Jewel By The Sea [2006] QBCCMCmr 478 (29 August 2006)

Last Updated: 19 December 2006

REFERENCE: 0466-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17369
Name of Scheme:	Jewel By The Sea
Address of Scheme:	QUEENSLAND

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

Kylie Hatchman, an occupier of lot 18

I hereby order that, Kylie Hatchman (applicant) is authorised to occasionally bring her small dog the subject of this application onto the scheme. This authorisation is conditional on: 1. The dog being confined to unit 18 and not straying onto other lots or other parts of the common property. In particular, if it is necessary for the dog to be taken across the common property then the dog must be carried across the common property; 2. The dog not interfering unreasonably with the enjoyment of other occupiers. In particular, it is conditional on the dog not barking or creating any other noise that is clearly audible from another lot; and 3. The dog being kept so as to comply with local council requirements and all reasonable hygiene standards so as not to compromise the holiday letting of units within the scheme and the four star rating of the complex. 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 any allegation of breach.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0466-2006

"Jewel By The Sea" CTS 17369

Application

Jewel By The Sea Community Titles Scheme (Jewel) is an 18 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 scheme is described as mainly operating for holiday letting purposes.

This is an application by Kylie Hatchman (applicant) against the body corporate for Jewel (respondent). The applicant is seeking to overturn a refusal by the committee to allow her to keep a dog in unit 18.

Decision

Right to seek authorisation to keep a pet

By-law 14 for Jewel provides:

" (a) Subject to Section 143 of the Act, an Occupier must not, except with the consent in writing of the Body         Corporate Committee –

(i) bring or keep an animal or bird on the Lot or the Common Property, or
(ii) permit an Invitee to bring or keep an animal or bird on the Lot or the Common Property.

(b) Any consent of the Body Corporate Committee may be –

(i) given on conditions, and
(ii) withdrawn at any time, if the conditions are not met." ^[1]

The legislation provides that the body corporate must enforce the by-laws for the scheme and "must act reasonably in anything it does" in relation to its general functions, including enforcement of the by-laws (Act, 94).

Rights of other occupiers

Irrespective of whether an animal has been approved by the body corporate, the legislation provides that an occupier of a lot must not use or permit use of their lot or common property in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of the scheme by another person (Act, 167).

Therefore, if an occupier is being disturbed by someone’s pet then that occupier can complain to the body corporate and seek to have the problem addressed or the approval revoked. Alternatively, an occupier can bring an application directly against the pet owner seeking an order of an adjudicator to prevent any further nuisance.

By-law allows pets with permission

By-law 14 allows pets within the scheme subject to the written approval of the body corporate.

Further, the body corporate cannot make decisions about allowing pets on a purely arbitrary basis. The requirement that the body corporate "must act reasonably in anything it does" means that the body corporate must act based on relevant and legitimate reasons when deciding whether or not to allow someone to bring a pet onto the scheme.

For example, it would seem unreasonable for the body corporate to refuse an owner permission to keep a fish in circumstances where no other occupiers are likely to be adversely affected or even aware that the owner is keeping a fish. However, if an owner sought permission to keep hundreds of fish for breeding purposes and other owners had legitimate concerns about unpleasant smells wafting from the unit then the body corporate could exercise its discretion to refuse permission.

Failure to fully consider individual circumstances

I have considered the submissions regarding the applicant’s dog. The majority of submissions oppose allowing any pets at Jewel. However, I have some concerns that these submissions reflect the proposed implementation of a general "no pets" policy rather than the application of the present by-law 14 to the individual circumstances of the applicant.

Submissions are made to the effect that:

• Allowing one owner to have a pet is a precedent for other owners and we feel that the development is unsuitable for pets in general as there is no yard provided for animals;
• Public liability may become an issue if someone was to fall as a result of a pet or its droppings;
• If there were a number of animals in the complex they may cause undue noise;
• It is inappropriate to have animals allowed at the units as this may encourage holiday makers to believe they can bring their own pets;
• We bought into the complex not expecting any pets as the complex is for holiday letting and not permanent residential occupation;
• It would be hard to monitor and police any noise issues or complaints about pets and it may be difficult to remove an offending animal;
• The challenge of managing any potential pet issues and the possible ill-feeling that could develop between future pet owners and non-owners is greater than the benefit or allowing a small pet in;
• Allowing dogs to be kept in any of the apartments would devalue the whole facility; and
• To relax the "no pets by-law" would eventually lead to the removal of the "no pets by-law" thus allowing guests to bring dogs, cats and other pets with them on holiday. We strongly believe this would devalue the property and its reputation; and
• The applicant may be able to ensure that her dog will be well behaved but this cannot be guaranteed for any other animals that in the long term may be brought onto the property.

By-law 14 allows animals within Jewel subject to the written approval of the body corporate. If owners instead wanted a "no pets" policy implemented for the scheme then owners would need to change the by-law so that pets are prohibited. As it presently stands, any occupier is entitled to make an application to the committee for approval to keep a pet and that application must be considered on its merits.

Consideration of application on its individual merits

I have reached the conclusion that the application to the committee for approval for the applicant to occasionally bring a pet into her unit was refused because members of the committee wished to apply a "no pets" policy rather than consider the application on its individual merits pursuant to by-law 14.

In considering the application on its merits, I have taken into account representations by the applicant to the effect that:

•	Their pet currently lives with them in a body corporate situation in Brisbane;
•	The pet is fully house trained and remains in the unit at all times;
•	The pet does not bark at all and is not let onto common areas; and
•	The pet would only be brought to the scheme occasionally.

I have also taken into account submissions to the effect that another pet was previously approved for occasional visits to the scheme and there is no evidence that this created any significant problems.

In the circumstances, I have concluded that it would be unreasonable to refuse permission to occasionally bring the dog onto the scheme subject to reasonable conditions based on the representations of the applicant and the concerns raised in submissions from owners.

I therefore propose to make an order that the applicant be granted permission to keep the dogs pursuant to by-law 14, conditional on appropriate steps being taken to minimise the risk of inconvenience to other occupiers. These include minimising risk of harm to any children or other occupiers by requiring the dog to be confined to unit 18 and carried across common property if necessary. Concerns have also been raised about compromising the holiday letting of units and the dog should be kept so as to comply with reasonable standards of hygiene and should not bark or otherwise act so as to interfere unreasonably with other occupiers.

I will therefore order that the authorisation should be granted conditional upon:

1. The dog being confined to unit 18 and not straying onto other lots or other parts of the common property. In particular, if it is necessary for the dog to be taken across the common property then the dog must be carried across the common property;
2. The dog not interfering unreasonably with the enjoyment of other occupiers. In particular, it is conditional on the dog not barking or creating any other noise that is clearly audible from another lot; and
3. The dog being kept so as to comply with local council requirements and all reasonable hygiene standards so as not to compromise the holiday letting of units within the scheme and the four star rating of the complex.

I will also specifically 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 any allegation of breach.

Concerns about managing pet issues at the scheme

Concern has been raised that difficulties may arise in terms of managing any pet issues and complaints and possible ill-feeling that could develop between owners. However, by-law 14 currently allows the committee to approve pets. In the circumstances, it is unreasonable to refuse the applicant permission to occasionally bring her dog to the scheme based on the bare possibility that the pet may cause problems at a later time.

The concerns about potential difficulties and ill-feeling in terms of monitoring animals at the scheme may well be overstated. However, the by-law could be changed to provide that no occupier may bring a bird or animal onto the scheme in any circumstances. If so, the scheme would become a "no pets" scheme and these concerns would be avoided. It is a matter for owners to consider whether the by-law should be changed or whether the present safeguards are sufficient in that an occupier is prohibited from causing nuisance and the committee can act on reasonable grounds to revoke an approval to keep a pet.

Order

For these reasons, I make the order above.

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^[1] The reference to section 143 is a reference to a provision of the Act that gives a right to be accompanied by a guide dog irrespective of any consent of the body corporate (Act 181, formerly 143).