Edinburgh Terraces [2005] QBCCMCmr 22 (13 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0605-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19906
Name of Scheme:	Edinburgh Terraces
Address of Scheme:	56 Ogilvie Street ALEXANDRA HILLS QLD 4161

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

Mr E Chandler, the Owner of lot 2

I hereby order that the application for permission to keep a dog in lot 2 is dismissed. I further order that the occupier of lot 2, shall, within two (2) months of the date of this order, remove and keep removed the dog presently being kept in lot 2, and from the parcel generally.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0605-2004

"Edinburgh Terraces" CTS 19906

Application

The applicant, the occupier of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

To continue to live in unit 2 with my dog.

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act. As this is a dispute between lot owners and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions 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-

(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 10 lots registered under a standard format plan. The regulation module applying to the scheme is the standard module.

The application and submissions

This application is by the occupier of lot 2, seeking an order against the body corporate of Edinburgh Terraces which declined his request for permission to keep a blue/ red cattle dog.

The relevant by-law provides as follows:

16. Keeping of Animals
1. The occupier of a Lot must not, without the Body Corporate’s written approval:-
(a) bring or keep any animal on the lot or common property; or
(b) permit an invitee to bring or keep an animal on the lot or common property.

The applicant’s submissions were to the effect that

- the dog is friendly and quiet;
- no complaints had been received by him regarding the dog
- the dog stays in the unit and courtyard and is not taken into common areas.

This office sought submissions in respect of the application from the committee and all owners.
Of the 7 submissions received, 6 submissions opposed the application. Submissions opposing the application raised common issues, summarised as follows:

- the purpose of the by-law i.e. for all occupants to enjoy the peaceful and quiet existence of their property and facilities;
- the dog has rushed at two residents causing them a certain degree of fright;
- nuisance;
- lack of space for exercise; and
- general unsuitability of a townhouse complex for keeping of animals.

Decision

The Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

While there are numerous benefits of living in community title schemes, communally based higher density living inevitably involves an increased level of interaction with others and involves a certain level of restriction on what residents may do in their lot. The Act gives the owners of units in a scheme the power to vote on what by- laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law. Accordingly, a prudent purchaser would peruse the by-laws and assess the suitability of the premises for their needs before purchasing a unit in a particular complex.

Having regard to all the circumstances of this case, the rather lengthy submissions of the parties and previous determinations by this Office, I have come to the conclusion that the body corporate is entitled to enforce by-law 16 regarding the keeping of animals. I would also make the observation that the decision of the body corporate is supported by 5 of the 6 submissions from owners.

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Applications of this nature are regularly made to this Office in respect of premises such as Edinburgh Terraces and in the absence of exceptional circumstances, there is little basis for this Office to overturn a valid by-law.

In this regard the body corporate has submitted as follows:

The body corporate committee has not made up rules and regulations to amuse themselves or cause disharmony to any person. The body corporate committee recognises that the intention of the rules and regulations as provided in the by-laws in respect to "keeping of animals" is for all owners and renters to enjoy the peaceful and quiet existence of their property and facilities. This provision in the by-laws encourages the co-operation, consideration and respect of all parties...
The body corporate is acting in a reasonable manner in the best interests of all parties, following guidelines given to each owner on purchase of their property.

I consider the concerns expressed by the body corporate and various owners to be a reasonable basis for refusing permission and therefore order that the application for permission to keep a dog in lot 2 be dismissed.

I also note the applicant’s concerns regarding suitable alternative accommodation for the dog and therefore allow the applicant 2 months to find alternative accommodation for the dog.