Calais [2004] QBCCMCmr 329 (24 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0825-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4596
Name of Scheme:	Calais
Address of Scheme:	17 - 23 Peak Avenue MAIN BEACH QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Calais CTS 4596

I hereby order that the application for an order that the owners of lot 13 remove the unapproved dog at the lot, is dismissed. I further order that the owners of lot 13, Robert Dudley Williams and Margaret Mary Williams, shall be permitted to keep their dog, "Oscar" within their lot provided that the dog does not cause a nuisance or interfere unreasonably with the use or enjoyment of another lot included in the scheme, and further provided that the dog shall not be replaced upon his death unless the body corporate committee gives its prior written consent for the replacement.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0825-2003

"Calais" CTS 4596

Order sought

The applicant, the body corporate for Calais, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the owners of lot 13 be ordered to remove the unapproved dog at the lot.

Jurisdiction
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)).

Application details

The application was lodged in the Commissioner’s office on 23 December 2003. The applicant was shown as the body corporate committee. The Commissioner’s office was closed from 24 December 2003 and re-opened for business on 2 January 2004. On 6 January 2004 a member of the Commissioner’s staff telephoned the body corporate manager and advised that section 227 of the Act does not provide for a dispute between a body corporate committee and an owner, but rather a body corporate and an owner. The body corporate manager forwarded an appropriately amended application by facsimile later that same day.

In the supporting grounds the applicant stated that the dog in question has not been approved by the body corporate, and that the owners of the dog have therefore contravened by-law 11. The applicant outlined the background to the dispute, which can be summarised as follows:

• The real estate sign for the sale of lot 13 incorrectly stated that pets were allowed
• The real estate agent was advised to take down the sign
• An extraordinary general meeting was held at which owners rejected an application to allow the purchasers of lot 13 to keep their dog (The votes were 5 Yes, 7 No, 0 Abstain)
• At the subsequent annual general meeting owners also rejected a proposal to amend the by-laws to prohibit animals in the future but allow existing animals to remain on the condition that they not be replaced when they died (The votes were 5 Yes, 6 No, 0 Abstain)
• As the owners of lot 13 had brought their dog to the lot, the committee resolved to issue a contravention notice and then to lodge this application

On 9 January 2004 the Commissioner invited all owners to respond to the application by 30 January 2004. The body corporate was also advised that if it wished to respond to any submissions received, it could do so by 13 February 2004.

Six submissions were received from owners. One of those submissions was from the owners of lot 13, Mr & Mrs Willams, the presence of whose dog initiated this application.

The committee replied to the submissions.

Scheme details

The "Calais" community titles scheme consists of 14 lots and common property. Titles Office records reveal that the scheme was created under a building units plan of subdivision (now known as a building format plan), which registered on 14 May 1991 under the provisions of the Building Units and Group Titles Act 1980 (BUGTA). The records further reveal that on 12 July 2000, and in accordance with the BCCM Act, a community management statement was recorded for "Calais". The community management statement states that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

Determination

The body corporate legislation allows bodies corporate to adopt by-laws, which in general terms, may provide for the administration, management and control of common property and body corporate assets, as well as regulating the use and enjoyment of lots, common property, body corporate assets, and any services and amenities supplied by the body corporate (section 169 of the BCCM Act). The keeping of animals on scheme land is a matter that is commonly dealt with by body corporate by-laws.

By-laws for particular bodies corporate are stated in the community management statement applying to the scheme. In accordance with section 59(2) of the BCCM 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 the by-laws) for the scheme (section 94(1)(b) of the BCCM 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 BCCM Act).

In this instance, the body corporate claims that the owners of Lot 13, Mr and Mrs Williams, are keeping a dog within their lot, contrary to by-law 11, which provides:

"Keeping of animals
11.(1) The owner or occupier of a lot must not, without the body corporate’s written
approval--

(a) bring or keep an animal on the lot or the common property;

(b) permit an invitee to bring or keep an animal on the lot or the

common property.

(2) The owner or occupier must obtain the body corporate’s written approval
before bringing, or permitting an invitee to bring, an animal onto the lot or
the common property."

As stated above, by-laws are binding on owners and occupiers of lots included as part of a community titles scheme. In addition, bodies corporate have a duty to reasonably enforce the by-laws.

In most instances of owners or occupiers breaching animal by-laws, adjudicators will order compliance with the by-law, 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 in not taking steps to require the removal of the animal within 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. This principle seems to be applicable to at least some of the pets being complained about in this current application.

• 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 addition 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.

It is common ground that there are animals in this scheme for which certain owners have not sought approval from the body corporate. Notwithstanding this acknowledged state of affairs, the body corporate has only sought to have Mr and Mrs Williams’ dog removed. Several of the owners who lodged submissions opposing the body corporate’s application commented upon the unfairness of such action. I concur with their views.

One owner also encapsulated the general view of these owners on the animals in the scheme:
"I put forward that as long as an animal is suitable and causes no grief or inconvenience to others that any owners here be allowed to have their pets and to live in peace and without harassment by those who have differing opinions."
Another owner described the animal in question as being "under 10 kilos and inoffensive". The same owner stated that in her experience in the real estate industry, "pet friendly" buildings are at a premium with buyers, and rather than devalue a building, such a policy had the opposite effect.
A third owner stated that he did not wish to see a permanent change in the by-laws, but he was willing to allow all existing animals (including the animal in question) to remain in the scheme on the proviso that those animals were not replaced if they died.

Needless to say, Mr and Mrs Williams opposed the application. They, too, referred to the number of dogs in the scheme without approval. They also stated that their dog is small (5kgs), well behaved and house trained. They advised that since moving into their lot they had received no complaints, and several owners had commented that they were generally unaware that the dog was in the building. (This statement was supported by the other submissions.) Mr and Mrs Williams also stated that whenever they take the dog to and from the unit, the dog is carried and is under their control at all times.

An examination of the background also reveals that although the body corporate manager advised Mr and Mrs Williams prior to the settlement of their sale that the body corporate was unlikely to approve their dog, they were committed to the sale and had to proceed with it, although I note that the committee claims that they were advised before they signed the contract. I also note from the body corporate committee’s minutes that the real estate sign advertising the sale of lot 13 stated that pets were allowed, although the committee resolved to require that the sign be removed. However, Mr and Mrs Williams stated in their submission that the agent’s marketing material noted that the building was one in which small dogs were permitted and it is implicit in this statement that they had relied upon that representation.

I also note that in the only submission which supported the body corporate’s action in seeking an order to have the Williams’ dog removed, the owners stated that they, as original owners in the scheme, considered one of the "advantages" of purchasing was that there were no animals allowed, so no disputes in that regard would arise. This statement highlights the general misunderstanding about animal by-laws which are written as by-law 11 is written. Many owners believe that this wording means that animals are prohibited, whereas in fact what the by-law means is that animals may be allowed, provided that the committee’s consent is first obtained. Of course, in practice some bodies corporate with such a by-law may decide to never give consent to any animals, however, if that is the body corporate’s stance on animals, the by-law should be written to make it clear that animals will not be allowed under any circumstances, rather than appearing to give the committee discretion to approve animals.

This body corporate has certainly not given any pretence of prohibiting animals. It has approved some animals, and turned a blind eye to other animals. It is also interesting to note that the motion to change the animal by-law so as to prohibit animals in future, whilst allowing all present animals to remain was defeated when it was considered by owners at the annual general meeting held on 25 August 2003.

In all of the circumstances, I am satisfied that the body corporate has discriminated against Mr and Mrs Williams by refusing to allow them to keep their dog, when no steps had been taken to remove other dogs which had been in the scheme for years and which the body corporate acknowledged were there without approval.

I have therefore dismissed the body corporate’s application, and instead ordered that Mr and Mrs Williams shall be allowed to keep their dog, on certain conditions as outlined in my order.