North Shore Villages Residences [2007] QBCCMCmr 379 (22 June 2007)

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

I hereby order that by-law 12.5 (whereby it is stated that the body corporate cannot allow an occupier to keep or bring a cat onto a lot in compliance with Local Government requirements) is invalid on the basis that there is no such Local Government requirement applicable to this scheme

I further order that the body corporate shall within 1 month of the date of this order lodge a request to record a new community management statement to remove the by-law.

I further order that the Owner of Lot 101, Susan Mary Potts, shall be permitted to keep her cat in Lot 101, subject to the following conditions:

1. The Owner of Lot 101 must keep the cat indoors at all times, except that the cat will be permitted in the courtyard of Lot 101 provided that it remains within a cage, run or other secure enclosure.

2. If the Owner of Lot 101 wishes to take the cat across common property for the purposes of taking the cat out of the scheme, she must carry the cat in an enclosed cage or box.

3. The Owner of Lot 101 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.

4. The Owner of Lot 101 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 101 shall ensure that the cat is kept vaccinated in accordance with standard veterinary requirements, and if the cat is not already desexed, shall ensure that this procedure is carried out within 1 month of the date of this order.

I further order that the Body Corporate Committee shall be entitled to rescind permission for the cat if it reasonably considers the Owner of Lot 101 has not complied with these conditions and has failed to respond appropriately to written warnings about the non-compliance.

I further order that this order only applies to the present cat owned by Susan Mary Potts, and does not authorise the keeping of any additional, replacement or substitute animals on Lot 101. If the authorised cat dies, the Owner of Lot 101 must apply to the Body Corporate for prior approval to keep any further pet.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0809-2006

"North Shore Village Residences" CTS 29913

ORDERS SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISDICTION

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)).

SCHEME DETAILS

The Scheme is a subsidiary scheme in a layered arrangement consisting of:

The scheme was established upon registration of the building format plan on 3 September 2004 and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997.

BACKGROUND

The applicant purchased her lot in the scheme in June 2006. Prior to doing so, she investigated the scheme’s by-laws and noted that by-law 12.5 stated: "In compliance with Local Government requirements, the body corporate cannot allow an occupier to keep or bring a cat onto a lot."

The applicant subsequently made enquiries with the Maroochy Shire Council. On 24 May 2006 Councillor Tony Northey advised the applicant that there was no Council regulation prohibiting her from keeping a cat in her lot. Councillor Northey noted "it is ultimately at the discretion of the body corporate to allow this by-law to be relaxed to enable you to keep your cat with you at this Estate."

Upon receipt of this information, the applicant provided further details to Council, and was informed by Councillor Tony Northey on 19 June 2006:

"Please be advised that Council has reviewed the Development Approval for the North Shore Village Estate, Twin Waters and I confirm that there are no conditions regarding cats. Further, Council’s Local Law 7 Keeping of Animals does not prevent a person having a cat at this property.

With regards to the above, there is no reason for Council to prohibit you from keeping your cat at the North Shore Village Estate. However, you should confirm with the body corporate whether they have their own by-law regarding the keeping of cats."

The applicant then approached the body corporate committee seeking permission to keep a cat within her lot, pointing out that as the existing by-law 12.5 appeared to no longer apply, she considered that there was good reason to remove it altogether.

At its meeting held on 25 August 2006 the body corporate committee resolved to deny the applicant’s request to keep a cat. The minutes of that meeting do not disclose any further details of the committee’s reasoning in making this decision, and in particular, whether any consideration was given to the Maroochy Council’s letter to the applicant.

The applicant lodged this application on 4 October 2006. All owners within the scheme were invited to respond to the application. The body corporate committee was also invited to respond.

Submissions were received from 11 owners, and from the body corporate committee. Owners were evenly divided in their views.

Those opposing the application stated that:

The body corporate committee opposed the application, and summarised its position as follows:

The body corporate held its annual general meeting on 9 February 2007. Various motions proposing changes to the by-laws concerning animals were lost.

There was no motion proposing that the applicant be permitted to keep her cat.

Subsequently the body corporate committee for the Principal Scheme was invited to respond to the application. The submission received on 13 April 2007 stated that the committee supported the submission made by the committee for North Shore Village Residences.

The Principal Scheme held its annual general meeting on 27 April 2007. At that meeting it was resolved to amend the Principal Scheme’s by-laws concerning animals by amending by-law 12.6 to read:

"That the body corporate cannot allow an occupier to keep or bring a cat onto a lot or common property."

On 17 May 2007 the body corporate manager advised, in response to an enquiry from this office, that North Shore Village Apartments East and North Shore Village Apartments West had not voted on any motion concerning the by-laws relating to animals, particularly any proposal to amend or remove the by-law prohibiting the keeping of cats.

DETERMINATION

The body corporate committee refused the applicant’s request to keep her cat within her lot. The by-law plainly states that the body corporate cannot allow an occupier to keep or bring a cat onto a lot "in compliance with Local Government requirements."

It is unclear whether the committee had any regard to the information that the Council’s Development Approval for the entire scheme does not contain any conditions regarding cats, and, further, that Council’s Local Law 7 (Keeping of Animals) does not prevent a person having a cat at the property.

The submission from the committee advanced a number of reasons to justify its decision, but failed to comment upon the inaccuracy of the by-law, given that there is no Local Government requirement prohibiting cats within the scheme.

The amendment of the Principal Scheme’s by-law relating to cats at the annual general meeting held on 27 April 2007 does not, in my view, make the position any stronger for either the Principal; Scheme or the subsidiary scheme.

It seems that the body corporate committee for the Principal Scheme might have thought that by removing the reference to compliance with Local Government requirements, the inaccuracy in the subsidiary scheme would be overcome, and because the subsidiary scheme could not make decisions which would conflict with the by-laws of the Principal Scheme, then the applicant’s cat, and cats generally, would not be allowed to remain.

It is clear that the intention of the amendment was to prohibit cats within the scheme. However, if that was the intention, then the by-law should have been changed to read "the body corporate will not allow an occupier to keep or bring a cat onto a lot". To state that the body corporate cannot allow an occupier to keep or bring a cat onto a lot conveys powerlessness on the part of the body corporate. This is simply not true. The body corporate must call it as it is. If the body corporate wants to prohibit cats, it is entitled to do so. It cannot however, portray it as a matter which is beyond its control. I consider that that is what the use of the word "cannot" conveys.

As far as the subsidiary scheme is concerned, the by-law still states that, in compliance with Local Government requirements, the body corporate cannot allow cats. That by-law is invalid, because there is no Local Government requirement prohibiting cats within the scheme. I have ordered that the by-law be removed on this basis.

It is now necessary for me to consider the second limb of the applicant’s request, which is to overturn the committee’s decision refusing her request to keep her cat within her lot.

The committee stated, amongst other things, that a dispute resolution officer cannot make an order reversing a decision of a body corporate committee. That is incorrect. Schedule 5 of the Act lists a number of orders that an adjudicator may make. However the list is not exhaustive. Section 276(3) of the Act provides:

Without limiting subsections (1) and (2), [making orders that are just and equitable, and making orders that may require a person to act, or prohibit a person from acting in a way stated in the order] the adjudicator may make an order mentioned in Schedule 5.

The body corporate committee would not appear to have exercised any discretion in reaching its decision in relation to the applicant’s cat. It would not appear to have considered the applicant’s proposal that she be permitted to keep the cat on certain conditions. It appears to have made its decision because it had no other choice.

I find that the refusal was based on what has now been found to be an invalid by-law.

I am satisfied that the applicant has proposed a reasonable basis for keeping her cat within her lot. I accept that she did not seek approval of the body corporate committee prior to finalising the purchase of her lot. However she made considerable effort to clarify the Council’s position in relation to cats, and, not unreasonably in my view, thought that when the body corporate committee was advised that there was in fact no requirement from Council that would prevent her keeping a cat, she would be given permission to do so.

I am satisfied that it is just and equitable to make an order that the applicant be permitted to keep her cat, on certain conditions. I have made orders to that effect.

I note that the applicant referred to the possibility of having her cat outside at times in an appropriate cat enclosure. I also note that the applicant has a 36m2 courtyard within her lot. This would seem to be an adequate area within which to place a small cat enclosure.

The applicant should be aware, however, that the body corporate has a by-law relating to changes to the external appearance of the lot. If she should wish to place a cat enclosure within her lot, then if it is able to be seen from outside the lot, she would require written approval of the body corporate before doing so.

Number of Scheme:	29913
Name of Scheme:	North Shore Village Residences
Address of Scheme:	80 North Road Mudjimba Qld 4564

1.	Withdrawal of body corporate committee’s denial of my request to keep a cat.
2.	Removal of clause 12.5 from the by-laws.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

North Shore Villages Residences [2007] QBCCMCmr 379 (22 June 2007)