K Resort Surfers Paradise [2007] QBCCMCmr 675 (11 December 2007)

Last Updated: 4 January 2008

REFERENCE: 0563-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17477
Name of Scheme:	K Resort Surfers Paradise
Address of Scheme:	55 Peninsular Drive SURFERS PARADISE QLD 4217

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

the Body Corporate for K Resort Surfers Paradise

I hereby order that, subject to the order below, the Owner and Occupiers of Lot 11, John Pope and Moya Holmes, shall be permitted to keep their cat in Lot 11, pursuant to the following: 1. The Owner and Occupiers of Lot 11 must keep the cat indoors at all times. 2. If the Owner and Occupiers of Lot 11 wish to take the cat out of the scheme, they must carry the cat across common property in an enclosed cage or box. 3. The Owner and Occupiers of Lot 11 shall ensure that the cat 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 and Occupiers of Lot 11 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 cat if it reasonably considers the Owner and Occupiers of Lot 11 has not complied with these conditions and has failed to respond appropriately to warnings about their concerns. 6. This approval only applies to the current cat and does not authorise the keeping of any additional, replacement or substitute animals in Lot 11. The Owner and Occupiers of Lot 11 must apply to the Body Corporate for prior approval to keep any further pet. I further order that, notwithstanding the terms of the above order, the Body Corporate for K Resort Surfers Paradise may require the removal of the current cat, or may impose alternative or additional conditions, if authorised by an ordinary resolution at a general meeting of the Body Corporate held within three months of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0563-2007

"K Resort Surfers Paradise" CTS 17477

K Resort Surfers Paradise community titles scheme (K Resort Surfers Paradise) consists of 57 lots and common property. The community management statement (CMS) for K Resort Surfers Paradise indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme registered as Building Units Plan 101842.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for K Resort Surfers Paradise (applicant) on 29 June 2007, following a Committee resolution on 12 December 2006. The applicant sought orders against John Pope, Owner of Lot 11 (respondent) in the following terms:

That the owner and occupiers of unit 11 be ordered to remove the cat from the premises.

PROCEDURAL MATTERS

Under section 243 of the Act, a copy of the application was provided to the respondent, the Occupier of Lot 11 Moya Holmes and to the Body Corporate, with an invitation to the respondent, Homes, and all owners to respond to the matters raised by the application. Submissions were made by Pope and Holmes, and by two other owners. The applicant did not avail itself of the opportunity to inspect and respond to the submissions received.^[1]

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

After reviewing the application and submissions it appeared that there may be some scope for the parties to reach a conciliated agreement on the matter. Accordingly I referred the application back to the Commissioner with a recommendation that voluntary conciliation be attempted. On 31 October 2007 a conciliation session was held but unfortunately the parties were unable to resolve the dispute. Accordingly, the application was referred back to me.

MATTERS IN DISPUTE

The application relates to cat being kept within Lot 11. The facts of the dispute, as outlined in the application, submissions and reply to submissions, can be summarised as follows.

	On 10 April 2006 the Body Corporate Manager (BCM) wrote to the respondent informing them of By-law 10 regarding cats, saying they had received a report of an unapproved cat in Lot 11, and advising that the scheme had a ‘no pet’ policy.
	On 28 April 2006 Pope and Holmes responded that they would apply for permission to keep their cat which they said was kept inside at night and on most days. They noted that their ground floor unit is away from most lots and they were surprised that anyone even knew about the cat, but noted that they have never received any complaints and believed their neighbours liked the cat. They asked for time to apply for permission.
	On 22 June 2006 the Committee refused the application for a cat in Lot 11, through a resolution voted on outside a committee meeting.
	On 5 September 2006 the BCM wrote again referring to the Committee decision. The letter said there were reports that the cat was still there and that they may have a second cat. The letter requested that the cat be removed within 14 days.
	On 12 December 2006 the Committee resolved to issue a Notice of Continuing Contravention of a Body Corporate By-law[2] to Lot 11. The Notice was dated 5 March 2007.
	In March 2007 Committee agreed to allow three Pope and Holmes months they because indicated that they were moving out of the lot, but this did not occur.

The application says the Committee has a ‘no pets’ policy, that others have respected the refusal of requests for pets, and that the number of large lizards in the resort has diminished since the cat has been in the complex.

Pope and Holmes have made a submission that includes the following comments:

	The cat is not responsible for the demise of large lizards, which they say are larger than the cat. They note that the lizards appear to be seasonal;
	They deny that they ever had two cats;
	The only people complaining about the cat are the Manger and non-resident owners. They claim others don’t even know they have a cat or have no problem with the cats;
	They are not in a position to move, although they hope to by the end of the year, and they are concerned for the health of their cat if it was taken away;
	The Committee that voted against the cat has changed and they claim one member says she would like to change her vote; and
	They want to speak to the Committee and contact owners regarding a vote to keep their cat;

Two owners have made brief submissions simply indicating support for the removal of the cat.

I sought further information from the Body Corporate. In response they advised that:

	The Body Corporate first became aware of the cat in April 2006;
	In regard to other animals in the scheme, the Body Corporate wrote to the owner of Lot 10 about a dog in April 2006 and a cat in April and July 2007, with the animals not seen since. A cat in Lot 12 has not been seen since a letter and contravention notice in October 2007.
	The application for the cat in Lot 11 was voted on in a flying minute and no reasons were recorded. The current Committee have not indicated any different view.
	The ‘no pets’ policy apparently arose from informal discussion at the 2006 AGM that the owners present did not want any animals in the complex. This policy was not formally circulated to owners, although owners receive minutes of decisions regarding pet requests.
	The Committee maintains the cat is a nuisance as ‘cats are hunters and destroy wildlife’.
	There have been no written complaints about the cat. The Building Manager reports that some owners have complained that native reptiles and birds have been destroyed by the cat.
	The Committee disputes that respondent’s assertions that the cat is kept inside at night and when they are at work, as Committee members have seen the cat during daylight hours.

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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

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 are whether it was reasonable in the circumstances for the Committee to refuse approval for a cat in Lot 11, whether the respondent has breached By-law 10, and whether it is appropriate in the circumstances to require the removal of the cat.

Applicable by-law

The current CMS for K Resort Surfers Paradise, recorded on 25 September 1998, includes By-law 10 in relation to animals on the scheme. It says:

10 Keeping of animals.

Subject ot Section 30(12)^[4] of the Building and Group Titles Act, 1980 a proprietor or occupier must not without the approval in writing of the Body Corporate, keep any animal upon his lot or the common property, and the Committee of the Body Corporate may, at its discretion, order the removal of any animal if, in its reasonable opinion, the animal becomes a nuisance to proprietors or occupiers of lots.

When a body corporate pursues a by-law issue, 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. 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 to have an animal removed, or to overturn the refusal of an animal. Animal by-laws, like all other by-laws, must be observed by owners and occupiers. 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 not taking steps to remove an unapproved animal over a reasonable period of time. If a body corporate has failed to act for some time it can lead the owner to assume implicit approval to keep the animal. It could be harsh and unfair to remove an animal that has been allowed for an extended period. The Body Corporate first became aware of the cat in April 2006. This application was lodged more than a year later and some six months after the by-law contravention notice was approved. There are explanations for some of time elapsed and I do not consider there was any excessive delay in enforcing the by-law. Certainly the Body Corporate wrote as soon as it was aware of the cat. Accordingly I find no indication of acquiescence on the part of the Body Corporate.

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 an animal when there are other animals in the scheme, without any reasonable basis for the distinction. I have no evidence that any other pets have been approved or permitted in the scheme now or in recent times, and so there is no basis to find that the Body Corporate been discriminatory.

The third factor that adjudicators must consider is whether a body corporate is acting reasonably in its application of the by-laws.^[5] In this regard, I note that By-law 10 does not expressly prohibit pets in the scheme. Rather it permits pets subject to specific approval. So, it is a decision for the body corporate whether and under what circumstances it will approve a pet.

It is appropriate for a 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. A committee can and should consider whether any conditions on approval might address concerns that might exist in regard to proposed pets. It is not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of individual circumstances. To do so would be contrary to the by-law. If a body corporate wishes to ban all animals in a scheme, it must approve a new CMS with a by-law that prohibits all animals.

I am concerned that the Committee in this case has not acted reasonably in making its decision in regard to the respondent’s request for a cat in Lot 11. The Body Corporate’s letter of 10 April 2006 says that the Body Corporate has a ‘no pets’ policy. The decision regarding the request for the cat was made by a flying minute (a vote outside a committee meeting) and there is no indication that the Committee members actually discussed the request or the particular circumstances of the request, or that the Committee recorded or communicated any reasons for the decision.

It seems that the only objections to this particular cat are its actual or potential impact on local wildlife. No submissions repeat the complaints allegedly reported to the Building Manager, and the respondents dispute the allegation. However there is certainly a risk at least and I agree that it is entirely reasonable for a Committee to consider the impact on the local environment when considering requests for pets. But I do not consider this must automatically lead to a prohibition on cats. The Committee should consider the circumstances in each case, including the age and temperament of the animal in question (which may affect the likelihood of the animal to hunt) and whether there are any reasonable conditions that could address genuine concerns, such as keeping the cat indoors at night or at all times.

Conclusion

Ultimately I am not satisfied that the Committee acted reasonably in making its decision to refuse the cat in Lot 11. On the material before me it appears that the Committee made its decision based on a blanket ‘no pets’ policy, without consideration of the individual circumstances of the request or of any conditions that could be imposes to address any genuine concerns that might exist in regard to the cat.

In the circumstances I propose to allow the cat to remain subject to specified conditions, particularly that the cat must be kept indoors. I have also specified that this approval relates only to the respondent’s current cat, and not any additional, replacement or substitute pets. I trust that these conditions will allay the concerns of those with legitimate issues about the impact of the cat.

I have also ordered that the Committee may revoke permission for the cat if they reasonably consider the respondent is not complying with the conditions I have set. But the Committee should ensure that it gives the respondent 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.

Finally, I will allow the Body Corporate as a whole to approve the removal of the cat or to impose alternative or additional conditions. To do so the Committee would need to submit an appropriate motion requiring an ordinary resolution to a general meeting, which must be held within three months. Again the Body Corporate must act reasonably, as any general meeting decision would be open to challenge. Approval of motion to register a new CMS with a new by-law to prohibit cats in the scheme will not of itself be sufficient to displace my approval of the cat.

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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

^[4] Similar to the current section 181 of the Act, prevents by-law that would have the effect of prohibiting or restricting the use or keeping of a guide dog on a lot or common property.
^[5] Section 94(2) of the Act