Hermitage Gardens -The Grange [2002] QBCCMCmr 241 (24 April 2002)

C G YOUNGREFERENCE: 0004-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26995
Name of Scheme:	Hermitage Gardens -The Grange
Address of Scheme:	106 Jean Street

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

Joanne Betschart, the occupier of Lot 43,



C G YOUNGI hereby order that Joanne Betschart, the occupier of Lot 43, must comply with By-law 11 of the body corporate by-laws and restrain her cat from using the common property at any time.

I further order that the license issued by the body corporate committee for the owner of Lot 120 to keep three (3) chickens in an enclosed structure, is void to the extent of its inconsistency with By-law 11 which prohibits more than one small domestic animal being kept by an owner or occupier. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0004-2002

“Hermitage Gardens -The Grange” CTS 26995

The applicant, Joanne Betschart of Lot 43, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“I seek permission to allow my de-sexed domestic cat to use the common property in daylight hours only. I would undertake to lock the cat up at night.

If this is not possible due to by law No. 11, I seek to have the number of small domestic animals limited to one by the owners of Lot 120.”

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

The applicant has raised two disputes in her application: one concerning her cat’s use of common property; and the legality of the licence issued by the committee to R & A McIntosh, co-owners of Lot 120, to keep three chickens on their lot. I shall deal with each dispute separately.

By-law 11 referred to in the orders sought above, states –

“By-law 11.

Subject to local authority requirements a proprietor or occupier of a lot may keep one small domestic animal upon his lot or any common property over which he has exclusive use.”

LOT 43 - CAT:
In the supporting grounds, the applicant states that when she renewed her lease in late 2001 to occupy Lot 43, she was reminded of the by-law requirements that the cat could not use the common property. She recalls, however, that when she signed the lease 12 months previously, the letting agent said her cat, “was able to go onto the common property”. Knowing of the licence granted to R & A McIntosh, Resident Managers of Lot 120, on 1 December 2001 she asked a committee member, Brian Flaherty, whether she could keep another small domestic animal in a enclosure on her lot, but was told that it would be refused as being in breach of By-law 11 (hereafter “the by-law”). She now seeks the right for her cat to use the common property in daylight hours.

It is a commonplace thing for purchasers of community title lots to be told by the relevant real estate agent that animals are permitted by the body corporate, or that only certain conditions apply to the keeping of pets (which invariably fit the circumstances of the purchasers pet). The same can be said of many letting agents, or owners, in respect of prospective tenants. Sometimes the arrangement is even included in the lease agreement. According to the applicant, the initial letting agent gave her such an assurance.

The relevant law is as follow. Section 53 of the Act provides that the community management statement, including the by-laws forming part of the statement, is binding on both lot owners and occupiers of a lot. Accordingly, the by-law is equally binding on the applicant as it is on other occupiers, and owners.

The provision also has implications for the permission purportedly given the applicant by the letting agent. Even if this permission was included as a clause in a written tenancy agreement, it would have no effect as owners (or their agents) have no authority to grant a right either verbally or in a lease agreement that is in conflict with the by-law. It would also be in conflict with the Residential Tenancies Act 1994 and the Residential Tenancies Regulation 1995.

• Section 45 of the Residential Tenancies Act 1994 states –

“By-laws

45. If by-laws under the Building Units and Group Titles Act 1980 or Body Corporate and Community Management Act 1997 are to apply to the occupation of premises by a tenant, the lessor must inform the tenant of the application of the by-laws, when giving the written agreement to the tenant for signing.

Maximum penalty—20 penalty units.”

• Clause 22 of Schedule 1 of the Residential Tenancies Regulation 1995 states –

• ú

“Units and townhouses—s 45

22.(1) The lessor must give the tenant a copy of any body corporate by-laws under the Body Corporate and Community Management Act 1997 that apply to the occupation of the premises or any common area available for use by the tenant with the premises.

(2) The tenant must comply with any of the by-laws that apply to the occupation of the premises by the tenant or to any common area available for use by the tenant with the premises.”

(NOTE: Adjudicator’s underlining)

In summary, any approval given a tenant, whether verbally or in the lease agreement itself, is of no effect and can be ignore by the body corporate in enforcing its by-laws against the tenant. Of course, if a tenant believes they were misled by the owner or agent by taking up the tenancy in reliance on the purported approval given to keep an animal, or as in this case that the animal could use the common property, then their avenue of any legal redress is against the party and not the body corporate.

The body corporate committee can not act in contravention of its own by-law and allow the cat to use common property, nor is there any unfairness which would persuade me to overturn this restriction. I have made the last statement in the knowledge of how I intend to deal with the licence given to R & A McIntosh.

My order is therefore to dismiss the first order sought by the applicant, namely that her cat be allowed to use the common property in daylight hours.


LOT 120 – CHICKENS:
A body corporate draws its powers from the legislation (the Act and relevant regulatory module) and from its by-laws. It cannot act outside of those powers.

In the submission of the body corporate it states, “As the local authority requirements allowed the keeping of chickens, the Body Corporate issued a license for an aviary....” If by this statement the body corporate (committee) is saying that the restriction to one animal of a particular type gives way where the local government council allows more than one animal of that type to be kept, then that is not the interpretation I give to the preliminary words of the by-law. Those words, “subject to local authority requirements”, operate to restrict the number of animals of a particular type kept where the body corporate by-laws allow for the keeping of a higher number than the local government permits. For example, if a body corporate by-law allows three dogs to be kept but the local council restricts dogs to two per household (including a community title unit household), then only two can be kept – that is, the by-law does not apply to the extent of its inconsistency with the regulation.

Although a chicken is usually not a pet, it is a “small domestic animal” within the meaning of the by-law which also does not qualify the animal further in being a “pet” or a particular type of small domestic animal, for example, a dog or a cat. Accepting that a chicken is caught by the by-law, the fact that the local council allows three or more to be kept is irrelevant, and the limit of one must apply to R & A McIntosh of Lot 120.

If the body corporate wants to allow different numbers of animals to be kept, or to restrict the type of animal, then it must change its by-law. It cannot act beyond its powers, including granting a licence that is in contravention of one of its subsidiary powers set by by-law.2n

I might say here that the purpose of Betschart in seeking this order against R & A McIntosh appears to be one of “if I cannot have it nor should they”. If the circumstances were different, I may not have made an order to an application of this nature. However, as previously alluded to, I would have had to reconsider my order in respect of the first dispute if I had knowledge of a breach of the by-laws and allowed it to continue.

I have therefore ordered that the licence given is only lawful to the extent that it allows one chicken to be kept. I suggest that the body corporate reviews its by-law if it wishes to have different outcomes in respect of animals being kept.