Proud's Landing [2004] QBCCMCmr 17 (9 January 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Lynette Charles, the owner of lot 132

I hereby order that the applicant, Lynette Charles, shall be permitted to keep her dog (a 13 year old male cocker spaniel) on Lot 132, subject to the following conditions:

1. The owner of Lot 132 must ensure that her dog remains within the boundaries of Lot 132 and does not roam on common property or onto other lots within the scheme. If the owner wishes to take the dog off the scheme land, it should be carried across common property as necessary.
2. The owner of Lot 132 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 132 shall ensure that her dog does not cause noise, or otherwise create a nuisance likely to interfere with the peaceful enjoyment of other owners and occupiers of lots in the scheme.
4. The body corporate committee shall be allowed to rescind permission for the dog if it reasonably considers that the owner of Lot 132 has not complied with the conditions outlined above.
5. This order only applies to the dog described above, and does not authorise the keeping of any additional, replacement, or substitute animal on Lot 132.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0442-2003

"Proud’s Landing" CTS 19743

APPLICATION

This application was made by Lynette Charles, owner of Lot 132 (applicant) on 30 June 2003 under the Body Corporate and Community Management Act 1997 (Act). The applicant sought an order against the Body Corporate for Proud’s Landing (respondent) in the following terms: "We would like to have enjoyment with our pets living at Prouds Landing."

Proud’s Landing community titles scheme (Proud’s Landing) consists of 266 lots and common property. The community management statement for Proud’s Landing indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent body corporate and to all owners, with an invitation to the committee and all owners to respond to the matters raised in the application. A written submission was made on behalf of the respondent and 18 submissions were received from owners. The applicant did not avail herself of the opportunity to inspect and reply to submissions (see sections 246 and 244 of the Act respectively).

The application was referred to mediation with the Dispute Resolution Centre of the Department of Justice and Attorney-General. The dispute was unable to be mediated, and so a further dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

This is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

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:

(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)).

MATTERS IN DISPUTE

The application relates to the keeping of pets in Lot 132. The facts of the dispute, as outlined in the application, submissions, and reply to submissions, can be summarised as follows.
The applicant advises that she purchased Lot 132 in January 2002, and was assured by the real estate agent that pets were permitted. Her family moved in on 3 April 2002, with two cocker spaniels. She asserts that at the time of moving in she told "Carol (the Prouds Landing Manager)"about these dogs, but was not told that approval for the dogs was required. The respondent has not refuted this.

After the escape of one of the dogs onto common property, the applicant received a letter from the body corporate secretary on 12 September 2002 advising her of the by-laws, instructing her to apply for permission to keep the pets, and requiring her to keep the dogs secured at all times. She made a written application for approval on 19 September 2002. On 24 October 2002 she received a letter advising her to that her application was rejected because no pets would be approved after 1 August 2002. The applicant’s solicitors wrote to the respondent body corporate on 8 November 2002, but I have not been supplied with any response to this letter.

On 27 June 2003 the applicants received a by-law contravention notice from the respondent, dated 18 June 2003, and requiring the removal of the dogs within 7 days. The respondent indicates that no action was taken in the intervening time because it was seeking legal advice.

The applicant advises that one of the dogs was euthanased in April 2003 and the second is now 13 years old with retina blindness. The respondent refers to a number of complaints about the dogs in Lot 132 prior to its letter in September 2002. The applicant indicates that one dog escaped on one occasion only and that there may have been confusion with another cocker spaniel in the scheme. One of the submissions also reports that the dog in Lot 132 continually barks when left on its own.

Of the 18 submissions by owners, eight indicated support for the application and most of these supported the keeping of pets generally. The remaining ten submissions opposed the application and the keeping of pets in Proud’s Landing. The opposing submissions raise concerns regarding roaming animals, animal faeces and urine on common property, and noise. There are also reports that other owners had received advice from real estate agents that pets were acceptable.

In the course of investigating the approval of pets at this scheme I requested that the respondent provide details of all approved and unapproved animals known by the body corporate to currently be on the scheme. In late December the secretary supplied a "pets register" which lists known pets in some 51 lots within Proud’s Landing. From my calculations the committee has approved some 49 animals (17 dogs, 21 cats, 7 birds, 2 guinea pigs and 2 snakes). These are all listed as having been approved on 1 August 2003. The register also suggests that there are 25 animals (10 dogs, 11 cats, 2 birds and 2 guinea pigs) that have not been approved, some for which no application has been made and others for which an application date after August 2002 is listed. No information is provided on how long the unapproved animals have been at the scheme. While the committee agreed to issue by-law contravention notices to the applicants and Lot 242 (the applicants in application 0368-2003) in May 2003, it is not evident that any action has been taken to remove any other unapproved animals within the scheme.

DETERMINATION

Before this application was made, a related application was received (reference 0368-2003). The two applications are by different owners but both seek orders against the body corporate to enable them to keep pets in the scheme. As both applications raise similar issues, I have adjudicated the two matters concurrently. I have made separate orders, but my reasons are similar.

General considerations in animal by-law disputes

The general approach of adjudicators regarding disputes involving animal by-laws has been as follows. Most bodies corporate have by-laws preventing the keeping of animals except with the approval 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 adjudicators (as was the case previously with the Referee) has been that animal by-laws, like all other by-laws, are to be observed by owners and occupiers. It should not be afforded any special significance simply because it is often the subject of emotional appeals. The general practice, therefore, is to either order compliance with the by-law (where removal of an animal is sought by the body corporate), or to 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 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 regarding the enforcement of by-laws.

In addition to these principles, adjudicators should 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 87 of the Act.

Application of the animal by-law at Proud’s Landing

The relevant by-law is as follows:

[Section 181 of the Act (previously section 143), as referred to in the by-law, provides for guide dogs and prevents a by-law excluding or restricting the right to have a guide dog in the scheme.]
There are some suggestions that it is the responsibility of real estate agents, solicitors and selling owners to give accurate information about by-laws to purchasers. While such obligations may exist in the respect of the contract for sale, in regard to compliance with body corporate by-laws, prospective owners bear the responsibility of informing themselves about the by-laws.

However there is an issue as to how the by-law is applied. Some submissions have commented on whether certain actions (whether keeping pets or enforcing the by-laws) have been "legal" or "illegal", and whether the by-law needs to be amended to permit or prohibit pets. I would like to make it clear to all parties that by-law 11 as it is currently worded does not unequivocally permit or prevent pets in the scheme. The by-law prohibits pets only if they have not received prior written approval, and in the same way permits pets only if they have approval. It is therefore a decision for the committee as to if and under what circumstances it will approve a pet. It is appropriate for a committee to have clear and reasonable policies to guide the exercise of this discretion, and this could actually include a preference against pets. But, the committee must still exercise its discretion and consider each application on its merits. It is not reasonable for a body corporate to rigidly apply a policy without consideration of individual circumstances.

There is a potential issue that the respondent body corporate acquiesced in this case, because the dogs were brought onto the scheme in April and no action was taken by the respondent until over six months later despite the resident unit manger apparently being aware of the dogs. Then, after approval for the dogs was refused, it was nearly eight months before the body corporate issued a by-law contravention notice. I understand that the body corporate was seeking legal advice at some point during this intervening time. Acquiescence is subjective but is determined by reference to the period of time which has elapsed between the date of the application and the time when the body corporate should reasonably have known of or acted on the keeping of the animal.

I am more concerned that the body corporate has been discriminatory in seeking to remove the applicant’s dog. Firstly, it is not evident that the committee has yet taken any action to remove any of the other numerous unapproved animals in the scheme (other than Lot 242). Secondly, given the large number of approved animals in the scheme, it does not appear that there was any reason for the non-approval of the applicant’s pets except for the date on which approval was sought. There was a complaint that one of the dogs had entered common property but there is no suggestion in the committee minutes or the body corporate correspondence that this was the basis for the refusal.

While investigating this matter I asked the body corporate when it was decided that no pets would be approved after 1 August 2002. I was supplied with minutes of the committee meeting of 16 October 2002 indicate that a number of applications for pets were considered and refused. In several instances the following comment was made: "It was noted that applications to keep animals must be made prior to any animal being brought onto the scheme. It was further noted that as of 1^st August, 2002, no further applications to keep animals on the scheme would be considered by the Committee." The minutes of the committee meeting on 22 January 2003 state, in the context of the refusal of another application for a pet: "As of the 1^st August, 2002, the Body Corporate would no longer accept animals in the scheme. All Residents who had approved animals as at 1^st August, 2002 would be allowed to keep their animals until the animal has passed away and no permission will be granted to replace them." I have not been provided with any minutes or documentation indicating that any discussion on this proposal occurred on or before 1 August 2002.

Some owners appear to believe that the committee policy was the result of a general meeting decision. However, the respondent has been unable to supply me with minutes of any general meeting where the approach to pets has been discussed, except the meeting of 6 March 2000 where a motion proposing a limit on the size of dogs allowed was ruled out of order on the basis that it needed to be proposed as an amendment to the by-laws.
I also asked the respondent when the committee’s policy not to approve further pets was communicated to owners. I was provided with a "Letter to all Residents" from the resident managers (undated but possibly issued in March 2002) expressing concern about pets on common property, suggesting that the issue would be discussed at the next annual general meeting (apparently it was not), and that the committee would consider declining applications for pets. A copy of a notice of 2 October 2002 to real estate agents, advising that pets were no longer permitted on the scheme from 1 August 2002 and requesting that this be disclosed to prospective owners and tenants, was also supplied.

From the information provided it is difficult to ascertain when, how or by whom the purported decision to refuse pets after 1 August 2002 was made, or why that date was chosen (particularly if the decision was made after that date.) However, it does appear that the first occasion that the majority of owners would have been informed of this decision was when the minutes of the committee meeting of 26 October 2002 were circulated.

Yet, if a clear committee’s policy against pets had been articulated when the applicant purchased their lot, I do not consider that the committee’s approach was reasonable. I accept that with such a large number of animals (albeit in a very large scheme) the potential for problems arise. Many submissions refer to noise, animals roaming and defecating on common property. Therefore it may be appropriate for the body corporate to look at means to address these problems. However, on balance I consider the committee’s policy has been unreasonable, for the following reasons:

Conclusion

Certainly the applicant should have been aware of the by-law and should not have brought her dogs onto the scheme without first seeking approval. However, given the large number of animals present in the scheme (currently some 74), the terms of the by-law, the fact that there was no clearly articulated policy against pets, it was not unreasonable for the applicant to believe that her dogs would be permitted when she purchased her unit in January 2002. I am also cognisant of the relatively advanced age and illness of the applicant’s remaining dog. On this basis, and given my view that the committee’s approach was inequitable, I do not consider that it would be reasonable to now require the removal of the applicant’s dog.

I have made an order allowing the dog to remain on the scheme, subject to certain to conditions aimed at ensuring that it does not interfere with the peaceful enjoyment of other lot owners and occupiers. This will mean that the applicant must ensure that the dog does not escape her lot, and that its barking does not create a nuisance. While I accept that these conditions have not been imposed on other pets in the scheme, I consider that they are reasonable in the circumstances. The applicant should be aware that if she breaches the conditions I have outlined, the committee would be at liberty to request the removal of the dog. The committee also should be aware that it must act reasonably, and would need to ensure that it had proper grounds before it were to request that the dog animals be removed.
Similarly, my order requires that if the applicant wishes to replace her dog (for example, after its death) she would need to apply to the committee for a fresh approval before she acquired a new animal. It would then be necessary for the committee to consider the applicants’ request in light of all of the circumstances prevailing at that time.

I wish to stress that my decision to allow these animals to remain in Lot 132 is based on the specific facts of this case, and should in no way be taken as a general precedent allowing owners or occupiers to bring or keep an animal on scheme land without the approval of the body corporate.

In regard to the approach to animals generally on the scheme, I would suggest that body corporate should consider discussing the issue of animals at a general meeting. If owners wish to ban all animals entirely, or provide strict limits on any newly approved pets (for example, the number and size), they should consider seeking to amend the by-laws accordingly through the lodgement of a new community management statement. Alternatively, a general meeting could canvass the views of all owners as to what general approach the committee should take in regards to animals. However, in the absence of a change to the by-laws, no decision of either the committee or a general meeting can override the implication in the current by-law that applications for pets must be considered on the merits of the individual circumstances.

Number of Scheme:	19743
Name of Scheme:	Proud’s Landing
Address of Scheme:	125 Hansford Road COOMBABAH QLD 4216

(2)	Subject to sub-section (1), no animals are permitted on the common property unless they are on a leash or in a vehicle. Any animal on the common property must be removed if so directed by the committee at any time.
(3)	Any consent given under sub-section (1) may be withdrawn in the discretion of the committee."

	the approval (albeit perhaps notionally) of some 51 pets on one day and a total ban from the next day onwards is inequitable;
	the ban appears to have been imposed retrospectively and on an arbitrary date;
	the committee’s policy appears to have been communicated after it was already being implemented, limiting the ability of owners to object to the committee decisions;
	despite an obviously significant divergence of owner opinion as to the acceptability of pets, the issue or approach has not been discussed at a general meeting; and
	most importantly, the imposition of a rigid policy, without consideration of the individual circumstances of each application, conflicts with the implied requirement in by-law 11 that each application be considered on its merits.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Proud's Landing [2004] QBCCMCmr 17 (9 January 2004)