Harbour Town Villas [2006] QBCCMCmr 746 (21 September 2006)

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

I hereby order that the application for an order that the owners of Lot 18 be directed to remove their dog from the lot and keep removed from the lot as no permission has been granted as per By-Law 10 keeping Of Animals: "Subject to section 143 of the act an owner of a lot shall not without the approval in writing of the Committee, keep any animal upon his lot or the common property", is dismissed.

I further order that the Body Corporate for Harbour Town Villas community titles scheme 23604 is deemed to have authorised the keeping of the dog "Sachmo" under By-Law 10 of the scheme By-Laws, and that the authorisation is subject to the following conditions:

• The occupier of Lot 18 must ensure that the dog does not cause a nuisance or in any other way cause a breach of section 167 of the Body Corporate and Community Management Act 1997;
• The animal be carried at all times when on common property;
• Upon the dog’s death, the dog is not to be replaced with another animal without further permission of the Body Corporate;
• Permission is only granted while the applicant is the occupier of Lot 18.

I further order that the body corporate may revoke the above authorisation if the body corporate is reasonably satisfied that the conditions of the auhorisation have been breached provided that the applicant has first been given a reasonable opportunity to respond to or rectify any alleged breach.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0603-2006

"Harbour Town Villas" CTS 23604

Application

The Body Corporate for Harbour Town Villas (the applicant) has sought the following order:

Jurisdiction

Harbour Town Villas CTS 23604 is a 103 lot 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

(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)).

Grounds

The applicant’s grounds are stated as follows:

It was also resolved at the Committee Meeting held on 25^th July 2006 to place a motion on the next General Meeting agenda to change by-law 10 to read that no dog or cat will be allowed to be kept in or upon any lot or the common area.

Submissions

Five submissions were received. Two were from committee members objecting to the keeping of the dog, one from a non-resident owner supporting the Body Corporate’s application and one from another non-resident owner that did not indicate an opinion.

The reasons given by the objecting committee members are:

Determination

Before discussing this particular matter further, it is appropriate to observe that by-laws are registered dealings and it is for the buyer to satisfy themselves regarding the applicable by-laws before settling. Further, it should be borne in mind that a real estate agent is unable to make binding representations on behalf of the Body Corporate, as they are agent for the vendor only. While both of these issues are unfortunate for the respondents, it does not follow that the actions of either the respondent’s conveyancing solicitor or real estate agent are sheeted home to the Body Corporate.

By-law 10 of Harbour Town Villas prohibits keeping animals without the Body Corporate’s written consent. So, if an occupier wants to keep an animal they should first seek permission. The Body Corporate then has discretion whether to give or refuse permission to keep any particular animal. However, the Body Corporate must act reasonably in exercising this discretion (Act, 94).

By-law 10 does not amount to a "no pets" rule. It is a rule that allows pets, subject to specific approval. To give any meaning to the by-law’s ability to make approvals, there must be occasion to make an approval. Given that bodies corporate are required to act reasonably in enforcing the by-laws, they must demonstrate they are acting reasonably in refusing to invoke the clear intention of the by-law to allow approvals.

Adjudicators agree that, like all other by-laws, animal by-laws are to be observed by owners and occupiers. The animal by-law should not be given any special treatment simply because it is often an emotional issue. Usually where owners or occupiers breach animal by-laws, adjudicators will order compliance with the by-law. However, where the owner or occupier can establish the Body Corporate:

the adjudicator might rule the decision of the Body Corporate under the by-law should not be applied.

Acquiescence on the part of the Body Corporate might be not taking steps to require the removal of the animal within a reasonable period of time. For example, the Body Corporate may have not have done anything for some time, causing the owner to assume implicit approval for keeping the animal. The reason for this exception is that it would be harsh and inequitable for an owner to have to remove a pet that they have been allowed to keep over a period of time.

Discrimination in this context can take various forms. The clearest example is where the Body Corporate refuses the request of one owner to keep a pet but gives approval to another, without a logical or reasonable basis for the distinction made. Another example is where the Body Corporate wants an order against one owner keeping a pet when there are one or more other owners who are keeping pets, again with no logical or reasonable basis for the different treatment. The reason for this exception is that bodies corporate must treat all owners equally.

In addition adjudicators may also generally consider whether or not the Body Corporate is acting reasonably in its application of the by-laws in accordance with its functions and obligations under Section 94 of the Act. When a committee has discretion to approve the keeping of animals it is not appropriate for the committee to adopt a "no cats or dogs" policy and apply that policy as a blanket rule. It is for the owners as a whole to determine if the by-law should be amended to state that no cats or dogs are allowed.

It remains to consider the issue of any intrusive aspects of this dog that would make it reasonable to exclude the dog. The dog is said to bark when there is someone on the lot. I am not satisfied that this is sufficient interference with others’ enjoyment for two reasons.

Firstly, I have no evidence that there have been any complaints about barking. The committee advises that the complaint only stated that there was a dog on premises, not that it was barking. Secondly, the lot is located on the end of a group of three lots and there is no evidence of complaint from the next door neighbour or lots 15, 16, 17, 19, 20 or 22. There is no evidence that the comings, goings and passing foot traffic in this area provoke either frequent or lasting barking episodes.

As with the barking there is little or no evidence offered in regard to concerns about hygiene or an increase in neighbourhood disputes. Generalisations like residents who rent leave pets behind, or that the welfare of a dog living in a unit is ipso facto compromised, are not valid considerations.

At this point the Body Corporate has not demonstrated their reason for excluding this particular dog, when the by-laws allow the keeping of animals. Without further evidence of nuisance, there is no compelling reason put forward for its exclusion. I will therefore allow the dog to remain, subject to certain conditions.

Both the applicant and respondent are alerted to the provisions of Section 167 of the Act in relation to nuisance:

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-

Number of Scheme:	23604
Name of Scheme:	Harbour Town Villas
Address of Scheme:	643 Pine Ridge Road BIGGERA WATERS QLD 4216

1.	At a budget committee meeting held on 1^st February 2006 Mr and Mrs Atkins sought permission to keep a dog on their lot. This application was refused by all 3 of the 3 voting committee members.
2.	Mr and Mrs Atkins were issued with a Notice of continuing Contravention of Body Corporate By-Law on 3^rd July 2006 after a complaint by a lot owner.
3.	At a committee meeting held on 25^th July 2006 it was resolved by 2 of the 2 attending committee members, that the body corporate manager lodge a Dispute Resolution Application asking that Mr and Mrs Atkins be directed to comply with By-Law 10 and remove their dog from the lot.

(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.

•	Harbour Town Villas is a complex consisting of a large number of residences, most are rented, some, are owner occupier. It is high density community living. This environment is not suitable for the keeping of cats, dogs or any large domestic animal, for hygiene, noise and animal welfare reasons;
•	There is a high probability that it would lead to an increase in neighbourhood disputes, which affects the mood of the complex, making it a less attractive place to live;
•	Allowing pets on this type of property, for any reason, will encourage other residents to do the same. Denying them the same right, could be seen as discriminatory;
•	Before Mr Atkins bought unit 18, the previous owner and/or the real estate agent requested permission for pets to be allowed and the committee said no. Mr Atkins still bought unit 18 knowing that pets are not allowed;
•	Approximately 31/2 years ago a resident worked in a pet store. She would sometimes bring pets home for the weekend. Another resident complained so she had to stop. The committee passed a motion that definitely no pets are allowed, except for caged birds and aquariums with fish as long as noise and health bi-laws are adhered to;
•	No other resident within this complex has any pets. Considering there is security within this complex, why should Mr Atkins be treated more favourably than anybody else?
•	Mr Atkins has attended committee meetings and appeared to be in fine health with no problems hearing and discussing issues that have risen;
•	If they start to allow pets in the complex, considering 98 units out of 103 are rented out, who is going to be responsible for stray pets or the pets left behind. More importantly, the complex next door is complete with an extra 600 canal frontage lots;
•	They are going to face more issues about pets and animals. Hence their "no pets" position should be solid.

•	The Real Estate Agent who showed the unit assured them that there would be no problems in having the dog "Sachmo" stay in the complex;
•	The dog is not only a family pet of many years but also serves as an assistant to the resident who is profoundly deaf. Sachmo alerts the resident by barking, when the door bell rings and in a 2 storey villa such as Lot 64 this assistance became more important. The dog has no special training as a "hearing dog" but is invaluable to the resident’s well being;
•	Apart from the actions of the Real Estate Agent they feel they were also let down by their legal representative and his Gold Coast Agent who should have protected their interests by recommending a search of the records and also supplying them with a copy of the By-laws. It would have been obvious that Harbour Town Villas was not "pet friendly" and they would not have entered into a contract to purchase;
•	They became aware on 31/1/06 that a problem existed. This was the day prior to settlement. At this time they contacted the Body Corporate Manager who advised that just by chance there was a Committee Meeting scheduled for next day 1/2/06 and suggested that they forward a letter for consideration at that meeting;
•	The Committee resolved not to allow the dog, and while sympathetic to the request, they did not wish to "set a precedent". They saw their alternatives as breaking the contract and incurring costs or proceeding and make further representations to the Body Corporate;
•	They note there does not appear to be any avenue to seek compensation from the Agent if they are forced to sell;
•	They can understand the Committee’s attitude to a certain degree in that if they approved Sachmo they would set a precedent. However they say they did request they approve the keeping of the dog as a special case, which they felt would avoid the necessity to "set a precedent";
•	They observe that the By-law by it’s wording does not specifically exclude the keeping of animals but requires that they be approved by the Body Corporate on the basis of the application at the time;
•	All of the above information has been forwarded to the Committee who stuck by their decision and eventually served a Notice of Continuing Contravention of a By-law;
•	They provide a copy of the Minutes 9/5/06 at which Meeting they were present. There is no discussion recorded only copies of correspondence forwarded by them to the Body Corporate;
•	They attach a copy of the Notice of Continuing Contravention of a Body Corporate By-Law which states that a complaint had been lodged, but they can find no Minutes or correspondence detailing this complaint;
•	To date they have no knowledge of the complaint made by an occupier, other than that a complaint had been lodged;
•	Sachmo has never placed "a paw" on the common property. He enters directly from an internal door to the garage;
•	Sachmo does bark when visitors call, which is what he is trained to do so as to alert the resident. This barking is not prolonged. They consider that in a complex like Harbour Town Villa the chances of unexpected callers is minimal and the need for Sachmo to bark is very limited;
•	They say generally he is a well behaved dog with a placid nature;
•	They also say that Lot 18 is one of 3 lots separated by some 20 metres from the nearest neighbours;
•	The other occupiers in the block have never expressed any concerns over Sachmo and they believe that there would be few, if any occupiers in the complex who would know the colour or breed of the dog;
•	They request the adjudicator gives favourable consideration to their request to keep the dog on the complex with their written undertaking not to replace the dog when it is either put down or dies and that they assure the Body Corporate that the dog will never set foot on the common property;
•	They state Sachmo is a much loved family pet who is going on 13 years old. While it will be a very sad day when he passes on it is reasonable to expect it could be in the near future.
•	It will be necessary to install a different communications system within the Lot when Sachmo dies, but they will deal with that matter when the time arrives.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Harbour Town Villas [2006] QBCCMCmr 746 (21 September 2006)