Palm Grove Village [2003] QBCCMCmr 71 (18 August 2003)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Susan Barter and Simon Barter, the Occupiers of Unit 21

I hereby order that the Occupiers of Unit 21, Mrs Susan Barter and Mr Simon Barter, may keep their two pet budgerigars within the boundaries of Unit 21 subject to the following conditions:

1. The Occupiers of Unit 21 shall ensure that the budgerigars remain within the boundaries of Unit 21. If the Occupiers of Unit 21 wish to temporarily take the budgerigars off the scheme land for whatever reason, they shall carry the budgerigars across the common property in a cage.
2. The Occupiers of Unit 21 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 Occupiers of Unit 21 shall ensure that the budgerigars do 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. This order only applies to the two budgerigars currently being kept in Unit 21 and does not authorise the keeping of any further birds, or the replacement of the budgerigars.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0092-2003

"Palm Grove Village" CTS 28536

The Applicants, the Occupiers of Unit 21, have sought an adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act") permitting them to keep two pet budgerigars within Unit 21.

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

(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 "Palm Grove Village" community titles scheme consists of 52 lots and common property. A new community management statement has been recorded for "Palm Grove Village" and indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

This dispute resolution application was made on 12 February 2003. From the material I understand that the Applicants have a disability which impacts on their capacity to effectively communicate with other people. I understand that Ms Celia Perry, a friend of the Applicants, assisted in the preparation of the application.

On 20 February 2003, a staff member of this Office contacted Ms Perry on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner") and requested further details and clarification of the application. In addition, on 26 February 2003, a staff member of this Office wrote to the Applicants and requested clarification and further details of the application.

Following Ms Perry’s responses to the Commissioner’s request for further details and clarification of the application, on 18 March 2003, the Commissioner invited the Committee for the Body Corporate, and all owners of a lot included in the scheme, to make written submissions about the application. A number of submissions have been received from owners and occupiers of lots included in the scheme.

On 14 May 2003, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication. The Commissioner has referred the application to me for determination.

The body corporate legislation allows bodies corporate to adopt by-laws, which in general terms, can provide for the administration, management and control of common property and body corporate assets, and regulate the use and enjoyment of lots, and common property for the scheme, any body corporate assets, and services and amenities supplied by the body corporate (section 169 of the Act). By-laws for a body corporate are outlined in the community management statement applying to the scheme.

The keeping of animals on scheme land is a matter that is commonly dealt with in body corporate by-laws. The community management statement for "Palm Grove Village" includes the following by-law for the keeping of animals, quote-

In accordance with section 59(2) of the Act, the community management statement for a community titles scheme (including the by-laws), is binding on the body corporate, and the owners and occupiers of lots included in the scheme.

One of the general functions of bodies corporate is to enforce the community management statement (including any by-laws) for the scheme (section 94(1)(b) of the Act). However, it is important to note that bodies corporate must act reasonably in carrying out their general functions, including the enforcement of by-laws (section 94(2) of the Act).

In this instance, the Applicants are keeping two pet budgerigars in Unit 21 without the approval of the Body Corporate, contrary to the above by-law. It is not clear from the material whether or not the Applicants have formally sought the approval of the Body Corporate for keeping the budgerigars. Normally, I would consider that this is a pre-requisite step to seeking an adjudicator’s decision on the issue. However, in this case it is clear that the Body Corporate has issued the Applicants with a Notice of Continuing Contravention of a Body Corporate By-law requiring the Applicants to remove their birds. In the circumstances, I am satisfied that the Body Corporate has effectively refused to give the Applicants permission to keep the birds, and I will consider the application notwithstanding that it appears that the Applicants have failed to properly seek Body Corporate approval for their birds.

Generally when determining dispute resolution applications concerning the keeping of animals, adjudicators either order compliance with the by-law (where removal of an animal is sought by the body corporate), or dismiss the application (where an owner or occupier wants the body corporate’s refusal to grant approval for the keeping of an animal overturned), except where the owner or occupier can establish one of the following 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 body corporate 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.

In addition to the above principles, in my view adjudicators may also generally consider whether or not the body corporate is acting reasonably in its application of the by-laws in accordance with its functions and obligations under section 94 of the Act.

In this case, I have not been presented with information that would lead me to believe that the Body Corporate has either unreasonably acquiesced, or discriminated against the Applicants, in the context of keeping animals on scheme land. However I am not satisfied that the Body Corporate has acted entirely reasonably in respect of the Applicants’ wish to keep their pet budgerigars in Unit 21.

Firstly, in my view the terms of the above by-law cannot be properly interpreted to mean that occupiers are not permitted to keep animals in their lots under any circumstances. While I appreciate that it is important for the Body Corporate to adopt a consistent, and therefore fair, policy regarding animals, it is clear that the terms of the by-law provide the Body Corporate with discretion to decide whether or not to provide an owner or occupier with written approval to keep an animal on scheme land.

It is my view that in these circumstances, the Body Corporate should not refuse a request from an owner to keep an animal solely on the basis of a general policy of refusing owners and occupiers permission to keep their animals on scheme land. Rather, the Body Corporate should give consideration to the merits of each request. If the Body Corporate wishes to adopt a strict "no animals" policy, in my opinion, the Body Corporate should give consideration to amending the terms of its by-law dealing with the keeping of animals.

In this instance, I am not satisfied that the Body Corporate has given proper consideration to the merits of the Applicants’ request to keep their budgerigars in Unit 21. While the Committee has not formally made a submission about the application, the submission signed by a number of owners and occupiers opposing the application seems to indicate that the Body Corporate is concerned about setting a precedent for the keeping of animals. The submission also contains a number of examples of instances where occupiers have kept animals on scheme land, which the Body Corporate does not want repeated.

In my view, the examples outlined in the submission are fairly extreme cases. For instance, the submission describes situations such as one occupier keeping 13 birds in their unit, and another occupier keeping 2 blue heelers in their unit. The submission also describes an instance where an occupier was keeping ponies in the garage. I do not consider that any of these examples are comparable to the Applicants’ desire to keep two budgerigars, and I do not consider that allowing the Applicants to keep their budgerigars sets a precedent that would compel the Body Corporate to tolerate occupiers keeping any animals whatsoever on their lots.

There is nothing in the material submitted in relation to this application that convinces me that the Applicant’s budgerigars will cause any real nuisance or interference to other occupiers.

In the circumstances, I have ordered that the Applicants may keep their budgerigars within Unit 21, on certain conditions designed to ensure that the birds do not unreasonably interfere with other owners and occupiers.

^[1] The reference to section 143 of the Act in the by-law is a reference to a provision of the legislation (recently renumbered as section 181) which exempts guide dogs from the operation of by-laws restricting the keeping of animals on scheme land.

Number of Scheme:	28536
Name of Scheme:	Palm Grove Village
Address of Scheme:	84-86 Lawrence Drive NERANG QLD 4211

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Grove Village [2003] QBCCMCmr 71 (18 August 2003)