14 Bermingham Street [2007] QBCCMCmr 36 (22 January 2007)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Brian and Catherine Ellis, the owner of Lot 6

I hereby order that the Body Corporate for 14 Bermingham Street community titles scheme 15041 is deemed to have given approval under By-Law 11 to Siobhan Ellis, the occupier of Lot 6 to keep the Staffordshire Terrier (the dog) on Lot 6 and on the part of common property allocated by By-Law 12 for the exclusive use of the proprietor for the time being of Lot 6 subject to the following conditions:

1. The occupier of Lot 6 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.
2. The occupier of Lot 6 must ensure that the dog is properly restrained or leashed when the dog is on the common property for the scheme (other than the common property exclusive use area allocated to the proprietor for the time being of Lot 6).
3. The authorisation applies only to the dog and does not authorise the keeping of any additional or replacement animal on Lot 6.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0856-2006

"14 Bermingham Street" CTS 15041

APPLICATION

This application is by Brian and Catherine Ellis, the owner of Lot 6 (applicants) against the body corporate. The applicants are seeking an outcome that the occupier of Unit 6 be allowed to keep a Staffordshire Terrier.

The applicants’ main submissions were to the effect that:

JURISDICTION

"14 Bermingham Street" Community Titles Scheme 15041 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1]. An order may require a person to act, or prohibit a person from acting, in a way stated in the order^[2]. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate^[3].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicants) and to the committee. Submissions were received from the committee and from the owner of Lot 7. The applicants made a written reply to submissions under section 244 of the Act.

Mr Fletcher, the owner of Lot 7 opposed the application stating that the dog is being kept on the Lot in contravention of the legislation and the by-laws. Mr Fletcher says that he has owned a lot since 1996 and that in this time animals have not to his knowledge been kept on lots. Mr Fletcher submits that a dog on Lot 6 will in some form be noisy and impact on the occupation of Lot 7. He states that while the current occupier of his Lot seems to be okay with a dog, it does not mean that future tenants will be. He adds that if one owner is permitted to keep a dog then others will no doubt seek similar approval.

John Baynes submitted an undated letter addressed to the applicants and signed by himself, Natasha Moon, Melinda Vowles and Carolin Harris (committee members). This letter states that the body corporate has decided to allow the dog to be kept for a trial period until the next annual general meeting is held (possibly October 2007). It is stated that this will allow time to see if there are any problems with the dog making noise or disturbing other owners and occupiers. The letter states that any problems with the dog will be brought to the attention of the committee on or before the next annual general meeting and that it is hoped "there will be none as so far all is good".

In the written reply to submissions dated 31 December 2006, the applicants welcome the decision to allow the dog to be kept and state that 4 months have passed without incident. The applicants also stated that the request to keep the dog only applies whilst they or a family member occupy Lot 6.

DETERMINATION

Applicable law

Applicable by-law
The present CMS applying to the scheme is a Standard Community Management Statement recorded by the registrar in July 2000. This statement was recorded given that the body corporate was created (3 July 1997) prior to the commencement of the Act (13 July 1997) and a new CMS was not recorded by the end of 3 years after commencement^[7].

As a consequence, the by-laws which applied to the scheme prior to the Act’s commencement continue to have effect. These by-laws include those stated in Schedule 3 of the Building Units and Group Titles Act 1980 (the previous legislation) and By-Law 12 dealing with the exclusive use of courtyard areas registered by the registrar on 21 July 1997. The Schedule 4 By-laws of the Act will only apply to this scheme if the owners, in general meeting resolve to adopt the by-laws and a consequent new CMS is recorded by the registrar.

For the purposes of this application, the relevant by-law is By-Law 11 of Schedule 3 which states "Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property".

Decision
In requesting to keep the Staffordshire Terrier dog, Siobhan Ellis and Brad Carthew stated that the dog will be confined to the Lot and to the adjoining exclusive use area, and that the dog will be leashed when on common property. Even though approval has not been given by the body corporate in accordance with the By-Law, it is apparent that the dog has been kept on the scheme for some time.

The applicants have shown that the committee initially refused the request to keep a dog on Lot 6. The documented committee decision does not include any reasoning for rejecting the request. In addition, the committee has not made submissions outlining the basis for this decision. The owner of Lot 7 has expressed concerns about keeping a dog. While this owner may have cause for concern given the proximity of Lot 7 to Lot 6, he has not provided any arguments pertaining to the Staffordshire Terrier being kept. Mr Fletcher’s main arguments relate to perceptions about keeping a dog with an assessment of possible future problems caused by allowing the dog to be kept on Lot 6.

By-Law 11 provides discretion regarding bringing or keeping of an animal on a lot in the scheme. While the By-Law provides discretion, the body corporate (including its committee) must consider each request on its merits and it is not appropriate for the body corporate to adopt or apply "no pets" or "no dogs" policies as a blanket rule. Additionally, the body corporate must act reasonably and its decisions cannot for example, be discriminatory. In my view, the initial committee decision made without any documented reasons and the general arguments submitted by the owner of Lot 7 do not constitute a reasonable assessment of the merits of the request made by the occupier of Lot 6.

Despite the committee’s initial refusal it is apparent that the dog has been kept on Lot 6 and the adjoining exclusive use courtyard. It would also seem that the dog has not to date caused concern given the absence of submissions about the dog from owners in response to this application and the statement from four committee members that it is hoped "there will be none as so far all is good".

In these circumstances, I consider it appropriate that an order be made authorising the keeping of the dog on Lot 6 and the area of common property allocated as exclusive use to Lot 6 subject to specified conditions. The owner of Lot 7 has expressed concern about possible noise. While there has not been any material presented to suggest that such problems have occurred, a condition for the approval is that the animal does not cause a nuisance as stated in section 167 of the Act:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(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 by a person who is lawfully on the common property.

The applicants have stated that the request to keep the dog only applies while they or a family member occupy Lot 6. This order must relate to the present occupation circumstances and cannot include provision to cover a potential future arrangement regarding occupation of the Lot. Therefore, it applies to the family member and present occupier of the Lot, Siobhan Ellis and not to the applicants or any other member of their family who do not presently occupy Lot 6.

^[1] Section 276(1), Act.
^[2] Section 276(2), Act.
^[3] Section 284(1), Act.
^[4] Sections 52 and 168, Act.
^[5] Section 59, Act.
^[6] Section 94, Act.
^[7] See sections 337(2)(g) and 339, Act.

Number of Scheme:	15041
Name of Scheme:	14 Bermingham Street
Address of Scheme:	14 Bermingham Street, Alderley

•	By letter dated 10 May 2006 addressed to the committee, Siobhan Ellis and Brad Carthew, the occupiers of Lot 6 sought approval to keep a Staffordshire Terrier dog. The letter included a description of the breed and detailed how it would be cared for.
•	The committee resolved by voting in writing dated 22 May 2006 not to allow the keeping of the dog.
•	The committee resolved by voting in writing dated 30 June 2006 to allow 2 indoor cats to be kept on Lot 2. A cat was being kept on this Lot when the applicants purchased Lot 6 in February 2005.

•	The by-laws applying to the scheme are stated in the community management statement (CMS) recorded by the registrar of titles, Department of Natural Resources and Water^[4].
•	The CMS is binding on the body corporate, each member of the body corporate (each owner) and on each person who is otherwise an occupier of a lot in the scheme^[5].
•	A function of a body corporate includes reasonably enforcing the CMS and the scheme by-laws^[6].

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

14 Bermingham Street [2007] QBCCMCmr 36 (22 January 2007)