Palm Crest Heights [2002] QBCCMCmr 727 (17 December 2002)

DJ ReardonREFERENCE: 0559-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19265
Name of Scheme:	Palm Crest Heights
Address of Scheme:	Palm Meadows Drive CARARRA QLD 4211

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

Kathleen Brenton, the Owner of Lot 3

DJ ReardonI hereby order that the Owner of Lot 3 may keep her pet cat “Mintie” 2nwithin the boundaries of Lot 3, subject to the following conditions:

1. The Owner of Lot 3 shall ensure that the cat remains within the boundaries of Lot 3, and that the cat does not roam on common property or other lots included in the scheme. If the Owner of Lot 3 wishes to take the cat off the scheme land, the Owner of Lot 3 shall carry the cat across the common property as necessary.

2. The Owner of Lot 3 shall ensure that any animal litter or waste is effectively and promptly disposed of so as to avoid any health hazard or odour.

3. The Owner of Lot 3 shall ensure that the cat does not cause noise, or otherwise create a nuisance likely to interfere with the peaceful enjoyment of other owners and occupiers of lots included in the scheme.

4. The Owner of Lot 3 shall comply with the relevant by-laws concerning the keeping of animals as set out in the community management statement for the scheme.

5. This order only applies to the cat described above, and does not authorise the keeping of any new, replacement, or substitute animals on the scheme land.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0559-2002

“Palm Crest Heights” CTS 19265

1. Order sought

The Applicant, the Owner of Lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“That the owner of Lot 3 (No.3) Palm Crest Heights Palm Meadows Drive Carrara be allowed to keep her cat within the premises.”

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 “Palm Crest Heights” indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2. Application and submissions

This application was made on 10 September 2002. On 24 September 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited the Committee for the Body Corporate to make a written submission about the application. The Body Corporate Manager has made a submission to the application on behalf of the Committee.

On 22 October 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

3. Determination

As stated previously, this application concerns the Applicant’s desire to keep her pet cat on scheme land. The keeping of animals on scheme land is a matter that is normally addressed in the by-laws for a body corporate, which form part of the community management statement for the scheme. In accordance with section 53 of the Act, the community management statement for a community titles scheme is binding on the body corporate, and the owners and occupiers of lots included in the scheme.

The community management statement for “Palm Crest Heights” includes the following by-law concerning the keeping of animals on scheme land:

“7.6 Animals

(a) A Owner who, when he first takes possession of his lot, has a dog, cat or other small animal, which is a pet, may with prior approval of the Body Corporate; keep that animal on his lot but on its death is not entitled to replace it.

(b) A Owner or Occupier of a lot must not (subject to the provisions of the Guide Dogs Act 1972 and in the case of a Owner, subject to paragraph (a) of this By-Law) raise, breed or keep animals on his lot, excepting Owner or Occupiers who have written consent to do so prior to the registration of this By-Law.

(c) Subject to paragraphs (a) and (b) above:

(i)	Any prior written consent to keep an animal may be withdrawn in circumstances where the Body Corporate reasonably considers that the keeping of the animal may interfere with the quiet enjoyment of another lot by its Owner or Occupier.
(ii)	All animals must be kept clean, quiet and controlled. Animals must not be permitted on any part of the Common Property unless carried or on a leash. Each Owner and Occupier is absolutely responsible to clean up after any animal brought or kept upon the parcel by him or his invitees.
(iii)	Any Owner or Occupier who keeps and maintains a pet thereby expressly assumes any and all liability for any and all action by the pet, whether or not the Owner of Occupier had knowledge, notice, or forewarning of the likelihood of such action.
(iv)	All pets shall be registered with the Body Corporate Resident Manager and shall otherwise be registered and inoculated as required by law.
(v)	Dogs shall carry conspicuous tag.
(vi)	The Body Corporate will have the right to order any person who persistently breaches this By-Law to permanently remove their pet from the Lot and the Parcel.”

From the material before me, I understand that the Committee initially refused the Applicant’s request for approval to keep her cat on scheme land. However, it appears that the Committee has reconsidered its position on the matter. As a result, it seems to me that this dispute is largely resolved. In this regard, I refer to the Committee’s submission, which includes the following statements:

“The Committee for Palm Crest Heights has reviewed the resolution concerning (the Applicant’s) application to keep a cat. The committee now approves the application conditional upon the animal being confined to (the Applicant’s) unit and not permitted on common property.”

In light of the Committee’s reconsideration of this matter, I intend to order that the Owner of Lot 3 may keep her cat within the boundaries of Lot 3, subject to certain conditions aimed at ensuring that the cat does not cause a nuisance, or otherwise unreasonably interfere with the peaceful enjoyment of other lots included in the scheme.