Palm Springs Residences [2007] QBCCMCmr 524 (3 September 2007)

Last Updated: 6 September 2007

REFERENCE: 0103-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29467
Name of Scheme:	Palm Springs Residences
Address of Scheme:	1 Twenty First Avenue PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Palm Springs Residences community titles scheme 29467.

I hereby order that the application for an order by the body corporate for Palm Springs Residences community titles scheme 29467 against Jason Patterson, the owner of Lot 106 seeking an outcome that the cat being kept on Lot 106 be removed immediately, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0103-2007

"Palm Springs Residences" CTS 29467

Application
This application is by the body corporate (the applicant) against Jason Patterson, the owner of Lot 106 (the respondent) seeking an outcome that he remove Lyn Freeman’s cat from the complex immediately. The making of the application was authorised by the committee at its meeting dated 14 May 2007.

The applicant states:

• The respondent is the caretaker for the scheme. The respondent and Lyn Freeman were the directors of J Patterson Holdings Pty Ltd when it was assigned the service contracting and letting agreements, and they remain the directors. Originally the respondent, his father Warren Patterson and Lyn Freeman resided in Lot 106.

• The conditions which attach to all animal approvals are:

−	The pet must be carried on common property whilst in the building.
−	All pets are not permitted within the BBQ/pool area.
−	The pet is not allowed to create a nuisance to any other owner or occupier whilst within its lot or common property, with any nuisance to be notified in writing to be rectified immediately.
−	The owner or carer of the pet is responsible for removing all animal droppings from the common property at the time it occurs.
−	The consent is personal and only in respect of the current pet, current owner/occupier and current lot and does not apply to any other animal/owner/occupier or unit the approved owner/occupier may own or occupy.

• The committee, at its meeting dated 23 May 2005 gave retrospective approval to Lyn Freeman (a previous occupier of Lot 106) to keep the cat in Lot 106 subject to the above conditions.

• The cat was a cause of constant complaint from ground floor owners in particular as it was allowed to wander the common property, using gardens areas as a toilet and entering ground floor units.

• After several verbal warnings, the committee issued a Future Contravention Notice to Lyn Freeman on 16 February 2006. Lyn Freeman vacated the Lot before any action was taken on the Notice. However, the cat has remained in Lot 106 occupied by the respondent and his father.

• By email dated 4 May 2006, the committee advised the respondent to remove the cat immediately.

• From May to October 2006, the body corporate was dealing with an extraordinary general meeting and its annual general meeting.

• On 30 October 2006, the new committee met and issued a further direction to the respondent on 6 November 2006 to remove the cat. The respondent stated on 13 November 2006 that the cat will remain.

• The committee subsequently agreed to approve the cat subject to the above conditions if the respondent applied for approval to keep a pet. The respondent did not apply.

• In December 2006, the body corporate gave a Notice of Continuing Contravention of By-Law 16 to the respondent. The cat remains in Lot 106 and is allowed to wander the common property uncontrolled and unsupervised.

Jurisdiction
"Palm Springs Residences"is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act).

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 (s276(1), Act).

Procedural matters

The application was made on 2 February 2007. The Commissioner required the applicant give further information or material about the application under section 240 of the Act. Subsequent to the applicant providing a copy of the minutes of the committee meeting dated 14 May 2007, the parties were offered dispute resolution by specialist conciliation. However, the dispute was not resolved by conciliation.

On 4 July 2007, a copy of the application was provided to the respondent, and to Stewart Silver King and Burns (the body corporate manager) for distribution to the owner of each lot (excluding the respondent), with an invitation to respond to the matters raised in the application (s243, Act). Submissions were made by the respondent and by Greg Carroll (body corporate chairperson).

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions
Mr Carroll’s submissions referred to an agreement reached a specialist conciliation session. He also stated that on 22 June 2007, the cat had been seen twice on the common property without supervision. He states that the application is a determination on the authority of the committee to terminate an approval given when the terms of the approval are ignored and subsequent directions to the owner to remove the animal are ignored.

The respondent submitted:

• The approval given on 23 May 2005 continues to apply as none of the circumstances mentioned with respect to the condition "The consent is personal and only in respect of the current pet, current owner/occupier and current lot and does not apply to any other animal/owner/occupier or unit the approved owner/occupier may own or occupy" have changed.

• The conditions are not stated in the scheme by-laws.

• The cat does wander onto common property, but so do other pets without any action from the committee.

• Mr Carroll allows his cat to wander the common property. In this regard, the respondent provided photographs showing a person he identifies as Mr Carroll weeding the garden while his cat wanders around the common areas.

• The occupiers of Unit 207 walk their dog in and out of the building twice a day (he provided six photographs of a dog at or about the front of the building).

• For the past 2 years, all but two of the ground floor units have been in the letting pool. The owner of Unit 101 visits for short periods. The new owners in Unit 104 reside in Brisbane and have received approval to keep a dog.

• He has not received a complaint about the behaviour of the cat.

• The Notice of Continuing Contravention of By-Law 16 was invalid as it was undated.

Determination
Scheme by-laws
By-laws may provide for the regulation of, including conditions applying to the use and enjoyment of lots included in the scheme and common property (s169(1), Act). The by-laws applying to a scheme are stated in the community management statement (CMS) recorded by the registrar of titles, Department of Natural Resources and Water (ss52 and 168, Act). The CMS is binding on the body corporate, each member of the body corporate and on each person who is otherwise an occupier of a lot in the scheme (s59, Act ).

A function of a body corporate includes reasonably enforcing the CMS and the scheme by-laws (s94, Act). Sections 182 to 188 of the Act provide a detailed framework for dealing with by-law contraventions, enabling a body corporate to for example: give a by-law contravention notice to a person it reasonably believes has contravened a by-law and it is likely that the contravention will continue or be repeated; and if the person fails to comply with the notice, the body corporate may pursue an action under the dispute resolution provisions of the Act or through the Magistrates Court.

By-Law 16
For this scheme, By-Law 16 relevantly states The owner of a lot shall not, without the approval in writing of the Committee, keep any animal upon the lot or the Common Property.

The applicant has submitted that the committee has established conditions applying to each approval to keep an animal. While the conditions do not have as much certainty as they would if inserted into a by-law, without any contrary decision or direction by the body corporate in general meeting, the committee could establish and apply conditions of this nature.

Approval to keep cat on Lot 106
The applicant has shown that the committee approved the keeping of the cat on 23 May 2005. The applicant states that approval allowed Lyn Freeman to keep the cat, not the respondent. A condition of the approval is that "The consent is personal and only in respect of the current pet, current owner/occupier and current lot and does not apply to any other animal/owner/occupier or unit the approved owner/occupier may own or occupy". The respondent has said (without explanation) that the circumstances have not changed.

At the time the approval was given, Lyn Freeman occupied Lot 106 with the respondent and his father. The only change to the occupation of the Lot is that it is now claimed that Lyn Freeman no longer resides in Lot 106. The cat approved in May 2005 is still kept in the Lot.

In my view, the above condition ensures that a record is maintained of: the persons who have approval to keep an animal; the animal that is approved; and the lot on which the animal is being kept. It would seem that at all times before and since the approval was given, the respondent has occupied the Lot and the same cat has been kept in the Lot. Further, the respondent has indicated to the body corporate that the cat will remain on the Lot which demonstrates a willingness to keep the cat. In these circumstances, I do not see the point in the respondent having to now apply for approval to keep the same cat on the same Lot. In any event, as the owner of the Lot it would appear that only the respondent could be authorised under By-Law 16 to keep the cat on his Lot.

Breach of conditions or legislation
Most of the conditions relate to when an approved animal is on common property. The applicant has stated that the cat was a cause of constant complaint from ground floor owners in particular as it was allowed to wander the common property, using gardens areas as a toilet and entering ground floor units. The applicant is concerned that the cat is allowed to wander the common property uncontrolled and unsupervised. Mr Carroll submitted that on 22 June 2007, the cat had been seen twice on the common property without supervision.

While there is a condition about nuisance, section 167 of the Act deals specifically with nuisance. This section generally provides that the occupier of a lot must not use or permit the use of the lot or common property in a way that causes a nuisance or interferes with the use or enjoyment of another lot or common property.

Even though a person may have body corporate approval to keep an animal on the person’s lot, there is nothing to prevent the body corporate revoking the approval to keep an animal on a lot under the By-Law provided for example the decision was based on reasonable grounds. Alternatively, the body corporate, or the owner or occupier of another lot may initiate action culminating in the making of a dispute resolution application if there are claims that the animal is causing a nuisance. Schedule 5 of the Act lists some of the orders an adjudicator may make. Relevantly, section 19 of Schedule 5 states If satisfied an animal kept on common property or a lot under the by-laws is causing a nuisance or a hazard or unduly interfering with someone else’s peaceful use and enjoyment of another lot or common property-an order requiring the person in charge of the animal-(a) to take stated action to remedy the nuisance, hazard or interference; or (b) to remove the animal and keep it away.

Order
A basis for the outcome sought is that the respondent does not have approval to keep the cat under By-Law 16. Given the present ownership and occupation of Lot 106, I am of the view that it would be difficult to sustain an argument that the respondent does not have (or should not be deemed to have) approval under By-Law 16 to keep the cat on the Lot.

However as I have already stated, the body corporate could revoke the approval and require the removal of the animal. It is being claimed that: the cat is a nuisance; is defecating on common property; and is unsupervised while on common property. For the applicant to be successful, it needs to demonstrate that its actions are reasonable in the circumstances.

The applicant claims that ground floor owners complain about the cat. However, the applicant has not provided any material evidencing these complaints. In addition, owners have not made submissions about the application despite the Commissioner’s invitation. In the absence of specific complaints, it is difficult to rely on a general statement about ground floor owners as a reason to suggest that the cat is causing a nuisance.

Significantly, the conditions of the approval do not prevent the animal from being on common property. In fact most of the conditions regulate what must and must not be done when an animal is on common property. The controls are that an animal must be carried on common property whilst in the building; is not permitted within the BBQ/pool area; must not cause a nuisance; and any droppings must be removed. There is not a specific condition about supervision of an animal or requiring the animal to be restrained in some way at times while it is on common property outside the building. In my view, the cat being seen on common property outside the building without supervision does constitute a breach of the conditions. Even though the cat has been sighted on common property, no verifiable material has been presented demonstrating that the cat’s presence on common property has caused a nuisance or in some way breached the conditions or the Act.

While the cat may defecate on common property, I do not consider this possibility to be grounds to warrant making an order that the cat be removed from the scheme. If it was clearly shown that the animal was defecating on the common property and that these acts unreasonably interfered with another person’s use of their lot or the common property; and that the respondent refused to remove the droppings or to do anything else to rectify the problem, then it may be appropriate that an order be made of the nature sought. However, I do not consider these circumstances are apparent in this particular dispute.

In the circumstances, I am not satisfied from the material presented that the respondent does not have approval to keep the cat on Lot 106; that the cat is breaching a condition of the approval; or that section 167 of the Act has been contravened to an extent to warrant the cat’s removal. For these reasons, I have dismissed the application.