Fraser Pacific Estate [2006] QBCCMCmr 16 (10 January 2006)

Number of Scheme:	21394
Name of Scheme:	Fraser Pacific Estate
Address of Scheme:	415-417 Boat Harbour Drive TORQUAY QLD 4655

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

I hereby order that the applicant, Colleen Campbell be granted permission for prospective purchaser of lot 9, Margaret Lamprey to bring and keep a dog known as "Toby" onto Lot 9 and the common property. The permission is subject to the proviso that Toby is maintained on a lead when he is taken onto or across common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0019-2006

"Fraser Pacific Estate" CTS 21394

THE APPLICATION

This is an application dated 3^rd January 2006 and received by this office on 6^th January 2006 by Colleen Campbell, (the applicant) owner of Lot 9 against the body corporate (the body corporate) for an order that Margaret Lamprey, (Ms Lamprey) who is not a lot owner in the scheme, be allowed to bring with her if she becomes an owner, her Pomeranian/Maltese cross dog.

The facts are not in dispute. The applicant and Ms Lamprey have sought the consent of the committee and the committee has refused to give its consent.

The applicant, as the vendor of Lot 9, has a contract for sale with Ms Lamprey with a settlement date on 10^th January 2006, and, although I understand that this settlement date has been extended previously, it this requested that this matter is therefore resolved with some urgency. The applicant seeks to "fast track" the final order, since Ms Lamprey understood that she would be allowed to bring the dog to live with her "as of right", as she is a person with a hearing disability and the dog is " an assistance dog".

The interim order sought is therefore a final order.

JURISDICTION

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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates." Read together with section 247(3), section 279(1) allows an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order. In this matter, where a final order is sought as an interim order, it was particularly important to hear and understand the view of the body corporate committee. On 6^th January 2006, I therefore called a teleconference for 9^th January 2006. The conference was attended by the applicant and Trevor Cecil, body corporate manager (and secretary), chairman Kevin Whittle, Stephen Gray, John Parsons and Bronwyn Lewis, committee members.

SUBMISSIONS

The applicant submits that Ms Lamprey is a person who suffers from hearing loss and that the dog is necessary for Ms Lamprey’s quality of life as he can ‘hear’ for her.

In support of her application, the applicant has provided the committee with letters from Ms Lamprey’s doctor, Dr Malik, and to the Commissioner’s office has sent letters from residents near Lot 9 who have no objection to a dog, details of other pets kept in the scheme, a letter from Ms Lamprey’s daughter, and photographs of Lot 9’s fenced garden. An audiologist’s report provided to the Committee states that Ms Lamprey may have " significant hearing loss" and a full hearing test on 28^th February 2006 has been arranged. Lorraine Wooley, a university accredited dog trainer, also wrote to the Committee that Toby is " already acting as a hearing assistance dog without any formal training." Ms Lamprey expects her hearing to deteriorate further over time.

The Committee met on 19^th December 2005 and 30^th December 2005, and considered all letters and reports submitted to them by Ms Lamprey and the applicant. Further, individual committee members entertained a deputation on Ms Lamprey’s behalf in their homes on 20^th December 2005. Certain members of the body corporate also attended the meetings, and there was an "open forum" discussion. The Committee -

" after lengthy deliberation of all previous and past information presented to the Body Corporate, agreed that it did not provide sufficient information by way of certification to the extent of Mrs Lamprey’s hearing impairment and that the formal training of the dog could not be verified with the documentation provided."

Put bluntly, and I confirmed this with the members of the Committee who were able to attend the teleconference on 9^th January 2006, the Committee is not satisfied with Ms Lamprey’s (or her dog Toby’s) credentials. It seems that it would still be willing for Ms Lamprey to demonstrate that she is a "deaf person" who needs a " hearing dog" but that to date she has not done so, and Toby has not been trained to be a "hearing dog" by a registered institution.

Further the committee importantly advised me that at the annual general meeting on 27^th November 2004, ( the 2004 AGM) the body corporate resolved by ordinary resolution that the committee would no longer give written permission for the keeping of animals ( excepting guide dogs).

Chairman, Kevin Whittle told me that there were many elderly people in the scheme, who had physical disabilities of one kind or another, and if the Committee allowed a dog into the scheme for someone who was slightly impaired, and the dog not a properly trained "guide dog", then many other lot-owners who may want a companion dog, would make applications and feel justified in seeking a pet.

Bronwyn Lewis, owner of Lot 29, and a committee member told me that the Committee represented the body corporate members, many of whom were elderly and did not want to see animals in the park, "particularly dogs."

The Committee emphasised that it had nothing against the applicant, or Ms Lamprey, or her dog.

In written submissions, the body corporate pointed out that parts of the application contained incorrect statements. Of the seven cats which the applicant claims are in the scheme, the body corporate has no knowledge of one, says one is deceased, one does not exist, and one was approved on compassionate grounds when a tenant was terminally ill.

The committee submitted an original letter from Dr Malik which did not state that it was "imperative" that the dog stayed with Ms Lamprey, unlike the second letter submitted with the application, which the committee says "appears to have been dictated by another party, then signed and stamped."

The committee also say that it did not ask for audiological reports and wonder why these were not tendered before 21^st December 2005. In its considerations, members noted that the disability pension received by Ms Lamprey was for rheumatoid arthritis and not a hearing disability, and that Ms Lamprey prefers not to wear a hearing aid by choice, which brings into question her disability.

Further, it says that the letters submitted with the application by supporting owners were not the same as those sent to the committee for its consent. One of those letters from Suzanne Day and Fred Lynam, non-resident owners of Lot 8, stated that they required the dog was confined to Lot 9 for its toilet requirements, and they had concerns " of barking," although they had no objection to a small dog being kept. The letter is dated 14^th December 2005, whereas the letter from the owners of lot 8 enclosed with the application is dated 3^rd January 2006. I must say that I find nothing particular sinister in this, other than the applicant is obviously canvassing maximum support from neighbours. The committee forwarded a letter of objection to the dog from the owner of Unit 14.

The committee provided a letter from records dated 13 Feb 2001 referring to an annual general meeting where the body corporate "resolved that no animals be kept on the lots."

The committee also has concerns I do not fully understand about the law of contract "overwhelming" the original application, by which I think it means that the application has been unduly referred to the Commissioner’s office because there is a settlement date looming, and the committee feels a need to defend itself, which it finds unfair. It states relevantly (and I find honestly), that it has applied due diligence and considered all the evidence tabled, with respect to the legislation and the views of owners within the estate.

DETERMINATION

I note from the Committee Minutes of 19^th December 2005, that "it was stated that under the Body Corporate and Community Management Act 1997 that the keeping of animals is not permitted unless by consent of the Body Corporate. A Guide Dog for the blind was the only exception to the rule."

This is not quite correct in that under the Act, a scheme can make whatever by-laws it likes, with certain exceptions, provided they are enforceable and not-discriminatory. ( see Section 169 - Content and Extent of By-laws, and section 180 - Limitations for By-laws.) Section 181 of the Act states –

The Guide Dogs Act 1972, includes deaf persons as well as blind persons. The Act defines a "deaf person" as including "a person who is partially deaf." ( section 3 Definitions). A "guide dog means a dog trained at an approved institution and used by a blind person or as an aid by a deaf person" and " an approved institution means an institution that trains dogs as guides for blind persons or aids for deaf persons; and is declared under a regulation to be an approved institution for this Act."

Schedule 3 of the Act sets out by-laws which may be adopted by a scheme if it wishes, and which will otherwise only be the by-laws for a scheme which comes into being after the commencement of the Act and has chosen no by-laws of its own.

The registered by-laws for Fraser Pacific Estate are set out at Schedule C in the Community Management Statement (CMS) registered in the Land Title Registry, and are numbered 1 – 21. Clearly, these by-laws have been drafted by the body corporate or the original owner. They are not the "Schedule 3" by-laws, but an extended version of them.

By-law 11 for the scheme states as follows-
Keeping of Animals

It may well be that Ms Lamprey’s dog is not a "guide dog" within the meaning of the Guide Dogs Act, as he has not been trained at an ‘approved institution’ to perform duties to a deaf person. He has been trained by Ms Lamprey.

However, I find that the issue of whether or not Toby is a guide dog or whether Ms. Lamprey is deaf, is irrelevant to the determination of this dispute. The legislation provides that the body corporate "must act reasonably in anything it does" in relation to its general functions, including enforcement of the by-laws (section 94 Act).

In accordance with By-Law 11, the Committee has a duty to assess each application which is made to it. It has long been established by this office, that since the body corporate has a duty to act reasonably, the Committee cannot exclude any animal as a matter of policy, and can only exclude an animal if it is reasonable to do so. It must therefore have some personal knowledge about that animal which renders the animal a nuisance to other lot owners. Prior to any animal coming onto the premises, this would be very difficult ( though not impossible) to demonstrate.

During the teleconference, it appeared to me that the committee has a fundamental misunderstanding of By-law 11, no doubt underlined by the motions passed at the annual general meeting prior to February 2001 and the AGM of 2004. The Committee appears to think that by-law 11 means that no animals (save for proper guide dogs) can be brought within Fraser Pacific Estate. In fact, by-law 11 allows animals within the scheme subject to the written approval of the body corporate. Only registered by-laws are enforceable. ( section 179 Act).

The body corporate cannot make decisions on a policy or arbitrary basis about allowing animals, and I understand that the Committee is wanting to enforce motion 14 of the 2004 AGM, (and the motion of the 2001 AGM) which has exactly that effect. Such motions are unenforceable. The requirement that the body corporate "must act reasonably in anything it does" means that the body corporate must act based on legitimate reasons when deciding whether or not to allow someone to keep an animal. The primary consideration must be, whether other owners will be adversely affected by the keeping of this particular dog.
There is absolutely no evidence that they will be. He is a small animal, described as "a lapdog" by Mr Cecil, although the committee has not seen the dog.

However, the legislation provides that an occupier of a lot must not use or permit use of their lot or common property in a way that causes a nuisance, or interferes unreasonably with the use or enjoyment of the scheme by another person (section 167 Act). Therefore, if the committee gave consent to an animal being kept on the premises, and an occupier is being disturbed by someone’s pet, then that occupier can complain to the body corporate and seek to have the problem addressed or the approval revoked. Alternatively, an occupier can bring an application to the Commissioner’s office directly against the pet owner seeking an order of an adjudicator to prevent any further nuisance.

If it is the wish of the body corporate to change its by-laws so that no pets are allowed (or no dogs, no cats, however detailed the body corporate may like to be, and some schemes detail no dogs over a certain size or weight, for example) then it should change its by-laws and register that by-law or by-laws by recording a new Community Management Statement in the Land Title Registry. Any future owners or occupiers would then be taken to have notice of that by-law and would not have any entitlement to seek permission to keep an animal.

Whilst I understand the view of the Committee and the concerns it has about opening the floodgates, unfortunately, the by-laws chosen by the body corporate for the scheme, and not subsequently amended by a further registered by-law, allow animals into this complex, and any lot owner or future lot-owner has an expectation that animals will be allowed, until such time as that animal may cause a nuisance or unless something is known to its detriment. In other words, animals are allowed if they behave themselves and their owners behave responsibly.

I would note, however, that any individual owners are completely within their rights in prohibiting pets from their particular lot or exclusive use areas. Owners can do this by setting terms of entry to their particular unit with no changes to the body corporate by-laws being required in this respect.

I therefore propose to make an order that the applicant be granted permission for Ms Lamprey to bring her dog onto Lot 9 and the common property. I add the condition that the permission is for the dog known as Toby, and that Toby is to be kept on a lead whenever he crosses common property.

I am aware that the committee may have liked more time to discuss this matter, or perhaps to call a general meeting. The committee and body corporate members have however discussed this matter at some length without finding any fault with the dog the subject of the application, and since the circumstances of the applicant required that an urgent decision be made, and since the scheme’s by-laws are dictating the reason for my decision, until such time as By-law 11 is changed, there can be no other outcome. I add that I find no fault whatever with the Committee who have acted diligently, and expeditiously, and given considerable time to this matter. However, the Committee has been assessing the application based on a mistake of law.

As a final point, unconnected with this application, but on another matter of law, I draw the body corporate’s attention to section 10(2) of the Standard Module concerning eligibility for committee membership. A person may not be secretary of a scheme as well as a body corporate manager, whereas I understand that Mr Cecil is performing both roles. Whilst the body corporate manager may often perform secretarial duties as part of his engagement, the body corporate should have an elected secretary who is a lot owner in the scheme or who fulfils one of the criterion set out at section 10(1)(b) Standard Module.

Further, whilst the body corporate may be taking a hard look at its by-laws, I am of the view that by-law 21, in respect of legal costs, is probably unlawful as it conflicts with section 180(6) Act, about which there have been several adjudicator’s orders made, such costs only being recoverable if awarded by a court; and parts F and H of By-law 18 may well be unenforceable within an owner’s lot on an owner’s property. The information service on 1800 060 119, available to all, should be able to help with any queries including changing by-laws.

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Fraser Pacific Estate [2006] QBCCMCmr 16 (10 January 2006)