Garden City Approach [2006] QBCCMCmr 529 (17 October 2006)

Last Updated: 19 December 2006

REFERENCE: 0433-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

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

Tiffany Helen Hanlon (formerly White), the Owner of lot 14

I hereby 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) 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 I further order that if the dog should die, the applicant shall not be automatically entitled to replace the dog, and must first seek body corporate approval for any new animal to be brought onto her lot, and that such an application shall be considered by the body corporate in light of the then current by-laws relating to animals within the scheme.

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:

• that she be permitted to keep her dog within her lot pending the final determination of the application, and
• that the voting outside a general meeting relating to a change of the body corporate’s by-laws be invalidated

On 2 August 2006, the following interim orders were made:

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

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

(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)).

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

It is relevant to restate the background material upon which I relied in making the interim order.

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.

Following the interim order, all owners were invited to respond to the application. Two brief submissions were received. Both owners opposed the application. Neither owner lives within the scheme.

The applicant exercised her right of reply and pointed out that no owner had made any complaint about the behaviour of her dog.

DETERMINATION

By-law 12 of the scheme’s by-laws deals with the keeping of animals, and provides that the occupier of a lot must not bring or keep an animal on the lot or the common property without the body corporate’s written approval, which approval is required to be obtained before bringing the animal onto the lot or the common property.

On 23 November 2005, the body corporate committee resolved to allow the occupier of lot 6 to keep a small dog on the lot on certain conditions. Just over three weeks later, on 16 December 2005, the body corporate committee refused the applicant’s request to keep a small dog on her lot on similar conditions to those imposed on the occupier of lot 6. When the applicant requested that the committee reconsider its decision, it once again refused her request on 31 March 2006.

During the course of the teleconference conducted by me on 15 June 2006 with the applicant, and committee member Mr Tony Meredith, Mr Meredith was unable to explain why the committee had allowed one small dog to be kept within the scheme, but had refused another small dog. Mr Meredith also stated that he did not consider this to be discriminatory.

Shortly after the teleconference, the body corporate committee attempted to change the scheme’s by-laws in relation to animals, effective from July 2006. I have already pointed out in my interim order that the method adopted by the body corporate committee for this proposed change was invalid, involving, as it did, voting other than at a general meeting. This method of voting is not permitted under the Accommodation Module. In any event, because not every lot owner cast a vote, and the votes which were cast were not all in favour of the motion (s111(2)(a) & (c) of the Act), the motion would not have been validly passed, even if the regulation module had permitted it.

The by-laws can of course be changed by owners at any time, provided that proper procedures are followed. Any change, if approved, will only take effect from the date on which the new community management statement incorporating the changed by-laws is recorded in the Titles Office, not on any date prior to such recording.

For the time being, therefore, the body corporate must operate under its currently recorded by-law in relation to animals, as discussed above.

I have not been assisted in my deliberations by the submissions. Both owners who lodged submissions simply stated that they were opposed to any animals or pets (other than fish) being kept on the premises, but they did not provide reasons for their opposition, and, most importantly, did not state why one small dog should be allowed to remain within the scheme and another small dog should not.

One of the owners was a member of the committee, and participated in the two varying committee decisions to which I have referred. One would expect that he might have been able to shed some light on the reasons for the varying decisions.
The body corporate is charged with the responsibility of administering the common property for the scheme; enforcing the community management statement including the by-laws and carrying out any other functions given to it under the Act and the community management statement. In doing so, it is required to act reasonably (Act s94).

One aspect of the body corporate’s decision making which is relevant to this application is whether the body corporate has discriminated against the applicant when it twice refused to allow the applicant to have her small dog within the scheme, after earlier having allowed another person to have a small dog.

It is quite clear that it is not reasonable, and is in fact discriminatory, to grant approval for one occupier to have a small dog within the scheme and three weeks later to refuse to grant approval to another occupier to have a small dog within the scheme, particularly without even attempting to explain the reasons for the differing decisions.

The applicant has already stated that she makes every effort to ensure that the presence of her dog "does not cause disturbance to (the) peaceful complex". As there have been no complaints about the behaviour of the dog, it would appear that the applicant’s efforts have been successful.

I am satisfied that the body corporate has discriminated against the applicant by refusing to allow her to keep her dog within the scheme. I have therefore ordered that the applicant may keep her dog within the scheme on the conditions already outlined in the interim order.