Eliza Broadbeach Waters [2007] QBCCMCmr 399 (2 July 2007)

Number of Scheme:	4752
Name of Scheme:	Eliza Broadbeach Waters
Address of Scheme:	3 - 7 Eady Avenue BROADBEACH WATERS Q 4218

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

I hereby order that the application for an order:

We seek the written approval of the Body Corporate to keep a small dog (under 8 kg) in our ground floor unit and in our own enclosed private courtyard (not on common ground) ref community titles scheme 4752 title ref 19210799 - 13.1 (a).

is dismissed.

I further order that the applicants, Benthe and Odd Rolfsen must remove the dog from Lot 22 within three (3) months of the date of order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0171-2007

"Eliza Broadbeach Waters" CTS 4752

Eliza Broadbeach Waters community titles scheme (Eliza Broadbeach Waters) consists of 32 lots and common property. The community management statement (CMS) for Eliza Broadbeach Waters indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 10799.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Benthe Ljostad Rolfsen and Odd Rolfsen, the co-owners of Lot 12 (applicants) on 28 February 2007. The applicant sought an order against the Body Corporate for Eliza Broadbeach Waters (respondent) in the following terms:

We seek the written approval of the Body Corporate to keep a small dog (under 8 kg) in our ground floor unit and in our own enclosed private courtyard (not on common ground) ref community titles scheme 4752 title ref 19210799 - 13.1 (a).

PROCEDURAL MATTERS

On 27 April 2007 the Commissioner’s Office conducted a conciliation session between the applicants and members of the Committee to assist in the resolution of this dispute. Unfortunately it seems that conciliation was not successful.

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised in the application. Submissions were made by nine owners. The applicants did not avail themselves of the opportunity to inspect and respond to the submissions received.^[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the Body Corporate’s refusal of the applicants’ request to keep a dog in their lot. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The applicants purchased their lot in the second half of 2006. In December they were given a puppy as a gift from Benthe’s parents. The purpose of the gift was to provide ‘security, comfort and companionship’ to Benthe who had suffered some trauma during the year which resulted in concerns for her safety and security, and because her husband Odd works overseas for 3-4 months of the year.

The applicants say that they were aware when they purchased the lot that Body Corporate permission was required for a pet, although they claim they were told that this was a formality only. However they say that Benthe’s parents were not aware of this requirement and gave them the dog in good faith. They immediately spoke to three Committee members and wrote, on 9 December 2006, to the Body Corporate explaining the circumstances and requesting permission for the dog on compassionate grounds. The letter said that they had no place to put the dog so were keeping him in the apartment until the decision was made.

The dog, now presumably some 7-8 months old, is a Chavachon breed (a cross between a Cavalier King Charles Spaniel and a Bichon Frise). The applicants say that it will grow to a maximum of 7kg and they understand that it is not a loud or rowdy breed of dog. They say they do not believe the dog would disturb the neighbours but would take immediate action if complaints arose. The applicants live in a ground floor unit with an enclosed courtyard. They say that the dog will not enter common property and will only use the garage exit to take the dog on and off the scheme.

The Body Corporate acknowledged the applicants’ request in December and then advised that a meeting would be held in January 2007 to consider the request. The applicants asked to be allowed to attend the meeting as observers and to take part in the discussion on this issue. On 16 January 2007 the Committee considered the request and resolved 3 in favour and 1 against) to refuse the request and request the applicants remove the dog within 21 days. The applicants were permitted to attend but it does not appear that they were given any opportunity to speak to the meeting. The minutes summarise the history of the dog’s presence in the scheme and note the need to consider the impact on other owners and occupiers when receiving requests like this. The minutes also indicate that the Committee advised the applicants that they could submit a motion to a general meeting on the subject but it is not apparent that this occurred. On 21 February 2007 the Body Corporate sent a letter to the applicants advising of the result and the requirement to remove the dog.

The applicants allege that the Committee did not refer to or discuss the contents of their letter. They say the request was quickly voted on without any discussion or agreement or the reason for withholding consent. They argue the Committee has been unreasonable in not giving them consent and in not giving them any reason for the decision.

Eight owners (one of whom is the Chairperson) made submissions opposing the application. Comments in the submissions include:

One owner made a submission saying that the applicant’s request was reasonable in the circumstances and that they believe the dog will not disturb other residents.

The applicants did not submit a motion on the issue to either of the general meetings of the Body Corporate held this year. Moreover it seems that they did not vote on a motion on a related matter considered at the Annual General Meeting (AGM) of the Body Corporate held on 25 May 2007.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[2]

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)).

DETERMINATION

The issue for consideration in this matter is whether the Body Corporate has acted reasonably in refusing the applicants’ request for a dog and whether it would be just and equitable in the circumstances to allow them to retain the dog.

Applicable by-laws

The CMS for Eliza Broadbeach Waters includes By-law 13 in relation to pets. It says:

The Body Corporate Manager has forwarded a copy of the minutes of the AGM. This meeting passed motion 11 by special resolution (14 votes in favour and nil against) to replace By-law 13 with the following:

The motion authorises the Committee to prepare a CMS incorporating the replacement by-law and record it as soon as practicable. It does not appear that this process has been completed yet.

Animal by-laws

Most bodies corporate have by-laws requiring written approval for the keeping of animals. 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. 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.

The first issue is whether there has been acquiescence on the part of a 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 this approach is that it could be harsh and unfair for an owner to have to remove an animal that they have been allowed to keep for an extended period of time. Acquiescence is subjective but is determined by reference to the time which has elapsed between when the body corporate should reasonably have known of the keeping of the animal and the lodging of the dispute resolution application.

There is no issue in regard to acquiescence here. The Committee verbally advised the applicants of the requirement for Body Corporate approval immediately, and then held a meeting to consider the request as soon as was practicable in the circumstances.

The second factor is whether the body corporate is acting in a discriminatory manner. Bodies corporate must treat all owners equally regarding the enforcement of by-laws. Examples of discrimination include where a committee refuses one owner’s request but grants approval to another, or seeks the removal of animal when there are other animals in the scheme, without any logical or reasonable basis for the distinction.

There is no evidence that any other pets have ever been permitted in this scheme. Several submissions comment that all previous requests have been refused and unapproved pets have been required to be removed. As such it does not seem that the Committee has been discriminatory.

Thirdly, adjudicators must generally consider whether the body corporate is acting reasonably in its application of the by-laws. By-law 13 as it existed in January (and as still exists until a new CMS is recorded) does not entirely prohibit pets but allows them with approval. As such the By-law requires the Committee to consider each application for an animal on its merits rather than purporting to pursue a blanket policy against pets. Therefore, while the Body Corporate may have a general preference against pets, and is entitled to do so, the Committee must consider whether there are any exceptional circumstances that would warrant approval for a particular pet. The Committee also has the option to make approval conditional, for example that the pet is approved on the condition that it does not enter common property or on the basis that if there are problems with noise and so on the approval will be withdrawn. This can address particular areas of concern.

I note that the dog in question appears to be breed that is suitable, in principle, for apartment living.^[3] I also note that the applicants live in a ground floor unit with an enclosed courtyard and say they would not take the dog onto common property. While some owners believe the scheme is not suitable for dogs, I do not see that this type of dog is necessarily inappropriate in this particular unit. The concerns raised regarding cleaning of areas used by pets and the impact on the carpeted stairwell do not appear to be as relevant to this particular request.

While I acknowledge the concerns about setting a precedent, if any approval clearly specifies that it is only given because of the particular and special circumstances, that may well be sufficient to refute any claims of discrimination if a later application for a pet without those circumstances is refused. As such, approval of one pet does not necessarily lead to approval for others.

The key issue, then, is whether the particular circumstances raised by the applicants are sufficient to displace the Body Corporate’s preference against pets such that it would be manifestly unreasonable of the Committee to refuse the request. The primary reasons for the applicants’ desiring this dog is to provide comfort, security and companionship to Benthe Rolfsen.

Numerous previous adjudications have held that it may be just and equitable to permit a pet where there are exceptional circumstances involving a physical or psychological condition and where medical evidence is presented that the pet may assist in managing or alieviating the condition. Often this has not been the only factor in the decision. While Benthe Rolfsen has apparantly suffered a particularly traumatic incident, and may still be suffering from the effects of the incident, the applicants have presented no specific or expert evidence that the dog is necessary or desirable in the treatment of the effects of the incident.

Many apartment residents could argue that a pet is a desirable companion because they live alone. Many residents could argue that having a dog is desirable to alleviate security concerns. Moreover, many residents could argue that a pet is desirable to assist them in dealing with stress or distress arising from a broad range of causes. In this context, I do not consider that the particular circumstances of the applicants, although undoubtedly unfortunate, are exceptional.

I would note that much was made in some submissions that the applicants kept the dog while knowing that they required prior approval. However, I accept that the dog was received in good faith as a gift from persons who were not aware of the requirements and that, with no alternative place to house the dog in the interim, it was not unreasonable in the circumstances for the applicants to keep the dog until their application to the Committee was considered. I do not consider that this action should be counted against the applicants in considering their application.

Conclusion

The submissions received and the voting at the AGM both show that a significant proportion of owners would prefer not to have pets in this scheme. When the new CMS is recorded this preference will become mandatory, but until that time the Committee is required to exercise the discretion given to it under By-law 13 and to consider each application for a pet on its merit.

I entirely understand and sympathise with the applicants’ desire for a pet. However, while their circumstances are lamentable, I do not consider that they have raised exceptional circumstances that would require the Committee to deviate from its stated preference against pets. Accordingly, while the Committee could have chosen to permit the dog, I do not consider that it was manifestly unreasonable in the circumstances for the Committee to refuse permission for the dog. Accordingly I have dismissed the application.

I have made an order requiring the removal of the dog. Even though the applicants have been on notice since the Committee decision in January that the dog may need to be removed, it may well take time to find an appropriate alternative home for the dog. For that reason I have given the applicants a reasonable period to relocate the dog.

	The applicants were told they needed permission to have a pet.
	All previous requests for pets in the scheme have been refused and anyone who has brought a pet onto the scheme without permission has been asked to remove it.
	The scheme is known to be ‘animal free’ and this was a factor for some when purchasing.
	Eliza Broadbeach Waters is not suitable for dogs.
	Bringing the dog onto the lot ignored the scheme rules.
	Some are concerned about setting a precedent. One submission notes there are five women in the scheme living on their own in ground floor lots and so any concession to the applicants could result in other applications on the same grounds which would be difficult to refuse.
	There are concerns about the impact of dogs, such as barking, droppings and odour.
	No information is given as to who gave the applicant’s advice that a pet would be approved and no one at the scheme would have been authorised to give this advice.
	At the Committee meeting of 16 January 2007 one Committee member spoke on the applicant’s behalf, the concerns of the nearest neighbour to the applicants (who strongly objected to the application) were discussed, and the interests of owners who purchased in the belief that the scheme was pet free were considered.
	The Chairman disputes that the applicant’s case was not heard at the Committee meeting or that no reasons were given for denying the request.
	The Chairman noted concerns with possible liability for damage to property, lifestyle or injury caused by pets, and the impact of water restrictions which could lead to unsanitary and unhygienic conditions because areas used by pets could not be washed down as readily.

13	*Keeping of Animals*
13.1	Subject to Section 143 of the Act, an owner of occupier of a lot must not, without the Body Corporate’s written approval:
a.	bring or keep an animal on the lot or the common property; or
b.	permit an invitee to bring or keep an animal on the lot or the common property.
13.2	The owner of occuper of a lot must obtain the Body Corporate written approval before bringing, or permitting and invitee to bring, an animal onto the lot or the common property.
13.3	For the purposes of clarity, and "animal" shall refer to all living creatures other than humans.

A)	bring or keep an animal on the lot or the common property; or
B)	permit an invitee to bring or keep an animal on the lot or the common property;
C)	for the purposes of clarity, and "animal" shall refer to all living creatures other than humans

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Eliza Broadbeach Waters [2007] QBCCMCmr 399 (2 July 2007)