Proud's Landing [2006] QBCCMCmr 3 (4 January 2006)

Last Updated: 19 July 2006

REFERENCE: 0652-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19743
Name of Scheme:	Proud’s Landing
Address of Scheme:	125 Hansford Road COOMBABAH QLD 4216

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Proud’s Landing community titles scheme 19743.

I hereby order that within one (1) month of the date of this order, Carolyne Jenner the owner of Lot 155 must remove and keep removed from Lot 155 and scheme land the dog named Pepi being kept on the Lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0652-2005

"Proud’s Landing" CTS 19743

APPLICATION

This application is by the body corporate (applicant) against Carolyne Jenner, the owner of Lot 155 (respondent). The applicant is seeking an outcome that the respondent no longer keeps a dog within Lot 155.

JURISDICTION

"Proud’s Landing" Community Titles Scheme 19743 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

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)).

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate manager for distribution to the owner of each lot (excluding the respondent). A submission was received from the respondent and a number of lot owners. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

The community management statement (CMS) for the scheme recorded by the registrar of titles, Department of Natural Resources and Mines on 3 June 2004 includes the scheme by-laws. By-Law 11 relates to the keeping of animals. By-Law 11.1 provides that "an owner of a lot shall not bring or keep any animal or permit an invitee to bring or keep any animal upon his lot or the common property". The By-Law 11.1 restriction on the keeping of animals is subject to By-Law 11.2 which applies to animals approved by the body corporate before the By-Law had effect or 3 June 2004 (section 59(1), Act).

The by-laws form part of the CMS for the scheme, and under section 59 of the Act, the CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme. It is a function of a body corporate under section 94(1) of the Act to enforce the CMS, including any by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by-laws. Sections 182 to 188 of the Act make provision for the enforcement of by-laws by the body corporate and by individual lot owners and occupiers. Section 182 provides that the body corporate may give an owner a continuing contravention notice if the body corporate reasonably believes that the owner is contravening a by-law and the circumstances of the contravention make it likely that the contravention will continue.

The Act obligates a body corporate to enforce its by-laws and provides detailed compulsory enforcement procedures which enable a body corporate to attempt to resolve by-law matters before seeking the intervention of a dispute resolution process. The committee has the power to give a continuing contravention notice to enforce a body corporate by-law, provided it does so in a reasonable manner. I consider that a body corporate’s responsibility with respect to by-law enforcement should not be subsequently interfered with unless it can be demonstrated that the body corporate has not acted reasonably when fulfilling this function.

On 27 April 2005, the body corporate gave a notice of continuing contravention of By-Law 11 to the respondent pursuant to section 182 of the Act. The notice referred to the respondent keeping a second dog on Lot 155. At its meeting dated 3 August 2005, the committee noted that the dog continued to be kept on the Lot and resolved to make an application under the dispute resolution provisions of the Act.

The respondent submits that she commenced keeping the dog named "Pepi" on 20 February 2004 before the new CMS was recorded. The previously applicable "Keeping of Animals" By-Law stated that an occupier could not keep an animal on a lot in the scheme without the written approval of the body corporate. It is not apparent that the respondent sought approval to keep the second dog. The body corporate has submitted that the respondent never sought approval to keep a second dog prior to the current By-Law 11 having effect. The respondent has not provided any material to dispute this claim. Neither is the respondent claiming that the body corporate unreasonably refused to approve the keeping of the second dog before the current By-Law was recorded.

Given these circumstances, I do not consider that the respondent had any approval or reasonable right to keep a second dog on Lot 155 at the time that the new CMS was recorded on 3 June 2004. Consequently, I am satisfied that the respondent does not have a right to keep the dog pursuant to the current provisions of By-Law 11.2.

While the previous "Keeping of Animals" By-Law provided discretion to permit the keeping of an animal, By-Law 11.1 prohibits the keeping of an animal. While this By-Law has effect, the body corporate cannot permit the keeping of an animal. Given the provisions of the By-Law and the circumstances giving rise to the dispute, I do not consider that the respondent has any right to keep the second dog on Lot 155. The body corporate is responsible for the enforcement of the scheme by-laws, and in the circumstances I consider that the body corporate has correctly and reasonably applied By-Law 11. Therefore, I have ordered that the respondent must remove the dog named "Pepi" from Lot 155 and the scheme within 1 month of the date of this order.

It would appear that the respondent has body corporate approval to keep one dog on Lot 155. While the outcome sought would seem to relate to any dog being kept on Lot 155, this order applies only to the second dog named "Pepi".