Pacific Keys Central [2005] QBCCMCmr 271 (23 May 2005)

Last Updated: 5 July 2005

REFERENCE: 0119-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10021
Name of Scheme:	Pacific Keys Central
Address of Scheme:	54 Hooker Boulevard, MERMAID WATERS QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Jean Cronshaw, the owner of Lot 23

I hereby order that the application for an order by Jean Cronshaw, the owner of Lot 23 seeking authorisation to keep a cat on Lot 23, is dismissed. I further order that within two (2) months of the date of this order, Jean Cronshaw, the owner of Lot 23 remove and keep removed from the Lot and scheme land, the cat being kept on Lot 23.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0119-2005

"Pacific Keys Central" CTS 10021

APPLICATION

This application is by Jean Cronshaw, the owner of Lot 23 (applicant) against the body corporate (respondent). The applicant is seeking authorisation to keep a cat on the Lot.

JURISDICTION

"Pacific Keys Central" Community Titles Scheme 10021 is a 63 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

SUBMISSIONS

The applicant’s main submissions were to the effect that:

• She bought Lot 23 in October 2003 and was informed by the real estate agent that there were probably 10 cats on the complex.
• She was not aware of a pet by-law and has had the cat for four years.
• In December 2004, the building manager advised her and other occupiers on the sixth floor of the building that a cat had been seen.
• The building manager wrote to her on 18 January 2005 stating that the keeping of a cat breached By-Law 20.
• She wrote to the body corporate on 29 January 2005 detailing the reasons for keeping the cat.
• The body corporate gave her a "Notice of Continuing Contravention of a Body Corporate By-Law" dated 7 February 2005.

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from the committee and a number of lot owners.

The respondent’s main submissions were to the effect that:

• The manager was instructed in December 2004 by the committee to advise the sixth floor residents that a cat had been seen on a balcony, that pets were not allowed, and that the manager be informed if there was a pet being kept on a sixth floor lot. There were a number of communications between the resident manager, the committee and the applicant regarding the animal by-law and the keeping of the cat on the applicant’s lot. The body corporate gave the applicant a "Notice of Continuing Contravention of a Body Corporate By-Law" dated 7 February 2005.
• The body corporate is not aware of any animals being kept on another lot in the scheme.
• The body corporate has consistently refused the keeping of animals.

The applicant made a reply to submissions under section 244 of the Act.

DETERMINATION

By-Law 20 of the body corporate by-laws states, quote:

"Keeping of animals. A proprietor or occupier of a lot shall not keep any animal upon his lot or the common property after notice in that behalf from the council."

This By-Law was recorded by the Registrar or Titles, Department of Natural Resources and Mines on 12 October 1982. The term "council" has been changed by subsequent legislative amendments and is taken to refer to the "committee" of the body corporate. This change in terminology does not affect the elected committee’s power to make a decision regarding the keeping of an animal.

The by-laws form part of the community management statement (CMS) for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of by-laws by the body corporate and by individual lot owners and occupiers. Section 182 provides that the body corporate may give an owner a continuing contravention notice if the body corporate reasonably believes that the owner is contravening a by-law and the circumstances of the contravention make it likely that the contravention will continue.

The Act obligates a body corporate to enforce its by-laws and provides detailed compulsory enforcement procedures which enable a body corporate to attempt to resolve by-law matters before seeking the intervention of a dispute resolution process. The committee has the power to give a continuing contravention notice to enforce a body corporate by-law, provided it does so in a reasonable manner. I consider that a body corporate’s responsibility with respect to by-law enforcement should not be subsequently interfered with unless it can be demonstrated that the body corporate has not acted reasonably when fulfilling this function.

The general approach adopted by adjudicators when determining whether the body corporate has acted reasonably when enforcing a by-law relating to animals is to apply the principles of acquiescence and discrimination.

The principle of acquiescence is essentially to deny a person the right to later object to something that has in fact been in place for some time without any action or complaint having been taken by them, giving rise to an inference of assent. For example, acquiescence on the part of the body corporate could be demonstrated if the body corporate has, for a reasonable period of time, had knowledge that an animal has been kept on a lot in the scheme and has not taken steps to remove the animal. As a consequence, the relevant owner or occupier could reasonably 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. Alternately, the body corporate could be 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.

By-Law 20 provides in effect that a lot owner cannot keep an animal on a lot after being notified by the committee that the animal cannot be kept on the lot. The circumstances of this dispute are that while the applicant has kept the cat on Lot 23 since October 2003, the body corporate has only known about this since December 2004. It is clear that through the chairperson and the resident manager, the body corporate responded quickly when it became aware that an animal was being kept on the Lot. As these attempts were unsuccessful, the body corporate ultimately enforced the "Keeping of animals" By-Law in accordance with the Act by giving the applicant the "Notice of Continuing Contravention of a Body Corporate By-Law" dated 7 February 2005. In my view, the body corporate took action as soon as it obtained knowledge about the existence of the cat and as a consequence, I am satisfied that there is no suggestion that the body corporate has acquiesced in any way to the keeping of the cat in Lot 23.

The response from lot owners to the invitation for a submission on this application indicates that the keeping of animals is an important matter within this scheme. Of the submissions received, 14 supported the applicant and 20 opposed the keeping of the cat. The petition signed in support of the application states that it is a pity that the rules are so rigid with no consideration to the fact that the pet is confined to the lot and is quiet. The petition also questions whether the by-law can be amended. The submissions opposed the application generally on the basis that it has been a long standing policy in the building that animals are not allowed and that these owners do not want this rule changed. These owners are also concerned that a precedent may be established if the animal is allowed. Specifically, the submission from John Silcock of Lot 47 stated that a lot occupier unsuccessfully sought body corporate approval in 1996. The submission from George and Vera De Carli of Lot 46 demonstrated that on buying the Lot it was made clear to them that they could not keep a dog.

These submissions demonstrate that the body corporate has sought to maintain a no animal policy in the building. None of the submissions made in support of the application provided any suggestion that animals are or have been allowed to be kept while the opposing submissions provided examples of the refusal to allow animals. The body corporate secretary has submitted that the committee has been informed by the resident manager that there are no other animals in the building. While not making comment in the application, the applicant, in her reply to submissions, stated that she is aware that other pets are being kept in the building including a three legged cat, people with fish, birds etc. However, the applicant has not provided information specifying the owners or occupiers keeping these animals, and that these animals are being kept with the knowledge or consent of the body corporate. This is an important consideration when deciding if the body corporate has acted in a discriminatory manner. Based on the submission from the secretary, the body corporate has no knowledge of any other animals being kept on a lot in this scheme. This is a large scheme, and as can be evidenced by the fact that the applicant kept a cat on Lot 23 for over 12 months without body corporate knowledge, I consider that the body corporate may not reasonably know that an animal is being kept on a lot unless as with what occurred with the applicant’s cat, the animal is noticed by, for example another owner or occupier. In my opinion, the body corporate has acted reasonably by asking the resident manager if there were any other animals being kept. In view of the fact that it has not been shown that other animals (if any) are being kept on lots in the scheme with body corporate knowledge or consent, I do not believe that it has been shown that the body corporate has discriminated against the applicant in seeking to apply By-Law 20.

For these reasons, I have dismissed the application. I have also ordered that the applicant remove the cat from the Lot and the scheme for the reason that the applicant has been given proper notice by the body corporate in accordance section 182 of the Act, and the applicant has failed to comply with this notice.

However, I have noted that there is a view within the body corporate that the strict application of the animal by-law should be relaxed. Ultimately, this is a matter for determination of the body corporate in general meeting. For example, even though the committee has the power to decide a by-law issue, a contrary decision by the owners in general meeting would prevail. Therefore, the owners could, in general meeting, resolve by ordinary resolution to permit the keeping of an animal on a lot in the scheme. Further, the body corporate can resolve by special resolution at a general meeting to consent to the recording of a new CMS to incorporate a new by-law concerning the keeping of animals. However, given the evidenced degree of opposition to a change in the by-law, a change to the by-law may not be possible. Even so, these are matters to be considered and discussed within the body corporate.

If the applicant or another owner or occupier has evidence that another owner or occupier is keeping an animal on a lot, that person should advise the body corporate. If it is found that another owner or occupier is keeping an animal on another lot in the scheme, I would expect that based on the present opposition to the keeping of an animal on a lot in this scheme, that the body corporate will take the appropriate steps to ensure that all lot owners and occupiers comply with By-Law 20.