Pivotal Point Residential [2007] QBCCMCmr 21 (15 January 2007)

Last Updated: 9 February 2007

REFERENCE: 0890-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	33550
Name of Scheme:	Pivotal Point Residential
Address of Scheme:	50 Marine Parade SOUTHPORT QLD 4215

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

Virginia Marie Laws, the owner of lot 1603

I hereby order that the owner of lot 1603, Virginia Marie Laws, is authorised to keep her miniature poodle "Snuggle Pot" within her lot. I further order that this authorisation is subject to a condition that the dog is to be confined to lot 1603 and is not to be allowed on common property other than for the purpose of ingress to or egress from the lot. If it is necessary for the dog to leave the lot then the dog must be carried across the common property, or restrained on a lead which is no more than one metre in length. Any dog droppings of "Snuggle Pot" on common property must be cleaned up by the owner. I further order that this authorisation may be withdrawn by the committee if the dog constitutes a nuisance to other occupiers.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0890-2006

"Pivotal Point Residential" CTS 33550

Scheme

"Pivotal Point Residential" community titles scheme 33550 was registered as a building format plan of subdivision on 27 January 2005 comprising 102 lots and common property. It is regulated by the Act’s Standard Module.

Application

This application is brought by the owner of lot 1603, Virginia Marie Laws (the applicant), against the body corporate, seeking the following order:

To keep Snuggle Pot, my 9 year old toy poodle, on my lot (see application attached).

Committee members and Building Management refrain from any further harassment or interference with my ability to enjoy the common property as I take Snuggle Pot for her regular walks.

The grounds to the application are to the following effect:

• The applicant moved with Snuggle Pot (a nine year old toy poodle weighing 3.8 kg) from Perth to "Pivotal Point Residential" on 17 October 2006 as the owner of lot 1603, with the understanding that the building was "pet-friendly".
• The developer, its marketing agent, and the real estate agent promoted "Pivotal Point Residential" as being pet-friendly. (Written evidence is attached to the application.)
• The applicant’s perusal of committee meeting minutes indicated that pets were approved on a regular basis.
• The committee rejected the applicant’s application (dated 19 October 2006) to keep her nine year old toy poodle on her lot.
• The committee has not provided any logical or reasonable reason for their refusal, other than advising that the application did not comply with the criteria laid down in by-law 16.
• By-law 16.1 provides that a lot owner or occupier may bring or keep an animal on the lot with the body corporate’s written approval.
• Since the inception of the body corporate in March 2005, at least nine dogs have been approved by the body corporate. A tenth dog owned by a tenant was also recently given permission by the body corporate to stay with the owner.
• Because no valid reason has been given for the rejection of Snuggle Pot, and because of hostility by some committee members toward the applicant, owing to their personal desire to live in a pet-free environment, the applicant believes the body corporate has acted unreasonably and the decision is discriminatory.
• Snuggle Pot is house-trained, timid, placid, does not bark and is accustomed to being indoors. She has had all necessary vaccinations and Gold Coast City Council (GCCC) registration will be obtained as soon as possible.

Interim Order

On 13 November 2006, I issued the following interim order:

I hereby order that pending a final determination of this application, the owner of lot 1603 may keep the dog named "Snuggle Pot" on Lot 1603 provided the dog does not cause a nuisance, or otherwise interfere unreasonably with another person’s use and enjoyment of their lot or the common property.

I further order that pending a final determination of this application, the Body Corporate for Pivotal Point Residential Community Titles Scheme 33550 (including through its Committee) shall not proceed with, implement or otherwise act upon any resolution to require the removal of the dog from lot 1603 unless the Body Corporate reasonably believes that the dog is causing a nuisance, or otherwise interfering unreasonably with another person’s use and enjoyment of their lot or the common property.

This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn, rejected or otherwise ended (whichever is the earlier).


Submissions

Submissions in response to the application were sought from all owners (excluding the applicant) and the committee. A total of 45 submissions were made. Of these, 6 were made by occupiers who are not owners, 8 were either unsigned or signed by persons other than the owner of the lot with no evidence provided of any power of attorney or authority to sign on behalf of a corporate owner and 4 were received after the closing date for receipt of submissions with no request having been made for an extension of time within which to lodge the submission. Of the 45 submissions made, I therefore regard 27 as having been validly made. I have taken only these 27 submissions into account in my determination of this matter.

Of the 27 submissions I have considered, 25 (representing 23 lots) were opposed to the making of the orders sought and 2 were in support of the applicant. Of the 25 opposing submissions, 18 are in the form of a completed pre-prepared proforma, some with additional comments and some without. 7 unique submissions, opposing the making of the orders sought were received. In addition, a petition objecting to the keeping of pets within the building was submitted, containing the signatures of owners representing 18 lots. Thirteen of the signatures are common to both submission methods.

The reasons cited in the opposing submissions related almost exclusively to an interpretation of by-law 16 that prohibits all but original owners from keeping animals, making the scheme, in effect "pet-free", with the exception of those dogs already approved in accordance with by-law 16.2.

Jurisdiction

This is a dispute between an owner and the body corporate and comes within the dispute resolution provisions of the Act.^[1]

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)).

Decision

Animal By-law

The current by-law in relation to animals (as recorded in the most recent community management statement registered on 24 May 2006) is as follows:

16. Keeping of Animals

16.1	Subject to this By-Law and the provisions of the Act, a Lot Owner or occupier is not to bring or keep an animal on the lot or on the Common Property without the Body Corporate’s written approval.
16.2	A Lot Owner of a Lot as at three (3) months following the date of establishment of the Scheme , or a Lot Owner, having purchased the Lot after the date of establishment of the Scheme, such Lot being owned by the original owner and not previously registered or owned by another owner may keep one (1) dog in the lot, so long as:
16.2.1	Not less than seven (7) days prior to bringing the dog into the Lot, the Lot Owner must:-

16.2.1.1 Provide to the satisfaction of the Body Corporate, evidence of past ownership of the dog, exceeding one (1) year prior to the earlier of the date of establishment of the Scheme or occupancy of their Lot;
16.2.1.2 Register with the Body Corporate, particulars of the dog, including name, sex, weight, description, breed and two colored photographs, one showing the face, and one the side of the animal;
16.2.1.3 The dog be registered with the Gold Coast City Council and provide a copy of that registration to the Body Corporate, each year on renewal.

16.2.2 Is dry and free of sand, dirt or garden material;
16.2.3 Weighs less than ten (10) kilograms;
16.2.4 Does not disturb others;
16.2.5 Is a domesticated pet;
16.2.6 Is toilet trained;

16.2.7 Only passes over or through the Common Property for the purposes of ingress and egress to a lot and at all times kept on a lead which is no more than 1 meter in length;

16.2.8 Is kept healthy and free of parasites;

16.2.9 Where a lot is owned by one or more owners, only one animal per Lot is permitted;

16.2.10 No owner or joint owner of more than one Lot in the Scheme is permitted to keep a second or subsequent animal in their second or subsequent Lot;

16.2.11 This By-Law is for the personal benefit of a owner as defined in By-Law 16.2 above and lapses immediately upon the death of the dog or upon the sale of the Lot.

16.3 The Body Corporate may order an animal to be removed from the Scheme if the animal does not comply with all of the criteria set out in this By-Law.

16.4 However, a deaf or blind person, shall be permitted to keep or bring into a lot or onto the Common Property, a guide dog, as referred to in the Guide Dogs Act 1971.

16.5 The owner indemnifies and shall keep indemnified the Body Corporate against any loss, damage, injury or claim whatsoever made against the Body Corporate regarding any act on the part of the dog.


Almost without exception, owners who made opposing submissions in response to this application are mistaken in their interpretation of by-law 16. The common, but erroneous belief, is that by-law 16.1 prohibits the keeping of animals at "Pivotal Point Residential" unless the criteria laid down in by-law 16.2 are complied with. In effect, it is believed that only original owners could apply for ownership of one small dog in certain defined circumstances. As the applicant is not an original owner, she cannot apply for dog ownership. In fact, by-law 16.1 is subject to the rest of the by-law. By-law 16.1 operates to prohibit an owner or occupier from bringing or keeping an animal on a lot or common property without body corporate approval. If the conditions in by-law 16.2 are satisfied, then body corporate approval is not required, permission is granted by virtue of by-law 16.2, itself. If an owner or occupier not satisfying the conditions specified in by-law 16.2 wishes to bring or keep an animal within the scheme, they need to seek written body corporate approval.

By-law 16 provides no basis for the "no pets" policy adopted by the committee and relied on in almost every opposing submission. By-law 16 is not restrictive, but rather permissive, as found by my colleague, Adjudicator Ricardo, in 0849-2006. If an owner or occupier wishes to keep an animal and do not meet the specific conditions outlined in by-law 16.2 they should seek the permission of the body corporate. The body corporate then has a discretion whether to grant or refuse authorisation to keep any particular animal. However, the body corporate must act reasonably in exercising this discretion^[2].

"No Pets" Policy

Contrary to widespread belief, by-law 16 does not implement a "no pets" policy. However, it is clear from the submissions that many owners are of the view that no pets are allowed at "Pivotal Point Residential", with the exception of those dogs already approved pursuant to by-law 16.2.

When a body corporate has discretion to approve the keeping of animals it is not appropriate for the committee to adopt a "no pets" 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 pets are allowed. If owners decide to amend the by-laws to prohibit pets then the amended by-law would be effective from the time it was recorded by the registrar of titles. Notice of the by-laws can then be given to all owners and tenants. Prospective purchasers would also have an opportunity to search the titles registry and obtain a copy of these by-laws before purchasing a lot.

A committee resolution which is inconsistent with a registered by-law is insufficient justification for refusing permission to owners to keep pets. A "no pets" policy can only be implemented by the registration of an appropriate by-law in a new community management statement.

The present by-law 16 gives the body corporate the power to approve an owner or occupier keeping an animal within the scheme. This means that the committee cannot simply adopt a "no pets" policy but must exercise the discretion to approve or refuse a particular animal after consideration of the individual circumstances.

Should the Applicant’s application to keep Snuggle Pot Be Approved?

In determining the applicant’s application to keep "Snuggle Pot", the body corporate must take into account the individual circumstances of the applicant and the particular dog she proposes. I am not satisfied that the committee has done this. Although some general objections relating to barking, droppings on common property and units being inappropriate for inhabitation by dogs were made in the submissions, no objections to the applicant’s particular dog were raised. It appears to me that the committee has merely applied a blanket policy that no pets should be allowed. This is not a reasonable exercise of the discretion given to the body corporate.

If owners wish to ensure that no animals are allowed in the scheme then owners need to amend the by-laws to say that no animals are allowed. If people buy into a scheme that allows the body corporate to approve the keeping of an animal then the committee must consider the individual circumstances and act reasonably to either grant or deny permission to keep the particular pet.

The applicant states that her dog, "Snuggle Pot", is a nine year old miniature poodle that weighs 3.8kg. She states that the dog is house trained, timid, placid, does not bark and is accustomed to being indoors. Further, the dog is stated to have had all necessary vaccinations and will be registered with the GCCC.

I am of the view that, in these circumstances, the applicant’s request for permission to keep "Snuggle Pot" in her lot should be allowed. I consider it appropriate to add some conditions to the authorisation to address concerns other occupants have, including droppings on common property and encountering the dog on common property. These include conditions to require the dog to be confined to the lot (other than for the purpose of ingress and egress to the lot) and to require the dog to be carried, or restrained on a lead which is no more than one metre in length, if it is necessary to take it across common property. Further, any dog droppings of "Snuggle Pot" on common property must be cleaned up by the applicant. The applicant should also be aware that the dog will need to be removed from the scheme if it causes nuisance to other occupiers (Act, 167).

I have ordered accordingly.

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^[1] See ss.226, 227 & 228.
^[2] s.94 Act