Biarritz [2008] QBCCMCmr 67 (28 February 2008)

Last Updated: 18 April 2008

REFERENCE: 0937-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10247
Name of Scheme:	Biarritz
Address of Scheme:	85 Old Burleigh Road SURFERS PARADISE QLD 4217

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

Timothy Hall, the Owner(s) of lot 19

I hereby declare that the body corporate committee unreasonably refused to consent to an application by Timothy Hall, owner of lot 19 (applicant) to obtain permission to keep his quaker bird within his unit. I further declare that the applicant is deemed to have obtained consent to keep his quaker bird within his unit provided that the bird does not make noise sufficient to disturb other occupiers and provided that its cage is kept in a sanitary condition. I further declare that it would be unreasonable for the body corporate to seek to require the applicant to remove the bird based on the change of by-laws that became effective on 16 January 2008, given that the applicant applied for consent to keep his bird prior to owners voting to change the by-laws to prohibit pets.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0937-2007

“Biarritz” CTS 10247

Application

Biarritz Community Titles Scheme (Biarritz) is a 97 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module).

This is an application by Timothy Hall, owner of lot 19 (applicant) against the body corporate for Biarritz (respondent).

Decision

Investigation and Submissions

Background

The applicant lodged the application after the committee refused him permission to keep a 'quaker' bird in his apartment. The applicant said that he had kept the bird for over a year without realising he needed committee permission but that the committee unreasonably refused him permission when he did apply to keep the bird. It was submitted that the bird is a small bird that does not cause any nuisance to other occupiers.

A submission from the committee was to the effect that the committee refused permission in the interests of the vast majority of owners who prefer that no animals or birds be permitted in the building. This submission indicates that the by-laws have recently been changed to absolutely prohibit animals or birds being kept in the building. The previous by-law allowed for animals or birds to be kept by an owner with committee consent.

On 20 December 2007, I granted an interim order allowing the applicant to continue to keep the bird pending a final determination of the dispute, including:

1. Whether it was unreasonable for the committee to initially refuse consent for the applicant to keep the bird?
2. If so, whether it would be unreasonable for the committee to seek to enforce the new by-law against the applicant?

Submissions

Final submissions seeking removal of the bird were to the effect that:

• I purchased in Biarritz with the knowledge that no animals were allowed. This was a major factor in buying the unit. If the applicant’s bird is allowed I will have to sell up and move as it will be the thin edge of the wedge. The relevant body corporate rule should stand and the applicant’s bird must go;
• The committee is not being discriminatory because the committee has never granted approval to keep a pet to a lot owner. It is well known that many high rise buildings are not pet friendly, for good reason, and I personally support the committee’s stance in attempting to keep the building pet free. The applicant should have taken steps to find out whether Biarritz was a pet friendly building before purchasing and the body corporate should not be required to pay his legal bill. Owners voted in favour of a by-law prohibiting pets and it appears a substantial majority of those voting support the committee’ stance;
• Biarritz is a prestige resort style building. The presence of animals would substantially lower the tone, occupancy rate and profitability of the scheme. We strongly support the committee’s decision and consider the reasons for the committee’s decision are clearly conveyed in the minutes. If the applicant wanted more detailed reasons he should have discussed it with the committee;
• The applicant was aware of the rule relating to animals but chose to ignore it;
• The assertion that the use of a flying minute automatically means the committee did not consider the individual facts and circumstances is completely without basis and totally presumptuous. As holders of the management rights I attend body corporate committee meetings and can state that the body corporate quite simply did not consider the application to keep the bird had merit. Discussions included an example of a blind person with a guide dog as being a circumstance that may have merit. No such circumstances exist in this instance. The various statements about the bird being in the unit for 12 months before anything was done about it, the disposition of the bird, offers of sound proofing, and pest treatment are not relevant to the matter in question. Similarly, any feeding of wild birds by others is irrelevant when there is no by-law against it. We, as managers, are very aware of the need to be both practical and considerate of the interests of all owners, including those who holiday and permanently let their apartments when making decisions. Any suggestion that individual applications to bring animals or birds into Biarritz should be considered on their merits would be impractical to the point of being absurd at a busy holiday resort like Biarritz. Other cases argued by the applicant are not entirely relevant as the body corporate did not acquiesce to the bird being kept and because the body corporate has been consistent in always refusing animals; and
• This facts of the present application are distinguishable from Lake View Park because the committee considered the application at its meeting on 12 June 2007 and the blanket ban on pets was only proposed on 11 October 2007. There is no acquiescence as the body corporate was not aware of the bird and the applicant’s actions contradicted the clear words of the by-laws. The committee in not a judicial body and is not required to disclose its reasons for refusing permission to keep the bird. No analogy can be made with keeping birds in a unit and feeding birds of the air. The provision regarding nuisance operates independently of an application for permission to keep pets. The body corporate decision should be affirmed unless the body corporate acquiesced or the body corporate was acting in a discriminatory manner. Any general consideration of whether the body corporate acted reasonably requires the applicant justifying why the body corporate decision should be disturbed based on special circumstances.
  

Final submissions in favour of allowing the bird to stay were to the effect that:

• Caged small birds, and a few fish in a tank, are types of animals kept that do not affect the residents of other apartments. It is only when other owners would be adversely affected that the committee should refuse permission. The committee have not given him a reasoned decision but instead seem to have given a refusal as a matter of principle, maybe in fear of this being the thin edge of the wedge;
• The present dispute is about the applicant failing to seek prior permission not about the bird itself. Unless there is good reason to evict it, and it appears there is none, then let it stay;
• I support that the body corporate be directed to give the applicant permission to keep his bird in his apartment under the conditions he has set forward in sections 4.6, 4.7, and 4.8 of his submissions. By-law 14 should revert to its original wording that allows the committee to grant approval for the keeping of pets;
• The by-laws did not provide for a "no pets" policy but provided the pets were not to be kept in apartments without consent. The body corporate is required to act reasonably. The committee had a policy of rejecting an application to keep pets and there is no evidence the bird is noisy, creates any smell, or attracts pests. To the contrary, there is evidence that the bird is quiet and the cage is kept clean. There is no evidence that any person has complained the bird interferes with the use or enjoyment of the common property and the applicant has offered reasonable conditions to satisfy the body corporate that the bird will not cause a nuisance. Further, in the pine trees that line the footpath are hundreds of lorikeets and on countless occasions I have seen individuals feed wild lorikeets from their balconies.
  

The applicant lodged some further submissions in response, to the effect that:

• The applicant’s partner told the building receptionist not to allow pest spraying in their apartment without express permission due to concerns about the wellbeing of the bird. This was approximately three months after they got the bird and supports the assertion they were unaware of the by-law rather than simply choosing to ignore it;
• Upon becoming aware of the by-law the applicants applied for permission to keep the bird. The committee did not act fairly and reasonably and failed to consider the individual facts and circumstances. The submissions indicate the committee adopted a policy of outright rejection of animals;
• The submission that the applicant keeping his bird in his apartment would “adversely affect all owners who let their apartments as well as..management rights business through reduced occupancy, reduced tariffs, reduced returns and reduced profit” is an exaggeration unsupported by any evidence;
• Keeping a small caged bird is quite different to keeping dogs or cats within the apartment;
• The design of the building is irrelevant given the bird is to be housed entirely within the confines of the applicant’s apartment;
• It is misguided to say that "a precedent will have been set" if the bird is allowed, particularly as the by-laws have now been amended to set a blanket prohibition against the keeping of animals; and
• In light of the lack of evidence to support the assertions that the body corporate committee acted reasonably the only conclusion that can be drawn, given the evidence from the applicant, is that the body corporate in fact acted unreasonably.
  

Further enquires

The above submissions dealt satisfactorily with the issues raised. It was therefore unnecessary for me to carry out any further investigation of the application.[1]

Determination

Applicable Law

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law (Act, 59). Modifications to the by-laws can be made by special resolution (Act, 62(3)) and take effect on the recording of the modified by-laws by the registrar of titles (Act, 179).

The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)).

By-laws are commonly used to regulate the keeping of animals within a scheme. A by-law about the keeping of animals on scheme land is not invalid simply because it is inconsistent with local council laws (Act, 180(2)). However, a by-law can not exclude or restrict a right of a person to be accompanied by a guide dog (Act, 181).

Until 16 January 2008, by-law 14 for Biarritz provided that:

(a) Subject to Section 181 of the Act, an Occupier must not, except with the consent in writing of the Body Corporate Committee:

(i) bring or keep an animal or bird on the Lot or the Common Property; or
(ii) permit an invitee to bring or keep an animal or bird on the Lot or the Common Property.

(b) Any consent of the Body Corporate Committee may be:

(i) given on conditions; and

(ii) withdrawn at any time.

From 16 January 2008, by-law 14 has been changed to:

Subject to Section 181 of the Body Corporate and Community Management Act 1997, an owner or occupier of a lot shall not keep any animal upon his/her lot or the common property.

Findings

I accept submissions, which are not disputed, that:

• Since March 2006, the applicant has kept a quaker bird in his apartment;
• In around March 2007 the caretaker became aware of the bird and asked for it to be removed;
• In late March 2007 the applicant requested committee consent to allow him to keep the bird; and
• On 12 June 2007 the committee refused permission for the applicant to keep the bird.
  

I also accept, based on the applicant’s submissions, that the applicant’s bird is relatively quiet and is kept in a cage that is maintained in a sanitary condition. Based on the lack of submissions to the contrary, I also accept that the applicant’s bird does not disturb other occupiers.

There is no evidence that satisfies me there is any basis for saying the body corporate acquiesced to the presence of the applicant’s bird as the submissions indicate that no committee members or other relevant persons were aware of the presence of the bird much before March 2007. Further, there is no evidence that satisfies me the body corporate unfairly discriminated against the applicant as the submissions indicate that the body corporate has not previously allowed any pets to be kept at Biarritz.

Failure to act reasonably

Some submissions indicate a fundamental misunderstanding of the by-laws. The animal by-law that applied at the time the applicant sought permission to keep the bird allowed owners to keep pets with the consent of the committee. The committee has a legislative requirement to act reasonably in making its decisions and enforcing the by-laws. If the by-law allows for the keeping of animals with consent the committee cannot simply adopt a blanket prohibition against animals but must consider each application on its merits.

It has been submitted that the committee is not a judicial body and is not required to disclose its reasons for refusing permission to keep the bird. This may be correct. However, once an application is lodged with evidence that the bird is being kept on a lot without causing any detriment to other owners or occupiers, an adjudicator may infer that the committee acted unreasonably in refusing to consent to the keeping of the bird unless the committee supplies some good reason for the refusal.

In this instance, the committee has failed to provide good reasons for refusing to consent to the applicant keeping his bird within his lot. In an interim submission the committee appeared to support a general policy that no pets should be allowed. The submission from the holders of the management rights, having representation as a non-voting committee member, also indicated that a blanket prohibition on animals should be upheld and it would be "impractical to the point of being absurd" to suggest that individual applications to bring animals or birds into Biarritz should be considered on their merits.

Factors such as the type of building and resort-style nature of the scheme may make it reasonable for owners to adopt a by-law absolutely prohibiting pets, as appears to have been done effective from 16 January 2008. However, as a matter of law, any applications under the old by-law for consent to keep a pet should have been considered on their merits. It seems more likely than not that the committee did not consider the application for permission to keep the quaker bird on its merits. No good reason for refusing permission was put forward in the submissions. Further, a submission that discussions included an example of a blind person with a guide dog as being a circumstance that may have merit indicates that the committee misconstrued the by-law. A blind person with a guide dog would have been automatically excluded from the operation of the by-law by the words "Subject to Section 181 of the Act" and would not need any committee consent to bring the guide dog onto the scheme.

In all the circumstances, particularly including that the applicant’s bird is relatively quiet and other occupiers are unlikely to be aware of its existence, I consider the committee acted unreasonably in refusing the application consent to keep his bird under the previous by-law 14 that was in force at the time the applicant applied for body corporate committee consent to keep the bird on his lot.

An adjudicator must make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). In all the circumstances, I am satisfied it is just and equitable to declare that the body corporate is deemed to have consented to the applicant keeping his quaker bird within his unit on the basis it was unreasonable to refuse consent at the time the applicant applied for consent. I will, however, place reasonable conditions on the consent, being that the bird does not create noise that disturbs other occupiers and that its cage is kept clean. While the submissions indicate that these conditions are currently being met, I accept that some owners have reasonable concerns that these matters could potentially become an issue.

Unreasonable to enforce new by-law against the applicant

I note that the by-laws have since changed so that pets are prohibited in Biarritz. However, the body corporate is required to act reasonably in enforcing the by-laws as well as in making decisions pursuant to the by-laws (Act, 94).

The applicant both purchased his unit and applied for consent to keep his bird at a time when the by-laws allowed for the keeping of pets with consent. Owners have since voted to change the by-laws to prohibit pets. However, I consider it would be unreasonable for the body corporate to seek to require the applicant to remove the bird based on the change of by-laws that became effective only on 16 January 2008. I therefore consider it just and equitable to make a further declaration to this effect.

No requirement for the body corporate to pay the applicant’s costs

The applicant has sought an order that the body corporate pay the applicant’s costs of the present application.

However, this order is made pursuant to the dispute resolution processes under the Act, which are designed to assist in the low cost resolution of body corporate disputes. There is no provision authorising a departmental adjudicator to make a costs order in these circumstances.[2] The specific power for a departmental adjudicator to grant payment of costs is limited to circumstances where the application is dismissed as being frivolous, vexatious, misconceived or without substance (Act, 270).

In any event, I would be loath to order costs against the body corporate. This is because the applicant has significantly contributed to the dispute himself by failing to properly inform himself of the by-laws and therefore failing to apply for committee permission to keep the bird before obtaining the bird or bringing it onto his lot.

Order

I am satisfied that the by-law at the time the applicant applied for permission to keep his bird allowed owners to keep a bird on their lot provided they had consent of the committee. The committee unreasonably refused consent upon the applicant applying for this consent.

In all the circumstances, I consider it just and equitable to make the orders above.

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[1] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JJA, Keane JJA, Cullinane J, 9 September 2005 at paragraphs 31 and 17.
[2] Refer Woodrange Pty Ltd v. Le Grande Broadwater Body Corporate [2004] QDC 215, McGill DCJ, 19 July 2004 at page 225.