Parkton Village [2005] QBCCMCmr 52 (1 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0645-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20797
Name of Scheme:	Parkton Village
Address of Scheme:	10 Halle Street EVERTON PARK QLD 4053

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

the Body Corporate

I hereby order the owner of lot 15 to remove and keep removed from the scheme, the two cats currently being kept by her in lot 15, within eight weeks of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0645-2004

"Parkton Village" CTS 20797

The body corporate is seeking an order that Ms Wardle, the owner and occupier of lot 15, remove her pet cats from the complex in accordance with by-law 8.

Section 227(1)(b) of the Act provides that a dispute between an 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 a lot owner 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 Parkton Village community titles scheme 20797 is a 40 lot scheme registered as a group title plan (now known as a standard format plan of subdivision) and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

Application

The body corporate alleges that Ms Margaret Wardle, the owner and occupier of Lot 15 (the Respondent) is housing two cats within her lot in contravention of by-law 8 for the scheme. Although the body corporate has corresponded with the respondent informing her of the by-law contravention, and requesting that the cat be removed, Ms Wardle continued to keep the cat within lot 15.

In August 2004 the Body Corporate issued a Notice of Continuing Contravention of a Body Corporate By-Law requesting that Ms Wardle remove the cats from the complex in accordance with by-law 8 which provides as follows:

8. Keeping Animals
Subject to section 143 of the Act an owner or occupier of a lot may not keep any animal on site.

Submissions

This office sought submissions in respect of the application from the respondent and all owners.

The respondent submitted that:

- prior to purchase, the real estate agent told her she would be able to keep the cats in her unit;

- the only complaint was received from her neighbour in lot 16;
- the cats are kept indoors ; and

- the cats are of advanced age (14 years) and consequently permission is sought to retain the cats for the remainder of their natural lives.

Of 10 submissions received from lot owners, 8 submissions supported the body corporate while 2 submissions suggested that an exception to the by-law was appropriate in this case.

A common concern was that to allow one person to keep a pet, the body corporate could not subsequently discriminate against others who subsequently wished to keep pets giving rise to a potential scenario where large numbers of animals would be housed in a high density townhouse complex.

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". 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.

Having regard to all the circumstances of this case, the 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 8 regarding the keeping of animals. I would also make the observation that the decision of the body corporate is supported by 8 of the 10 submissions from owners.

It should be noted that before the purchase of a unit, a purchaser has an opportunity to inform ones self of the scheme by-laws by conducting a search with the Department of Natural Resources and Mines. As well as being part of standard conveyancing practice in the purchase of a lot in a community titles scheme, it is also one of the "suggested matters for examination" on the "Contract Warning" which is contained in each contract of sale for a lot in a community titles scheme in Queensland . Potential purchasers are able to peruse the by-laws for a scheme such as this prior to purchase, and seek permission to keep the cat from the body corporate. Where such approval is not been forthcoming, a potential purchaser can decide not to proceed with the purchase, or make alternative arrangements for their pet’s accommodation, prior to moving in.

Conclusion

Applications of this nature are regularly made to this Office in respect of premises such as Parkton Village. The body corporate has a duty to enforce the by-laws (Act 94(1)).and in the absence of exceptional circumstances, there is little basis for this Office to overturn a valid by-law. I therefore order the owner of lot 15 to remove and keep removed from the scheme, the two cats currently being kept by her in lot 15.

I also note the respondent’s difficulty in finding suitable alternative accommodation for the cats and allow the owner of lot 15 two months (eight weeks) to remove the cats from the scheme.