Elizabeth Mews [2004] QBCCMCmr 330 (24 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0015-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20291
Name of Scheme:	Elizabeth Mews
Address of Scheme:	81 Elizabeth Street, ROSALIE QLD 4064

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jane Williams, the occupier of lot 5

I hereby order that the application by Jane Williams, the occupier of lot 5, for an order to overturn a decision by the body corporate regarding non approval of the keeping of a domestic catat 5/81 Elizabeth St Rosalie by the current occupier of that unit, is dismissed. I further order that within two (2) weeks of the date of this order, Jane Williams, the occupier of lot 5, shall remove and keep removed from the lot and the parcel generally, the cat being kept by her in contravention of the by-laws.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0015-2004

"Elizabeth Mews" CTS 20291

The applicant, Jane Williams, the occupier of lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

To overturn a decision by the body corporate – non approval of the keeping of a domestic catat 5/81 Elizabeth St Rosalie by the current occupier of that unit.

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 scheme

The scheme is a subdivision of 5 lots registered under a group title plan (now a standard format plan). The regulation module applying to the scheme is the standard module.

The application and submissions

This office sought submissions in respect of the application from the body corporate committee and all owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I am satisfied that all parties are aware of the position of the other from the application, submissions and the right of reply processes. I therefore intend only to refer to those materials necessary for a determination of the issues raised.

This is a dispute where the applicant Jane Williams, the occupier of lot 5, is seeking to overturn a body corporate decision refusing her permission to keep a cat at the lot and the common property generally. By a resolution carried on 27 November 2003, Williams was refused permission to keep a cat at the lot and on the parcel generally. Following this, Williams has been given notice that the cat continues to be kept in contravention of the by-laws, and should be "removed from the property immediately".

The applicable by-law is as follows –

8. Keeping of animals. Subject to section 30(12) of the Act a proprietor or occupier may keep an animal on site with prior written approval of the committee of the body corporate subject to the following rules.

1.	Noise and behaviour from the animal must not interfere with other proprietors or occupiers.
2.	No animal is to be permitted to roam free on common property.
3.	Any approval will be rescinded by the committee on the receipt of three separate written substantiated complaints.

The applicant is in breach of the by-law for the minimum reasons that -

• the cat was bought onto the lot prior to the applicant seeking approval;
• approval was refused in any event;
• the cat has been allowed to roam on common property.

The obligation of an owner or occupier to comply with by-laws in contained in section 59 of the Act. The by-laws for a scheme are contained in the schedules for the Community Management Statement. Section 59 of the Act provides as follows –

59 Taking effect of community management statement
(1)A community management statement takes effect under the Land Title Act, section 115L(3).14
(2) The community management statement for a community titles scheme is binding on--
(a) the body corporate; and
(b) each member of the body corporate; and
(c) to the extent that paragraphs (a) and (b) do not apply to bind a person--

(i) each person who is a registered proprietor of a lot included in the scheme; and
(ii) each person who is a registered proprietor of common property; and

(d) to the extent that paragraphs (b) and (c) do not apply to bind a person--

(i) each person who is the occupier of a lot included in the scheme; and
(ii) each person who is an occupier of common property.

(3) Subsection (2) has effect as if--

(a) the community management statement included mutual covenants to observe its provisions entered into by each person bound by it; and

(b) each person bound had signed the community management statement under seal.

The community management statement includes the by-laws. The by-laws are taken to apply to and be binding on each owner and / or occupier of a lot as provided for in the section. The respondents are subject to, and must comply with all body corporate by-laws, including the by-law regarding animals.

I intend to set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws. Though the keeping of animals is often an emotive issue, the by-law regarding animals must be interpreted and applied like all other body corporate by-laws. Those bound by the by-laws generally are not entitled to ignore a by-law regarding animals simply because they believe that this particular by-law should not apply to them, or that their circumstances are special or different. As an adjudicator, I start my investigation of such applications on the assumption that the by-law operates and should be applied, and then consider whether there are any special circumstances which render the application of the by-law inappropriate or unreasonable.

Generally 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, adjudicators have an inherent jurisdiction to 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.

Determination

For the reasons set out above, the applicant has an obligation to comply with the by-laws including that regarding animals. In her application, Williams acknowledges that she failed to apply for or obtain body corporate committee approval for her cat before moving into the lot.

This aside, Williams alleges that the decision to refuse her permission to keep the cat is discriminatory, and relates to another dispute about parking in the visitor parking bays.

The applicant concludes that –

There has been no valid reason given by the BC. Cats have been approved before as there is a cat window and cat opening in the side gate. The reasoning appears to be vindictive and unjustified by the body corporate manager and the other owner in unit 2. ...

As part of the application process, submissions have been received from 4 of the 5 owners in the scheme. All oppose the application. All provide a clear basis for their opposition. Certain of those submissions also advise that no part of their decision is based on any dispute related to parking. In her reply to submissions, the applicant dissects each submission and responds to it. Whilst there are many disparate issues arising from this dissection, I do not propose to deal with each individually. The applicant concludes her reply –

I apologise to the committee for not seeking prior approval which is the desirable action however I did not believe I would be in a position of having to have "Jazz".

It seems to me that what the applicant is saying is that due to her circumstances, she is required to have the cat, and should therefore be allowed to keep it.

In the circumstances, whilst the applicant alleges discrimination, I am not satisfied that any discrimination has or can be established. The applicant is obliged to comply with the by-laws. The applicant has failed to do this, and is not entitled to the order which she is seeking. I propose to dismiss this application and to order that the cat be removed from the lot and the parcel generally within two weeks of the date of this order.