Canberra Heights [2005] QBCCMCmr 99 (21 February 2005)

Last Updated: 5 July 2005

REFERENCE: 0731-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16657
Name of Scheme:	Canberra Heights
Address of Scheme:	35 Canberra Terrace CALOUNDRA QLD 4551

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

I hereby order that within three (3) months of the date of this order, the body corporate must provide all owners with a copy of this order and the accompanying statement of reasons together with a written motion for the approval of the owners of Lot 24, Barry Brebner and Grahame Stanley, to keep the dog currently being kept by them on their lot. Both the respondents and the body corporate committee may include an explanatory note with the voting paper, in each case not being longer than three hundred (300) words. I further order that owners must be allowed not less than three (3) weeks to return their written vote and that the motion will be decided by a simple majority as for an ordinary resolution, providing the persons voting constitute a quorum as if for a general meeting. I further order that this order is self-executing in following the decision of owners, in that – • if the motion fails to pass then Barry Brebner and Grahame Stanley must remove the dog within one (1) month of the decision, and keep it removed from the scheme. • If the motion is passed then they may keep the dog on their lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0731-2004

"Canberra Heights" CTS 16657

The applicant body corporate has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"That the owners of Lot 24, Mr Brebner and Mr Stanley be instructed to remove the dog they are keeping without Body Corporate approval from their unit."

JURISDICTION:
This is a dispute between the body corporate (the applicant) and the owners of a lot (the respondents Barry William BREBNER and Grahame Bernard STANLEY, the co-owners of Lot 24) concerning a dog being kept by them on their lot without the approval of the body corporate required under the relevant by-law. This is a matter falling within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act) which may be determined by a departmental adjudicator.

For an application by a body corporate alleging a breach of the by-laws to proceed, section 184(1) and (2) of the Act provides –

184 Preliminary procedure for application by body corporate for
resolution of dispute
(1) This section applies if--

(a) a dispute exists between the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; and
(b) the dispute arises because the body corporate reasonably believes--

(i) the owner or occupier has contravened a provision of the by-laws for the scheme; and
(ii) the circumstances of the contravention make it likely the contravention will continue or be repeated.

(2) The body corporate may make an application under chapter 6 for resolution of the dispute only if the body corporate has given the owner or occupier a contravention notice for the contravention the subject of the dispute.

There are certain exceptions to the requirement set out in section 186 however they are not relevant to the circumstances of this application.

The applicant has met the above requirements (see later under heading "Application and Submissions").

General powers of an Adjudicator in making an order:
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 this 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:
Under section 243 of the Act, a copy of the application was provided to the respondents Brebner and Stanley, and to all other lot owners, with an invitation for each to respond to the matters of dispute raised in the application. The respondents have made a joint written submission (in two parts) opposing the application. The following owners made submissions in support of the body corporate committee’s application: D & GT Price of Lot 14; S Rae of Lot 6; J Noy of Lot 19; J & V Taylor of Lot 18; E Nobles of Lot 17; E Wood of Lot 20; I & M Kerr of Lot 22; J & L Sheed of Lot 14 and C Moore of Lot 9. The following owners made submissions opposing the application: K Eglen of Lot 1; M Freestun of Lot 7; K & R Smith of Lot 23; and G & M Capper of Lot 21. The applicant body corporate (committee) did not view the submissions in order to be able to lodge a reply to the submissions (see sections 244 and 246 of the Act).

The brief facts of the dispute are as follows.

This dispute was the subject of a previous, failed application, Application No. 349-2004. That application was made some 2 months after the respondents (Brebner and Stanley) purchased and moved into their lot. The order sought by the body corporate committee was, "Due to the fact that committee vote is split equally – decision sought by adjudicator from the Office of the Commissioner." The equal vote was in respect to an application by the respondents dated 15 March 2004 to keep a dog (silky terrier) and a cat which they intended bringing with them when moving in, which they did on 16 April.

By letter dated 27 April 2004, the Resident Manager/Caretaker (Keith Eglen) wrote to the respondents stating that the by-law prohibited animals being brought onto the scheme without prior permission of the body corporate and as the committee had not given its approval, the dog was to be removed immediately. Eglin did say that, "I am aware that you have sought the approval of the body corporate to bring a dog into your unit but that such approval has yet to be given to you, nor can such approval be assumed."

At its meeting on 13 May 2004 the committee resolved to give temporary permission to the respondents to keep the animal pending the outcome of Application 349-2004, and advised them so by letter dated 7 June. The Commissioner wrote to the applicant body corporate on 10 June and again on 8 July seeking clarification of the order sought; the committee subsequently withdrew the application on 12 July 2004. By letter that same day the Body Corporate Manager, North Coast Body Corporate Management Services, advised the respondents that the application was withdrawn after a further motion to keep the animals was lost at a meeting of 18 June, and as a result they must remove the pets which were being kept in breach of By-law 11.

At a further meeting on 15 September 2004, the committee noted that the dog had not been removed and resolved to serve a contravention notice advising the respondents they had 21 days to remove the dog otherwise an application would be made to the Commissioner. A "Notice of Continuing Contravention of a Body Corporate By-law" dated 22 September 2004 was served on them citing By-law 11.

The respondents failed to comply with the notice and as a result the body corporate committee resolved to lodge this application for an order against the respondents to remove the dog.

The respondents state that when they originally viewed the lot, a dog belonging to the then owner was present in the lounge and it was there on two further occasions when they visited. It was not until after contracting to purchase that they discovered the dog’s presence had not been approved by the body corporate (committee). It was at that time (March 2004) they wrote to the committee seeking approval for bringing their dog and cat onto the scheme.
The first response was the letter of 27 April from Eglen to remove the dog.

The respondents make reference to a number of previous decisions by adjudicators (all orders are published on the departmental website) concerning animals, including one of my own. They state that the dog is quite old at 14 years, partly blind and deaf, and consequently finding an alternative home for it would be unlikely. The respondents also say that there has not been a single complaint regarding the dog’s behaviour. Further, until recent times a dog had been kept in Lot 25 (the penthouse) for some 18 months, and theirs has now been kept for some 10 months.


DETERMINATION:
"Canberra Heights" was registered as a building units plan (now referred to as a building format plan) on 4 October 1995 and comprises 25 lots. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module").

Section 59(2) of the Act provides that each member of the body corporate, registered proprietor and occupier of a lot (and others) is bound by the community management statement ("CMS") of the body corporate. Subsection 59(3) states that the binding nature of the CMS is as effective as if those bound had signed the statement under seal.

Section 66(1)(e) of the Act requires that the body corporate’s by-laws must be contained in its CMS, unless they are the statutory by-laws contained in schedule 4 to the Act. The current community management statement for "Canberra Heights" was recorded on 13 July 1999 and includes in its by-laws the following By-law 11 under which the body corporate committee has acted -

Keeping of animals.
11 (1) The occupier of a lot must not, without the body corporate’s written approval –
(a) bring or keep an 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.
11 (2) The occupier must obtain the body corporate’s written approval before bringing, or permitting an invitee to bring, an animal onto the lot or common property.

Section 169(1)(b)(i) of the Act provides that a body corporate may make by-laws for the "regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme" This is a wide by-law making power available to the body corporate and would include a by-law regulating the keeping of pet animals on lots. In fact this by-law reproduces the statutory one for keeping animals set out in Schedule 4 to the Act.

Accordingly, By-law 11 is a valid by-law and by not having the written approval of the body corporate the respondents are in breach of it in keeping their dog on the lot.

Before looking at the specific facts of this matter, it will be of benefit if I were to give an extract from my reasons to another order in explanation of how adjudicators generally approach applications concerning the keeping of animals –

"I would like set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws.

Most bodies corporate have by-laws preventing the keeping of animals except with the consent of the committee. Adjudicators are continuously being approached with requests for orders seeking either that an animal be removed, or alternatively, that the refusal of a body corporate (committee) for an owner to keep an animal, be overturned. Often these owners claim there are "special circumstances" why they should be allowed to keep an animal. The view of adjudicator’s, as with the Referee, is that the by-law regarding animals, like all other by-laws, is there to be observed. It should not be afforded any special significance simply because it is often the subject of much emotion. General practice is therefore to either order compliance with the by-law (where removal is sought by the committee) or to dismiss the application (where an owner wants the committee's refusal overturned), except where the owner can establish one of two things to the satisfaction of the adjudicator -

• Firstly, that there has been acquiescence on the part of the body corporate in not taking steps to remove the animal for a reasonable period of time. For example, the body corporate has failed to act on the matter for some time causing the owner to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for a owner to have to remove an animal that they have been allowed to keep over a period of time.

• Secondly, that the body corporate is 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 committee 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 equally."

In this instance, there is no doubt that the respondents breached the by-law in bringing the dog onto the scheme without prior permission. However, they did make application to the body corporate committee for permission to keep the dog (and a cat that the committee appears not to be bothered about now) very early in their purchase and before they moved in.

The committee was slow in its response to their application, taking some 6 weeks before notifying the respondents of its removal decision (ie from 15 March to 28 April). Delay of this nature and length makes for uncertainty and raises an expectation in the minds of an applicant that they have a reasonable chance of success. The committee has not offered any explanation as to why it delayed its decision; in most instances committees know the opinion of owners and have a ready policy which can be exercised promptly for or against an application.

The initial application by the committee concerning the dog was accompanied by fiving the respondents a temporary approval for the dog to remain pending the application’s outcome. The application itself was a strange affair and its intention was uncertain. The tied vote of the committee meeting of 13 May means, as is provided for in the legislation (see section 33(1) of the Standard Module), that the motion was lost. Apparently, and I do not have a copy of the relevant minutes to confirm or deny it, the motion was worded to allow the respondents to keep the dog and therefore the tied vote meant that there was no approval for the dog. There was no reason to make application for the matter to be adjudicated, unless the committee was uncertain whether it should act on such a marginal decision and wanted some guidance.

From a reading of the application and submissions, I think that there is some uncertainty amongst owners regarding the keeping of pets and I think there will be value in ascertaining the true feelings of owners for the benefit of the committee so that it may formulate a policy that correctly reflects the opinion of the majority of owners.

I do not think that acquiescence can be claimed by the respondents here; it really only applies where a long period of time has elapsed without any action by the body corporate. Here, although the committee was tardy in its reply, this was only for a matter of some weeks – also the period of temporary approval cannot be considered as an act of acquiescence.

In regard to discrimination, the respondents have referred to the instance of a dog kept for 18 months, and another that is brought on frequent visits to the scheme. This is a pretty thin claim and one I would seek more information on if it was the determining criterion. But it is not as I consider the matter should be put to all owners for their wishes to be made known. Part of this decision is based on information in submissions that some persons feel that the committee’s view is driven by a few persons who are very vocal in their dislike of dogs regardless of their size or behaviour.

Accordingly, I have made provision in my order for the matter to be resolved by owners. To make it easier, I have provided in the order that the decision may be made by flying minute. Although there is no meeting, the decision has the same authority as an ordinary resolution made in general meeting; such a decision, like all ordinary resolutions, are paramount to a committee decision including the exercise of a discretion under a by-law. Accordingly, all owners eligible to vote will have the opportunity to review the decision of the committee in respect to the respondent’s dog.

In order that all owners will be able to make an informed vote on the matter I have included in my order that the secretary forward a copy of this order and these reasons, to each owner. I have also ordered that the decision will be by simple majority (providing a quorum votes) and that it can be undertaken by a voting paper being forwarded to each owner (with the order and reasons) containing a suitable motion regarding the dog. Both the respondents and the body corporate (committee) will be allowed to include an explanatory note with the voting paper, in each case not to be longer than two hundred (200) words. This method will avoid the cost and inconvenience of calling a special meeting for the purpose. I have also ordered that owners should be given not less than three weeks to return their vote.

The order will be self-executing, that is, if approval is not given then the respondents must remove the dog and keep it removed; if the motion passes then the respondents will be able to continue to keep the dog on their lot.

The committee may also include on the voting paper a general motion regarding the keeping of dogs, and perhaps other pets. That is, a separate motion entirely from that regarding the respondent’s matter, and the distinction must be clear to voter owners. Such a general motion could canvass the opinions of owners regarding the keeping of any dog, and might also canvass, for example, the keeping of dogs under a certain weight so that only small dogs may be considered for keeping on the scheme.