Sailview Villas [2003] QBCCMCmr 439 (26 March 2003)

Last Updated: 10 September 2007

C G YOUNGREFERENCE: 0701-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19334
Name of Scheme:	Sailview Villas
Address of Scheme:	12 Glenora Street, WYNNUM QLD 4178

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Graeme Charles COOK and Teresa Mary FARRELL-COOK, as owner and occupier of Lot 14 respectively,

C G YOUNGI hereby order that the application for the following order –

"The order we are seeking is to obtain approval from the Body Corporate to keep our family dog (a miniature French Poodle) in our recently acquired town house",

is dismissed.

I further order that Graeme Cook and Teresa Farrell-Cook must not bring their poodle dog onto the scheme but must keep it removed from their lot and scheme common property.2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0701-2002

"Sailview Villas" CTS 19334

The applicants, Graeme Cook and Teresa Farrell-Cook of Lot 14, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"The order we are seeking is to obtain approval from the Body Corporate to keep our family dog (a miniature French Poodle) in our recently acquired town house."

JURISDICTION:
This is a dispute between an owner and occupier (the applicants Graeme Cook and Teresa Farrell-Cook respectively) and the body corporate (the respondent), concerning the refusal by the body corporate (committee) to exercise its discretion under its by-laws to allow the applicants to keep their dog on their lot. This is a matter falling within the disputes resolution provisions of the legislation (see sections 182A, 183 and 223 of the act).

I note that the application was only signed by Graeme Cook though it is completed as a joint application with Teresa Farrell-Cook. As the reply to submissions (see under heading "Application and Submissions" below) is signed by both parties, I will therefore accept the application as being made by both parties.

General powers of an Adjudicator in making an order:
Section 223(1) 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).

APPLICATION AND SUBMISSIONS:

Under section 194 of the Act, a copy of the application was provided to the respondent body corporate (committee) and to other owners, with an invitation to respond to the matter of dispute raised in the application. The respondent committee for the body corporate made a submission, as did a number of owners. The committee confirmed its decision to refuse the dog, and 5 of the 6 owners making submissions were against the application, while one owner supported the application. The applicants viewed the submissions under the authority of section 196 of the Act, and made a written reply to the submissions.

The brief facts of the matter are as follows. The by- laws of the body corporate include By-law 15 which prohibits occupiers from bringing an animal onto a lot or the common property without the express written consent of the body corporate committee.

In recent times, the applicants purchased a lot in the scheme and, through their solicitor, sought the consent of the committee to keeping a dog on their lot. By letter dated 28 October 2002, the committee (through the Body Corporate Manager, AD Body Corporate Managers & Consultants) refused its consent.

They have now made application for the body corporate refusal to be overturned. They state that the dog is considered part of the family, is well behaved and trained, and they will take full responsibility for its behaviour so that it will not cause a nuisance to others.

DETERMINATION:

"Sailview Villas" was registered as a group titles plan (now termed a standard format plan) on 21 December 1993, and comprises 18 lots.

On 11 May 2001, the body corporate had recorded a new Community Management Statement with the Registrar of Titles which contained in its by-laws the following By-law 15 –

By-law 15. Keeping of Animals.

Subject to section 143 of the Act, Occupiers must not, except with the consent in writing of the Body Corporate Committee –

(i)	Bring or keep an animal or bird on a Lot or the Common Property, or
(ii)	Permit an Invitee to bring or keep an animal or bird on a Lot or the Common Property.

Any consent of the Body Corporate Committee may be –

(iii)	Given on conditions, and
(iv)	Withdrawn at any time.

Accordingly, the committee has a discretion to either refuse or give consent to the keeping of a dog.

Before making my determination, I will describe the general approach of adjudicators to disputes involving animals and animal by-laws, by quoting from my reasons to another similar dispute-

"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 -

•	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 a owner 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 equally."

In this matter, acquiescence is not a sustainable ground as the dog’s presence on the lot has been only occasional and therefore not for anywhere near a sizeable length of time such that removal would be harsh and unconscionable.

In regard to discrimination, I understand that there are no other dogs kept on the scheme and therefore this ground cannot apply.

While I accept the applicant’s submission that the dog is more than a pet, and that they will control it so that it will not cause a nuisance, that is no ground for overturning the committee’s decision. Because of the close configuration of lots in the scheme, the committee has determined a "no dogs" policy. This is not an unusual stance in such community titles schemes such as this where close living requires disciplined measures concerning noise and other considerations, including the noise and health issues associated with dogs.

I would also point out that, upon purchasing the lot, Cook should have properly searched the by-laws of the body corporate before completing the purchase. The contract for the purchase of a community title lot must now compulsorily include as its first and second pages, a "Warning" statement from the State government, advising intending purchasers to obtain certain listed information before signing a contract of sale. The narrative includes a general caution concerning by-laws and specific advice concerning animal by-laws. I am uncertain whether Cook did this search or not, and was therefore aware of the by-law and the possible refusal of the committee to his keeping a dog. He, and Teresa Farrell-Cook, cannot expect other owners in the scheme to change their policy on animal ownership simply by having a dog at the time of purchase – they would, or should, have been aware of the possible refusal of the body corporate and had they made enquiries of the body corporate as to its animal policy, they would have been in no doubt that they faced refusal if the completed the purchase.

There is nothing in either the application or reply of the applicants, or the stance of the committee, that persuades me to overturn the committee’s decision. I have therefore dismissed the application and consequentially ordered that the dog not be brought onto the scheme again.