Lake Heron Villas [2006] QBCCMCmr 246 (17 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0810-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19342
Name of Scheme:	Lake Heron Villas
Address of Scheme:	2 Cassowary Drive BURLEIGH WATERS QLD 4220

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

Body Corporate for Lake Heron Villas

I hereby order the owner of Lot 36, Timothy McDonald, to remove the dogs currently being kept by him in lot 36, within six weeks of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0810-2005

"Lake Heron Villas" CTS 19342

Application

The body corporate is seeking an order "That the Lot owner (of Lot 36) remove the two dogs from the lot in accordance with Committee resolution regarding the keeping of dogs in the complex".

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an occupier of a lot and the body corporate is a dispute which may be resolved under the dispute resolution provisions of the Act.
As this is a dispute between a lot owner and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions 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)).

The Scheme

The Lake Heron Villas community titles scheme 19342 is a 48 lot scheme registered as a group title plan (now known as a standard format plan of subdivision) and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Grounds

The body corporate alleges that:

• Mr Timothy McDonald , the Owner and Occupier of Lot 36 (the Respondent) purchased the property and settled on 17^th May 2005;
• Although settlement was 17^th May, the respondent was in residence as early as 10^th May as this is the time the 2 cocker spaniel dogs were seen in the lot. Both dogs are estimated to be larger than 9 kgs in weight, which is over and above the weight limit imposed by the committee in a resolution dated 15^th December 2003. Evidence of this resolution of the committee is attached, however there is no evidence this resolution was ever passed by special resolution or registered as a change to the by-laws;
• The body corporate roll had not been updated at that time as to the new owners details, so the committee instructed the Body Corporate Manager to write to "The Occupier" advising that the dogs were not permitted;
• Three days later on 13^th May a real estate agent who sold the unit, hand delivered a letter to the chairman’s letter box requesting permission for the two dogs to be kept and for advice of approval to be sent to the purchaser’s solicitor, KRG Law;
• On 20^th May, the committee instructed the Body Corporate Manager to write to KRG Law advising that under no circumstances are the dogs permitted to stay as they do not meet the committee conditions for keeping dogs;
• The chairman had spoken to the respondent’s partner at the time and she advised that the dogs were a breeding pair and may have puppies which concerned the committee about potential noise should this occur;
• The dogs were not removed and the committee wrote to the respondent again on 7^th June advising that the dogs must be removed within 7 days;
• On the 21^st June the committee issued a contravention notice to the respondent advising the dogs must be removed;
• By early July the committee did not see any evidence of the dogs in the complex and the committee considered the matter had concluded;
• In late September the committee were advised the dogs were still in the unit as they had received several complaints from lot owners that the dogs were causing a disturbance. In support of this they produce letters from the occupants of two other lots, along with a petition signed by 11 other residents seeking removal of the dogs for barking;
• The committee wrote to the Gold Coast City Council on 4 October for assistance to remove at least one of the dogs as the counsel will only permit one dog to be kept on a lot area of less than 600 square meters;
• The committee consider that if the respondent had searched the body corporate records prior to purchasing in the complex they would have found out those dogs over 9 kg were not permitted.

Changes to By-Laws

The body corporate is now seeking an order that the respondent remove the dogs from the complex in accordance with by-law 11.

The relevant by-law provides as follows:

11. Keeping of Animals

Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the Body Corporate, keep any animal upon his lot or the common property.

The body corporate alleges to have amended or refined this by-law by a committee resolution passed 6:0 on 15 December 2003. The passed motion was as follows:

Dogs

Resolved that, in accordance with By-Law 11, subject to written permission granted by the Committee, the Body Corporate may allow a dog to be kept by an owner/occupier subject to the following:

1.	The dog is under 9kg in weight;
2.	The committee are advised of the dog’s breed;
3.	The dog is walked/exercised outside the complex;
4.	The dog must not roam the common property;
5.	The committee reserve the right to enforce the removal of the dog should it become a nuisance to other occupiers within the complex;
6.	The dog’s owner must sign a letter of acceptance to the above terms and conditions.

Section 62(3) of the Act requires that, where changes to by-laws (other than exclusive use by-laws) are proposed, consent to the recording of a new community management statement must be by way of special resolution of the body corporate.

Subject to some specific refinements, Section 106 of the Act states that a special resolution is only passed when at least two-thirds of the votes cast by the body corporate are in favour of the motion, and the number of votes against the motion, are less than 25% of the number of lots included in the scheme.

Given that the proposed policy change or amendment was neither passed by special resolution nor registered, I do not believe the body corporate can rely on these grounds as a reason to refuse approval to the respondent’s request to keep the dogs.

Submissions

This office sought submissions in respect of the application from the respondent and all owners.

Only one submission against the keeping of the dogs was received. The grounds of this submission were that the keeping of these animals is not in the best interests of the majority of owners, the original owners had never envisaged the rule as applying to animals of this size and that approval would set an unsatisfactory and unmanageable precedent. None of the submissions detail the type of cocker spaniel to which the application refers, but research suggests the American line can range from 11 to13 kilograms and the English from 13 to 14 kilograms.

Only one submission for keeping the dogs was received and that was from the respondent as follows:

• the unit was advertised for sale as pets allowed. He produces 2 ads, one simply stating "small pets are allowed" and the other stating "small pets okay, subject to body corporate approval";
• he produces an extract of the contract of sale, where the contract is shown to be subject to the approval of "two small pets (dogs)";
• he produces a note from the real estate agent, where the real estate agent promises to explain the contract of sale to him;
• the Gold Coast City Council has attended at the premises and said they would "definitely consider" an application to keep more than one pet, as they have the square meters available;
• he has "tried to get answers" from the firm that handled the conveyancing, but they will not take any responsibility.

Further Investigation

In order to gain a picture of the intrusiveness of the barking alleged in the petition above, I asked for copies of other complaints received to date and any other evidence such as statements regarding the time and duration of the barking of the dogs. Unfortunately, the response to this request again came in the form of a petition, which I find I am unable to accept, given that certain of us can feel pressured to sign when asked to sign a petition. It did however raise a concern in relation to the smell of urine coming from the lot.

Given the above, a teleconference was convened on 11 May 2006. In attendance were:

• Margot Ricardo, Adjudicator;
• Peter Nicholson, Body Corporate Manager;
• Tim McDonald, Respondent;
• Sally Stephanovic, the respondent’s partner;
• George Rickertt, Unit 10;
• Mrs D Cause, Unit 9;
• Mr G Spencer, Unit 35 and next door neighbour.

The lot occupiers that attended live relatively close to the respondent.

It was a very co-operative teleconference. In essence it appears that close neighbours and the respondent agree that the dogs might bark for around a minute at a time and can be set off by pedestrians, cars going by or the next door cat. Barking can occur at any time of day and also occurs regularly between two and three in the morning when Mr Spencer comes home from work. When asked if the barking interfered with their enjoyment of their homes, none of the owners present was highly disturbed by the barking, with Mr Spencer observing that the gardener has certainly woken him enough times too. Regrettably, owners from the other side of the common property did not attend the teleconference to express any concerns, but I formed the view that the dogs’ barking was not unreasonable.

Discussions suggest that the dogs’ yard is perhaps 24 square meters and paved. Droppings are picked up daily and placed in the bin and the yard is hosed out regularly. The dogs have identified an area next to Mr Spencer’s fence where they usually eliminate waste, and the respondent’s partner treats this area with a chlorine based cleaner from time to time. However it is on the issue of odour that some information came to light.

The garbage bins in which the faeces is being placed are apparently placed for collection in an area which allows the smell from the bins to disturb the residents of Lots 9 and 10. Mr Spencer also noted that this smell can also intrude on his home when the wind comes from a particular direction. The respondent was very apologetic on hearing this and offered to take steps to dispose of the faeces off premises.

As mentioned earlier, the dogs have chosen to urinate at the boundary to Mr Spencer’s. The respondent and his partner have gone to some effort to deal with this smell, but it appears it is in fact intrusive enough to deter Mr Spencer from using his lot for a barbeque.

Decision

The Act gives certain rights and obligations on people living in community titles schemes, with the intention of allowing flexible and contemporary communally based arrangements. One object of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

The Act gives the owners of units power to vote on what by-laws are to apply. Owners and occupiers are required to comply with registered by-laws, which may be changed only when owners vote by special resolution to modify or remove a particular by-law. The Act requires body corporates to enforce the by-laws (Act 94(1)). However the rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)).

In this case, the body corporate has given the by-law some meaning; in that they have identified certain criteria a pet must meet in order to gain approval. The creation of some guidelines is not necessarily unreasonable, though if the body corporate wishes to elevate these to by-laws, they will need to arrange a special resolution and for the amendment to be registered.

Once registered, a purchaser would then have the opportunity to become informed of the by-laws by conducting a search with the Department of Natural Resources and Mines. This is part of standard conveyancing practice in the purchase of a lot in a community titles scheme and is also one of the "suggested matters for examination" on the "Contract Warning" (contained in each contract of sale for a lot in a community titles scheme in Queensland).

In this case the respondent took this opportunity and sought permission to keep the dogs from the body corporate. However, despite the fact that approval was not forthcoming, the respondent decided to proceed with the purchase without making alternative arrangements for the dogs’ accommodation, prior to moving in.

The respondent seeks to place reliance on the "undertakings" of real estate agents, as evidenced by ads. However, a real estate agent cannot be given the authority to bind the body corporate. It would be similar to the respondent promising that his cousin will do the mowing for the body corporate and the body corporate demanding that the cousin perform as the respondent indicated.

Similarly, the body corporate cannot be made responsible for the fact that the firm that handled to conveyancing proceeded to settlement, without satisfying all conditions of the contract. This office cannot express an opinion regarding any remedies available in that regard.

Finally, Section 167 of the Act provides that:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or common property in a way that-

(a)	causes a nuisance or hazard; or
(b)	interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c)	interferes unreasonably with the use or enjoyment of the common property or the enjoyment of the common property by a person who is lawfully on the common property.

While it might be that the barking is not unreasonably intrusive and that there is a means of successfully dealing with disposal of the dogs’ faeces, I have formed the view that the smell of urine is unreasonably interfering with the use or enjoyment of another lot included in the scheme.

In those circumstances, the Body Corporate is entitled to require the removal of the dogs and order the respondent to remove the dog from his unit and the scheme generally within 6 weeks of the date of this order.