Riviera Southbank Apartments [2008] QBCCMCmr 72 (3 March 2008)

Last Updated: 18 April 2008

REFERENCE: 0961-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27533
Name of Scheme:	Riviera Southbank Apartments
Address of Scheme:	260 Vulture Street SOUTH BRISBANE QLD 4101

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

Lloyd & Jacqueline Marchant, the owners of lot 100

I hereby order that the Body Corporate is deemed to have given approval under By-Law 2.3 to Lloyd and Jacqueline Marchant to keep a Burmese short haired (or similar breed) cat on lot 100 subject to the following conditions: The cat is not permitted to roam outside lot 100. The cat must be carried over the common property in a “cat box” (or similar) when entering or leaving the scheme. The cat litter must be “double bagged” in strong, sanitised garbage bags and physically dropped into the industrial bin in the garbage room downstairs on the ground level. The occupiers of lot 100 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. The authorisation applies only to the cat mentioned in the order and does not authorise Lloyd and Jacqueline Marchant or any other occupier of lot 100 to keep any additional or replacement animal on lot 100.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0961-2007

“Riviera Southbank Apartments” CTS 27533

Application

This application is brought by the owners of lot 100, Lloyd and Jacqueline Marchant, against the body corporate, seeking an order that they be granted permission to have a cat live with them in their unit. The grounds to the application are to the following effect:

• The building’s by-laws state that an animal can only be kept on the premises with permission by the body corporate/committee.
• The applicants own the whole top floor of the building and have exclusive access. Their having a pet would have no impact whatsoever on any other resident in the building because they have no neighbours other than on the lower floors.
• When they moved into the unit in December 2000, they took with them a cat which was 15 years old. The cat died several months ago, but for over six years, no-one knew the cat was in the building. Three letters from the former and current on-site managers are submitted to attest to this fact.
• The applicants believe that the committee’s decision to keep the building “pet free” and that a precedent would be set by granting them permission to have a pet is unfair. Should anyone else apply to have a pet, permission should be based on their situation and circumstances. They reiterate that, in their unique situation of having sole access to the top floor, no other tenant would be inconvenienced by them having a pet.
• For over six years, the applicants walked up and down 13 flights of stairs with the cat concealed in a shoulder bag and should it be a requirement that they continue to use the stairs instead of the elevator, they are only too happy to do this.
• The applicants are fully aware of their obligations and responsibilities with regard to the pet in common areas etc and give a guarantee that this will not be a concern to anyone.
• The applicants request that the committee’s decision to refuse them permission to keep a cat (which they feel is unreasonable and unfair) be overturned.
  

Jurisdiction

Riviera Southbank Apartments was registered as a building format plan of subdivision comprising 106 residential lots and common property on 6 December 1990. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

This is a dispute between the owners of one lot and the body corporate concerning the exercise of rights or powers, or performance of duties, under the Community Management Statement (CMS), specifically by-law 2.3, and comes within the dispute resolution provisions of the Act (see ss. 226, 227 & 228).

Procedural matters

On 6 December 2007, a copy of the application was provided to Ernst Body Corporate Management Pty Ltd (the body corporate manager) for distribution to the committee and the owner/s of each lot (excluding the applicants), with an invitation to respond to the matters raised in the application. Submissions were made 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

Owners In Support of the Application

• Feel that the applicants keeping a cat in lot 100 will have no impact on other occupiers because of their unique situation in occupying an entire top floor and fully support their request to have a cat.
• This is a one-off situation and has no real bearing on the existing pet –free policy.
• The conditions stated in the letter to the body corporate of 29 October 2007 are sensible.
  

Owners Opposed to the Application

• Oppose anyone being granted permission to keep a pet in the complex and agree with the principle of keeping the complex pet-free.
• If one application is granted it will set a precedent for others to follow.
• The owner of lot 32 specifically comments that:
  • If the by-laws state that the keeping of pets is at the discretion of the committee maybe we should consider having the by-law changed to “NO PETS” and remove that discretion from the committee.
  • The applicants should have disclosed to the committee that they had a cat previously.
• The owners of lot 60 and lot 62 specifically comment that:
  • The reasons offered by the body corporate are not only reasonable and valid but in the best interests of all owners.
  • The keeping of pets compromises the cleanliness and hygiene of the complex regardless of the exclusive occupancy to a level.
  • Use of the fire stairs is not an acceptable means for transporting a pet as it is not within the spirit of the Building Fire Safety Regulations 1991, section 9(2) which specifies “path of travel to an exit”.
  • They are concerned about the disposal of animal faeces regardless of the method proposed.
  • They are incensed with the applicants’ revelation that for six years they kept a cat without body corporate approval. This supports the body corporate reasons for denial of pets.
  • Owners who wish to keep pets should consider doing so at a private dwelling elsewhere.
  • They strongly support the amendment of the by-laws to state “No pets”.
• The owners of lots 90 and 91 and lot 44 specifically comment as follows:
  • Part of their reasons for moving in was that it was a “pet-free” environment. They have had experience living in another similar apartment building where pets were present and the aggravations caused by these pets were annoying.
  • They firmly believe that high rise apartment blocks are no place to keep a pet.
  • The applicants do not have exclusive access to their apartment. The apartment is accessed by a lift which is accessible to all other residents of their tower.
  • The fire stairs are for fire egress only.
  • The fact that a cat was kept for six years in direct contravention of the building by-laws is in their opinion no reason to be allowed another pet.
  • There are residents in the building who are allergic to cats and to have a cat travelling in common property could be injurious to their general health and well being.
  • Any statements made by the developer or sales person are totally irrelevant, as they had no legal standing to comment on the matter.
  • The fact that the applicants’ lifestyle has suffered by not having a cat is something that should have been taken in to account when purchasing the apartment and is not a relevant argument six years later.
• The owner of lot 43 specifically comments that the decision in respect of this matter should be made by the owners in a general meeting.
  

The owners of lot 70 appeared to indicate that they were not opposed to the applicants’ application, but did not want a precedent to be set. They specifically comment that:

• While recognising the unique situation of the applicants in having sole possession of a floor of the building, they would not want to see a decision in this matter influence any future applications for floors where there are multiple occupiers.
• They are highly allergic to animal hair and their lifestyle would suffer if pets were to become widely allowed.
• They purchased three years ago and one of the specific criteria for them was an assurance from the seller as to a “no pets” environment.
• They would be very concerned if they had pets being transported through corridors, elevators, foyers and car parks.
• It is their strong desire that the body corporate retain the right to refuse applications for pets in the interests of the majority of owners/residents.
  

The applicants exercised their right to inspect the submissions and replied to the following effect:

• Of the 105 requests for submissions posted out, there has been an overall response of less than 20%. Of the 20 responses there are 11 against their request, 8 in favour and 1 which intimates either way.
• If there was major opposition to their request, they believe it is highly probable that everyone who was against the request would be more likely to respond to the submission than those in favour.
• Of the submissions in favour of their request, they all recognise and acknowledge the uniqueness of their situation in that their unit is isolated and separate from all others and therefore will not impact on any other occupier’s lifestyle.
• Of the negative submissions, they comment specifically as follows:
  • The owner of lot 41 seems to see no problems affecting him if their application is successful. He states that he would prefer the building kept “pet free” but either way he will not be affected.
  • Mr Badger points out that the current by-law states that pets can be kept at the body corporate discretion so therefore the building is not “pet free”. His comment in relation to the three managers being aware of their previous cat is incorrect.
  • The owners of lots 97, 83 & 67, 13 and Mr & Mrs Gibson agree with the committee’s stance in relation to keeping the building “pet free” and a precedence being set. The applicants argue the validity of these reasons.
  • The owners of lot 70 recognise and acknowledge the applicants’ unique situation (sole possession and access to the top floor). Should anyone on a multiple occupied floor desire a pet they have the same rights as them to make an application and it should be considered on its merits. In relation to their allergies to animal hair, the applicants are absolutely sure this would not be an issue because of the isolation and separation of their unit from others in the complex.
  • The comment by the owners of lot 60 in relation to hygiene etc was addressed as requested by the committee at a meeting following on from the failed conciliation attempt. To the applicants’ knowledge, use of the fire stairs is available to any tenants who wish to exit the building at any time and is not illegal.
  • Comments in relation to restricted space available to a pet in the applicants’ situation are not valid. Plans and photographs are provided showing the amount of area available on their fully enclosed balconies. The proposed cat will be of a breed that is specially bred for indoor living. The time spent using the lift to transport the pet up and down would be miniscule. Visits to the vet or kennels would be the only occasions.
• If the applicants’ request was denied for valid reasons and these were legitimate they would understand. Their firm belief is that the reasons for denial are unfair.
• The body corporate can take a motion to change the by-laws to the AGM to have a definite “no pet policy” in the by-laws but they cannot have it both ways.
  

A late submission from the owner of lot 29 was made in support of the applicants’ application. She further commented that she believed that each owner should be able to apply to the body corporate on an individual basis for approval of a pet. In the case of the applicants, their unit is a penthouse and no other unit is on their floor, she states. In no way would their owning a cat interfere or disturb any other owners or tenants.

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 (s.169(1), Act). The by-laws applying to a scheme are stated in the CMS recorded by the registrar of titles, Department of Natural Resources and Water (ss.52 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 (s.59, Act ).

By-Law 2.3

By-Law 2.3 included in the scheme’s CMS states as follows:

Keeping Animals

2.3 Subject to:

• 2.3.1 Section 143 of the Community Titles Act; and
• 2.3.2 Section 5 of the Guide Dogs Act,
  

No Animal is to be kept in a Unit or upon the Common Property without the written consent of the Body Corporate.

“Animals” is defined in by-law 1.1 to mean “Living, non-human beings possessing sensation and voluntary motion, including in particular (but without limitation) dogs, cats, birds, fish, mice, rabbits, reptiles and insects”.

By-Law 2.3 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 a cat in Lot 100.

A function of a body corporate includes reasonably enforcing the CMS and the scheme by-laws (s.94, 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 minutes of the committee meeting of 28 November 2007, where the committee considered the applicants’ request (dated 29 October 2007) to keep a cat within lot 100 do not indicate the reasons for the committee’s opposition. The minutes simply disclose that the relevant motion (motion 3.3) was defeated with 1 ‘yes’ vote and 5 ‘no’ votes. The committee did not make a submission in response to this application. The opposing submissions made by lot owners 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 will cause problems as other occupiers may also seek to keep an animal.

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 in different schemes, or on a possible future problem.

I cannot find anything in the opposing submissions that indicates to me that the body corporate has considered the applicants’ request to keep a cat in lot 100 fairly and on its merits. None of the concerns raised relate to the applicants’ particular request. The fact that two occupiers have allergies to animal hair 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 100 has on the occupation of lot 70. The owners of lot 70 themselves did not appear to be opposed to the applicants keeping a cat within their lot, given the unique circumstances of that lot.

There may 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 any such problems are hypothetical given that no occupier other than the applicants knew of the existence of their recently deceased cat and that there is currently no cat being kept at the scheme. It is relevant that the committee did not rely on any of the concerns mentioned by owners making submissions (hypothetical as they were) when refusing the applicants’ request to keep the cat, but rather appear to have refused simply as a result of a desire to maintain a “pet-free” policy and not create a precedent.

Order

In the circumstances, I consider that the committee has unreasonably refused the request from the applicants to keep a cat on lot 100. For this reason I consider it just and equitable that an order is made deeming body corporate authorisation to keep a cat on lot 100, in accordance with the applicants’ request of 29 October 2007. At present the applicants do not have committee approval. The applicants should not have to now apply again for approval. I have placed appropriate conditions on the authorisation including those stated by the applicants in their written request for permission of 29 October 2007.

In relation to the hypothetical concerns raised in submissions, I would suggest that committee members or the owner or occupier of a lot approach the applicants and discuss these issues, if they eventuate. If the cat means as much to the applicants as stated, I would think they would be more than willing to listen to any complaints and to take steps to rectify them. The applicants 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 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, 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.