Palm Crest Heights [2006] QBCCMCmr 162 (30 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 65, Yvonne June Thomas, be allowed to keep her family cat, is dismissed.

I further order that the Owner of Lot 65, Yvonne June Thomas, 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 0093-2006

"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 65, Yvonne June Thomas (the Applicant), against the body corporate, seeking an order that she be able to keep her family cat. The Applicant states that she purchased the property with the belief that her pet of five years was allowed. In particular she states that the Real Estate Agent advised her that her cat was permitted at the complex but that it could not be replaced upon its death with another pet. She states that she has seen other cats in the complex and that the Secretary keeps a small dog. She alleges that by-law 7.5 is discriminatory and states that it would cause her and her cat a great deal of stress to have to part seven months after moving in. After becoming aware of the cat’s existence, the body corporate issued the Applicant with a letter dated 16 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.

This application is the third application I have adjudicated for this scheme where owners have sought orders against the body corporate to enable them to keep pets in the scheme. My reasons for this decision are very similar to the reasons for decision in 0741-2005 and 0880-2005.

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, 13 individual submissions were made by owners. Of the submissions received, 1 was in favour of the Applicant being able to retain the cat and 11 were opposed to the keeping of the cat. One submission was indifferent to the issue. 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, 276 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 Applicant’s request to keep the cat within her lot on the basis that by-law 7.5 does not enable them to grant such permission. By-law 7.5 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 claims that she should be allowed to keep the cat on compassionate grounds, having been misinformed of the "No Pets Policy" by the Real Estate Agent handling the sale of lot 65 and misinterpreting by-law 7.5 herself. It is regrettable that the Applicant was misinformed by the Real Estate Agent, however, it is not something the body corporate can be held responsible for.

Rather, I consider that it is the responsibility of a purchaser to inform themselves of the applicable by-laws for the scheme they are intending buying into by obtaining a copy of the Community Management Statement for the Scheme. As well as being part of standard conveyancing practice in the purchase of a lot in a community titles scheme, it is also one of the "Suggested Matters for Examination" on the "Contract Warning" which is contained in each contract of sale for a lot in a community titles scheme in Queensland. Had the Applicant done this, she could have decided not to proceed with the purchase, or made alternative arrangements for her cat’s accommodation, prior to moving in. The Applicant may wish to obtain legal advice in relation to any claim she may have against the Real Estate Agent and/or the solicitors acting for her for failing to advise her of the "No Pets Policy" contained in the by-laws.

It is unfortunate that the Applicant misinterpreted by-law 7.5 once she received a copy of the by-laws at settlement. I consider that by-law 7.5 is drafted very clearly in such a way that the "No Pets Policy" is unambiguous.

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.

The Applicant appears to suggest that the body corporate has acquiesced to her keeping the cat by saying that she received notification from the body corporate to remove it some seven months after moving in. The Applicant moved in to the complex in April 2005. The resident managers state that they suspected around the middle of 2005 that a cat was being kept by the Applicant after they saw a cat run into the Applicant’s garage (which had the door slightly raised). They state that they then watched the position of the garage door for a few weeks and noted that it was never fully shut. A few weeks after that, when they again saw a cat running into the Applicant’s garage, they reported the presence of the cat to the body corporate. The body corporate issued the Applicant with a letter advising of the breach of by-law 7.5 and requiring her to remove the cat on 16 November 2005. This was followed up with a by-law contravention notice on 23 January 2006. I do not accept the Applicant’s suggestion that the body corporate has acquiesced to her keeping the cat. The Applicant herself states that the cat is an indoor cat.^[2] As such, it would have been difficult for other occupiers to become aware of its presence within the lot. I am satisfied that once the body corporate became aware of the cat being kept within the Applicant’s lot, it actively and prudently sought to have the Applicant remove the cat from the scheme.

The Applicant claims that it is discriminatory for some owners to be able to keep pets and not others. I disagree with the Applicant in this regard. She states that the Secretary has a small dog and that she has seen other cats within the scheme. I am aware from the submissions that some cats from a neighbouring body corporate sometimes "roam" into Palm Crest Heights. The submissions reveal that the only pets kept at the complex (other than those the subject of recent 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. There is nothing discriminatory about the by-law.

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. Each body corporate has its own by-laws which are applicable to that particular scheme.

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.

I hope that by now, it is clear to all owners 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. The only avenue open to those owners wishing to keep pets within Palm Crest Heights is to consider submitting a motion to the next general meeting of the body corporate proposing a change to the existing by-law 7.5. However, the submissions received in response to this application and also 0741-2005 and 0880-2005 indicate that there is strong support amongst owners for the "no pets" by-law.

I trust that if such a situation arises again while by-law 7.5 is still in place, the owners or occupiers wishing to keep pets will accept the position of the body corporate. This office will not look favourably upon further applications by owners or occupiers to keep pets within Palm Crest Heights while by-law 7.5, as currently drafted, remains in force. I consider the position of the body corporate and this office in relation to this matter is now settled and neither the body corporate, nor this office, should have to unnecessarily devote any further resources to determining any further similar applications. I would view any such further application as "misconceived". Section 270(1)(c) of the Act provides that an adjudicator may make an order dismissing an application if it appears that the application is frivolous, vexatious, misconceived or without substance. If an adjudicator makes an order dismissing an application under section 270(1)(c), the adjudicator may order costs (of up to $2,000) against the applicant to compensate the person against whom the application was made for loss resulting from the application.

I have ordered that a copy of this order be distributed to all owners within the scheme in an effort to avoid any further confusion in relation to the "no pets" by-law at Palm Crest Heights.

^[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 Applicant has not made any suggestion that by-law 7.5 is invalid, oppressive or unreasonable.
^[2] This assertion by the Application is challenged by other occupiers. The submissions reveal that the Applicant’s garage door is left slightly open for the cat to exit and enter as it pleases.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palm Crest Heights [2006] QBCCMCmr 162 (30 March 2006)