Mitchell on the Strand [2007] QBCCMCmr 549 (13 September 2007)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Mitchell on the Strand community titles scheme 29607

I hereby order that the application by the body corporate for Mitchell on the Strand community titles scheme 29607 against Clare Cochrane, the owner of Lot 7 seeking an outcome that the cat being kept on Lot 7 be removed, is dismissed.

I further order that the Body Corporate is deemed to have given approval under By-Law 11 to Clare Cochrane to keep the cat (named Casper) on Lot 7 subject to the following conditions:

1. The cat is not permitted to roam outside Lot 7.
2. The cat must be carried over the common property when entering or leaving the scheme.
3. Clare Cochrane and the other occupiers of Lot 7 must ensure that the cat does not cause a nuisance or in any other way cause a breach of section 167 of the Body Corporate and Community Management Act 1997.
4. The authorisation applies only to the cat mentioned in the order and does not authorise Clare Cochrane or any other occupier of Lot 7 to keep any additional or replacement animal on Lot 7.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0467-2007

"Mitchell on the Strand" CTS 29607

Application
This application is by the body corporate against Clare Cochrane, the owner of Lot 7 (the respondent) seeking an outcome that the respondent be instructed to comply with the committee determination refusing approval for a kitten/cat to be kept on the Lot and its subsequent requests that the animal be removed.

The body corporate states that the respondent has kept the cat on the Lot without approval since occupation of the Lot and has provided a copy of documentation showing that:

Jurisdiction
"Mitchell on the Strand" 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). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s284(1), Act).

The dispute relates to a claimed contravention of a scheme by-law. Sections 182 to 188 of the Act provide a detailed framework for dealing with by-law contraventions. A body corporate may 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. If the person fails to comply with the notice, the body corporate may pursue an action under the dispute resolution provisions of the Act. Unless special circumstances exist, the body corporate must demonstrate that it has given a contravention notice before making a dispute resolution application. I am satisfied from the material presented that the body corporate has given notice as required by the Act and that the respondent has failed to comply with this notice.

Procedural matters
On 11 July 2007, a copy of the application was provided to the respondent, and to Kingsberry Body Corporate Management (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. Submissions were made by the respondent and by a number of lot owners.

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

Submissions
The respondent
It is submitted that they were told when purchasing the Unit that it should be alright to keep a cat and they saw a cat on the grass and another one on the balcony of Unit 10 which belonged to the occupier. It is stated that the cat is an indoor cat; does not make a noise; is not taken out of the Unit; and it is bathed once a week.

Other owners
Marlene and Gary Tweedie of Lot 1 (Mr Tweedie is a committee member) supports the committee upholding "the by-laws set in place that no pets are allowed in our building". It is submitted that they were allowed to keep an old dog until it died; that a previous owner of Lot 8 relied on them keeping their dog to keep dogs which caused a noise problem; and that the owner of Lot 5 was allowed to keep an old cat resulting in an occupier of Lot 6 keeping a cat which affected others as there was always cat hair in the foyer and the dirty kitty litter was placed in other occupiers’ rubbish bins. With respect to the respondent, the owner states that empty cans of fish food have been picked up twice from the grass in front of Unit 1; Unit 2 has had cat hair in the screens of their bedroom which is under the patio of Unit 7 and the cat is always on the patio.

Michael and Catharina Ryan of Lot 2 support the application stating that Lot 7 is above Lot 2; that there has been cat food and hair on their balcony and bedroom screens; and that one of them has an allergy to cats and dogs.

Stephen Self of Lot 3 does not oppose the cat being kept provided it is kept within Lot 7 at all times.

Mr Sherriff of Lot 4 supports the respondent submitting that the cat is clean, quiet and spends its entire life in the Unit.

Isabella Cannon of Lot 6 supports the application.

Glen Carter of Lot 8 (a committee member) submitted that the by-laws "give every Owner and or Occupier a clear understanding of the conditions and lifestyle one could expect to encounter ... In the event a resident has permission to keep a cat or a dog or other animal a snow balling effect could come into play and other existing or new residents will think it’s ok for one resident to have a cat then it’s ok for them to have a cat or dog, the before you know it we could have cats, dogs and all sorts of other animals all over the building". He adds that he has seen fur balls "blown out the door of the Unit onto the landing and down the stairs ... empty food tins that have been pushed over the balcony and landed on the grass at the front of the building. I have heard the cat meowing".

Perian Cardiff of Lot 10 supports the application.

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 (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).

By-Law 11
By-Law 11 included in the scheme’s CMS states An owner or occupier of a Lot shall not keep any animal upon their Lot or the Common Property without the consent of the Body Corporate Committee which may be given with or without conditions and withdrawn at any time.

It is apparent that the respondent kept the cat on Lot 7 before unsuccessfully attempting to obtain committee approval. It should be noted that despite what may be said by a real estate agent to a person considering purchasing a lot in a scheme with a by-law similar to By-Law 11, the person must obtain approval in accordance with the by-law. Further, a person cannot simply claim that he/she decided to keep an animal without approval because another animal/s was seen on scheme land. The owner or occupier must have approval before keeping the animal.

By-Law 11 clearly provides discretion regarding the keeping of an animal on a lot in the scheme. Consequently, it is not appropriate for the committee to adopt a "no pets" policy and apply that policy as a blanket rule. It is for the owners in general meeting to determine if the animal by-law should be amended to state that no pets are allowed. If owners decide to amend the by-laws to prohibit pets then the amended by-law would be effective from the time it was recorded by the registrar of titles. Therefore, the committee cannot rely on a "no pets" policy in opposing the request to keep the cat in Lot 7.

A function of a body corporate includes reasonably enforcing the CMS and the scheme by-laws (s94, Act). While the committee has the power to refuse the respondent’s request to keep the cat, there must be a reasonable basis for the decision. The committee must consider the request on its merits.

Reasons for opposing request to keep cat
The records provided showing the committee resolutions about this issue do not indicate the reasons for the committee’s opposition. The abovementioned letter dated 2 May 2007 implies that only a trained special needs animal would be allowed to be kept on a lot. The submissions made by two committee members are to the effect that no pets are allowed and that the by-laws give a clear understanding of this; and that allowing one animal has and will cause problems as other occupiers may also seek to keep an animal. In relation to the disputed cat, it is submitted that empty food cans have been found on common property; that cat hair is being found on common property and another lot; and that the cat has been heard meowing.

As stated above, the committee cannot rely on a "no pets" policy. Further, the committee cannot (without good reason) refuse a particular person’s request to keep an animal by relying on previous bad experiences with other unrelated occupiers and/or their animals, or on a possible future problem. There is no connection between the previous experiences mentioned in submissions and the cat being kept on Lot 7.

Given that the cat had been kept on Lot 7 for some time before committee approval was sought pursuant to By-Law 11, the committee could have relied on complaints about noise and/or nuisance when giving its consideration to a request the keep the cat. Section 167 of the Act deals with nuisance and states:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that--

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

In the circumstances, I do not consider the concerns stated in submissions constitute a nuisance.

While used cans lying on common property may in certain cases breach section 167, it has not been shown that the cans were dropped on common property by the respondent or another occupier of Lot 7, or that if they were this was being done wilfully and repeatedly.

Similarly, it is not demonstrated that the hair claimed to be on Lot 2 is from the cat and is on the Lot to an extent to warrant it being a nuisance or interfering unreasonably with the use and enjoyment of the Lot. This could be a significant problem, especially where an occupier of Lot 2 has an allergy to cats. However, no material has been presented showing the problems being experienced. The fact that an occupier has a cat allergy may cause problems. However, this should not itself prevent another occupier keeping a cat, particularly if steps can be taken to manage the effect the cat being on Lot 7 has on the occupation of Lot 2.

Lastly, I do not consider the unsubstantiated claim about hair balls or the cat meowing would warrant an order being made in the terms sought.

There will be circumstances where problems of the nature mentioned in submissions constitute a nuisance, especially if it is evident that the problem/s continues despite approaches being made to the occupier keeping the animal. In this case, it would seem that no such approaches have been made to the respondent who in my view should have reasonable opportunity to remedy any identifiable problems. It is relevant that the committee did not rely on any of the submitted concerns when refusing the respondent’s request to keep the cat.

Order
In the circumstances, I consider that the committee has unreasonably refused the request from the respondent to keep a cat on Lot 7. The committee cannot rely on the contravention notice claiming that the respondent does not have approval under By-Law 11 to now require the respondent to remove the cat. Further, I do not consider that it has been demonstrated that the cat has caused a nuisance of a nature contemplated by section 167 of the Act. For these reasons, the outcome sought is dismissed.

I consider it appropriate that a further order is made deeming body corporate authorisation to keep the cat on Lot 7. At present the respondent does not have committee approval. The respondent should not have to now apply again for approval. I have placed appropriate conditions on the authorisation including those stated by the respondent and her husband.

In relation to the concerns raised in submissions, I would suggest that committee members or the owner or occupier of a lot approach the respondent and discuss these issues. If the cat means as much to the respondent and her family as stated, I would think they would be more than willing to listen to any complaints and to take steps to rectify them. The respondent must take appropriate steps to ensure that the cat does not cause a nuisance or otherwise interfere unreasonably with the use and enjoyment of another lot or common property. The order does not prevent any subsequent body corporate decisions or a subsequent dispute resolution application being made should for example, the cat causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or common property. 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.

Number of Scheme:	29607
Name of Scheme:	Mitchell on the Strand
Address of Scheme:	92 Mitchell Street, Townsville, Queensland

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Mitchell on the Strand [2007] QBCCMCmr 549 (13 September 2007)