Banksia Lodge [2005] QBCCMCmr 39 (27 January 2005)

Last Updated: 5 July 2005

REFERENCE: 0511-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13566
Name of Scheme:	Banksia Lodge
Address of Scheme:	29 Cornelius Street, CLONTARF QLD 4019

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

Body Corporate

I hereby order, in relation to the application by the body corporate against the owners of lot 3, Sefkija and Fatima Hadzijusufovic (respondents), that: 1. The respondents are authorised to keep the dog that is currently being kept on their lot, in all the circumstances this being the only reasonable decision pursuant to by-law 11; 2. This authorisation is subject to a condition that the dog is not to cause a nuisance or interfere unreasonably with the enjoyment of other lots. In particular, the respondents must ensure that the dog does not disturb other occupiers by barking. Further, the dog is to be confined to the respondents’ lot and exclusive use area and must be carried across the common property if it is necessary for it to leave the lot; 3. This authorisation may be withdrawn by the body corporate if any occupier provides a complaint to the reasonable satisfaction of owners that the dog is causing a nuisance or interfering unreasonably with the enjoyment of other lots within the scheme. Within one month of the authorisation being withdrawn, the respondents must remove, and keep removed, the dog from the scheme. I further order that, for as long as by-law 11 remains in force, the respondents are not to bring or keep any animal or bird on their lot or the common property except with the consent in writing of the body corporate or as authorised by order of an adjudicator. I further order that, within 14 days, the body corporate must send a copy of this order and reasons for decision to all occupiers of lots within the scheme.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0511-2004

"Banksia Lodge" CTS 13566

Application

Banksia Lodge Community Titles Scheme (Banksia Lodge) is a 6 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Small Schemes Module Regulation (Small Schemes). The scheme is designed for residential purposes.

This application is by the body corporate (applicant) seeking orders against Sefkija and Fatima Hadzijusufovic (respondents). The body corporate has served a by-law contravention notice on the respondents and is seeking an order requiring removal of the respondents’ dog. The respondents oppose the application and have provided a letter from Fatima Hadzijusufovic’s doctor stating that she suffers from a depressive disorder and requires an animal companion as part of her treatment for this condition.

Submissions

The body corporate’s main submissions were to the effect that the respondents are contravening the by-laws by keeping a dog in their lot. The body corporate has issued a by-law contravention notice and has brought this application to seek to enforce compliance with the by-laws.

Two owners have provided submissions in support of the body corporate’s application. These submissions include submissions to the effect that:

• Other owners had discussed with Fatima Hadzijusufovic the possibility of her keeping a dog and explained to her that it was not possible as the by-laws did not permit it;
• Despite this, Fatima Hadzijusufovic subsequently told them that she had a dog which was to be kept at their unit. This was on 17 July 2003;
• On 18 July 2003 one of the owners set a letter to all owners stating that no approval for a pet would be given by him;
• On 19 July 2003 a by-law contravention notice was given to the respondents regarding their keeping a dog;
• On 20 July 2003 the respondents said that they were going to keep the dog despite the body corporate’s wishes but that they would be vacating the unit within a couple of months and moving to a house; and
• The respondents are still keeping the dog in their unit and the noise from the dog was a prominent reason for a long term tenant leaving the unit.

The respondents’ submissions are to the effect that:

• Fatima Hadzijusufovic has suffered from depression for nearly six years. She tried conventional and unconventional medication but nothing seemed to help until her doctor proposed animal therapy. The small dog, being a Maltese-Poodle cross, is kept on the premises as part of her medical treatment and she has not been happier or healthier in a very long time;
• They had not originally obtained permission from the body corporate as they were not fully aware of the process. However, after they became aware of the process they wrote to the body corporate and provided the medical certificate and apologised for not obtaining permission prior to starting the therapy;
• A previous occupier has had a cat without complaints from the body corporate; and
• The owners that have complained do not live on the premises and have not seen how unwell she was before the animal therapy. None of the current or previous occupiers have ever complained about the animal as it does not interfere with them.
Decision
By-laws for the scheme

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. Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

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)). Further, by-laws cannot be inconsistent with the Act (Act, 180). In this respect, it should be noted that by-laws cannot prohibit a guide dog accompanying a blind or deaf person while on the lot or common property (Act 181).

Keeping of animals

By-law 11 of Banksia Lodge states:
Keeping of animals
The occupier of a lot MUST NOT without the body corporate’s written approval:-

(a)	bring or keep any animal on the lot or the common property; or
(b)	permit an invitee to bring or keep an animal on the lot or the common property.

This by-law gives owners in the scheme a discretion regarding whether or not they wish to allow an occupier to bring or keep an animal on their lot. This is a broad discretion but it is not an absolute discretion. Given the by-law provides that occupiers may keep an animal with the body corporate’s written approval, it is not appropriate for owners to adopt a blanket rule that they will not approve pets in any circumstances. Rather, owners must consider each application for approval to keep a pet on its merits and the body corporate must act reasonably in all the circumstances (Act, 94).

It was not appropriate for Frederick Hansen, as trustee for the I M & C R Hansen Trust that owns lot 2 and for the F S Hansen Trust that owns lot 5, to write to all owners stating "we will not be giving approval for any cat, or any other animal, in any of the units". Rather, it is necessary for any application to keep a pet to be considered on its individual merits. Similarly, Moreyne and Terence Patterson, owners of lots 4 and 6, have stated in their submission that one of the respondents discussed the keeping of pets with them and that they immediately made a comment to the effect that it was not possible as the by-laws did not permit it. This is incorrect. The by-laws of Banksia Lodge do permit the keeping of pets with the body corporate’s written approval and the body corporate is required to act reasonably in considering whether to grant its approval (Act, 94). If these particular owners wished to impose a blanket rule that no pets be kept within the scheme then they would need to pass and register a by-law prohibiting animals altogether.

The respondents purchased a unit in a scheme where two occupants had pets and the by-laws allowed the keeping of a pet provided the body corporate gave written approval. The body corporate must act reasonably in considering an application for approval to keeping a pet and a letter from one of the respondent’s doctor to the effect that she requires an animal companion for treatment of her depressive disorder makes it unreasonable in the circumstances for the body corporate to refuse to consent to the respondents keeping a pet.

Complaints of the dog barking

Given Fatima Hadzijusufovic’s particular circumstances I have concluded that it is unreasonable for the body corporate to refuse her permission to keep a pet. However, this does not mean that Fatima Hadzijusufovic would be entitled to keep any pet. An occupier is subject to a requirement that they do not cause a nuisance or interfere unreasonably with the use and enjoyment of other lots (Act, 167). For it to be unreasonable for the body corporate to refuse Fatima Hadzijusufovic permission to keep any particular pet, Fatima Hadzijusufovic would need to show that that particular pet is not likely to cause a nuisance to other occupiers.

The respondents have made submissions that suggest that the owner of lot 1 has no objection to her keeping the dog and that the owners of lots 2, 4, 5, and 6 do not occupy their lots and therefore cannot be inconvenienced in any way by the respondents keeping a dog. There is no indication from the owner of lot 1 or from current occupiers within the scheme that the respondents’ dog is causing a nuisance to them. However, one of the owners has included in their submission a letter from the previous occupier of lot 4 indicating that he was terminating his occupancy and stating "Unit 3 now keeps a small dog (inside normally) which was continuously annoying with its constant high pitched yapping. The party wall between units 3 & 4 is not sound proof". The letting agent has also provided information to the effect that she visited the property on 27 September 2004 and was aware of barking which seemed to come from the courtyard of unit 3.

The respondents need to be aware that it is completely unacceptable to keep a pet on scheme land if that pet causes nuisance to other occupiers. Even if medical reasons indicate that Fatima Hadzijusufovic should be allowed to keep a pet, the body corporate may place reasonable restrictions on the type of pet that Fatima Hadzijusufovic can keep to ensure that no nuisance is caused to other occupiers.

I will therefore grant an order authorising Fatima Hadzijusufovic to keep her pet but subject to the condition that it does not cause nuisance or unreasonably interfere with the occupiers of other lots. There are steps an owner of a dog can take to try to avoid their dog barking and causing a nuisance. These include constant supervision of the dog and the purchase of a special collar designed to train the dog to stop barking. If measures of this nature are not successful in controlling the barking then the respondents will have to remove the dog from the scheme.

Order

Due to Fatima Hadzijusufovic’s medical condition and the letter from her doctor to the effect that she requires an animal companion, I am of the view that the only reasonable decision is to authorise the respondents to keep their dog.

However, the respondents did contravene the by-laws by bringing their dog onto the scheme without first seeking formal approval of the body corporate. I will therefore grant an order restraining the respondents from any future contravention of this nature.

Further, the submissions from other owners satisfy me that it is appropriate to place strict conditions on the respondents in respect of keeping the dog. These include conditions to the effect that the dog be confined to their lot and that the dog not cause nuisance to other occupiers within the scheme. If the respondents are unable to comply with these conditions then they will have to make arrangements to remove the dog from the scheme. I understand that one of the respondents requires an animal companion for medical treatment. However, the legislation does not permit an occupier to cause nuisance to other occupiers even if this ultimately means that the respondents need to consider living elsewhere or seeking permission to keep a different type of pet that will not cause nuisance to other occupiers.

Due to the nature of the orders made, I will require the body corporate to distribute a copy of these orders and reasons for decision to all occupiers within the scheme.