Gateway Gardens [2003] QBCCMCmr 192 (31 October 2003)

Last Updated: 17 May 2005

REFERENCE: 0251-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22498
Name of Scheme:	Gateway Gardens
Address of Scheme:	58 Groll Road BOONDALL QLD 4034

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Gateway Gardens CTS 22498

I hereby order that the application for an order that the owners of lot 28, Julia-Dale Steley and Craig Robert Steley, remove the dog presently being kept in their lot, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0251-2003

"Gateway Gardens" CTS 22498

The applicant, the body corporate for Gateway Gardens, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the owners of lot 28, Julia-Dale Steley and Craig Robert Steley (the respondents), remove the dog which they are keeping on their lot.

Section 276(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 contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

In the supporting grounds, the applicant states that the respondents sought approval to keep their dog, but the committee refused to grant approval. In a letter dated 12 November 2002 from the body corporate manager to the respondents, it was stated in part, that "discussions held at recent general meetings of the body corporate have reflected the opinion that the majority of owners do not want animals at Gateway Gardens and the committee had to take these discussions into consideration when making their decision."

In an earlier letter dated 24 October 2002, the body corporate manager advised the respondents "(f)or your information we would like to advise that there is a strict no animals policy at Gateway Gardens and we would appreciate your assistance in abiding by this by-law."

All owners and the respondents were invited to respond to the application. Of the 25 lots in this scheme, submissions were received from the respondents, and one other owner.

The respondents stated that they had been advised by their real estate agent before purchasing their lot that they could have a dog. The applicants explained that on this basis they did not seek approval from the body corporate before they moved into their lot, but once alerted to the requirement to apply for approval they did so immediately. In addition, the respondents noted that four other residents who had applied to have pets had been given approval to do so by the body corporate. They also noted that two other residents who had not sought body corporate approval had been required to remove their pets. The applicants further stated that their dog is quiet, and will not cause a nuisance to other owners.

The other owner who lodged a submission stated that he was not aware of the respondents’ dog, as he has never heard it or seen it. He stated that he could see no reason for concern, and pointed out that there are a number of cats which are kept at other units. He further stated that if any action were to be taken to remove the respondents’ dog, then so too should action be taken to remove the cats.

The presence of cats in the scheme was confirmed by the body corporate manager in a telephone conversation with a member of the Commissioner’s staff, Mr Matthew Sarna, on 31 October 2003. The body corporate manager further confirmed that the cats had been approved as far as she was aware. The body corporate manager further stated that approval had been given for a dog to be kept in the scheme, but that dog had passed away and at the moment the body corporate does not want anymore animals.

It should firstly be noted that by-law 11 relating to the keeping of animals provides that the occupier of a lot must not, without the body corporate’s written approval bring or keep an animal on a lot. The by-law further provides that the approval must be obtained before the animal is brought onto the lot. It is therefore incorrect that this scheme has a "strict no animals policy" as the body corporate manager stated in her letter to the respondents on 24 October 2002. Furthermore, given that other animals have been approved in the past, it is clear that there is not a "strict no animals policy". If the body corporate wishes to implement such a policy, it needs to change its by-law.

The respondents acknowledged that they did not seek approval before they brought their dog onto their lot, but I accept their explanation as to why they did not do so, and note that immediately they were advised of the by-law, they formally sought approval. Unfortunately, this office regularly reads submissions in which real estate agents are said to have advised prospective purchasers that they can keep an animal, when the by-laws of the scheme in fact require body corporate approval to keep an animal. It is incumbent upon owners to acquaint themselves with the by-laws of the scheme, but in many instances they rely instead on information given to them, as in this instance, which can sometimes cause a great deal of anguish.

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 -

• 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.

• 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.

In my view the body corporate committee has discriminated against the respondents in refusing to approve their dog, when there are a number of approved cats in the scheme. I am also persuaded by the absence of submissions supporting the application that owners are not too concerned about the presence of the respondents’ dog. It is apparent that the dog is not causing a nuisance. Perhaps owners can see the unfairness of seeking removal of a dog when other owners have been allowed to have cats.

I have therefore dismissed the application.