Xanadu North [2006] QBCCMCmr 201 (24 April 2006)

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

I hereby order that the application for an order that the owners of Lot 79 Xanadu North, CTS 26993, be ordered to remedy their contravention of By-Law 11.1 by ensuring that they no longer keep a dog within their lot without Body Corporate Approval within Twenty-eight days from the date of this order, is dismissed.

I further order that subject to any local government by-laws, I hereby order that the body corporate for Xanadu North community titles scheme 26993 is deemed to have authorised the keeping of a small poodle on Lot 79 under By-Law 11 of the scheme By-Laws, and that the authorisation is subject to the following conditions:

• The occupier of Lot 79 must ensure that the dog does not cause a nuisance or in any other way cause a breach of section 167 of the Body Corporate and Community Management Act 1997.
• The animal be carried at all times when on common property
• Upon the dog’s death, the dog is not to be replaced with another animal without further permission of the Body Corporate
• Permission is only granted while the applicant is the occupier of Lot 79

I further order that the body corporate may revoke the above authorisation if the body corporate is reasonably satisfied that the conditions of the authorisation have been breached provided that the applicant has first been given a reasonable opportunity to respond to or rectify any alleged breach.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0892-2005

"Xanadu North" CTS 26993

Xanadu North Community Titles Scheme (the applicant) is a 76 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). This module is typically adopted by schemes where the majority of lots are for holiday letting or under residential leases.

The Body Corporate has brought an application against the owners of Lot 79, Henry and Jeanette Lamb (the respondents) for an order that the respondents remove their dog, within 28 days of an order by an adjudicator.

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)).

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including any by-laws for the scheme); and

The respondents bought their unit on 24 July 2002 and have lived there continuously since that date. They maintain that they moved in with a poodle, then aged around three and weighing less than 4 kg.

Their unit is on Level C and shares a foyer with 3 other units. The foyer is serviced by a set of stairs and a lift.

In April 2005, the Body Corporate received a complaint in relation to the dog from the owner of Lot 78, which is also on Level C. He expressed concern that holiday tenants may request to be moved from his unit, on the basis of the presence of the dog in Lot 79. He states he cannot afford to have the income stream from his unit to be disrupted. He states this income is "jeopardised from the noise & smell from animals" and threatens to recoup any losses from the committee if they do not enforce the by-laws.

The applicant produced the minutes of a committee meeting held In early July 2005, where the committee resolved (5:0) to issue a notice requiring the removal of the dog. It is noted that at that time, one of the respondents was a committee member and left the meeting for this agenda item. A notice dated 18 July 2005, was issued 29 July 2005.

In October 2005, the committee resolved to lodge a Dispute Resolution Application. One of the respondents is still recorded as a committee member at this meeting.

By-Law

The following by law applies in relation to the keeping of animals:

11.1	A lot owner or occupier of a lot must not (subject to the provisions of the Guide Dogs Act 1972 and By-Law 11.2) raise, breed or keep dogs, cats, fish, birds, insects, animals, livestock or poultry (collectively ‘animals’) on his lot without the prior written consent of the body corporate, which consent 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 lot owner or occupier.
11.2	A lot owner who, when he first takes possession of his lot, has an 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 that animal unless consent has been obtained from the Body Corporate in accordance with By-Law 11.1.
11.3	Each lot owner and occupier is absolutely liable to each other lot owner and occupier and their respective guests and invitees, for any unreasonable nuisance, noise or injury to any person or damage to property caused by any animal brought or kept upon the parcel by that lot owner or occupier or by his invitees.
11.4	Each lot owner and occupier is absolutely responsible to clean up after any animal brought or kept upon the land by him or his invitees

Submissions

A total of seven submissions were received. Of these, three were from other owners indicating that the dog should be excluded from the building. The fourth was from a committee member, indicating the dog should be excluded. The fifth was from the non-owner Building Managers/Letting Managers who also objected to the dog.

The Building Managers allege the dog barks when there is movement in that level’s foyer, that the foyer has a doggie smell and that the presence of the dog detracts from letting apartments on that level. One of the other owners repeats these reasons on the basis that the Building Managers have told them this information. Another of the owners allege that the dog was not originally with the respondents when they moved in. Two of the submissions state that the respondents have applied for and been refused permission to keep the dog previously.

The sixth was from the owner of the unit on the same floor as the respondent, who originally objected to the presence of the dog. His summary of his objections are that the dog has no outdoor area to eliminate waste, dogs moult, attract fleas, smell and bark. He believes tenants should not have to "endure" this and that other residents abide by the by-laws that "expressly exclude animals". He states he is reliant on the income from tenants.

The seventh was from the respondents. They state that at the time they bought the unit, they were of the understanding that dogs were allowed, based on their observations of the premises and assurances given by their real estate agent. They state the dog was with them when they first moved in, though another of the residents maintains the dog came later.

They note their neighbour’s complaint makes no reference to the dog’s behaviour or that the dog has interfered with the quiet enjoyment of another lot. They note there have been no complaints in the three and a half years they have been living there. They state the dog is carried in and out of the unit and that the dog is never left alone. They state that they believe the Body Corporate has known about the dog all along, as one of the respondents was a member of the committee until only recently. They say this amounts to an acceptance of the dog by the Body Corporate.

They state the next door neighbour has not suffered any loss due to the dog’s presence and in the unlikely event he did, they accept that they would be liable for damages to him. They regard the application to remove the dog as frivolous. They state that in all the circumstances, to remove the dog would be cruel and discriminatory.

Determination

Before discussing this particular by-law further, it is appropriate to observe that by-laws are registered dealings and it is for the buyer to satisfy themselves regarding the applicable by-laws before settling. They cannot rely on other animals being seen on premises. Further, it should be borne in mind that a real estate agent is unable to make binding representations on behalf of the Body Corporate, as they are agent for the vendor only.

By-law 11 of Xanadu North prohibits keeping animals without the Body Corporate’s written consent. So, if an occupier wants to keep an animal they should first seek permission. The Body Corporate then has discretion whether to give or refuse permission to keep any particular animal. However, the Body Corporate must act reasonably in exercising this discretion (Act, 94).

By-law 11 does not amount to a "no pets" rule. It is a rule that allows pets, subject to specific approval. To give any meaning to the by-laws ability to make approvals, there must be occasion to make an approval. Given that bodies corporate are required to act reasonably in enforcing the by-laws, they must demonstrate they are acting reasonably in refusing to invoke the clear intention of the by-law to allow approvals.

Adjudicators agree that, like all other by-laws, animal by-laws are to be observed by owners and occupiers. The animal by-law should not be given any special treatment simply because it is often an emotional issue. Usually where owners or occupiers breach animal by-laws, adjudicators will order compliance with the by-law. However, where the owner or occupier can establish the Body Corporate:

the adjudicator might rule the decision of the Body Corporate under the by-law should not be applied.

Acquiescence on the part of the Body Corporate might be not taking steps to require the removal of the animal within a reasonable period of time. For example, the Body Corporate may have not have done anything for some time, causing the owner to assume implicit approval for keeping the animal. The reason for this exception is that it would be harsh and inequitable for an owner to have to remove a pet that they have been allowed to keep over a period of time.

Discrimination in this context can take various forms. The clearest example is where the Body Corporate refuses the request of one owner to keep a pet but gives approval to another, without a logical or reasonable basis for the distinction made. Another example is where the Body Corporate wants an order against one owner keeping a pet when there are one or more other owners who are keeping pets, again with no logical or reasonable basis for the different treatment. The reason 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. When a committee has discretion to approve the keeping of animals it is not appropriate for the committee to adopt a "no dogs" policy and apply that policy as a blanket rule. It is for the owners as a whole to determine if the by-law should be amended to state that no dogs are allowed.

I am of the view that a delay of nearly 3 years before the Body Corporate took action to exclude the dog, is sufficient to demonstrate acquiescence on the Body Corporate’s part. However, I can see no evidence of discrimination against the respondents.

It remains to consider the issue of any intrusive aspects of this dog, that would make it reasonable to exclude the dog. The dog is said to bark when there is any movement in the foyer. I am not satisfied that this is sufficient interference with others’ enjoyment for two reasons.

Firstly, it has taken more than three years for anyone to find this barking significant enough to raise, and then only after an invitation from this office. The notification to the committee of the dog’s presence only states that the dog "might" bark. Secondly, the foyer services a total of four units. There is no evidence that the comings, goings and passing foot traffic in this area provoke either frequent or lasting barking episodes.

As with the barking, there is little or no evidence in regard to concerns about fleas or moulting. The only first hand evidence of a "doggie smell" is from the Building Managers/Letting Managers. The remainder of the objections are that the dog "might" smell. I note that neither of the other owners or occupiers on this level sought to support the issue of odour.

At this point the Body Corporate has not demonstrated their reason for excluding this particular dog. Without further evidence of nuisance, there is no compelling reason put forward for its exclusion.

The Body Corporate has discretion to place conditions on any approval. These conditions must also be reasonable. Examples of conditions attaching to approval include the confinement of animal to the owners’ lot, the carrying of the animal over common or the ability of the Body Corporate to revoke approval if the dog creates a nuisance.

In all these circumstances I am unable to order the removal of the dog and propose to make orders for its conditional approval.

Number of Scheme:	26993
Name of Scheme:	Xanadu North
Address of Scheme:	77 Pacific Street MAIN BEACH QLD 4217

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Xanadu North [2006] QBCCMCmr 201 (24 April 2006)