1 Holman Street [2007] QBCCMCmr 525 (3 September 2007)

Last Updated: 6 September 2007

REFERENCE: 0196-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31236
Name of Scheme:	1 Holman Street
Address of Scheme:	1 Holman Street KANGAROO POINT QLD 4169

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for 1 Holman Street

I hereby order that, within three (3) months of the date of this order Frank Shipman, the Owner of Lot 108, shall remove and keep removed the border collie Cody and dachshund Bell from Lot 108.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0196-2007

"1 Holman Street" CTS 31236

1 Holman Street community titles scheme (1 Holman Street) consists of 50 lots and common property. The community management statement (CMS) for 1 Holman Street indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for 1 Holman Street (applicant) on 8 March 2007, following a Body Corporate Committee resolution passed on 27 February 2007. The applicant sought orders against Frank Shipman, Owner of Lot 108, (respondent) in the following terms:

The Body Corporate request that Unit 108 removes both dogs from the complex.

Please see Contravention notice and supporting correspondence to the owner Lot 108.

PROCEDURAL MATTERS

Following clarification of some aspects of the application, in May 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the respondent and the Body Corporate, with an invitation to the respondent and all owners to respond to the matters raised in the application. Submissions were made by the respondent and six other owners. The applicant did not avail itself of the opportunity to inspect or 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 a border collie and a dachshund in Lot 108. The Body Corporate claims that the respondent has kept the dogs without prior approval from the Body Corporate, and that the dogs have displayed unacceptable behaviour, including urinating on common property, roaming on common property unsupervised and unleashed, entering the pool area, and constantly barking.

The sequence of events appears to be as follows:

	On 22 April 2005 the Body Corporate Manager (BCM) wrote to the respondent saying that it had advice that they had a dog and that it exceeded the 10kg weight limit in the by-laws.
	The respondent’s solicitors contacted the Body Corporate seeking approval for the dog. They said the 50cm high collie was well behaved, trained and rarely barks, and that the lot’s courtyard had plenty of space and a private entrance so the dog would not cause an inconvenience or hazard to any other owners.
	On 16 May 2005 a Body Corporate Committee meeting commented that the dog had been unsupervised on common property, digging in gardens, and was over 10kg. But the meeting noted other dogs had been approved and so resolved to defer a decision pending a three month trial to assess the behaviour of the dog and its supervision. The meeting resolved to write to the respondent seeking an undertaking to comply with the by-laws and specifically that the dog not be allowed loose on or dig on common property, be kept on a lead, and not urinate or defecate on common property without it being immediately cleaned up.

The meeting also asked the respondent to pay for replacement common property plants, damaged by the dog. This letter was sent on 31 May 2005.

	At Committee meeting on 12 July 2005 noted that the issues with the respondent regarding pets on common property were resolved and that the respondent had paid for damages.
	On 8 December 2005 the BCM wrote to the respondent expressing concern that the dog was roaming unsupervised and defecating on common property. It said the dog was escaping because of a defect with the automatic garage door opener. They asked the respondent comply with the terms of the written approval for the dog and repair the garage door.
	A Committee meeting on 8 February 2006 discussed dog in Lot 8, although it appears the minutes should have read Lot 108. The discussion noted that the lot owner was not controlling the dog which was frequently roaming on common property and that a second dog had been seen. The meeting resolved that the owner be asked to ensure the dog does not roam on common property and if it was seen on common property it must be removed.
	The BCM wrote again on 17 February 2006 saying the dog was continuing to roam on common property. They said the Committee would require the dog’s removal if the garage door was not repaired within seven days. The letter also noted that a second small dog had been seen and, as it was not approved, it must be removed within seven days.
	On 16 March 2006 the Committee noted the dog was unsupervised during the refurbishment of Lot 108. The meeting asked the BCM write to the respondent expressing concern regarding the dog’s distress, which apparently barked and howled for extended periods of time, and to require its immediate removal. This letter was sent on 27 March 2006.
	On 12 September 2006 the BCM wrote again noting that there was a small dog in Lot 108 for which approval must be applied for immediately. It also forwarded a copy of the scheme’s Pet Owners Code of Conduct and said that the Committee reserved the right to withdraw approval one formally obtained if complaints are received about a dog.
	On 8 November 2006 the Committee considered the respondent’s request of 3 November for a 4kg dachshund in Lot 108. The meeting referred to "...consistent previous disregard of the by-laws and apparent lack of consideration for the fellow residents...", illustrated by dogs from Lot 108 roaming and defecating on common property, in denying the request.
	In December 2006 the Committee determined that the respondent did not have approval for either of his dogs, and the BCM verbally advised the respondent that both would need to be removed. In a letter dated 4 December 2006 referred to additional complaints including bringing a second collie onto the complex without approval and the conduct of both dogs. Because responsible pet ownership had not been demonstrated, approval for either or both dogs was denied and it was requested that they both be removed within 7 days.
	A Notice of Continuing Contravention of a Body Corporate By-law[2] was issued to the respondent on 20 December 2006.
	On 17 January 2007 the BCM wrote to the respondent referring to the contravention notice and sought immediate advice that the contravention notice had been complied with.

The respondent’s submission includes the following comments:

	He purchased his unit in February 2005 on the basis that it was a ground floor unit and the previous owner had a large dog, so he assumed his border collie Cody would be no problem.
	In May 2005 the Committee advised that Cody would be approved subject to a three month trial period. When this period expired with no objection and no correspondence stating otherwise, he assumed the dogs had been approved.
	No official decision has been recorded in relation to his application to keep Cody.
	Cody has lived in his unit for over two years with only minor disturbances.
	When he learned from the Body Corporate in December 2005 that Cody was escaping because of a faulty garage door his attempt to fix the door was unsuccessful. When he was notified of the problem again in February 2006 he quickly rectified the fault.
	He acknowledges that it was irresponsible to leave Cody unattended in the unit while it was being renovated. However he says it will not occur again, that Cody has stopped howling and no longer escapes onto common property.
	The Committee incorrectly claimed in December 2006 that he brought a second collie onto common property and refused his dachshund based on the actions of that dog.
	Cody is a placid 12 year old dog, which is well trained and well disciplined. He has had the dog since a pup and its health is now deteriorating.
	His dachshund Bella is a small dog that is never a ‘bother’ and has been treated unfairly due to previous issues with Cody and the mysterious second dog.
	He believes he has abided by the Pet Owners Code of Conduct, but apologises to those affected by some of his irresponsible actions.
	There have been no complaints and the dogs have behaved well for the past six months so it would be unreasonable to remove the dogs from where they have lived so long.
	He undertakes to remove the dogs immediately if there are any further problems.

The six submissions from owners (including two who appear also to be Committee members and one who is also the building manager) support the application. The comments made include:

	25% of lots in the scheme have pets and, with the sole exception of Lot 108, they comply with the pet owners’ code of conduct.
	The respondent failed to obtain approval for the dogs.
	The respondent has abused the privilege that allows lot owners to enjoy life with animals.
	The respondent has no regard for the welfare of the dogs of the impacts on other residents.
	Owners have experienced the dogs barking, running off the lead, antagonising other dogs, snapping at residents (which has safety and litigation impacts), damaging gardens, leaving faeces on common property (which has visual, odour and hygiene impacts).
	The dogs have been left locked in overnight and over the weekend while the owner is away.
	The back door and garage door are often open, allowing the dogs out, and the dachshund can get out of the fence at the front of the complex.

The Body Corporate has advised that there have been continued written and verbal complaints regarding the noise and behaviour of both dogs in Lot 108, particularly regarding the dogs continually barking over the weekend of 28-29 July 2007. The Body Corporate advised the applicant of this concern on 2 August 2007.

The scheme has a Pet Owners Code of Conduct which says that all pets require prior written approval of the Committee, tenants must first obtain approval from the lot owner, mess made by pets on common property must be immediately cleaned up by the pet owner, mess must not be left on balconies where others can see or smell it, dogs must be on leads and under control at all time, pets must not be allowed to make excessive noise, and pets are not allowed in the pool area. It appears that this Code was issued to all residents in late 2006. It also appears that since that time approval is given for any pets subject to compliance with the Code.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[3]

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

(c) a claimed or anticipated contractual matter about -

(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 key issues for consideration in this matter is whether the Body Corporate gave conditional or unconditional approval for the border collie and acted reasonably in refusing request for the dachshund, and whether it would be just and equitable to allow the respondent to retain the dogs.

Applicable by-laws

The CMS for 1 Holman Street includes By-law 11 in relation to pets. It says:

11. Keeping of Animals

(a)	An Owner or Occupier of a Lot is not entitled to keep any animals on his Lot without the prior approval of the Committee which may be refused or granted with or without reasonable conditions. To remove doubt, the Committee will not approve the keeping of an animal which is, or which will be when fully grown, greater than 10 kilograms in weight.
(b)	This by-law is sybject to s143 of the Act. For the purpose of this by-law animal includes, without limitation, dogs, cats, birds, snakes, lizards and crustaceans.
(c)	Each must Owner or Occupier is liable to all other Owners or Occupiers and their respective guests and invitees for any unreasonable nuisance, noise or injury to any person or famage to any property caused by any animal brought or kept upon the Scheme Land by that Owner or Occupier or invitees, whether permission has been granted by the Committee for the keeping of that animal on the Lot or not.

When a body corporate is pursuing an alleged by-law breach, the first step is generally to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the contravention notice does not rectify the matter, the body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office. I am satisfied that the Body Corporate has complied with this process.

Animal by-laws generally

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 raise emotional issues. There are three factors adjudicators generally consider in regard to such applications.

The first issue is whether there has been acquiescence by 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. 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.

The second factor is whether a body corporate is acting in a discriminatory manner. Bodies corporate must treat all owners equally when enforcing by-laws. Discrimination can include refusing one owner’s request but granting approval to another, or seeking the removal of animal when there are other animals in the scheme, without any reasonable basis for the distinction.

Thirdly, adjudicators must generally consider whether the body corporate is acting reasonably in its application of the by-laws.

Border collie

On the basis of the previous conduct of Cody, as noted in the Body Corporate’s letter of 31 May 2005, the Committee could have chosen to refuse permission for Cody. Moreover, the terms of By-law 11 actually prohibited the Committee from approving a dog that was apparently over the 10kg limit specified in By-law 11. However a problem had been created by other large dogs apparently having been permitted in that it would arguably have been discriminatory to have refused a dog of over 10kg solely on the basis of its weight if other dogs that did not comply with the by-law had been allowed.

The Committee appears to now believe that no approval was ever given for Cody. I disagree. The letter of 31 May 2005 permitted the dog to remain for three months. The Committee said it would assess the dog’s behaviour and supervision during this time. When the Committee did not formally reconsider the matter or advise the respondent otherwise after mid August 2005, it was reasonable in the circumstances for the respondent to assume that ongoing approval had been given. This assumption was confirmed in the letter of 8 December 2005 which refers to "...the conditions of the previously issued written approval on 31 May 2005...".

By-law 11 specifically requires that the Committee can approve a pet with reasonable conditions. While I am satisfied that approval was given for Cody, I consider this approval was conditional. The letter of 31 May 2005 specifically referred to four requirements. The letter asked the respondent to give a written undertaking to comply with these conditions, although it is unclear whether the respondent ever did so. Although the letter was not as explicit as it could have been, I am satisfied that it was sufficiently clear that approval for the dog was conditional on compliance with those four requirements.

I consider the four requirements were reasonable conditions. Moreover, I am satisfied that, on the material provided by the parties, the conditions were breached by the respondent on several occasions, particularly in that the respondent allowed the dog to roam on common property.

I do not consider that the respondent was required to comply with the terms of the Pet Owners Code of Conduct. This document is useful as a guide (for both the Committee and residents) for expected pet behaviour and can be used to set out the conditions upon which approval for pets will be granted. However it was not specified as the conditions imposed when approval for Cody was granted and the document is not otherwise binding on occupiers.

Many of the Body Corporate’s more recent concerns relate to barking. The conditions included in the original approval did not include the requirement in the Pet Owners Code of Conduct that pets not make excessive noise. However, By-law 16 prevents activities that may be or may become an annoyance or nuisance to the neighbourhood or may be likely to interfere with the peaceful enjoyment of others, including loud noises. In addition, section 167 of the Act provides that an occupier may not use or permit the use of a lot or the common property in a way that causes a nuisance or hazard, or that interferes unreasonably with the use and enjoyment of another lot or the common property. The respondent is bound by these provisions and I am of the view that the barking apparently emanating from time to time from Lot 108 is in breach of these requirements.

Dachshund

When Bella was brought onto the scheme the respondent knew that he required prior written approval for a pet. However he failed to ask for approval for the animal. While the Body Corporate reminded him of this obligation in February 2006, when they because aware that a small dog might be in the lot, and again in September, it was not until November that he actually made a formal request for approval for the dog.

I do not consider that there was any acquiescence on the part of the Body Corporate in regard to Bella. It seems that the Body Corporate raised concerns as soon as it became aware of the dog and pursued those concerns.

Moreover, I do not consider that the Body Corporate’s decision to refuse Bella was either discriminatory or unreasonable in the circumstances. The respondent had failed to comply with numerous previous requests regarding the behaviour and supervision of Cody and took at least nine months to seek approval for Bella. The Committee could have chosen to give approval to Bella subject to compliance with the conditions in the Pet Owners Code of Conduct or other reasonable conditions. But having shown little indication that he would comply with the by-laws and Committee conditions regarding Cody, I do not consider it was unreasonable for the Committee to doubt that he would comply with the conditions imposed regarding Bella. I do not consider that the reference to the second collie in the BCM’s letter (although not mentioned in the Committee minutes) was the sole or even the primary reason for the refusal of Bella. The letter, minutes and previous correspondence and minutes make it clear that there were ongoing concerns regarding the conduct of Cody.

Conclusion

I accept that the Committee gave conditional approval for Cody in May 2005. However, I find that the respondent repeatedly breached the conditions of that approval. On that basis the Committee was entitled to seek to withdraw its approval. Moreover, it seems that on several occasions the dog has made noise that has unreasonably interfered with the peaceful enjoyment of other lots, and that this noise has continued. For that reason I consider it to be just and equitable in the circumstances to require the dog to be removed from the scheme.

The Committee was entitled to give approval for Bella but I do not consider that there is sufficient evidence that the Body Corporate acted unreasonably or unfairly in the circumstances such that it would be just and equitable for me to overturn the Committee’s decision. As Bella was not approved pursuant to By-law 11, the Body Corporate is entitled to require the dog’s removal. I have made an order to that effect.

I appreciate that it may be distressing for the respondent to rehouse his dogs, particularly the aging Cody who has lived with him for many years and in the scheme for over two years. However, on balance I find that the respondent simply has not taken sufficient steps to comply with the requirements of the by-laws or the Committee’s conditions. It seems to me that the Committee repeatedly alerted the respondent to their concerns and gave the respondent numerous opportunities to address the issues.

The respondent argues that the dogs have been well behaved for the past six months and that he would remove them immediately if there were any further problems. Given the apparent problems that occurred in late July, he may well now be quite willing to honour that commitment by removing the dogs. I have given him three months which I trust will be sufficient time to find alternative accommodation for the animals.

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^[1] See sections 246 and 244 of the Act respectively

^[2] BCCM Form 10, pursuant to section 182 of the Act
^[3] See sections 227, 228, 276 and Schedule 5 of the Act