Palm Crest Heights [2006] QBCCMCmr 116 (13 March 2006)

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

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

I hereby order that the application for an order that the Owner of Lot 12, Lorraine Therese Fitzgerald, be allowed to keep her kitten within her unit, is dismissed.

I further order that the Owner of Lot 12, Lorraine Therese Fitzgerald, 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 her.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0880-2005

"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 owner of Lot 12, Lorraine Therese Fitzgerald (the Applicant), against the body corporate, seeking an order that she be able to keep her kitten within her own unit. The Applicant admits to purchasing the kitten for her granddaughter after her granddaughter moved in with her, to give her pleasure and to keep her company while the Applicant worked as a Registered Nurse. She states that she knew of other pets in the complex, some of which were approved and some which were not. The Applicant goes on to state that the kitten is very dear to her and her granddaughter and does not leave the unit, except on occasions when "she makes the great escape because someone did not close the door quick enough". The body corporate has issued the Applicant with a letter dated 30 November 2005 requiring her to remove the cat. The Applicant was also issued with a Notice of Continuing Contravention of a Body Corporate By-Law on 23 January 2006.

Prior to this application being received, another application for the same scheme (reference 0741-2005) had been lodged. 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, 10 individual submissions were made by owners. Of the submissions received, 1 was in favour of the Applicant being able to retain the cat and 10 were opposed to the keeping of the cat. The Applicant did not exercise her 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

(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

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. The animal by-law 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:

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 Applicant does not deny breaching the by-law by keeping the cat within her lot, but like the Owners of Lot 132, seeks 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 Committee states in its submission that "on being made aware that there was a pet cat at the Applicant’s lot, the building manager reported the matter and a letter dated 30 November 2005 was sent to the Applicant requesting that the cat be removed from the complex. As the cat had not been removed the building manager reported the matter to the committee at its meeting on 19 January 2006 and it was resolved that a Notice of Continuing Contravention of a Body Corporate By-Law be issued against the Applicant." The Notice of Continuing Contravention of a Body Corporate By-Law was issued on 23 January 2006. The Applicant failed to comply with the Continuing Contravention Notice and lodged an Application to Resolve a Dispute with this office on 13 December 2005.

The Applicant claims that exceptions have already been made by the committee to allow certain pets to stay within the complex. She provides no details of the claimed exceptions other than to say that a member of the acting committee has a pet dog. I disagree with the Applicant in this regard. The submissions reveal that the only pets kept at the complex (other than those the subject of current Applications to Resolve Disputes before this office) are those for which approval was given under the original by-law. These animals are permitted to remain at the complex until their death, in accordance with by-law 7.5.

The Applicant also states 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 its enforcement of the by-law, I have denied the Applicant’s request and ordered her to remove the cat within 14 days.

The Applicant 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 she disagrees with the "No Pets Policy". However, the submissions received in response to this application and also 0741-2005 indicate that there is strong support amongst owners for the "No Pets Policy".

^[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 0741-2005 and the Applicant here have not made any suggestion that by-law 7.5 is invalid, oppressive or unreasonable.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Crest Heights [2006] QBCCMCmr 116 (13 March 2006)