Nundah Gardens [2007] QBCCMCmr 162 (1 February 2007)

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

I hereby order that the applicant, be permitted to keep a single cat on Lot 9, subject to the following conditions:

1. The owner of Lot 9 must ensure that the cat remains within the boundaries of Lot 9 and does not
roam onto common property or other lots within the scheme. If the owner wishes to take the cat
across common property to leave the scheme it must be carried.

2. The owner of Lot 9 shall ensure that the cat does not cause excessive noise, or otherwise
create a nuisance likely to interfere with the peaceful enjoyment of other owners and occupiers
of lots in the scheme.

3. The owner of Lot 9 shall ensure that the cat is desexed, wormed and vaccinated, given flea
treatments, and that all other reasonable efforts are made to keep the cat in good health.

4. The owner of Lot 9 shall ensure that any animal litter or waste is effectively and promptly
disposed of so as to avoid any health hazard or odour.

5. The owner of Lot 9 shall make reasonable efforts to minimise the transmission of airborne
allergens from the cat, for example by vacuuming the lot and grooming the cat.

6. The Body Corporate Committee shall be entitled to rescind permission for the cat if it reasonably
considers the owner of Lot 9 has not complied with these conditions and that the owner of Lot 9
has failed to respond appropriately to warnings about their concerns.

7. This order only applies to one cat, and does not authorise the keeping of any additional, replacement, or substitute animals on Lot 9. If the authorised cat dies, the owner of
Lot 9 must apply to the Body Corporate for approval to keep any further pet.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1031-2006

"Nundah Gardens" CTS 19677

Application

The applicant is seeking an Order that she be permitted to keep her cat on the premises located at villa 9, Nundah Gardens. The applicant also seeks an Interim Order staying a contravention notice dated 15 November 2006 until such times as the matters raised therein are decided.

The Scheme

Nundah Gardens community titles scheme is a 9 lot scheme registered as a group title plan (now known as a standard format plan of subdivision) and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

Background
The applicant states that prior to the purchase of her lot she was informed by the real estate agent that pets between 3 and 5 kilos could be kept by residents in Nundah Gardens and therefore purchased her lot on the understanding that she was permitted to keep a small pet. The cat is kept indoors except for a short period at night time and is not able to leave her unit unless allowed by the applicant. The applicant also states that the cat is in good health, well cared for and has never caused a nuisance on the premises.

Approximately 4 to 5 months after taking up residence, the body corporate manager handed a letter to the applicant instructing her to permanently remove the cat from the premises. The applicant states that she did not receive any prior notification or warning prior to receipt of the letter from the body corporate manager. The applicant has also previously raised concerns regarding a sign placed on common property stating that the scheme is a "pet free complex".

Following advice from the body corporate manager the applicant arranged an extraordinary general meeting on 13 September 2006 to allow residents to vote on keeping the cat. The meeting was physically attended by 3 lot owners who voted against keeping the cat, as did a fourth lot owner who also voted against keeping the cat . There were 2 votes in favour and 3 abstentions.

On 15 November 2006 the applicant received a contravention notice stating that the alleged breach of the by laws was to be remedied within 14 days. The notice alleged that the applicant was in breach of by-law 11(1) which provides as follows:
11.(1) The occupier of a lot must not, without the body corporate’s written approval-

(b) permit an invitee to bring or keep an animal on the lot or common property.

(2) The occupier must obtain the body corporate’s written approval before bringing or permitting an invitee to bring, an animal onto the lot or common property.

The applicant believes that the contravention notice requiring removal of the cat is unreasonable
as she is a responsible cat owner and her cat has never caused a nuisance within the scheme.

Submissions
Pursuant to section 243 of the Act, this office sought submissions in respect of the application from the respondent body corporate and all owners. In response three submissions were received.

The first submission made by an individual lot owner made the following points:

Jurisdiction

As this is a dispute between a lot owner and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions of the Act.

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)).
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)).

Decision

The issue for consideration in this matter is whether the Body Corporate decision to refuse the applicant’s request to keep a cat within her lot should be overturned.

The Body Corporate and Community Management Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community
titles schemes". While there are numerous benefits of living in community title schemes,
communally based, higher density living inevitably involves an increased level of interaction with others and gives lot owners the power to vote on what by- laws will apply to their scheme.

In this case the by-law states
11.(1) The occupier of a lot must not, without the body corporate’s written approval-

(b) permit an invitee to bring or keep an animal on the lot or common property.

(2) The occupier must obtain the body corporate’s written approval before bringing or permitting an invitee to bring, an animal onto the lot or common property.

Most bodies corporate have by-laws requiring written approval for the keeping of animals and adjudicators are often asked to determine requests for orders which seek either to have an animal removed, or to overturn the refusal of an application for an animal. The view of adjudicators has been that animal by-laws, like all other by-laws, must be observed by owners and occupiers. They do not attract any special significance simply because they are often the subject of emotional appeals.

There are three factors adjudicators generally consider in regard to such applications.

Firstly, the question arises whether there has been acquiescence on the part of the body corporate, such as it not taking steps to remove an existing animal over a reasonable period of time. If a body corporate has failed to act on the by-law for some time it can lead the owner to assume implicit approval to keep the animal. The basis for allowing this approach is that it would be harsh and inequitable for an owner to have to remove an animal that they have been allowed to keep for an extended period of time.

Secondly the question arises whether the body corporate is acting in a discriminatory manner. Discrimination in this context can take various forms. The clearest example is where a committee refuses one owner’s request but grants approval to another, without any logical or reasonable basis for the distinction. Another example is where the body corporate seeks the removal of animal when there are other animals in the scheme, again with no sound reason for different treatment. The basis this exception is that bodies corporate must treat all owners equally regarding the enforcement of by-laws.

Thirdly, adjudicators must generally consider whether the body corporate is acting reasonably in its application of the by-laws in accordance with section 94of the Act which provides:

94 Body corporate’s general functions
(1) The body corporate for a community titles scheme must--
(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including any by-laws for the scheme); and
(c) carry out the other functions given to the body corporate under this Act and the community management statement.
(2) The body corporate must act reasonably in anything it does under subsection (1).

In this regard, I note that By-law 11 does not expressly prohibit pets in the scheme. Rather it permits pets subject to specific approval. It is therefore a decision for the body corporate whether and under what circumstances it will approve a pet. In doing so the body corporate must exercise its discretion and consider each application on its merits. For example, it is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances. If the body corporate wishes to have a blanket ‘no pets’ policy, then the by-laws should be amended to say so.
As there is no suggestion of discrimination or acquiescence in this case, the key issue is whether the Body Corporate has acted unreasonably in the circumstances. To act reasonably I consider that it is important that the Body Corporate consider whether a proposed pet will have any impact on other owners. As outlined above there is a delicate balance to be struck between protecting the interests of the scheme as a whole and restricting what a person may do within their own lot. For example, it would be unreasonable for a body corporate to refuse permission for a small pet such as a fish that is entirely contained within an aquarium, because such a pet would not have any noise, odour, visual or other impact on other owners. On the other hand, it would probably be reasonable for the body corporate to exclude most breeds of dog from this scheme.

In this case the applicant states that the cat is kept inside and does not create a nuisance, which is not disputed by the other lot owners. Further, given the configuration of the lots in the scheme, I do think noise impacts are unlikely if the cat is kept entirely within the applicant’s lot and if the cat is confined to a particular lot and not allowed onto common property.

While odour and hygiene issues could be a potential issue I believe that it is possible for such concerns to be adequately addressed so that odour and hygiene issues do not raise particular concerns for other owners.

In the circumstances I am satisfied that it is just and equitable to permit the applicant to keep a single cat in her unit but that such permission should be subject to a range of conditions which would obviate the possibility of any impact on other lot owners in the scheme. These conditions are outlined in the order and I believe that these conditions should ensure that the cat has no impact on other owners. I have also ordered that the Committee may revoke permission if they reasonably consider the applicant is not complying with the conditions and that in practice the cat has a greater impact that I anticipate. However the Committee should ensure that it gives the applicant the opportunity to address any concerns before withdrawing permission.

The issue of creating a precedent is a valid concern and all owners should be aware that this order should not give rise to any expectation that other owners are entitled to having pets in their lots. Any other requests for pets should be considered by the Committee on their individual merits. While it may be reasonable for a house trained cat to be kept in one lot, this does not mean, for example, that the body corporate would be obliged to permit another occupier to keep a large dog within their lot. Further, the Committee is entitled to put any requests to the consideration of all owners at a general meeting, or to propose an amendment to the by-laws if they wish to prospectively prohibit pets entirely.

Number of Scheme:	19677
Name of Scheme:	Nundah Gardens
Address of Scheme:	136 Nellie Street NUNDAH QLD 4012

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Nundah Gardens [2007] QBCCMCmr 162 (1 February 2007)