Kookaburra Park Eco Village [2001] QBCCMCmr 489 (3 September 2001)

P J HANLYREFERENCE: 0392-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19671
Name of Scheme:	Kookaburra Park Eco-Village
Address of Scheme:	MS 368 GIN GIN QLD 4671

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Kookaburra Park Eco-Village CTS 19671

I hereby order that the owners of lot 73, Rudolf Ondrich and Libuse Ondrich, shall within 1 month of the date of this order, remove the dog being kept upon their lot and thereafter keep the dog permanently removed from the lot, and from the scheme generally.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0392-2001

“Kookaburra Park Eco- Village” CTS 19671

The applicant, the body corporate for Kookaburra Park Eco-Village CTS 19671, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

To order Mr and Mrs Ondrich to cease breaching by-law 12 and permanently remove their dog from Kookaburra Park.

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 the owners of lot 73 have a dog on their lot, in contravention of the by-laws, and the vast majority of owners require that the dog be removed. The applicant subsequently provided copies of two reports received from Mrs Ondrich’s treating doctor, and from a clinical nurse at the Bundaberg Hospital, both advocating the retention of the dog for therapeutic purposes.

The owners of lot 73 were invited to respond to the application, and provided various material for consideration in their submission.

The recorded by-laws for this scheme include two by-laws, which are relevant to this application. By-law 1(a) provides:
The common property shall at all times be used, managed and controlled so as to conform with the following principles and no use or activity of the common property shall be performed or conducted contrary to such principles:

(a)	the flora and fauna are to be observed and enjoyed at all times and in such manner as will preserve the environment with full recognition of th environmental sensitivity of the area;
(b)	...

By-law 12 provides:
A resident may, with the consent of the Council of the body corporate only, keep certain domestic animals or fowl on a lot or the common property.
Subject to s.30(12) of the Building Units and Group titles Act 1980, the keeping of cats and dogs is prohibited, and a resident must ensure that the provisions of this by-law are strictly adhered to both by a resident and any invitee to a lot or the common property.

The owners of lot 73 acknowledge that they were aware of the by-laws when they signed their contract on 8 August 1997.

The general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws has been as follows.

Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are often required to determine requests for orders which seek either to have an animal removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal be overturned. Often owners claim there are "special circumstances" why they should be allowed to keep their animal. The view of adjudicator’s (as was the case with the Referee) is that animal by-laws, like all other by-laws, are to be observed by occupiers. It should not be afforded any special significance simply because it is often the subject of emotional appeals.

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, evidenced by it not taking steps to remove the animal over a reasonable period of time. That is, the body corporate has failed to act on the by-law for some time causing the owner to assume implicit approval to keep the animal. The basis for allowing 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 for an extended 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, without there being any logical or reasonable basis for the distinction to be made. Another 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 different treatment. The basis for allowing this exception is that bodies corporate must treat all owners equally.

The body corporate took immediate steps to have the Ondrich’s dog removed, upon learning of its presence on the scheme. There is no other dog living on the scheme. I am therefore satisfied that there has been neither acquiescence nor discrimination in this matter. Accordingly, I have ordered that the owners of lot 73 shall remove the dog from their lot within 1 month of the date of my order, and that they shall thereafter keep the dog permanently removed from the lot and the common property.