Carindale Views [2007] QBCCMCmr 51 (1 February 2007)

Last Updated: 12 February 2007

REFERENCE: 0948-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	34298
Name of Scheme:	Carindale Views
Address of Scheme:	57 Kate Street CARINA QLD 4152

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

Peter Worthy and Trevor Hunter, the Owner(s) of lot 57

I hereby order that the resolutions of the body corporate committee on 28 September 2006 to the effect that Peter Worthy and Trevor Hunter, owners of lot 57 (applicants) be refused permission to keep their two dogs and that the applicants be asked to have the dogs removed as being in breach of the bodies corporate’s by-laws are deemed to be void and of no effect. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0948-2006

"Carindale Views" CTS 34298

Application

Carindale Views Community Titles Scheme (Carindale Views) is a 64 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by Peter Worthy and Trevor Hunter, owners of lot 57 (applicants) against the body corporate for Carindale Views (respondent).

The applicants say that a number of people at the scheme, including the caretaker, had pets and they bought pets assuming pets were permitted. However, some months after purchasing the dogs the applicants complained about maintenance issues and have since been refused permission to keep the dogs. The applicants say that the body corporate is acting unreasonably and have asked for orders to invalidate a resolution of 28 September 2006 and require the body corporate to authorise their pets.

Submissions

The applicants’ main submissions were to the effect that:

• The caretaking service contractor has a dog;
• Various tenants have dogs and cats;
• They had read that a body corporate cannot discriminate and allow some occupiers to have pets but not allow others so bought two dogs thinking it wouldn’t be an issue;
• From December 2005 to September 2006 they kept the dogs without any issues being raised. Also, more people moved into the complex with cats and dogs;
• On 5 September 2006 they sent an email to Body Corporate Services complaining about maintenance issues. Later that day a representative of the holder of the management rights called to discuss the maintenance issues and raised the issue of body corporate consent being required to keep pets; and
• On 7 September 2006 they made an application for permission to keep their dogs but the committee refused this permission on 28 September 2006.

No formal submission has been received from the body corporate committee giving reasons for the refusal to allow the applicants to keep their dogs. All owners were given an opportunity to make submissions on the issue and only six submissions have been received. Three of these submissions support the application with two of these submissions indicating that other occupiers should also be able to keep pets on conditions including avoidance of noise problems, keeping animals leashed on common property and cleaning up any droppings. The other three submissions are to the effect that no pets should be kept at Carindale Views.

Decision

By-laws

By-law 11 for Carindale Views states:

An Owner of a Lot shall not, without the approval in writing of the Committee, keep any animal upon their Lot or the Common Property.

Requirement to act reasonably

The legislation requires that the body corporate act reasonably in carrying out its functions and enforcing the by-laws (Act, 94).

The present application raises questions about whether the body corporate committee is acting reasonably in refusing to allow the applicants to keep their dogs. The requirement to act reasonably means that, in respect of the present by-law, the body corporate must consider any request for approval to keep a pet. 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 dog and not another dog then they could act accordingly and specify the reason. However, the body corporate must apply rational reasoning rather than discriminating against different owners depending on whether that person is liked or otherwise, or whether the person happens to be a caretaker, a committee member, or otherwise.

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 carried across common property when it is necessary for the pet to leave the lot. It is also common for an approval to state that the approval will be revoked if the pet causes nuisance to other occupiers.

However, 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.

‘No pets’ policy

The submissions provided do not provide much detail about the nature of the dogs in question or how those dogs impact on other occupiers. No complaints have been made to the effect that the dogs are disturbing other occupiers and no formal reasons have been given for refusing permission under by-law 11.

A copy of the by-laws can be obtained by prospective owners and occupiers and the present by-law indicates that owners can keep pets with written consent of the body corporate. It would not ordinarily seem reasonable for the body corporate committee to allow dogs and other animals to be kept as pets for a substantial period of time but suddenly take action to request a particular dog be removed without any complaint about the behaviour of that dog. If it is the case that owners do want to implement a ‘no pets’ policy then owners will need to amend their by-laws to reflect that. Otherwise, any application to keep pets must be considered on its merits and there should be no discrimination between occupiers without good reason.

The submissions indicate that some owners may have concerns that the body corporate would force them to allow a tenant to keep pets or that the body corporate would not be able to remove a dog that was causing a nuisance. However, there is no merit in these concerns. Even if a tenant obtained body corporate approval to keep a pet the individual owner of the unit in question could require the removal of the pet if it was contrary to the terms of the lease. Also, if any dog was causing a nuisance then it would not be discriminatory to require removal of that dog and allow other occupiers to keep their pets. In fact, the removal of the dog causing the nuisance would be in accordance with the legislation (Act, 167).

Order

The by-laws for Carindale Views allow the applicants to keep animals 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 tolerate pets of other occupiers but not of the applicants. Further, no good reason has been given why any concerns about the keeping of animals generally cannot be addressed by the imposition of suitable conditions including that the animals be kept on a lead and any droppings be picked up.

I am satisfied that it is just and equitable to invalidate the decisions of 28 September 2006 relating to the applicants’ dogs. On the other hand, the material provided does not persuade me that the body corporate should be directed to grant permission for the dogs. Rather, the applicants should discuss with the committee some reasonable conditions for the keeping of the dogs and the applicants should again request approval based on reasonable conditions. Other occupiers who have pets should also seek body corporate approval on reasonable conditions, although occupiers who are not owners should be aware that any permission granted by the body corporate does not allow pets to be kept if the terms of their lease prohibit pets.

For these reasons, I make the order above.