Doria Lodge [2008] QBCCMCmr 86 (10 March 2008)

Last Updated: 18 April 2008

REFERENCE: 1023-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12709
Name of Scheme:	Doria Lodge
Address of Scheme:	5 Hamel Street CAMP HILL QLD 4152

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

the body corporate

I hereby order that the application for an order that Shelley O’Brien, owner of lot 1 (respondent) be required to remove her cat from the scheme and remove brush screening that she has erected on her balconies, is dismissed. This is dismissed on the basis that the body corporate has incorrectly identified the by-laws that are presently in operation for Doria Lodge.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1023-2007

“Doria Lodge” CTS 12709

Application

Doria Lodge Community Titles Scheme (Doria Lodge) is a 6 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes. Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by the body corporate for Doria Lodge (applicant) seeking orders against Shelley O’Brien, owner of lot 1 (respondent). The body corporate alleges that the respondent is contriving by-laws 8 and 11 for the scheme.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the body corporate, were to the effect that:

• The applicant has contravened by-law 8 that "the occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds". The applicant has done this by installing a brush fence around her balconies; and
• The applicant has contravened by-law 11 that "the occupier of a lot must not, without the body corporate’s written approval, bring or keep an animal on the lot or the common property". The applicant has done this by keeping a cat on her lot without permission.
  

The respondent was given an opportunity to provide written submissions. The main submissions were to the effect that:

• The temporary brush screening is a minor change that does not detract from the amenity of the lot. Amenity is an entirely subjective measure of the condition of a building or lot. The respondent disputes that the placement of brush screening has detracted from the amenity of the lot. Amenity is defined as “the fact or condition of being agreeable”. The opinion of the respondent is that the placement of the brush screening is entirely agreeable and, in fact, adds to the visual amenity of the lot by screening the untidiness and lack of uniformity of non-fixed items on the balcony;
• The screening was installed following an incident where lewd comments about the respondent’s underwear were made by an unknown male standing in the driveway of Doria Lodge who was able to see up her skirt as she sat on her balcony reading;
• The balcony of unit 5 has glass panels. These glass panels are entirely inconsistent with the uniformity of the steel panels of all other balconies. It can be argued that these glass panels would have a more negative effect on the value of any other individual lot than the respondent’s brush screening;
• If the body corporate continues to insist that the brush screening is a "major change" then the respondent will pursue other lot owners and residents for the removal of all temporary items placed on their balconies, pursue the replacement of lot 5’s glass panels, and pursue all maintenance and repairs; and
• The evidence provided by the body corporate to support the alleged contravention of the animal by-law is hearsay. As such, this evidence is not admissible and the body corporate’s claim is unsubstantiated.
  

All owners were given an opportunity to provide written submissions. The main submissions were to the effect that:

• Two weeks before settlement the respondent was informed that she would need permission from the body corporate to keep a cat but permission was refused and the respondent is defying this decision; and
• The brush fencing appears to have been erected to try to hide the cat within the unit;
• Recently there has been a complaint because “Whiskas” boxes and cat refuse has been deposited in the garbage bin for unit 3.

Investigations

I reviewed a historical title search for Doria Lodge and the Standard Community Management Statement that was recorded for the scheme. These searches showed that no changes to the standard by-laws applicable for a community titles scheme have ever been recorded in respect of Doria Lodge. I also reviewed the registered plan for Doria Lodge which showed that the plan was first registered on 2 March 1977.

Issues for determination
By-laws for the scheme

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)).

Keeping of animals

Doria Lodge was established by registration of the plan on 2 March 1977 under The Group Titles Act 1973 (GTA). The by-laws listed in Schedule 2 of the GTA were therefore applicable. When the Building Units and Group Titles Act 1980 (BUGTA) commenced in 1980, the standard by-laws under Schedule 3 of BUGTA also commenced operation for the scheme, except by-law 11 of Schedule 3, relating to animals, which was inconsistent with by-law 2 in the Second Schedule of the GTA (see section 5(10) of BUGTA). Under the present Act, the by-laws that were in force prior to the present Act commencing continue to apply (Act 339(5), 337(2)(g)).

Specifically, by-law 2 of the Second Schedule GTA provided:

A proprietor shall not keep any animals on his lot or the common area after notice in that behalf from the council[1].

This by-law continues to apply at Doria Lodge to the present day and is significantly different from the form of wording alleged by the body corporate, being that "the occupier of a lot must not, without the body corporate’s written approval, bring or keep an animal on the lot”.

I am not impressed with the respondent’s submissions in response to the allegation that she is keeping a cat. The respondent suggests that the evidence provided is hearsay and that the claim is unsubstantiated. However, the respondent does not properly answer the allegations made and should be made aware firstly, that an adjudicator is not bound by the formal rules of evidence of a court of law and secondly, that an adjudicator can require a person to be present to be interviewed or to give information in the form of a statutory declaration (Act 269(3), 271). If the respondent did want to keep a cat then I suspect she would be better served in proposing appropriate conditions for the general sanitation and keeping of the cat. If she proposed appropriate conditions then the committee may have granted permission for the cat to be kept, or at least the respondent might be able to seek to overturn an unfavourable decision if that decision was made unreasonably.

In any event, the present application is improperly brought because the body corporate has failed to identify its proper by-laws. The application is therefore dismissed for this reason. Owners may therefore wish to review the by-laws for the scheme and consider what by-laws are appropriate for Doria Lodge before bringing any further applications alleging a contravention of by-laws.

Appearance of lot

The standard BUGTA by-law regarding the appearance of building will apply for Doria Lodge as this by-law was not inconsistent with the scheme’s existing by-laws at the time BUGTA commenced. This by-law is:

Appearance of building

In the case of a building units plan, a proprietor or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his lot in such a way as to be visible from outside the building.

I am again unimpressed with some of the respondent’s submissions. In particular, the respondent has indicated that if she held to be in breach of the by-laws then she will ensure various other matters are pursued. However, any contravention or otherwise by other persons does not absolve the respondent of responsibility to comply with the by-laws herself.

Having said this, the body corporate has again failed to identify its proper by-laws and the application will be dismissed for this reason alone. Again, owners may wish to review the by-laws for the scheme and consider what by-laws are appropriate for Doria Lodge before bringing any further applications alleging a contravention of by-laws.

Order

For these reasons, the application is dismissed.

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[1] The reference to ‘the council’ was a reference at the time to the equivalent of the committee for the body corporate.