Baronnet [2007] QBCCMCmr 61 (6 February 2007)

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

I hereby order that the owner of Lot 64, Joan Stevenson, shall be permitted to keep her current dog in Lot 64, until ownership in Lot 64 is transferred, or until three (3) months after the date of this order, whichever occurs soonest, subject to the following conditions:

1. The owner of Lot 64 must ensure the dog remains within the boundaries of Lot 64 and does not
roam onto common property or other lots within the scheme.
2. If the owner of Lot 64 wishes to take the dog out of the scheme she must carry the dog in the
lift directly to the carpark and then immediately off scheme land, ensuring the dog is closely
controlled at all times.
3. The owner of Lot 64 shall ensure that the dog does not cause excessive noise, or otherwise
create a nuisance likely to interfere with the peaceful enjoyment of other owners and occupiers
of lots in the scheme.
4. The owner of Lot 64 shall ensure that any animal litter or waste is effectively and promptly
disposed of so as to avoid any health hazard or odour.
5. The Body Corporate Committee shall be entitled to rescind permission for the dog if it
reasonably considers the owner of Lot 64 has not complied with these conditions and that the
owner of Lot 64 has failed to respond appropriately to warnings about their concerns.

I further order that the owner of Lot 64, Joan Stevenson, must immediately and permanently remove the dog from Lot 64 once three (3) months has elapsed after the date of this order, if ownership in Lot 64 has not already been transferred.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0797-2006

"Baronnet" CTS 9557

Baronnet community titles scheme (Baronnet) consists of 65 lots and common property. The community management statement for Mercantile-Dalgety Place indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 5647.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Baronnet (applicant) on 29 September 2006, pursuant to a committee resolution on 18 August 2006. The applicant sought orders against Joan Stevenson, owner of Lot 64 [Unit 1601] (respondent) in the following terms:

The Body Corporate wishes to enforce by-law 14 of the Body Corporate by-laws and requests that the dog residing at Unit 1601 be removed immediately.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent and all owners with an invitation to respond to the matters in the application. A submission was made on behalf of the respondent and by ten other owners. The applicant did not avail itself of the opportunity to inspect and respond to the submissions received (sections 246 and 244 of the Act).

It is noted that four of the submissions comprises only the submissions cover sheet and no comment in respect of the application. A member of the Commissioner’s Office contacted the owners involved twice to ascertain whether they wished to comment on the application but after three weeks since the first follow-up contact was made no further comment has been received.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to the keeping of a dog in Lot 64. The facts of the dispute, as outlined in the application and submissions, can be summarised as follows.

The Committee meeting of 5 May 2006 noted reports that there was a dog in a penthouse, instructed the secretary to determine if that was the case, and decided to send a circular to all owners reminding them animals are not permitted in the scheme.

Apparently as a result, on 1 June 2006 the respondent wrote to the Body Corporate seeking permission to keep a dog in her lot. It appears the dog had been in Lot 64 since February 2006. The respondent’s letter claims other owners said they had no objection to the dog and had seldom seen or heard him. The request referred to a letter from her cardiologist that "...I think it would benefit her health to have a small dog." According the respondent asked that the Committee make an exception to allow her dog, and indicated that it would not use any common areas.

On 9 June 2006 the Committee considered and refused this request. The applicant was advised by letter on 27 June. The Committee says its reasons for this decision are that:

At its meeting the Committee noted that the respondent had not removed her dog and decided to issue a Notice of Continuing Contravention of a Body Corporate By-law^[1]. This notice was issued on 14 July 2006.

On 6 August 2006 the respondent wrote to the Body Corporate advising that rather than relinquish her dog she would reluctantly put her lot up for sale. She requested time to sell. On 18 August 2006 the Body Corporate noted this request and complaints from some residents, and resolved to lodge this application.

The submission from the respondent notes she first applied to have a dog in July 2005 and it seems the Body Corporate refused this request a few days later. She says she considered the decision to refuse that first request to be discriminatory and questioned its validity, although she apparently took no steps to challenge it. She claims the Committee have since altered the wording of By-law 14, which she says shows the flexibility of the interpretation of the by-law. In response to the basis for rejecting the application the respondent claims:

Four owners support the application and the removal of the dog. One argues pets should not be kept within such confined premises and another notes allowing the dog would set a precedent. However, one owner says they have no objection to the dog remaining until the unit is sold, providing it is kept clean and is not a problem to other owners. Another owner says the dog is not harming anyone or having any detrimental affect and that it would be cruel to remove the dog.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 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

(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 issue for consideration in this matter is whether the Body Corporate decision to refuse the respondent’s request to keep her dog, and to require the dog’s removal, should be upheld.

Applicable law

At the time that this application was lodged, and at the times that the Body Corporate refused the respondent’s requests for a dog and issued a by-law contravention notice, the community management statement (CMS) for Baronnet included By-law 14 as follows:

On 23 January 2007 a new CMS was registered for Baronnet, pursuant to a resolution passed at the Annual General Meeting on 24 November 2006. This new CMS includes an amended By-law 14 as follows:

When a body corporate is pursuing a by-law issue^[2], 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 issuing of a 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. The Body Corporate has complied with these steps, with reference to the version of By-law 14 applying prior to January 2007.

General considerations regarding animal by-laws

The general approach of adjudicators regarding disputes involving animal by-laws has been as follows. 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. Often owners claim there are ‘special circumstances’ why they should be allowed to keep their animal. The view of adjudicators has been that 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 the subject of emotional appeals. There are three factors adjudicators generally consider in regard to such applications.

The first is whether there been acquiescence on the part of 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. The basis for allowing this approach is that it would be harsh and inequitable for an owner to have to remove an animal that they have been allowed to keep for an extended period of time.

The second is whether the body corporate is acting in a discriminatory manner. Examples of discrimination is where a committee refuses one owner’s request but grants approval to another, or seeks the removal of animal when there are other animals in the scheme, without any logical or reasonable basis for the distinction. The basis this exception is that bodies corporate must treat all owners equally regarding the enforcement of by-laws.

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

Body Corporate decision regarding Lot 64

The respondent’s submission says she considers the original refusal of her request for a dog was discriminatory but she provides no detail of why. The Body Corporate have, on request, provided a copy of her original application which says "There are already a number of pets already in residence so I would say there is already a precedent set." But the respondent’s submission makes no mention of other pets. I have specifically asked the Body Corporate whether they are aware any other animals in the scheme currently or in the past, whether approved or not approved. In response the Body Corporate says its records show only one other request for an animal which was not approved. On this basis I have no evidence before me to indicate that the Body Corporate has acted in a discriminatory manner by refusing this dog.

As the Body Corporate had previously refused the respondent’s request for a dog, and the Committee commenced action within a comparatively short time of hearing reports that there was a dog in the respondent’s Lot, there is also no evidence of acquiescence in this case.

The next issue is whether the Body Corporate decision to require the removal of the dog was unreasonable in the circumstances, or it would otherwise be just and equitable in the circumstances to overturn the decision. In this regard, I note that By-law 14 as it applied at the time of the Body Corporate’s relevant actions in this dispute does not entirely prohibit pets in the scheme. Rather it permits pets with specific approval, and explicitly provides for conditions to be imposed. It is therefore a decision for the Body Corporate whether and under what circumstances it will approve a pet.

It is appropriate for the Committee to have clear and reasonable policies to guide the exercise of this discretion, and this could include a preference against pets. But the Committee must still exercise its discretion and consider each application on its merits. As has been determined in many previous adjudications^[3], it is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances. The Committee Minutes of 5 May 2006 implies there was a ‘no pets’ policy in the scheme. While the application includes some reasons for refusing the dog, there is some indication that the decision was based on this ‘no pets’ policy.

Special considerations

Notwithstanding whether the Committee tried to apply a blanket ‘no pets’ policy, I am not convinced there were any special circumstances applying in respect to the two applications for a dog in Lot 64 (in July 2005 and June 2006) that would make it unreasonable for the Committee to refuse. While the Committee was required to consider all applications on their merit, this does not mean that it was obliged to approve any pets unless there were particular circumstances that would make manifestly unreasonable to refuse.

The respondent has claimed that she has health issues which would benefit from a dog, and has a medical certificate to that effect. I am not persuaded by this evidence. There is research that argues that pets can be beneficial to everyone’s health. The applicant has not given any indication of the nature of her health concerns, or how the dog could assist her condition. Nor has she presented medical evidence that a pet is required or highly recommended as part of her treatment.

The applicants other reasons for keeping a dog – that it was a gift and that she is homesick and wants a companion – are understandable but are not unique or compelling reasons for the Committee to move away from its preference against dogs. The respondent brought the dog onto her lot with the full knowledge that the Body Corporate had refused her previous request and was likely to refuse any future requests.

I am not convinced that the Body Corporate’s stated justifications for refusing the dog (although not communicate to the respondent at the time, which ideally they should have been) are entirely unreasonable. I accept that neither the Body Corporate nor any other owner has provided any indication that the dog is causing any nuisance or having any adverse impact on any other occupier. However I do not consider that this alone is sufficient reason to determine that the Committee’s decision was manifestly unreasonable.

However there is one factor that warrants consideration. In August 2006 applicant said that she intends to sell the lot and seeks time to enable this to proceed. I quite understand that the Committee may have viewed this statement with some scepticism because in her letter of July 2005 the respondent commented that she had been trying to sell her unit for some time. However the Body Corporate has noted that Lot 64 is currently listed for sale. If the sale were to proceed quickly it I do think it would be unreasonable for the respondent to need to find an alternative home for the dog for a limited time while that process proceeds.

Conclusion

On balance I consider it would just and equitable to allow the dog to remain in Lot 64 for a limited time to give the opportunity for the respondent to make a genuine effort to sell her lot. However, while the current property market may not be conducive to a quick sale, I do not consider it reasonable that the dog remain on the scheme for an indefinite period. As six months have already passed since the respondent expressed her intention to list her property for sale, I have given her a maximum of a further three months from the date of the order to either complete the sale and transfer of her lot or to find alternative accommodation for the dog.

I have granted this permission subject to a range of conditions which are outlined in the order. I believe that these conditions should assist in ensuring that the dog has little or no impact on other owners and trust these conditions will allay the concerns of owners who are opposed to the dog.

I have ordered that the Committee may revoke permission if they reasonably consider the respondent is not complying with the conditions and that the dog has a greater impact that has been apparent to date. However the Committee should ensure that it gives the respondents the opportunity to address any concerns before withdrawing permission and should be aware that if it fails to act reasonably in withdrawing permission its decision could similarly be open to challenge.

There can be no issue of a precedent being set by this order as the circumstances have now changed. The Body Corporate has taken the sensible step of entrenching its preference against pets in the by-laws. This does not, as the respondent suggests, indicate that there is flexibility in the interpretation of the by-law but rather that the by-law itself has been formally changed. The new By-law 14 ensures that all owners can be in no doubt that pets are now not permitted in the scheme, regardless of the circumstances. The passing of the resolution to effect the change in by-laws demonstrates that a majority of owners in this scheme do not want pets in the scheme.

^[1] BCCM Form 10, pursuant to section 182 of the Act
^[2] The steps for an owner to pursue concerns about by-laws breaches are set out in section 185-6 of the Act
^[3] For example Palm Springs [2005] QBCCMCmr 687 (7 December 2005)

Number of Scheme:	9557
Name of Scheme:	Baronnet
Address of Scheme:	Enderley Avenue Surfers Paradise QLD 4217

	as the request was made after the dog came into the unit, the Committee did not feel it could retrospectively approve the dog and felt it was being asked to rubber stamp a by-law breach;
	even if submitted in advance, the request would not have been approved because:

(i)	bring or keep an animal or bird on the Lot or the Common Property, or
(ii)	permit an Invitee to bring or keep and animal or bird on the Lot or the Common Property.

(i)	bring or keep and animal or bird on the Lot or the Common Property, or
(ii)	permit and Invitee to bring or keep and animal or bird on the Lot or the Common Property.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Baronnet [2007] QBCCMCmr 61 (6 February 2007)