Waters Edge on the Broadwater [2008] QBCCMCmr 83 (10 March 2008)

Last Updated: 18 April 2008

REFERENCE: 0003-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	35252
Name of Scheme:	Waters Edge on the Broadwater
Address of Scheme:	438 Marine Parade BIGGERA WATERS QLD 4216

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

Jordan and Jane Pregelj, the owners of lot 2002

I hereby order that the applicants, Jordan and Jane Pregelj, the owners of lot 2002, shall be permitted to keep their elderly, de-sexed labrador-cross dog, “Byron”, on lot 2002, subject to the following conditions: 1. The owners of lot 2002 must ensure that “Byron” remains within the boundaries of lot 2002 and does not enter other lots within the scheme or common property, excepting that if the owners of lot 2002 wish to take the dog across common property to leave the scheme it must be restrained on a leash. 2. The owners of lot 2002 must ensure that any animal waste is effectively and promptly disposed of so as to avoid any health hazard or odour. 3. The owners of lot 2002 must ensure that “Byron” 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. 4. The authorisation applies only to “Byron” and does not authorise Jordan and Jane Pregelj or any other occupier of lot 2002 to keep any additional or replacement animal on lot 2002.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0003-2008

“Waters Edge on the Broadwater” CTS 35252

Application

This application is brought by the owners of lot 2002, Jordan and Jane Pregelj, against the body corporate, seeking an order that they be granted permission to keep their family dog (Byron) with them in lot 2002. The grounds to the application are to the following effect:

• Byron is a desexed elderly nine year old Labrador/Blue Heeler cross weighing 24 kg. He is placid and well behaved spending most of his day sleeping. He is exercised twice daily and does not bark.
• The committee has refused the applicants permission to keep Byron on their lot. They were informed via email.
• The committee’s refusal was based on the fact that Byron weighs over 10 kg and the committee stated that if they granted the applicants permission it would set a precedent.
• The by-laws for the scheme state that permission to keep a pet cannot be unreasonably withheld (by-law 12(a)).
• The applicants have provided information and references to support Byron’s suitability.
• The applicants have been residing in lot 2002 with Byron since the beginning of December without complaint or notice to remove him.
• The applicants do not require Byron to use the lift to exist or enter lot 2002.
• Lot 2002 is located on the ground floor of Tower B (the smaller, 4 story building) in the complex and is freestanding on three sides.
• To exercise Byron externally, the applicants only have to travel over approximately 10 metres from their entry door to the exit door of the complex common property to reach public space. Byron is on leash at all times during this movement.
• Within Tower B, there are other dogs residing.
• One of the considerations of purchasing lot 2002 was that it was advertised as pet friendly.
• The committee should consider permission based on the pet’s individual merit rather than its weight. The applicants feel that Byron is being discriminated against because he weighs 24kg rather than 10kg. Some large docile breeds make perfect apartment pets because they are quiet and do not need much exercise. On the other hand, some of the smaller dogs cause the nuisance especially the yappy nervous breeds.
• The applicants are responsible mature owners that are aware of the need to be considerate to other occupiers and have assured the committee that their dog will not interfere with the peace and quite of others.
• As a companion animal, Byron plays a large part in the lives of the applicants’ family, especially Mrs Pregeli as Mr Pregeli is away a lot with his employment and Byron provides companionship and security and is very important to Mrs Pregeli’s emotional well being. The applicants’ sons have grown up with Byron and would be devastated to entertain the notion of him not being part of their lives.
• Photographs of Byron and a written reference from Kylie Naylor of Walkies Dog Service is attached to the application.
• The applicants have indicated to the committee that they are happy to adhere to any specific restrictions they may place on Byron within the apartment complex. They understand that the by-laws already cover any perceived problems of nuisance pets and believe that would be sufficient to resolve any problems that may occur.
  

Jurisdiction

Waters Edge on the Broadwater was registered as a building format plan of subdivision comprising 57 residential lots in two buildings and common property on 29 March 2006. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (the Accommodation 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 12, and comes within the dispute resolution provisions of the Act (see ss. 226, 227 & 228).

Procedural matters

On 4 January 2008, a copy of the application was provided to Stewart Silver King and Burns (SSKB) (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

• The owner of lot 1101 comments that:
  • If the dog in question has shown to not be a nuisance, she has no objection to it remaining with the applicants in lot 2002.
  • She agrees with the applicants that each case should be judged on its own merits as small dogs also have the potential to be a nuisance. The dog is usually the product of the owner and size has no bearing.
    
• The owners of lot 1404 comment that:
  • They support the application. The dog, as described, should not be a problem to owners at the scheme, provided that the dog is quiet, well behaved and exercised regularly (No droppings etc on or around the complex).
  • They have been members of the Canine Council and shown dogs for approximately 30 years, and have had a Grooming Parlour for dogs for the same time, and during this time have found that although this breed is a larger dog, they are also quite docile.
  • As to setting a precedent, they don’t think that should happen as each application should be judged on its own merit.
    

Owners Opposed to the Application

• The owners of lot 1402 comment that:
  • They object to large dogs/animals over 10kg on the premises.
  • Written approval was not granted (31/7/2007) to the applicants at the time of deposit on purchase; they chose to ignore it and purchased the lot anyway.
  • Large animals (ie dogs) should be on land properties not unit living properties. Small dogs, cats, etc are better suited.
  • If a precedent was set in this case every similar case would have to be fought in the same manner. The majority of residents do not want large dogs/animals in units at Waters Edge.
  • Waters Edge is 7 levels high. It is unreasonable to expect residents to share the lift with a large dog (ie German Sheperd etc). Obviously the dog cannot be picked up.
    
• The owners of lot 2301 comment that:
  • As residents in the same building as the dog in question, they have not experienced any problems since the family moved in.
  • However, as they cannot be assured that a positive decision will not open the door to any large breed dog being able to reside in their complex they regrettably have to object to the applicants’ request for Byron to be granted permission to stay at Waters Edge.
    
• The owners of lot 1002 advised that they oppose the approval of the applicants’ request. They believe the applicants should have made the necessary enquiries prior to purchasing the apartment.
  

Applicants Reply

The applicants exercised their right to inspect the submissions but did not reply to them.

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 ).

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. They do not attract special significance simply because they often raise emotional issues. 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 it not taking steps to remove an unapproved 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. It could be harsh and unfair for an owner to remove an animal that they have been allowed to keep for an extended period of time.

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.

The third factor that adjudicators must generally consider is whether the body corporate is acting reasonably in its application of the by-laws.[1]

By-Law 12

By-Law 12 included in the scheme’s CMS states as follows:

12. Keeping Animals

(a) Subject to section 181 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.
(b) The Committee shall not unreasonably withhold its consent for the keeping on a lot of either a small domestic dog or cat which shall not grow to a weight greater than 10kgs and which shall not be likely to cause a nuisance to other owners.
(c) Any such consent may be withdrawn by the Committee if it is found that the animal is an ongoing nuisance to other occupiers.

A reading of by-Law 12 seems to imply that the committee cannot unreasonably withhold its consent for the keeping on a lot of a small dog or cat weighing 10 kgs or less if that dog or cat is not likely to cause a nuisance, but that the committee can unreasonably withhold its consent for the keeping on a lot of any dog or cat weighing over 10 kgs. To the extent that by-law 12 purports to allow the committee to unreasonably refuse permission to keep an animal weighing more than 10 kgs, it is invalid. Section 180(1) of the Act provides that if a by-law is inconsistent with the Act (including a regulation module), the by-law is invalid to the extent of the inconsistency. Sections 94 and 152 of the Act require the body corporate to act reasonably in administering the common property, enforcing the CMS and carrying out other functions under the Act and CMS.

If it is the intention of the body corporate to not have any animals weighing over 10 kg kept at the scheme, then the existing by-law 12 will have to be amended. As it stands, I consider that by-law 12 allows the keeping of an animal in the scheme, with the approval in writing of the committee.

Consequently, it is not appropriate for the committee to adopt a “no animals over 10kg” 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 animals over 10kg are allowed. If owners decide to amend the by-laws to prohibit animals over 10kg 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 animals over 10kg” policy in opposing the request by the applicants to keep Byron within lot 2002.

As previously stated, 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 applicants’ request to keep the dog, there must be a reasonable basis for the decision. The committee must consider the request on its merits.

Reasons for opposing request to keep Byron

The copies of emails between the applicants, BCM and committee regarding this issue reveal that the basis for the committee’s refusal appears to be that Byron is over 10kg and that by giving permission for him to reside at the property it may set a precedent. There is no further indication of the reasons for the committee’s opposition; 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 animals over 10 kg are allowed and that the by-laws give a clear understanding of this; and that allowing one animal over 10 kg will cause problems as other occupiers may also seek to keep an animal over 10kg.

As stated above, the committee cannot rely on a “no animals over 10kg” policy. Further, the committee cannot (without good reason) refuse a particular person’s request to keep an animal by relying 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 Byron fairly and on its merits. None of the concerns raised relate to the applicants’ particular request. The committee appear to have refused simply as a result of a desire to maintain a “no animal over 10kg” policy and not create a precedent. In my view, it is also relevant that other dogs reside in the scheme without body corporate permission and that the committee has not taken any action seeking to require the owners keeping dogs in contravention of by-law 12, that is, without body corporate permission, (including Byron) to remove the dogs from the scheme, for example, by issuing a by-law contravention notice. The body corporate manager advised by facsimile dated 6 March 2008 that lot 2102 has a 3 year old 7.2 kg de-sexed female dog, lot 2301 has a 12 year old 6.5kg male dog and lot 1006 has a 12 year old small male dog. Lots 2102 and 1006 have stated that it was a condition of their purchase that they could have dogs and there has been no application to the body corporate for these dogs. Lot 2301 applied for permission to have their dog in an email dated 27 February 2008. This raises questions concerning acquiescence and discrimination on the part of the body corporate.

Order

In the circumstances, I consider that the committee has unreasonably refused the request from the applicants to keep Byron on lot 2002. For this reason I consider it just and equitable that an order is made deeming body corporate authorisation to keep Byron on lot 2002, in accordance with the applicants’ initial request of 25 July 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.

The applicants must take appropriate steps to ensure that Byron 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, Byron 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.

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[1] Section 94(2) of the Act