Spinnaker Seas [2001] QBCCMCmr 50 (5 February 2001)

P J HanlyREFERENCE: 0630-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4827
Name of Scheme:	Spinnaker Seas
Address of Scheme:	64 Edmund Steet Kings Beach CALOUNDRA QLD 4551

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

Tony and Susan NESTEROWICH, the co-owners of Lot 6



P J HanlyI hereby order that the application by Tony NESTEROWICH and Susan NESTEROWICH, the co-owners of Lot 6 for an order 2nto keep a dog on the lot, is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0630-2000

“Spinnaker Seas” CTS 4827

The applicants, Tony and Susan Nesterowich of Lot 6 have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) to take a pet dog to Lot 6.

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 applicants included a copy of a letter addressed to the body corporate manager dated 23 October 2000 where they requested body corporate permission to take the dog when they stay at the scheme. By letter dated 30 October 2000, the body corporate manager informed the applicants that the committee has denied their request.

A copy of the application was forwarded to the secretary for distribution to all owners (excluding the applicants). Four lot owners made written submissions stating their opposition to the application.

The applicable by-laws for this scheme are those contained in the Third Schedule of the Building Units and Group Titles Act 1980. The relevant by-law concerning animals is By-law 11 which states-

11. Keeping of animals.

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 lot or the common property.

My order is to dismiss the application for the following reasons.

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

Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are continuously being approached with requests for orders seeking either that an animal be removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal, be overturned. Often these owners claim there are "special circumstances" why they should be allowed to keep an animal. The view of adjudicator’s, as with the Referee, is that the by-law regarding animals, like all other by-laws, is there to be observed. It should not be afforded any special significance simply because it is often the subject of much emotion.

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 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 an owner to have to remove an animal that they have been allowed to keep over a 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, 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.

In this instance the applicants have recently obtained a small dog which they seek to take to the scheme when they stay at their unit. The applicants unsuccessfully sought body corporate approval to keep the dog on Lot 6. The applicants have not shown that the dog has been kept on Lot 6 with the knowledge of the body corporate, nor have they established that the body corporate has acted in a discriminatory manner in refusing its consent to keep the dog on Lot 6. Further, four of the nine lot owners have expressed their opposition to the keeping of the dog. For these reasons, I have dismissed the application.