Hatari [2002] QBCCMCmr 489 (5 August 2002)

DJ ReardonREFERENCE: 0338-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9986
Name of Scheme:	Hatari
Address of Scheme:	156 Frank Street LABRADOR QLD 4215

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

Georgina De Vriend, the Occupier of Lot 2,


DJ ReardonI hereby order that the Occupier of Lot 2 may continue to keep the cat currently being kept in Lot 2, provided that the cat is at all times kept within the boundaries of Lot 2, and that the Occupier of Lot 2 ensures that the cat does not cause a nuisance, or 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 0338-2002

“Hatari” CTS 9986

1.	Order sought

The Applicant, the Occupier of Lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), that she be allowed to keep a cat on her lot.

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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)).

The community management statement for the “Hatari” community titles scheme indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (“the Accommodation Module”), applies to the scheme.

2.	Application and submissions

This application was made on 6 June 2002. On 18 June 2002, the Commissioner for Body Corporate and Community Management invited the Committee for the Body Corporate, and all owners of lots included in the scheme, to make a written submission about the application. The Owner of Lot 1, the Co-owners of lots 5 and 9, and the Owner of Lot 4 have made written submissions about the application.

The Applicant requested, and was provided with copies of the submissions made in respect of the application pursuant to section 196 of the Act. The Applicant has also made a brief reply to the submissions.

On 29 July 2002, the Commissioner for Body Corporate and Community Management made an initial case management recommendation that the application should be the subject of departmental adjudication.

3.	Relevant by-law

As stated previously, this application concerns the Applicant’s desire to keep an animal (a cat) on scheme land. The keeping of animals on scheme land is a matter that is normally dealt with in the by-laws of the Body Corporate.

Departmental records indicate that the following by-law has been recorded for the “Hatari” Body Corporate, quote-

“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 onto the lot or the common property.”

4.	Approach of referees and adjudicators to disputes concerning animal 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 of an animal is sought by the body corporate), or to dismiss the application (where an owner or occupier wants the committee's refusal overturned), except where the owner or occupier 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 or occupier to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for an owner or occupier 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 and occupiers equally regarding the enforcement of by-laws.

5.	Matters in dispute

In the supporting grounds to the application, the Applicant states that she has occupied Lot 2 for almost 2 years. The Applicant also states that the cat has lived with her in Lot 2 for approximately 18 months.

From the material before me, it appears that the Body Corporate Manager for the scheme issued the Applicant with a letter dated 9 April 2002. In the letter the Body Corporate Manager indicates that complaints have been made about the cat, states the relevant by-law for the scheme, and advises that the cat must be removed within 14 days.

I have also been provided with a copy of a letter dated 17 April 2002 from the Applicant to the Body Corporate requesting permission to keep the cat on scheme land. In a letter dated 24 April 2002, the Body Corporate Manager for the scheme advises the Applicant that the request to keep the animal was not approved.

The Applicant has raised a number of grounds in support of this application for an order that she be permitted to keep her cat. The main matters raised by the Applicant are,

•	The Applicant was unaware of the by-laws relating to the scheme.
•	The Applicant thought she had approval to keep the animal.
•	The Applicant states that the cat has a therapeutic function in relation to a specific medial condition.
•	The Applicant notes that prior to the letter of 9 April 2002, the Body Corporate had not take any action in regards to the Applicant’s cat.

From the material before me, it appears that on the basis of the above statements, the Applicant considers that the Body Corporate has not acted reasonably in its consideration of, and decision regarding the Applicant’s request to keep her cat on scheme land.

I find the first two points of the Applicant’s grounds as outlined above somewhat unconvincing. While I appreciate that in some circumstances tenants in particular are not provided with copies of by-laws, to my mind, it would be impractical to allow this to be a defence for continuing breaches of by-laws. The by-laws for a body corporate cover many issues, and in my view are essential for ensuring that all owners and occupiers can peacefully enjoy the use of their lots and common property. For example, it would obviously be extremely undesirable for occupiers to breach, and continue to breach by-laws relating to parking on common property on the basis that they were not initially made aware of the by-laws for the scheme, and assumed that they would be able to permanently park a vehicle on common property. Similarly, I would not excuse a breach of by-laws on the basis that the Applicant thought she had approval for the cat from a caretaker/gardener. To allow such a position would mean that Bodies Corporate and other owners and occupiers would be bound by the statements and decisions of persons whom have no authority to make such decisions.

The third ground raised by the Applicant is more difficult. While I appreciate that animals can play an important role in people’s lives, and I also appreciate the potential therapeutic role animals can play in regard to medical conditions, in my view this is generally not a factor that should be taken into consideration. My main reason for this position is that as most people could argue that a much loved pet has a positive effect on their lives, and their emotional and mental well being, it becomes a difficult question of degree as to when this health benefit entitles a person to breach the by-laws for the scheme, which are in their essence designed to ensure that all owners and occupiers can peacefully enjoy their lots and common property.

However, notwithstanding the above, in my view, the Body Corporate has shown a significant degree of acquiescence to the Applicant’s cat. From the material before me, it appears that the cat has been kept in Lot 2 since very early 2001. It also appears that the Body Corporate did not take any action in regard to the cat until its letter dated 9 April 2002, some 15 months later. In my view, this is a lengthy delay, and could lead to the Applicant reasonably assuming that she had some form of implicit approval for the animal. I consider that in the circumstances it is not reasonable for the Body Corporate to require the Applicant to comply with by-law 11 and remove the cat after this length of time. I note that the issue of the length of time the Body Corporate has taken to take action on this matter was not substantially addressed in any of the submissions made in response to the application.

6.	Conclusion

For the reasons outlined above, I intend to order that the Applicant may keep her cat within the boundaries of Lot 2 for the time being. All parties should be aware that this decision is based on the specific circumstances of this case, and should not be taken as a precedent for other owners or occupiers to bring animals onto scheme land without proper approval of the Body Corporate. Similarly, this decision relates solely to the current cat being kept by the Applicant. This decision does not entitle the Applicant to bring further animals on to scheme land, or to replace her current cat without proper Body Corporate approval.

However, I also intend to impose conditions on the approval granted by this order. Firstly, the Applicant must ensure that the cat is kept within the boundaries of Lot 2. If the Applicant wishes to take the cat off2n the scheme land for reasons such as exercise, or to take the cat to the vet, the Applicant must ensure that she carries the cat across the common property. I also intend to order that the approval under this order is subject to the Occupier of Lot 2 ensuring that that the cat does not cause a nuisance, or otherwise interfere with the lawful use of lots or common property by other owners or occupiers of lots in the scheme. n
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