Chevron Renaissance [2008] QBCCMCmr 289 (20 August 2008)

Last Updated: 19 September 2008

REFERENCE: 0421-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30946
Name of Scheme:	Chevron Renaissance
Address of Scheme:	23 Ferny Avenue SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stephen Motley and Mary Motley, the owner of Lot 2142

I hereby order that the body corporate for Chevron Renaissance community titles scheme 30946 is deemed to have given approval under By-Law 15 to Stephen Motley and Mary Motley, the owner of Lot 2142 to keep the toy poodle dog which is presently being kept on Lot 2142 subject to the following conditions: The dog must be carried over the common property when entering or leaving the scheme. The owner of Lot 2142 must ensure the dog 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. The approval applies only to the dog mentioned in this order and does not authorise the owner of Lot 2142 to keep any additional or replacement animal on the Lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0421-2008

“Chevron Renaissance” CTS 30946

The scheme
“Chevron Renaissance” community titles scheme 30946 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).

Application
This application is by Stephen Motley and Mary Motley, the owner of Lot 2142 (Applicants) against the Body Corporate for an order that they be permitted to keep their dog on their lot.

The Applicants state:

• Prior to purchasing the Lot in 2002, a member of the sales team informed them a pet would be allowed provided the animal was under 9kgs. They say it was also noted that the by-laws permitted a pet with the consent of the committee.
• They bought a toy poodle on the basis they would be allowed to keep the dog provided it weighed under 9kgs.
• On 29 April 2004 and prior to moving into the unit, they wrote to the Body Corporate requesting approval to keep the dog, but the Body Corporate did not respond to this letter.
• On 27 May 2004, Stephen Motley wrote to the Body Corporate mentioning that a reply has not been received to a recent letter and informing the Body Corporate that a toy poodle will be kept on the Lot. The Applicants say the Body Corporate did not respond to this letter.
• The dog has been kept on the Lot since 2004.
• They did not consider the Body Corporate had issue with the dog given they noted another dog and a cat were also being kept in the building, the advice from the sales team and the absence of a response by the Body Corporate to the abovementioned letters.
• Since 2004, the dog has travelled in the lift at least 4 times a day and management, security and the Body Corporate have been aware of the dog’s presence.
• On 28 May 2007, they received a by-law contravention notice requiring the removal of the dog within 14 days. On 8 October 2007, they received another contravention notice requiring the removal of the dog within 7 days. The copy of the Notice provided by the Applicants dated 8 October 2007 cited By-Law 15 and stated that toy poodle has been kept “following written requests dated 28th May and 9th August 2007 to have the pet removed”.
• There has been acquiescence on the part of the Body Corporate given that it has had knowledge that the dog has been kept on the Lot for 3 years and it failed to take any steps to remove the dog.
• The Body Corporate is acting in a discriminatory manner as it has granted approval to another resident to keep a dog.
• The dog is taken for a walk 3 times a day and is in the care of Mrs Motley at all times. The dog is maintained very well. It is carried over common property and is kept within the Lot except when entering and exiting the building.
• They are not aware of any complaints about the dog. The Applicants provided letters of support from 2 owners.
  

Submissions to the Commissioner
The Commissioner provided a copy of the application to Stewart Silver King and Burns (the Body Corporate Manager) for distribution to the owner of each lot (excluding the Applicants) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

Six owners supported the application for various reasons stating the dog has been kept on the scheme since 2004 with the knowledge of the Body Corporate; the dog is friendly and good natured; and other owners or occupiers keep animals as some have been seen in the lifts. Some of these owners suggested conditions to keeping the dog such as the dog should be carried over common property, the approval should relate only to the current dog, and the approval should be given provided the dog does not cause a nuisance.

Twelve owners opposed the application stating the by-laws are not subject to representations by sales staff; a precedent will be set if the dog is allowed and there will or could be cats and dogs or other animals of any type living in the scheme; animals pose a threat including by attacking persons, causing noise from barking, defecating on the premises, or causing infestations of fleas and insects; occupiers are entitled to quiet enjoyment and there is nothing more annoying than the sound of a barking dog; and it is inappropriate for animals to be kept at this scheme.

The Body Corporate Manager submitted on behalf of the committee and the chairperson that the By-Law requires the written consent of the committee and unless the approval was received the Applicants were taking a risk in keeping the poodle. The Manager states while the letter dated 27 May 2004 could not be found, the letter dated 29 April 2004 in the Body Corporate records reads “We have an apartment...I have been informed...that I need to let you know we have a small toy poodle 2.5 kg. We intend moving in on completion and would appreciate confirmation that this is acceptable”. The Manager says that a record of a meeting of the committee on 21 June 2004 states “The Committee noted that several owners had made requests to keep a dog within their lot...the Secretary advised that one dog is resident in tower 1 as a condition of the contract of sale, however, no other approvals have been made. Resolved that no further approvals be given as the Committee considers that the environment is not suitable for the keeping of animals”. The Manager submits approval was given to the dog mentioned in the above resolution at the Extraordinary General Meeting held on 20 December 2002, and that this is the only approval ever given. It is also stated that in the 3 years the chairperson has been on the committee, a number of requests have been made to keep animals and that the main theme has been to disallow the keeping of pets. The Manager states that while no specific letter was written to the Applicants, it is clear they did not have written permission and the committee decided to pursue the exclusion of the dog as it is considered the Applicants have breached the By-Law in keeping the dog.

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

Determination

Jurisdiction
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 under the Act or the community management statement (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (s 284(1), Act).

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 and common property (s 169(1), Act). The by-laws applying to a scheme are stated in the community management statement (CMS) recorded by the registrar of titles (s 52 and s 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 (s 59, Act ).

The keeping of animals by-law included in the first CMS for the scheme (CMS 706208322 recorded on 23 December 2002) stated “Subject to section 143 of the Act, the owner of a lot shall not, without the approval in writing of the Committee, keep any animal upon the lot or the Common Property”. This By-Law has been maintained in the subsequent new statements recorded for the scheme, including:

• CMS 707551025 recorded 19 March 2004 which applied around the time the Applicants became the owner of Lot 2142.
• CMS 710273105 recorded 23 January 2007 which applied at the time the contravention notices were given to the Applicants.
• CMS 710521604 recorded 3 May 2008 which applied when this dispute resolution application was made.
• CMS 711724206 recorded 17 June 2008 which currently applies.

It should be noted that when the first CMS and a number of subsequent statements were recorded, section 143 of the Act made provision for guide dogs. As a consequence of the 2003 amendments to the Act, this section was renumbered as section 181.

A function of the Body Corporate is to enforce the CMS, including the scheme by-laws (s 94(1)(b), Act). In doing so, the Body Corporate must act reasonably, including making or not making a decision (s 94(2), Act). Section 182 of the Act provides that if a body corporate reasonably believes that a lot owner is contravening a by-law and the circumstances make it likely that the circumstances will continue, the body corporate may give a continuing contravention notice to the owner to remedy the contravention. The notice must state that if the owner does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e), Act).

By-Law 15
There is no question that a body corporate cannot make a by-law in the terms of By-Law 15. The By-Law applies to the keeping of animals and it is apparent that the present terms of the By-Law have applied since the scheme was established in late 2002.

The By-Law provides discretion regarding keeping an animal on a lot or the common property. An owner requires the approval of the committee before the owner can keep an animal on scheme land.

A committee makes its decisions by voting at a committee meeting or by voting outside a committee meeting (s 101, Act, ss 25-34, Accommodation Module). While the Applicants have shown they sought approval, they have not provided any documentation demonstrating the committee has approved the disputed dog under By-Law 15. In the absence of this approval, representations made by salesperson during negotiations to purchase property do not carry any weight. Further, the Applicants should not have relied on the silence of the committee as implied approval. The Applicants seem to have been aware of the terms of the keeping of animal by-law and in this regard, I agree with the committee, they took a risk when they decided to keep the dog without proper approval.

While the Applicants do not have this approval, the committee have not referred to a specific decision relating to the Applicants’ request to keep the dog. It is apparent the Applicants informed the Body Corporate about their intentions to keep a dog. While the committee has cited a resolution it made on 21 June 2004, it is not certain this resolution was made in response to the Applicants’ request. It seems relatively settled that there is not a minute or other record of a committee decision or of correspondence demonstrating committee consideration of the Applicants’ request to keep the toy poodle which includes reasons explaining why this request was not approved.

The submissions made on behalf of the committee indicate that—other than the approval given in 2002—the committee has never approved the keeping of an animal despite a number of requests. While the committee have not made submissions to this effect, it would seem given the cited 2004 committee resolution, the submissions made by the committee and the absence of any subsequent approvals, that a “no pets” or similar policy is applied.

Given the terms of By-Law 15, it is not appropriate for the committee to adopt a “no pets” or similar policy and apply such a policy as a blanket rule. It is for the owners in general meeting to determine if the animal by-law should be amended to reflect such a rule. If owners decide in general meeting by special resolution to make a by-law to prohibit pets then that by-law would be effective when a new CMS containing it is recorded. Even though there have been a number of new statements recorded for the scheme since 2002, it is clear that since the establishment of the scheme the Body Corporate has not changed the terms of the keeping of animals by-law. Given the views expressed on behalf of the committee and by a number of lot owners it would have been reasonable to expect that the Body Corporate may have sought to formalise more strict controls.

However, given the current terms of By-Law 15, a person could objectively conclude the committee will give reasonable consideration to each request from an owner to keep an animal on scheme land. While the committee has the power to refuse an owner’s request to keep an animal, there must be a reasonable basis for the decision (s 94, Act). The committee must consider a request on its merits.

Decision
I am satisfied from the material presented that there has not been any consideration by the Body Corporate of the merits of the request from the Applicants relating to keeping the toy poodle on Lot 2142.

It would seem from submissions that opposition to any animal being kept on Lot 2142 is based on arguments relating to the characteristics of the scheme, opinions about problems associated with dogs, and possible future problems should this dog be allowed to be kept. The creation of a precedent is not a relevant consideration while the By-Law provides discretion. Each request must be considered on its merits and a decision to approve a particular animal to be kept on the scheme does not create a precedent to the extent that the Body Corporate would be powerless to prevent any animal from being kept on scheme land. Further, statements of mere opinion about the behaviour of dogs or animals generally do not constitute reasonable consideration of a request to keep a particular animal.

It is significant that this dog has been kept on the scheme since 2004 and there is no evidence of problems with the dog attacking persons, causing noise, defecating on scheme land, and causing flea and insect infestations. It would seem also the belated efforts by the Body Corporate to require the removal of the dog have not been motivated by a particular incident. It is worth noting that if the dog had caused a nuisance, section 167 of the Act could also have been applied against the Applicants. This section states:

167 Nuisances

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—

(a) causes a nuisance or hazard; or

(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 contrast to the absence of specific complaints about the dog, the Applicants have provided details about the dog, including how it is cared for. Submissions from owners included in the application and made at the invitation of the commissioner have stated that the dog is well behaved.

The Body Corporate has allowed the dog to be kept on the scheme since 2004. Other than the enforcement actions mentioned by the Applicants, there is no evidence the Body Corporate has sought to enforce the By-Law against the Applicants. Given the time which has lapsed, it could be validly argued there has been acquiescence by the Body Corporate given that it has not taken steps to remove the unapproved dog within a reasonable period of time. If the Body Corporate fails to act on the By-Law for some time it can lead the owner to assume implicit approval to keep the dog, and it could be harsh and unfair for the owner to have to remove the dog unless for instance, the animal was causing a nuisance.

There is also a question as to whether the Body Corporate is acting in a discriminatory manner in pursuing the Applicants. It is clear that one animal has been allowed to be kept for no particular reason other than a claimed obligation under a contract of sale. Other owners have submitted that other animals have been kept on the scheme. While the outcome of this dispute does not turn on this point, all owners must be treated 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.

In the circumstances, I do not consider the Body Corporate has successfully argued a reasonable basis to support a view that the Applicants should now be required to cease keeping the toy poodle on their lot simply because the Applicants do not have an express approval from the committee under By-Law 15. For the reason that I do not consider the Applicants should now have to apply to the committee for approval, I consider it is just and equitable that I make an order deeming Body Corporate authorisation to the Applicants to keep the dog on Lot 2142 subject to appropriate conditions.

The order does not prevent any subsequent Body Corporate decisions or a subsequent dispute resolution application being made should for example, the dog cause a nuisance or interfere 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, clause 19 of Schedule 5 states an adjudicator may order the removal of an animal if satisfied the animal is causing a nuisance or a hazard or unduly interfering with someone else’s peaceful use and enjoyment of another lot or common property.