Palm Crest Heights [2006] QBCCMCmr 113 (13 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0741-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19265
Name of Scheme:	Palm Crest Heights
Address of Scheme:	Palm Meadows Drive CARARRA QLD 4211

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

Annette and Stephen Tramoundanas, the Owner(s) of lot 132

I hereby order that the application by Annette and Stephen Tramoundanas, the Owners of Lot 132, for an order to keep a cat, is dismissed. I further order that Annette and Stephen Tramoundanas, the Owners of Lot 132, shall within 14 days of the date of this order, comply with by-law 7.5 by removing and thereafter keeping removed, from the lot and the scheme generally, the cat presently being kept by them.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0741-2005

"Palm Crest Heights" CTS 19265

Scheme

The "Palm Crest Heights" community titles scheme (Palm Crest Heights) consists of 129 lots and common property. Titles Office records reveal that the scheme was created under a group titles plan (now known as a standard format plan) of subdivision, registered on 18 February 1994 under the provisions of the Building Units and Group Titles Act 1980 (BUGTA). The records further reveal that on 27 April 2004, and in accordance with the Body Corporate and Community Management Act 1997 (the Act), a community management statement was recorded for "Palm Crest Heights". The community management statement indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 applies to the scheme.

Application

This application is brought by the owners of Lot 132, Stephen Stratis Tramoundanas and Annette Frances Tramoundanas (the Applicants), against the body corporate, seeking an order that they be able to retain their family cat within the lot. The Applicants state that the cat has been with their family since the birth of their daughter. They state that, upon moving to Palm Crest Heights, they made arrangements for the cat to stay with a relative who lived close by. That relative is returning to New Zealand to live and the Applicants now seek an exemption from the applicable by-law to enable them to keep the cat within their lot until its death. They state that it is a rag doll cat and would be kept indoors. The body corporate has issued the Applicants with a letter dated 21 September 2005 requiring them to remove the cat. The Applicants claim that they are being discriminated against because other owners in the complex have pets.

After this application was made, a related application was received (reference 0880-2005). The two applications are by different owners but both seek orders against the body corporate to enable them to keep pets in the scheme. As both applications raise similar issues, I have adjudicated the two matters concurrently. I have made separate orders, but my reasons are similar.

Procedural Matters

In accordance with section 243 of the Act, a copy of the application was provided to the respondent body corporate and to all owners, with an invitation to the committee and all owners to respond to the matters raised in the application. The committee made a written submission. In addition, 22 individual submissions were made by owners. Of the submissions received, 7 were in favour of the Applicants being able to retain the cat and 16 were opposed. The Applicants did not exercise their right to inspect the submissions or reply to the submissions made.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act (see sections 227, 228, 176 and Schedule 5).

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)).

Determination

By-Laws Generally

The body corporate legislation allows bodies corporate to either adopt standard by-laws set out in the Act, or to make rules that best suit its individual circumstances. By-laws may provide for the administration, management and control of common property and body corporate assets, as well as regulating the use and enjoyment of lots, common property, body corporate assets, and any services and amenities supplied by the body corporate (section 169 of the BCCM Act). The keeping of animals on scheme land is a matter that is commonly dealt with by body corporate by-laws.

By-laws for particular bodies corporate are stated in the community management statement applying to the scheme. In accordance with section 59(2) of the BCCM Act, the community management statement for a community titles scheme (including the by-laws), is binding on the body corporate, and the owners and occupiers of lots included in the scheme.

One of the general functions of bodies corporate is to enforce the community management statement (including the by-laws) for the scheme (section 94(1)(b) of the BCCM Act). It is important to note that bodies corporate must act reasonably in carrying out their general functions, including the enforcement of by-laws (section 94(2) of the BCCM Act).

General Approach of Adjudicators in Animal By-Law Disputes

The view of adjudicators (as was the case previously with the Referee) has been that animal by-laws, like all other by-laws, are to be observed by owners and occupiers. It should not be afforded any special significance simply because it is often the subject of emotional appeals. In most instances of owners or occupiers breaching animal by-laws, adjudicators will order compliance with the by-law, except where the owner or occupier 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 require the removal of the animal within 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 an 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 that bodies corporate must treat all owners equally.
In addition adjudicators may also generally consider whether or not the body corporate is acting reasonably in its application of the by-laws in accordance with its functions and obligations under section 94 of the Act.

Application of the Animal By-Law at Palm Crest Heights

In this instance, the body corporate committee has refused the Applicants’ request to keep the cat within their lot. The committee have sent the Applicants a letter dated 21 September 2005 requesting that they remove the cat within a period of 14 days. The committee have relied upon by-law 7.5, which provides as follows:

7.5 Animals

(a) No animals shall be allowed on the complex from the date of registration of this by-law;
(b) An Owner or Occupier with existing pet/pets at the time of registration of this by-law, has a dog, cat or other small animal, which is a pet, may with prior approval of the Body Corporate; keep that animal on his lot but on its death is not entitled to replace it.
(c) An Owner or Occupier of a lot must not (subject to the provisions of the Guide Dogs Act 1972 and in the case of an Owner, subject to paragraph (a) of this By-Law) raise, breed or keep animals on his lot.
(d) Subject to paragraphs (b) and (c) above:

(i) Any prior written consent to keep an animal may be withdrawn in circumstances where the Body Corporate reasonably considers that the keeping of the animal may interfere with the quiet enjoyment of another lot by its Owner or Occupier.
(ii) All animals must be kept clean, quiet and controlled. Animals must not be permitted on any part of the Common Property unless carried or on a leash. Each Owner and Occupier is absolutely responsible to clean up after any animal brought or kept upon the parcel by him or his invitees.
(iii) Any Owner or Occupier who keeps and maintains a pet thereby expressly assumes any and all liability for any and all action by the pet, whether or not the Owner or Occupier had knowledge, notice, or forewarning of the likelihood of such action.
(iv) All pets shall be registered with the Body Corporate Resident Manager and shall otherwise be registered and inoculated as requited by law.
(v) Dogs shall carry conspicuous tag.
(vi) The Body Corporate will have the right to order any person who persistently breaches this By-law to permanently remove their pet from their Lot and the Parcel.

The body corporate, by adopting by-law 7.5, has effectively adopted a "No Pets Policy" from 27 April 2004, the date of registration of the new community management statement containing by-law 7.5.

The Applicants do not deny they are breaching the by-law by keeping the cat within their lot, but they seek an exemption from the by-law. As previously stated, the by-laws are binding on all owners and occupiers. It is not open for committees to grant exemptions from the applicability of by-laws.^[1]

I turn now to consider whether there has been any acquiescence or discrimination on the part of the body corporate.

There is no suggestion that there has been any acquiescence by the body corporate in this case. The resident managers state in their submission that they suspected a cat was residing in the Applicants’ unit early in 2005, but the Applicants denied this. It wasn’t until the cat was caught in a cat trap in August that the Applicants admitted the cat was theirs. The issue was discussed at a committee meeting of the body corporate on 25 August 2005 and a letter was sent to the Applicants on 21 September 2005 requesting them to remove the cat within 14 days. The Applicants failed to comply with the body corporate’s request and lodged an Application to Resolve a Dispute with this office on 19 October 2005.

The Applicants claim that the body corporate is discriminating against them, as there are other owners in the complex who have pets. I am not persuaded that the Applicants have been discriminated against. The submissions reveal that there are two cats and one dog residing on the premises which were approved under the original by-laws and able to be retained until their death under the terms of the new by-law. The only other animals being kept at Palm Crest Heights are ones which are currently the subject of applications to resolve dispute with this office.

The Applicants also state that Palm Crest Heights is surrounded by complexes and private homes which are allowed to have pets. This is irrelevant so far as determining whether or not pets are allowed within Palm Crest Heights.

It is clear that the Palm Crest Heights body corporate has determined that the complex maintain a "No Pets Policy". As by-law 7.5 is currently drafted, there is no capacity for the committee of the body corporate to grant permission for an owner or occupier to keep an animal within the scheme. Pets are simply not allowed.

Having found no evidence of any acquiescence or discrimination by the body corporate, nor any unreasonableness in their enforcement of the by-law, I have denied the Applicants’ request and ordered them to remove the cat within 14 days.

The Applicants may wish to consider submitting a motion to the next general meeting of the body corporate proposing a change to the existing by-law 7.5, if they disagree with the "No Pets Policy". However, the submissions received in response to this application and also 0880-2005 indicate that there is strong support amongst owners for the "No Pets Policy".

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^[1] An Adjudicator does have power to order a body corporate to remove a by-law if satisfied that a by-law is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable, or, if satisfied that a by-law is invalid, to make an order declaring it to be so. The Applicants in this application and in 0880-2005 have not made any suggestion that by-law 7.5 is invalid, oppressive or unreasonable.