Garden City Approach [2006] QBCCMCmr 427 (2 August 2006)

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

I hereby order that the purported voting (on the motion to amend the scheme’s by-laws) other than at a general meeting was at all times void, as such voting is not permitted under the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

I further order that the owner of lot 14, Tiffany Helen Hanlon (formerly White) shall be permitted to have her Jack Russell Terrier within her lot (including her private yard) pending final determination of this application on the following conditions:

• That the dog is kept on a leash when on common property
• That any excrement from the dog is to be cleaned up immediately
• That the applicant is to take all reasonable steps to ensure that the dog does not cause a nuisance to any owner

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0433-2006

"Garden City Approach" CTS 27486

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) for permission to keep her small dog within her lot on the condition that it does not cause a disturbance to other residents.

The applicant has also sought two interim orders under the Act as follows:

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (Act, s227(1)(b))

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 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

SCHEME DETAILS

Garden City Approach is a community titles scheme comprising 16 residential lots and common property. The scheme was established upon registration of the building format plan on 19 November 1999. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

BACKGROUND

The applicant stated that in late 2005 the body corporate committee resolved to allow a lot owner to keep a small dog within the lot, upon certain specified conditions. The applicant further stated that shortly after, the body corporate committee refused her request to also keep a small dog within her lot, on similar conditions to those imposed in the previous decision. The applicant stated that she considered this action to be discriminatory.

The Dispute Resolution Application was received in the Commissioner’s Office on 9 June 2006. On 15 June 2006 I conducted a teleconference with the applicant and a member of the committee, Mr Tony Meredith.

The applicant stated that the only complaint of which she was aware about her dog was that it had annoyed the next door neighbour when it was playing with a squeaky toy that the applicant had bought for the dog. Upon learning of this, the applicant had removed the toy, and to the best of her knowledge no further complaints had been made.

The applicant also stated that she is usually at home during the day so that the dog is not left on its own for long periods, and therefore barking has not been an issue. The applicant further stated that she takes the dog for regular walks away from the scheme.

Mr Meredith stated that he had been a member of the committee for a couple of years. He further stated that he did not consider it discriminatory for the committee to have allowed one dog and not another, although he was unable to give the reasons for the refusal, or explain the basis for the distinction drawn by the committee between the two applications.

After the teleconference, the body corporate committee decided to conduct a "Postal Extraordinary General Meeting". The secretary sent a covering letter to all owners stating:

The body corporate committee for Garden City Approach would like to nominate a change to its current body corporate Bi (sic) Laws.

The committee proposes that the change reads "no animals (except for fish) to be allowed to be kept by residents on the Garden City Approach complex, effective from July 2006."

The explanatory schedule accompanying the voting paper stated:

Please find attached a letter from the secretary of the body corporate John Sharp recommending that the current by-laws be amended to a No Pet Policy, so that all future requests for animals are automatically denied.

The date by which owners were requested to return their voting paper is 4 August 2006.

After receiving the voting paper, the applicant sought to amend her application to include interim orders that the voting process be declared invalid, and that she be permitted to keep her dog within her lot pending the final outcome of the application. The amendment to the Dispute Resolution Application was approved by the Commissioner on 1 August 2006.

DETERMINATION

I am satisfied that an interim order is necessary in this matter, because the voting papers are required to be returned by 4 August 2006, and if the motion appears to have been passed, the body corporate committee will take steps to record a new community management statement. Such action would be invalid, for reasons which follow.

Section 111 of the Act provides as follows:

(d) each vote is given or confirmed in writing.

The only regulation modules which provide for voting in this manner are the Commercial Module and the Small Schemes Module. Accordingly, the voting process initiated by the committee in its attempt to change the by-laws is invalid. I have ordered accordingly.

If the committee wishes to amend the by-laws, an appropriate motion should be included on the agenda of the next general meeting, at which time the voting process can be carried out in accordance with the requirements of the Accommodation Module.

I have also ordered that the applicant may keep her dog within her lot (which includes the private yard) pending the final determination of this application. In making this interim order, I have also imposed similar conditions to those imposed by the committee on the owner of lot 6, when the committee resolved on 23 November 2005 to allow the owner to keep a shih-tzu cross maltese terrier within lot 6.

The application will now be processed in accordance with the usual procedures of this office. All owners will be invited to respond to the application, and a final order will be made in due course.

Number of Scheme:	27486
Name of Scheme:	Garden City Approach
Address of Scheme:	18 Pumice Street, EIGHT MILE PLAINS QLD 4113

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Garden City Approach [2006] QBCCMCmr 427 (2 August 2006)