Palm Springs [2005] QBCCMCmr 687 (7 December 2005)

Last Updated: 16 January 2006

REFERENCE: 0655-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1315
Name of Scheme:	Palm Springs
Address of Scheme:	12 - 16 Cannon Street MANUNDA QLD 4870

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

Sarah Joy Parnell, the Owner of lot 6

I hereby order that the owner of lot 6, Sarah Joy Parnell, shall be permitted to keep her two cats, on her lot on the following conditions: 1. That they must not be allowed unattended on the common property at any time 2. That if they are taken from the lot for any reason they must be carried over the common property or placed in a pet cage/carrier 3. That they must be immunised and treated for worms, fleas and ticks in accordance with the recommendations of their veterinary surgeon 4. That the cats’ kitty litter must be disposed of in such a way as not to create noxious odours for other residents of the scheme 5. That they must not cause a nuisance to any other residents of the scheme 6. That upon the death of either of the cats, no replacement cat shall be permitted without the written consent of the body corporate committee being first obtained.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0655-2005

"Palm Springs" CTS 1315

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

To be allowed to keep my two cats on my lot

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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)).

SCHEME DETAILS

Palm Springs is a community titles scheme comprising 28 residential lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

A comprehensive history of this matter was set out in the applicant’s grounds. That material was provided to all owners and the body corporate committee. I therefore do not intend to restate that detail in this document, save to the extent necessary to illustrate the reasons for my determination.

In summary, the applicant purchased her lot in late 2004, and took up occupation of the lot in January 2005. Prior to doing so, she had read the by-laws, and also noticed that several lots in the scheme had pet flaps on their doors. In addition she observed cats around the scheme, and two small dogs in one lot. On the basis of this information and her observations she believed that the scheme was "animal friendly".

The body corporate committee and all other owners were invited to respond to the application. Submissions were received from the body corporate manager, on behalf of the committee, and from two owners.

The body corporate committee opposed the application, citing its "no animal policy" as the basis for having refused the applicant’s request to keep her cats in her lot.

The absentee owners of one lot also opposed the application, stating that the by-laws do not allow animals to be kept on the premises.

The owners of another lot were supportive of the application, stating that the cats are kept indoors at all times, are well cared for, and do not bother them. These owners also have a cat which they state helps to keep visiting rodents at bay.

On 28 November 2005 I spoke by telephone with both owners who made submissions.

The owner who opposed the application expressed the view that if the applicant were to be allowed to keep her cats, then everyone else could do the same. He said "imagine how smelly the place would get then". Although he thought that the scheme had a "no animal policy" he stated that he had not actually read the by-laws and agreed that the by-law as presently worded does not prohibit animals. The owner further stated that if the applicant wanted to have her cats living with her then she should have bought a house.

The owner who supported the application confirmed that the applicant’s cats live inside her lot, and are not allowed to roam. She also advised me that the committee has told her to remove her own cat as well. She stated that her neighbours knew she had a cat and had no problem with that, and that, to the best of her knowledge, there had been no formal complaints about her cat. She expressed the view that a number of owners would like to have a small pet but the committee has been very hard, citing the difficulties that another of her neighbours had had to be given permission to have a pet bird.

DETERMINATION

The relevant by-law for this scheme states:

14.	KEEPING ANIMALS

(a) Subject to section 143 [now section 181] of the Act an occupier must not, except with the consent in writing of the body corporate committee

I.	bring or keep an animal or bird on the lot or the common property, or
II.	permit an invitee to bring or keep an animal or bird on the lot or the common property

(b) any consent of the body corporate committee may be:

I.	given on conditions and
II.	withdrawn at any time, if the conditions are not met.

The plain meaning of this by-law is that animals must not be kept in the lot or on common property without committee consent. Therefore, if an occupier wishes to keep an animal they should first seek that consent. The committee then has discretion whether to grant or refuse authorisation to keep any particular animal. However, the committee must act reasonably in exercising this discretion (section 94 of the Act).

By-law 14 does not implement a "no animal policy". However, it is clear from the submissions that the committee and the owners of the lot that opposed the application are of the view that no pets are allowed at Palm Springs.

When a committee has discretion to approve the keeping of animals it is not appropriate for it to adopt a "no animal policy" and apply that policy as a blanket rule. It is for the owners as a whole to determine if the by-law should be amended to state that no pets are allowed under any circumstances. If owners decide to amend the by-laws to prohibit pets absolutely then the amended by-law would be effective from the time it was recorded by the Registrar of Titles. Notice of the by-laws could then be given to all owners and tenants. Prospective purchasers would also have an opportunity to search the titles registry and obtain a copy of these by-laws before purchasing a lot.

The present by-law 14 gives the committee the power to approve the keeping of an animal on the scheme on such reasonable conditions as may be appropriate.

The committee has not only misapprehended the proper meaning of the present by-law, it has as a result failed to properly consider the applicant’s request to keep her cats in her lot. In so doing, it has not acted reasonably.

There is no evidence that the applicant’s cats have caused any problem in the scheme. No one has stated that the cats roam or that they cause a nuisance.

The committee’s submission referred to other outside cats being attracted to the scheme because of the "smell and sounds of cats, even if kept indoors, (tending) to attract (them)". The reality of course is that even without a single cat in the scheme, outside cats which are allowed to roam freely can and will enter any open area that appeals to them for whatever reason. Hence, even if an absolute prohibition were to be placed on animals within the scheme, outside animals could still wander in if they felt so inclined.

I have been advised by one of the owners that the exclusive use areas allocated to each of the lots for car spaces and courtyards are not fenced, so there would seem to be no physical deterrent to the presence of animals.

The submission by one lot owner referred to rodents entering the scheme from the adjoining Colonial Club Resort. In my view the presence of such vermin would alone be sufficient reason for outside cats to be attracted to the scheme.

I found the committee’s admission that "visiting cats have been trapped and then taken care of by a vet in the pursuit of a cat free complex" to be particularly disturbing. It is not clear whether the cats are "taken care of" by being put down, or whether the vet simply delivers the cats to the Council pound. If the cats are merely being delivered to the pound, one could question why that is not done by the person who ensnares the cats, rather than involving a veterinary surgeon. However, if the cats are being destroyed as a result of the committee’s intervention, then the committee members may need to consider their potential liability under the Animal Care and Protection Act 2001 and any other relevant legislation enacted for the welfare of animals, given that they would have acted without the exemptions and protections that apply to local authorities and organisations such as the RSPCA in having stray or abandoned animals put down.

The personal circumstances of the applicant have also been completely ignored by the body corporate committee. Its submission was confined to its misconceived view of its by-law.

The medical reports from the applicant’s specialist and another health professional state that the presence of her cats has provided her with significant therapeutic relief from a serious medical condition. This condition lead to her medical discharge from the Royal Australian Navy in June 2005.

The uncontested evidence further reveals that the applicant is a responsible and capable young woman. She has fallen ill because of her experiences overseas in the service of her country. The road to recovery is expected to be a long one, but the comfort and security of her new home and the companionship of her cats are regarded by her treating team as being integral elements of that recovery.

The cats (a male and a female) have both been desexed, and the applicant has provided copies of receipts from her local veterinary surgery relating to immunisations and worm treatment. She has also stated that they are treated for ticks and fleas on a monthly basis. It is clear that the cats are well cared for, and they are not allowed out onto the common property.

Having considered the specific circumstances pertaining to this applicant, I find that it would be neither just nor equitable for the applicant to be refused permission to keep her cats within her lot on certain specific conditions. I have ordered accordingly.

This decision only relates to the applicant’s cats as that is the only matter for which I am required to make a determination. However, it may have ramifications in relation to the other cats in the scheme. If the committee has made decisions in relation to those cats based on its "no animal policy" it would be well advised to reconsider them, having proper regard to the meaning of the existing by-law, and giving appropriate consideration to the specific circumstances of each case.