Dundrenan Residences [2007] QBCCMCmr 527 (3 September 2007)

Last Updated: 6 September 2007

REFERENCE: 0311-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30668
Name of Scheme:	Dundrenan Residences
Address of Scheme:	76 Thorn Street KANGAROO POINT QLD 4169

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

Charles & Kreousa Caris, the Owners of lot 2

I hereby order that the application for an order that the body corporate provide written consent to the owner of lot 2 to keep a dog on condition that it not be replaced when it dies or otherwise ceases to be kept in that lot is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0311-2007

"Dundrenan Residences" CTS 30668

Scheme

Dundrenan Residences consists of 27 lots and common property on a Building Format Plan. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation.

Application

This application is brought by the owners of lot 2 who seek the following order:

That the body corporate provide written consent to the owner of lot 2 to keep a dog on condition that it not be replaced when it dies or otherwise ceases to be kept in that lot.

Background

The applicants state that they recently found a stray pup which they took home to care for until the owner could be located. The have been unable to locate the owner and now wish to keep the dog.

The body corporate by-laws prohibit the keeping of animals without first obtaining the permission of the body corporate. The applicants sought permission to keep the dog on condition that it not be replaced when it dies or otherwise ceases to be kept in their lot but the body corporate refused to give such permission.

The applicants believe that the decision of the committee to refused permission is unreasonable for the following reasons:

• 3 other lot owners including their neighbour keep dogs;

• one lot owner has permission to keep a large bird;

• another lot owner has permission to keep a cat;

• a tenant previously kept a dog in their lot;

• the applicants are responsible pet owners;

• there is no suggestion that the dog will cause any noise or nuisance;

• the applicants live in a ground floor townhouse lot with access to a public the boardwalk so there is no need for the dog to go anywhere in the scheme other than the applicants’ lot;

• they are prepared to accept a condition that the dog be removed if it creates a problem;

• it is unreasonable to adopt a "no dog" policy and refuse to consider each case on its merits.

Submissions

Pursuant to section 243 of the Act, submissions were sought and submissions were made by the body corporate and eight lot owners.

Four individual submitters stated that they did not object to the applicants keeping a dog in their lot and supported the application. One submission pointed out that there are currently three other dogs in the scheme.

The body corporate made the following submissions:

• the application is at odds with a letter dated 15 February in which the applicants stated that they had adopted a maltese cross puppy and requested body corporate permission to keep the dog;

• by letter dated 13 March the chairman advised the applicants that their application to keep the dog had been rejected;

• on 4 April 2007 the committee voted 4 votes to one against the following motion:

That the committee approves the keeping of a small dog at unit 2 Dundrenan Residences as per by-law 13;

• By-law 13 provides as follows:

Keeping of Animals

The owner of a lot may keep an animal upon their lot or the common property only with prior written approval of the body corporate which may be granted with or without conditions or refused or received at the discretion of the committee. If conditions are imposed the owner or occupier must comply with those conditions.

• By letter dated 13 April the body corporate manager requested the applicants to remove the dog but they have failed to do so;

• It is incorrect to say that a tenant of lot 17 was permitted to keep a dog as the body corporate requested that tenant to relocate their dog;

• The body corporate says that it is not unreasonable to adopt a "no dogs" policy but in any event, it has not done so;

• Any further dogs in the complex would result in group barking;

• Some owners have reported seeing the applicants with the dog inside the main building;

• The dog had been kept in the scheme for a considerable period of time before a complaint was made;

• A request dated 11 May requesting removal of the dog was ignored by the applicants, making it necessary to issue a Notice of Continuing Contravention.

Another four submissions opposed the application on the following grounds:

• The pup has a tendency to bark at night time disrupting their sleep and at other times it barks when persons use the level 1 foyer;

• They believe that 3 existing dogs were permitted pursuant to specific provision in the unit purchase contract between the purchasers and the developer who gave its approval at the inaugural AGM;

• They bought their unit on the understanding that no dogs would be permitted, apart from existing pets which the developer allowed original purchasers to bring into the scheme on the understanding that they would not be replaced;

• The units are a high density living area unsuited to keeping animals such as dogs.

In reply, the applicants stated:

• The puppy was in fact found, contrary to assertions made by a number of submitters;

• Dog urine was previously present in the level 1 foyer before the pup arrived;

• There has only been one previous written complaint regarding barking;

• A recent purchaser was permitted to bring a cat into the complex;

• In their opinion & the opinion of another lot owner, the ability to keep a small pet can be a positive selling point for units.

Jurisdiction

The application evidences a dispute between the owners of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1) (b) of the Act).
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)).

Decision

The body corporate legislation allows bodies corporate to adopt by-laws, which in general terms, may provide for the administration, management and control of common property and body corporate assets, as well as regulating the use and enjoyment of lots, common property, body corporate assets, and any services and amenities supplied by the body corporate (section 169 of the Act). The keeping of animals on scheme land is a matter that is commonly dealt with by body corporate by-laws.

By-laws for particular bodies corporate are stated in the community management statement applying to the scheme. In accordance with section 59(2) of the Act, the community management statement for a community titles scheme (including the by-laws), is binding on the body corporate, and the owners and occupiers of lots included in the scheme. One of the general functions of bodies corporate is to enforce the community management statement (including the by-laws) for the scheme (section 94(1) (b) of the Act). However, it is important to note that bodies corporate must act reasonably in carrying out their general functions, including the enforcement of by-laws (section 94(2) of the Act).

By-law 13 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 dogs, and is entitled to do so, the Committee must consider each application individually. The Committee also has the option to make approval conditional, for example a pet may be 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.

In the applicants’ favour, I note that the dog in question appears to be of a small breed, that the applicants live in a ground floor unit with an enclosed courtyard, and that they would not take the dog onto common property. Further, a number of residents have stated that they do not have a problem with the dog remaining in the scheme.

On the other hand, submissions received and the voting at the committee meeting both show that a significant proportion of owners would prefer not to have any additional dogs enter the scheme. At first glance it may appear discriminatory to refuse this request when 3 dogs already reside within the scheme. However on closer examination, I note that these dogs were permitted by the developer when entering into contracts with original purchasers, and the primary interest of the developer is to secure the sale of units.

While there are numerous benefits of living in community title schemes, communally based, higher density living inevitably involves an increased level of interaction with others and involves a certain level of restriction on what residents may do in their lot. On balance, I do not believe that particular circumstances raised by the applicants are sufficient to displace the Body Corporate’s preference against dogs such that it would be manifestly unreasonable of the Committee to refuse the request. While I entirely understand and sympathise with the applicants’ desire to keep the pup, I do not consider that there are exceptional circumstances that would justify my intervention by overturning the decision of the body corporate committee. Having regard to all the circumstances of this case and the submissions of the parties, I have come to the conclusion that the body corporate is entitled to enforce the by-law regarding the keeping of animals.