Bushmead Villas [2003] QBCCMCmr 589 (23 June 2003)

Last Updated: 12 September 2007

REFERENCE: 0028-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19421
Name of Scheme:	Bushmead Villas
Address of Scheme:	4 Bushmead Street NERANG QLD 4211

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

the Body Corporate for Bushmead Villas, CTS 19421

I hereby order that the application for an order that the occupier of lot 19, Ms Kim Adams, remove the cat presently in her lot, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0028-2003

"Bushmead Villas" CTS 19421

The applicant, the body corporate for Bushmead Villas, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the occupier (tenant) of unit 19, Kim Adams, remove a cat from her unit immediately.

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)).

The applicant states that the occupant of unit 19 (lot 19) is contravening by-law 10 in that she is continuing to keep a cat on the lot without written approval from the body corporate, despite a request to remove the cat forthwith. The applicant further states that the occupant was requested in writing on 22 November 2002 to remove the cat.

All owners in the scheme, as well as the owner and the occupier of lot 19 were invited to respond to the application. Submissions were received from the occupier of lot 19, and from two owners, both of whom are also committee members.

The occupier of lot 19, Ms Kim Adams, stated that she has resided in the scheme for 4 1/2 years, during which time she has had her 14 year old desexed female cat living with her. Ms Adams further stated that at the beginning of her tenancy she noticed many animals in the scheme, and contacted her agent to obtain permission to have her cat. The agent apparently contacted the owner, and then advised Ms Adams that she could keep her cat. Ms Adams stated that at no stage was she advised that she should contact the body corporate. Ms Adams further stated that she finds it strange that she should now be asked to remove her cat after all of this time.

The two committee members who lodged submissions supported the application.

This scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). Its by-laws, recorded on 26 February 1997, include a specific by-law, by-law 10, relating to animals. It provides:

Subject to section 30(12), a proprietor or occupier of a lot shall not without the approval in writing of the body corporate, keep any animal upon his lot or the common property.



I note that the body corporate manager quoted a slightly differently worded by-law in her letter dated 22 November 2002 to Ms Adams. This by-law (which is by-law 11, not by-law 10) is taken from the standard by-laws found in Schedule 2 (now Schedule 4 since the March 2003 amendments to the Act). This by-law is not the applicable by-law for this scheme. The by-law I have quoted above is the correct by-law. Under the transitional provisions of the Act, section 283(2)(g)(i), the relevant by-laws for the scheme are those by-laws that, immediately before the commencement (13 July 1997) were the by-laws in force for the plan. It only matters to the extent of accuracy, as the intent of both by-laws is essentially the same.

The concern I have in this matter is that the cat in question has been present in the lot, apparently without complaint, for many years. Furthermore, if the response of owners is any indication, there does not seem to be a great deal of concern about the cat, except from the two owners who did send in a submission. As both of those owners are on the committee, the fact that they have supported the application is not surprising, as they were instrumental in authorising the filing of the application in the first place. Neither of these owners makes a direct allegation about Ms Adams’ cat.

I shall deal firstly with the apparent approval of the cat by the owners of the lot. Approval for the cat should have been given by the body corporate, and could not be given by the lot owners alone. Although Ms Adams may have been unaware of that, the owners of the lot should have realised that it was a matter for the body corporate. To that extent, therefore, I accept that the body corporate has not given formal approval for the cat to be on the lot.

I shall now set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws.

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 adjudicators, 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 -

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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 an owner to have to remove an animal that they have been allowed to keep over a period of time.

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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 instance, I am satisfied that Ms Adams believed (albeit mistakenly) that the presence of her cat had been approved. Furthermore, I consider that, in any event, the body corporate has acquiesced in relation to the cat, since no attempt has been made for 4 1/2 years to have it removed. The cat is very old, and it would in my view be manifestly unjust to order that the cat now be removed from its home. Ms Adams should note, however, that if her present cat dies, and she wishes to replace it, she must seek the approval of the body corporate committee before she does so.

I have dismissed the application.