Central Heights [2005] QBCCMCmr 639 (16 November 2005)

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 the body corporate for Central Heights community titles scheme 20078 is deemed to have authorised the keeping of the female British Bulldog named Cleo (the dog) on Lot 164 under By-Law 15(d) of the scheme By-Laws, and that the authorisation is subject to the following conditions:

1. The occupier of Lot 164 must ensure that the dog does not cause a nuisance or in any other way cause a breach of section 167 of the Body Corporate and Community Management Act 1997.
2. The occupier of Lot 164 must ensure that the dog is not allowed on the common property of the scheme unless it is properly restrained, and the occupier of the Lot must ensure that any droppings from the dog on common property are collected immediately.
3. The dog is confined to the Lot by a fence or other suitable means.
4. The authorisation applies only to the dog and does not authorise the keeping of any additional, replacement, or substitute animal on Lot 164.

I further order that in all other respects, the application is dismissed.

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 an animal on the Lot and that the change to the By-Laws for the scheme be put on hold.

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:

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)).

INTERIM ORDER

The applicants had 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.

On 9 August 2005, I made the following interim order, quote:

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).

SUBMISSIONS

The applicants’ main submissions were summarised in the Statement of Adjudicator’s Reasons for Decision to the interim order as quote:
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.

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. The time for making submissions was extended by the commissioner as the entire application was not originally distributed. A submission was received from the committee and a number of lot owners. The applicants made a written reply to submissions under section 244 of the Act.

The respondent’s main submissions were summarised in the Statement of Adjudicator’s Reasons for Decision to the interim order as quote:

DETERMINATION

The applicants’ have sought 2 final outcomes; 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 animal being kept on Lot 164 is a female British Bulldog named Cleo.

The applicants sought body corporate approval for the keeping of the dog by letter dated 16 April 2005 which stated that permission was requested "for my granddaughter to bring her dog, which is small to medium in size". The applicants were subsequently advised by the body corporate that approval was given for a dog complying with the requirements of By-Law 10. In June 2005, the body corporate gave 2 notices to the applicants requiring the removal of a dog which contravened By-Law 10. At its Annual General Meeting dated 26 July 2005 (AGM), the body corporate resolved by special resolution by 34 votes to 2 to repeal By-Laws 1 to 25 and replace them with By-Laws 1 to 20 (Motion 9).

The applicants have sought to put the change of By-Laws as determined at the AGM on hold pending the outcome of this dispute. In the Statement of Adjudicator’s Reasons for Decision to the interim order, I stated that "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". It is evident that the body corporate has implemented Motion 9 as a new community management statement (CMS) was recorded by the Registrar of Titles, Department of Natural Resources and Mines on 27 September 2005. A consequence of the recording of the new CMS is that By-Law 15 now relates to the keeping of animals.

At the time of the lodgement of the application, By-Law 10 of the scheme By-Laws regulated the keeping of animals. In the Statement of Adjudicator’s Reasons for Decision to the interim order, I stated that "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".

By-Law 10 has been included in the scheme By-Laws since at least 1992. While there have been minor amendments to the By-Law, the By-Law has always stated that "one small domestic animal...not more than 10kg in weight" may be kept and the committee may resolve to remove an animal "which becomes a nuisance". The weight limitation specified in the By-Law has been entrenched since 1992 despite the body corporate lodging changes to its By-Laws on 3 occasions prior to 1997, and despite the body corporate lodging 3 requests to record new CMS’s since the commencement of the Act. The effect of By-Law 10 was that an owner or occupier of a lot included in the scheme had the right to keep an animal of not more than 10kg in weight provided the person complied with a number of conditions, including ensuring the animal was confined to the person’s lot and that the animal did not become a nuisance. The committee had the power under the By-Law to require removal of the animal if it became a nuisance.

The by-laws form part of the CMS for the scheme^[1]. The CMS is binding on the body corporate, each lot owner and on each person who occupies a lot included in the scheme^[2]. A function of the body corporate includes enforcing the CMS, including the by-laws for the scheme, and to act reasonably in doing this^[3].

Despite the obligation on an owner and occupier to keep an animal weighing not more than 10 kg, it is evident that some owners and occupiers have kept animals of greater weight. The committee submitted that these animals have been authorised by the body corporate, and that no large dog has been approved for over 2 years. In addition, Ian Chessells submitted that larger dogs were given permission prior to August 2004 when the committee made the decision not to allow any more large dogs in the complex for safety and noise reasons. In my view, while the committee had the power under the By-Law to require a large dog to be removed from a lot, the committee did not have the power to authorise the keeping of a large animal above the weight limitation specified in By-Law 10. While the committee has the power to make a body corporate decision^[4], the body corporate is bound by the CMS for the scheme^[5]. Therefore, while the committee may consider that it acted fairly, the committee did not have the power to make a body corporate decision to authorise the keeping of an animal on a lot which was of a greater weight than 10kg until properly authorised by the body corporate by, for example an appropriate amendment to the relevant by-law.

Similarly, the owner or occupier of a lot in the scheme did not have the right to keep an animal weighing more than 10kg. Consequently, neither the applicants, the occupiers of Lot 164, or the owner or occupier of any other lot in the scheme could have sought to keep an animal on that person’s lot once its weight exceeded the limit imposed by By-Law.

The amendment to By-Law 10 occurred with the decision at the AGM and the subsequent recording of the new CMS. The new relevant By-Law 15 authorised any animal or bird notified to the committee kept as at 1 August 2004. The effect of this decision is that the occupiers of Lot 164 have not been permitted to keep a large dog while other lot owners and occupiers have been given allowed to keep large animals. At the time that the applicants sought approval to keep the dog, By-Law 10 was the applicable By-Law.

Notwithstanding the body corporate decision, the body corporate is bound to act reasonably and for the benefit of lot owners. In the Statement of Adjudicator’s Reasons for Decision to the interim order, I stated that "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".

In my opinion, the committee did not have the power to authorise the keeping of large animals, nor did it have the power to impose the arbitrary date of 1 August 2004 prior to By-Law 15 having effect^[6]. By allowing some animals to be kept contrary to By-Law 10, the body corporate has created the circumstance and the problem of deciding to prevent other large animals pursuant to By-Law 10. While the body corporate certainly has the right to enforce the By-Law, I consider that its actions in allowing some animals contrary to By-Law 10 while refusing other animals gives the appearance that the body corporate is acting unreasonably or in a discriminatory manner. While the occupiers of Lot 164 did not have the right to keep a dog weighing more than 10kg, on balance, I consider that given the circumstances of this dispute, the body corporate cannot, without good reason, refuse to allow the occupier to similarly keep a large animal. It is my view that there would need to be good reason to require the removal of this dog while allowing other large animals, despite the fact that the new CMS has been recorded creating By-Law 15.

A reasonable ground for not allowing the occupier of the applicants’ lot not to keep the dog is if it is causing a nuisance or otherwise interfering with another person’s lawful use of their lot or the common property. Section 167 of the Act relates to nuisance and states, quote:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
Given the material submitted to the application, I am satisfied that the dog is not presently causing a nuisance.

For these reasons, I do not consider that the body corporate could reasonably refuse the occupier of Lot 164 from keeping a dog weighing more than 10kg while allowing other owners and occupiers to keep an animal weighing more than 10kg. Consequently, I have ordered that the occupier of Lot 164 is deemed to similarly have the body corporate authorisation pursuant to By-Law 15(d) of the scheme By-Laws to keep the female British Bulldog named Cleo on the Lot. The dog may be kept on the Lot subject to the following conditions:

This order should not be viewed as allowing any large animals to be kept on a lot in the scheme. This order was made on the premise that body corporate approval was sought under the previous By-Law 10; at this time other large animals were allowed to be kept contrary to the applicable By-Law; and for no good reason, the occupier of Lot 164 was required to remove the animal from the Lot. Now that By-Law 15 regulates the keeping of animals, I would expect that the body corporate ensures that a request to keep an animal is considered and decided in accordance with the terms of the By-Law.

^[1] Section 66(1)(e), Act.
^[2] Section 59(2), Act.
^[3] Section 94, Act.
^[4] Section 100(1), Act.
^[5] Section 59(2), Act.
^[6] Section 59(1), Act.

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

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Central Heights [2005] QBCCMCmr 639 (16 November 2005)