The Village At West End [2006] QBCCMCmr 159 (29 March 2006)

Last Updated: 19 July 2006

REFERENCE: 0013-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28712
Name of Scheme:	The Village At West End
Address of Scheme:	30 - 50 Mollison Street SOUTH BRISBANE QD 4101

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

Reiko Macindoe, the co-owner of lot 61

I hereby order that the application to reverse the body corporate’s decision to refuse permission for the applicant to keep her dog within her lot, is dismissed. I further order that the applicant, Reiko Macindoe, shall within 1 month of the date of this order remove the dog from her lot and keep it permanently removed from the lot. I further order that this order shall not preclude the applicant from making a further application for body corporate approval to keep the dog within her lot if the dog’s barking problem has been resolved, provided however that the applicant shall not return the dog to her lot unless she has first obtained that approval.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0013-2006

"The Village At West End" CTS 28712

ORDER SOUGHT

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

Reverse the decision of the body corporate for approval to keep my dog.

JURISDICTION

The application evidences a dispute between the 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

The Village at West End is a community titles scheme comprising 68 lots and common property. The scheme was established upon registration of the building format plan on 19 October 2000. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

BACKGROUND

The applicant purchased her lot in September 2003. On 28 October 2005, the applicant and her husband applied to the body corporate for permission to keep a small dog in their lot. The body corporate considered their application at the annual general meeting held on 7 December 2005, but the motion was defeated.

At the same meeting the body corporate gave permission to two other lot owners to keep cats within their lots subject to certain conditions.

The body corporate subsequently advised the applicant that she had to remove the dog from her lot by 31 January 2006.

On 1 February 2006 I conducted a teleconference with the applicant and the body corporate manager. Subsequently the body corporate committee agreed that in order to maintain the status quo the dog would be permitted to remain in the applicant’s lot until an order was made in relation to her application.

All owners in the scheme and the body corporate committee were invited to respond to the application. Twenty seven submissions were received, none of which supported the application.

The applicant exercised her right of reply, and with that document lodged a letter from the owner of the large dog, whose presence in the scheme was authorized by the adjudicator’s order dated 10 March 2004. This owner supported the presence of the applicant’s dog within the scheme.

The essence of the majority of responses from owners was that:

• The dog creates a nuisance because it barks
• The dog should not be kept locked up inside a cage in a unit all day
• The presence of dogs in the scheme is not conducive to maintaining maximum rental returns for the large number of investors who own lots in the scheme
• The presence of dogs in the scheme is unhygienic

In response to these comments, the applicant stated that her dog is no longer kept in a cage, as she has moved it into a bathroom with a window adjacent to a bedroom. The applicant further stated that she has checked with the RSPCA and also the trainer from Bark Busters (the latter having attended at the unit on 24 February 2006 to address barking issues) both of whom stated that there is nothing inherently wrong with keeping the dog in this manner in the unit.

The applicant also stated that she had spoken with other neighbours, and they told her that they had not heard any noise from her dog. The applicant reported that the next door neighbour claimed to have only made one complaint, and queried whether there had been complaints from other residents. The applicant further stated that she had provided the next door neighbour with her home telephone number and her mobile telephone number, and requested that if she heard any more barking (after the Bark Busters trainer had completed a session with the dog) to please call her. The applicant stated that she had not had any further contact from the next door neighbour.

DETERMINATION

The body corporate is empowered to make by-laws which provide for, amongst other things, the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme (Act - s169(1)(b)(i)). These by-laws are contained in the community management statement and are binding on owners and occupiers of lots included in the scheme (Act – s59).

By-law 14 makes the following provision in relation to the keeping of animals:

Subject to the Act, an occupier of a lot shall not, without the written consent of the body corporate, bring or keep any animal on the lot or the common property or permit an invitee to bring or keep an animal on the lot or the common property. In no circumstances shall any animal weighing more than 7.5 kg be brought or kept on the lot or the common property.

As a general rule, adjudicators will order compliance with the by-law, unless there is evidence of either acquiescence or discrimination on the part of the body corporate.

Acquiescence occurs if the body corporate is aware of the presence of an animal in a scheme, but fails over a prolonged period to take any steps to have the animal removed, thereby causing the owner of the animal to assume an implied approval of the animal’s presence. 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 long period of time.

Discrimination occurs if the body corporate allows one owner to have an animal within the scheme but refuses a similar request from another owner without any logical or reasonable basis for the differing decisions.
Discrimination can also occur if the body corporate seeks an order against one owner keeping an animal if there are other owners who are also keeping animals, and there is once again no logical or reasonable basis for such action. The basis for this exception is that bodies corporate must treat all owners and occupiers equally regarding the enforcement of by-laws.

In this scheme there is one large dog, which has been authorised by order of an adjudicator on 10 March 2004, after the adjudicator determined that the body corporate had acquiesced to the presence of the dog. The adjudicator provided comprehensive reasons for his decision (see Application 0641-2004).

At the annual general meeting held on 7 December 2005, owners voted in favour of allowing two lot owners to each keep a cat within their respective lots on certain conditions. However, they did not grant permission to the applicant to keep her dog within her lot.

Although this decision would appear to be discriminatory, it is evident from the submissions that the dog has caused a nuisance by barking, particularly when it is left alone in the lot. The next door neighbours (Unit 18) have written to the resident managers on four separate occasions to complain about the dog’s barking, the most recent occasion being on 16 March 2006. The documented episodes of barking occurred on 4 November 2005 (1 1/2 hours), 20 December 2005 (on and off all morning), 30 January 2006 (45 minutes), 4 March 2006 (about 3 hours) and 6 March 2006 (approximately 15 minutes at 5.30am).

Although the applicant has attempted to address the barking problem by engaging Bark Busters to assist in modifying the dog’s behaviour it appears that those attempts have been unsuccessful.

I have not been provided with any evidence that the dog’s presence in the applicant’s lot is unhygienic, nor that it has caused any infestation of fleas in the common property. In addition, with such a small dog, there would be no need for it to ever walk on the common property, as it could quite easily be carried outside to enable it to be exercised in Council provided parks or along public footpaths. Furthermore, the applicant has advised that she no longer keeps the dog caged during the day. I have therefore disregarded these matters in arriving at my decision.

However, because of the dog’s barking problem, I am satisfied that it has caused a nuisance to the occupiers of unit 18 and on that basis I do not regard the decision by owners to refuse permission to the applicant to keep her dog as being discriminatory. I have therefore dismissed her application. I have allowed the applicant a period of 1 month from the date of the order to permanently remove the dog from the scheme.

However I have also made provision for the possible return of the dog, if the body corporate should give its consent at some future time, in the event that the dog’s barking problem has been resolved.

It should be noted, however, that by-law 14 in its present form contemplates the keeping of animals, with body corporate consent, and up to a weight limit of 7.5 kgs. It appears that some owners may not be aware of this, as one owner stated that she had purchased her lot on the basis that no pets were allowed in the scheme, whilst another stated that the applicant should have been advised of the restrictions on owning pets before purchasing, and therefore should have purchased somewhere that she could keep an animal.

Of course, as another owner correctly pointed out, if the applicant had sought body corporate approval before she purchased her dog, then the anxiety caused by this current application could all have been avoided.

Finally, if the consensus amongst owners is that dogs are not to be allowed under any circumstances, but cats weighing up to 7.5 kgs may be allowed with body corporate consent, and subject to appropriate conditions (such as were imposed by motion 12 at the annual general meeting) then by-law 14 should be amended to state that position unequivocally, so that there can be no confusion for prospective owners in the future.