 162 of the Act. The failure of the body corporate to comply with its obligations in this regard may result in the body corporate becoming liable for loss or damage suffered by a party who relies on the information provided. Whether the owners of Lot 2 wish to pursue a remedy against the body corporate for failure to provide information is a matter for them to consider and decide, perhaps after obtaining independent legal advice.

General principles regarding by-laws

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

General practice is to either order compliance with the by-law (where removal is sought by the body corporate) 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 -

Firstly, that there has been acquiescence on the part of the body corporate in not taking steps to remove 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 a owner to have to remove an animal that they have been allowed to keep over a period of time.

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.

There is no information before me to indicate that the body corporate has acted in a discriminatory manner regarding owners or occupiers keeping animals on scheme land. However, it is evident that there has been some acquiescence by the body corporate regarding the owner of Lot 1 keeping her dog on scheme land. In the application the owner states that the dog has lived with her since March 2000. Putting aside the fact that it appears that the body corporate gave some form of approval for the applicant to keep the dog, there is no information before me that the body corporate has taken any action to require the applicant to remove the dog until April 2001. I consider that if the body corporate did not previously give approval for the animal to be kept on scheme land, it should have taken earlier action to require the animal be removed.

I consider that the failure of the body corporate to require the applicant to remove the dog for some 14 months, in conjunction with the apparent approval of the body corporate outlined above gave the applicant reasonable grounds to assume she had approval to keep her dog on scheme land. It would be unreasonable for me in these circumstances to order that the dog be removed on the basis that no approval was given.

Nuisance

Regardless of whether or not an owner has permission to keep an animal on scheme land, the owner has a duty to ensure that the animal does not create a nuisance or otherwise unreasonably interfere with other owners and occupiers of lots in the scheme. If an owner fails in this duty, an adjudicator could order that the animal be removed from scheme land, despite any body corporate approval that had been obtained.

In this case the co-owner of Lot 2 indicates that the dog is creating a nuisance primarily by barking, but also by entering the exclusive use area of common property allocated to Lot 2. It is apparent that at times, an additional dog has been temporarily kept within Lot 1.

The submission from the co-owner of Lot 5 states that the owners of Lot 5 have not experienced problems with the dog. However, I note that Lot 5 is at the opposite end of scheme land in relation to Lot 1, whereas Lot 2 is directly next to Lot 1. I am mindful therefore that the owners and occupiers of Lot 2 might be more disturbed by barking, that may be of minimal disturbance to the owners or occupiers of Lot 5.

In spite of this, I consider there is insufficient evidence that the dog is causing an unreasonable disturbance to owners and occupiers of lots in the scheme. However, I would point out to the owner of Lot 1 that the body corporate has not approved additional animals being kept on scheme land. As such no further animals can be brought onto scheme land, whether or not the animal’s stay will be temporary.

If the owners of Lot 2 feel that the dog is continuing to cause a nuisance, then they could consider raising the matter at the next general meeting of the body corporate. If the majority of owners consider that the dog is creating an unreasonable nuisance then a motion could be passed revoking the approval previously given by the body corporate. In addition, the owners of Lot 2 (or any other affected owner or occupier) could lodge an application to resolve a dispute with this office providing full details of the disturbance that the dog is creating. If an application to this effect was lodged, it should be accompanied by supporting statements of other owners or occupiers, and/or other evidence demonstrating the nuisance created by the dog.

In conclusion, I intend to order that the applicant may continue to keep her current dog within the boundaries of Lot 1. However, the applicant is required to ensure that the animal is kept within the boundaries of Lot 1 (and the area of common property allocated for the exclusive use of Lot 1) at all times, the only exception being if the owner of Lot 1 wishes to take the dog off scheme land for a particular reason (for example, to take the dog to the vet). In such circumstances the owner of Lot 1 must carry the dog across common property to leave the scheme. I also intend to order that the owner of Lot 1 shall ensure that the dog does not create a nuisance or otherwise unreasonably disturb or interfere with other owners or occupiers. I also point out that the approval relates to the current dog only, and no other animals can be brought on to scheme land without further body corporate approval.


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