Jacaranda Gardens [2007] QBCCMCmr 219 (19 April 2007)

Last Updated: 26 April 2007

REFERENCE: 1027-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19631
Name of Scheme:	Jacaranda Gardens
Address of Scheme:	68-72 Springwood Road ROCHEDALE SOUTH QLD 4123

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

Sandra Camilleri, the Owner(s) of lot 42

I hereby order that, within one month, Sandra Camilleri, owner of lot 42 (applicant) must make a written request to the body corporate committee for permission to keep her cat. This request must detail the conditions upon which the applicant is willing to comply with and may include supporting information such as a letter of support from her neighbour. I further order that, within a further month, the body corporate committee must consider the written request for permission and any associated conditions.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1027-2006

"Jacaranda Gardens" CTS 19631

Application

Jacaranda Gardens Community Titles Scheme (Jacaranda Gardens) is a 46 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

This application is by Sandra Camilleri, owner of lot 42 (applicant) seeking orders against the body corporate (respondent). The applicant is seeking an order that she be granted permission to keep her cat within her lot.

Submissions

The applicants’ main submissions were to the effect that:

• When she was a prospective owner she sought the body corporate committee’s consent to keep a cat;
• The body corporate manager told her that the complex was pet friendly and consent should be given for a pre-owned pet cat;
• She asked the vendor to make a request for permission on her behalf and accepted their verbal confirmation that her request had been granted;
• When she moved into the complex she was shocked to find our her request had actually been declined;
• The onsite mangers told her to write a letter to the committee and request permission herself;
• The committee refused to vote on her application because they said the matter had already been decided and said that the by-laws do not allow pets. This is wrong as the by-laws allow pets with consent of the committee and her application based on her own individual circumstances should be considered on its merits; and
• Other residents told her that another owner had an indoor pet cat.

The body corporate’s main submissions were to the effect that:

• Last year the newly formed committee were struggling with this and other issues. Mediation was offered to resolve these issues and the committee is disappointed the applicant did not take advantage of this opportunity;
• The previous owner of the applicant’s lot made an application on her behalf to seek to have a cat. This was refused after considering several factors including previous complaints, previous nuisance and damage, the possible future growth of pets in the complex, the by-law wording, and an understanding by several owners that Jacaranda Gardens is a pet free complex;
• When the applicant made her request directly, nothing had changed so the previous decision stood;
• The committee sought advice and clarification from the body corporate manager and was not told it was doing anything wrong;
• Others had given the applicant misleading information and this was very unfortunate and created the situation;
• The applicant can put new details for consideration, such as the proposal to build a cat enclosure and could approach the adjoining neighbours for their views;
• The committee is concerned about people who moved into the complex thinking it was pet free and about what to do for future applications for a pet; and
• The committee seeks an explanation of how the by-law wording "without the prior written consent of the committee" should be interpreted, consideration of putting the application back to mediation, how the committee can respond to the belief the complex is pet free and how future applications for pets should be addressed.

Other owners have also provided submissions. All submissions are available for the parties to inspect upon request and it is unnecessary for me to summarise these submissions here.

Decision

By-laws

By-law 11 for Jacaranda Gardens states:

No dogs, cats, fish, birds, insects, reptiles, animals, livestock or poultry of any kind shall be raised, bred or kept in any Townhouse or upon the common property without the prior written consent of the Committee except for the purpose of carrying out security contracts entered into by the Body Corporate. This By-law shall be read subject to the provisions of the Guide Dogs Act 1972-1984.

‘No pets’ policy

A copy of the by-laws should be obtained by prospective owners and occupiers to avoid any subsequent misunderstandings. In this instance, the applicant was aware of the need for permission to keep a cat but was mislead by the vendor into thinking her cat had been approved. However, the position is complicated in that submissions indicate that a number of the existing occupiers and committee members moved into the complex thinking no pets were allowed in any circumstances. A proper reading of the by-laws before moving into the complex would have informed these people that the committee can consent to occupiers keeping pets. The committee must act reasonably in exercising its functions (Act, 94). This means that, once the committee is given the function of considering applications to approve pets, the committee must consider the individual merits of any particular application and cannot simply decide that it will refuse to approve all pet applications.

If it is the case that owners do want to implement a ‘no pets’ by-law then owners will need to amend their by-laws to reflect this. This requires owners voting at general meeting to pass a special resolution and cannot be done simply by committee resolution or by the committee refusing to consider any pet applications.

Application to keep a cat

I therefore conclude that the committee cannot apply a "no pets" policy given the present by-laws for Jacaranda Gardens and must therefore re-consider the applicant’s request for permission to keep a cat on the individual merits of the applicant’s proposal. In particular, I note that the legislation requires that the body corporate act reasonably in carrying out its functions and enforcing the by-laws (Act, 94). This is generally a matter of applying common sense and does not require any technical reasoning. If the committee had a good reason for approving one particular cat and not another cat then they could act accordingly and specify the reason. However, the body corporate must apply rational reasoning rather than discriminating against different owners or occupiers.

Further, when considering an application for approval for consent to keep a pet it is common for the approval to be granted subject to conditions. Common conditions include that the pet be kept solely within the lot and appropriately restrained if it is necessary to take the pet across common property. It is also common for an approval to state that the approval will be revoked if the pet causes nuisance to other occupiers.

If the applicant proposes that she keep her cat indoors then it is difficult to imagine how the cat could cause any problems for other occupiers. Appropriate conditions may need to be agreed upon between the applicant and the committee if the applicant also seeks permission to build a pet enclosure to allow the cat to access parts of the external areas within the lot. For example, it may be reasonable to specify a location for and regular cleaning of any kitty litter to minimise the likelihood of any odours affecting other lots. However, the material provided tends to indicate that there is no good reason for the committee to refuse permission, at least on the condition that the cat be kept indoors. Similarly, it would be difficult to imagine that there would be any reasonable basis to refuse a future request by an occupier to be allowed to keeping a small fish tank in their lot.

I note that the by-law requires "prior" written consent. However, this does not prevent the committee from reconsidering an application at this late stage. It simply means that the applicant has been technically in breach of the by-law up until this time.

I also note that, regardless of whether a pet is approved or not, the Act provides that an occupier of a lot must not cause nuisance or interfere unreasonably with the use or enjoyment of other lots or the common property (Act, 167). Therefore, even if the body corporate has approved the keeping of an animal without any conditions, that animal will need to be removed from the scheme if it does cause nuisance to other occupiers.

Order

The by-laws for Jacaranda Gardens allow the applicant to keep a cat with consent of the committee. The committee must act reasonably in deciding whether or not to provide consent and cannot discriminate without good reason. No good reason has been provided for why the body corporate should refuse permission for the applicant to keep her cat within her lot. Where the by-laws allow pets with prior written consent of the committee it is not appropriate for the committee to simply adopt a ‘"no pets" policy without considering the application on its merits. Rather, all owners would need to be given an opportunity to vote on new by-laws if the scheme was to become a "no pets" scheme.

In the circumstances, I conclude that it is just and equitable that I make orders to facilitate the proper consideration by the committee of the applicant’s request to keep her cat on the individual merits of the case. I will allow a period of one month for the applicant to provide a further formal written request to the committee. This will give the applicant the opportunity to discuss possible suitable conditions of approval with committee members and discuss with her neighbour any proposals for some form of cat enclosure if desired. I will then give the committee one month in which to consider the request.

For these reasons, I make the order above.