Central Heights [2005] QBCCMCmr 439 (9 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0512-2005

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20078
Name of Scheme:	Central Heights
Address of Scheme:	Cnr Usher Avenue and Central Street LABRADOR QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by George and Patricia Drummond, the co-owners of Lot 164

I hereby order that pending a final determination of this application, the occupier of Lot 164 may keep the dog named "Cleo" on Lot 164 provided the dog does not cause a nuisance, or otherwise interfere unreasonably with another person’s use and enjoyment of their lot or the common property. I further order that pending a final determination of this application, the Body Corporate for Central Heights Community Titles Scheme 20078 (including through its Committee) shall not proceed with, implement or otherwise act upon any resolution to require the removal of the dog from Lot 164 unless the Body Corporate reasonably believes that the dog is causing a nuisance, or otherwise interfering unreasonably with another person’s use and enjoyment of their lot or the common property. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0512-2005

"Central Heights" CTS 20078

APPLICATION

This application is by George and Patricia Drummond, the co-owners of Lot 164 (applicants) against the body corporate (respondent) seeking a final outcome that Heather Drummond-Ashwell, an occupier of Lot 164 be permitted to keep a animal on the Lot and that the change to the By-Laws for the scheme be put on hold. The applicants have also sought an interim order that Motion 9 on the agenda of the Annual General Meeting dated 26 July 2005 (AGM) not be implemented until there is a final determination of the dispute.

JURISDICTION

"Central Heights" Community Titles Scheme is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation 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)).

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management (Commissioner) has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order being issued. The Commissioner has referred the application to me even though affected persons have not been given notice of the application, or afforded an opportunity to make submissions about the application (section 247(3)).

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

SUBMISSIONS

Under section 243 of the Act, a copy of the application was provided to the body corporate manager for distribution to the committee for a written submission on the matters raised in the interim order application. The submission was required by Friday 5 August 2005. By facsimile dated 27 July 2005, the body corporate manager gave notification that the material had been distributed to the committee. A submission from the committee was received on Monday 8 August 2005.

DETERMINATION

Motion 9 at the AGM sought body corporate consent to a new community management statement which in effect repealed 25 by-laws and made 20 new by-laws. One of the by-law changes related to the keeping of animals by-law. The existing keeping of animals by-law (By-Law 10) permitted an owner or occupier to keep one small domestic animal subject to specified conditions, including a weight limitation of 10kg. The proposed new by-law (new By-Law 15) requires committee consent before an animal can be kept on a lot subject to a number of conditions, including a revised maximum allowable weight of 8kg. By-Law 15 also provides that the By-Law "does not apply to any animal or bird, which has been notified to the Body Corporate Committee as having been kept on a Lot as at 1 August 2004". The body corporate manager has provided a copy of the minutes of the AGM indicating that Motion 9 was passed with 34 yes votes and 2 no votes.

The applicants have disputed Motion 9 for the primary reason that the Motion proposes a change in the keeping of animal’s by-law which is not reasonable in that it discriminates against an occupier of the applicants’ Lot. The applicants claim that there are large dogs being kept on lots in the scheme in breach of By-Law 10, and the body corporate has not taken any action with respect to these contraventions. They state that the effect of By-Law 15 is that the body corporate will now allow these dogs to remain, yet the body corporate will not allow the occupier of Lot 164 to similarly keep an animal. The applicants have provided a copy of a letter dated 22 June 2005 from the body corporate manager stating that the committee request that the dog must be removed.

The submission from the committee was to the effect that:

• Approval has been given to the dogs which weigh above 10kg.
• The body corporate has not approved a large dog for over 2 years and at least two dogs have been removed.
• By-Law 15 was not back dated to prejudice Lot 164.
• The applicants disregarded the relevant animal by-law when a relative occupied Lot 164.

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276). It is relevant to consider whether the likely inconvenience should no interim order be granted outweighs any inconvenience likely to result from the interim order. In particular, it is relevant to consider whether an interim order is necessary to prevent something occurring that cannot be adequately redressed by a final order.

I do not consider that there are sufficient grounds to warrant an interim order preventing the body corporate from implementing Motion 9. The Motion related to a change in various scheme By-Laws, one of which related to the keeping of animals. The body corporate has decided to make a significant number of changes to the scheme by-laws, and a dispute with respect to keeping an animal on Lot 164 should not interrupt the body corporate’s management rights and obligations. A body corporate has the power to make by-laws for the scheme, and to for example, amend, add to,
or revoke a particular by-law. Section 169 of the Act applies to the power of a body corporate to regulate the keeping of an animal on a lot in the scheme, subject to the provisions of section 180 and section 181. In my view, the keeping of an animal on a lot in a scheme relates to "use and enjoyment" of the lot. Consequently, a body corporate has the power to make a by-law regulating the keeping of an animal provided it recognises the limitations, especially the limitation prescribed in section 181 of the Act.

The applicants claim that the change in the animals by-law will unfairly impact on the occupier’s right to keep an animal on Lot 164. From a body corporate perspective, this may be the case, but it certainly does not prevent an adjudicator from making a decision under the dispute resolution provisions of the Act permitting an animal to be kept on a lot in the scheme should, for example, it be found that the body corporate has acted unreasonably. In my view, there are a number of issues to be investigated with respect to this dispute, including the reasoning for adopting the 1 August 2004 "cut-off" date in By-Law 15(d), the owners or occupiers who had approval under By-Law 10 to keep an animal, the owners or occupiers who have been deemed by By-Law 15(d) to keep an animal which was not permissible under By-Law 10, and how the circumstances for these owners or occupiers differs from those relating to the dog being kept on Lot 164.

Given these circumstances, I consider that an interim order is warranted. In my view, the inconvenience likely to result from not making an interim order outweighs the inconvenience to the body corporate should, on an interim basis, the dog be permitted to remain on Lot 164. Consequently, I have made the interim order that pending a final determination, the occupier of Lot 164 may keep the dog named "Cleo" on the Lot and the body corporate must not initiate or otherwise take any action against the owner or occupier of Lot 164 for contravention of the relevant keeping of animals By-Law. I have made the interim order subject to the dog acting in an appropriate manner and not causing a nuisance, or otherwise interfering unreasonably with another person’s use and enjoyment of their lot or the common property. The body corporate should be entitled to reasonably act upon any complaints about the behaviour of the dog while this application is being investigated.

In relation to the issue of reasonableness and the application of a by-law relating to the keeping of an animal, the parties to this dispute should note that the general approach adopted by adjudicators when determining whether the body corporate has acted reasonably with respect to a by-law relating to the keeping of 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.

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.