Tallaringa View [2009] QBCCMCmr 188 (14 May 2009)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Sandra Sirasch, the owner of Lot 1

I hereby order that the application by Sandra Sirasch, the owner of Lot 1 against the body corporate for Tallaringa View community titles scheme 3632 seeking an outcome that: “Permission be granted for Ms Sirasch to keep a dog on the premises and in particular to bring her son’s boxer dog from NSW to live with him in the unit as requested under the By-Law 10 as the By-Law stood at the time of request and as believed is currently registered”, is dismissed.

I further order that within two months of the date of this order, the Body Corporate must call and hold a general meeting to consider the motion submitted to the Body Corporate by Ms Sirasch on 25 February 2008 proposing keeping a dog on Lot 1 unless within 21 days of the date of this order, Ms Sirasch gives written notification to the Body Corporate withdrawing the 25 February 2008 motion and does not submit another motion to the Body Corporate about the same subject. If within 21 days of the date of this order, Ms Sirasch withdraws the 25 February 2008 motion and submits another motion to the Body Corporate about keeping a dog on Lot 1, the meeting must be held and the motion must be included on the agenda of the meeting.

I further order that the agenda for the meeting may contain any other motion properly submitted to the Body Corporate.

The scheme
“Tallaringa View” community titles scheme 3632 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application is by Sandra Sirasch, the owner of Lot 1 (Applicant) against the Body Corporate seeking an outcome that: “Permission be granted for Ms Sirasch to keep a dog on the premises and in particular to bring her son’s boxer dog from NSW to live with him in the unit as requested under the By-Law 10 as the By-Law stood at the time of request and as believed is currently registered”.

The Applicant states the by-law has provision to seek permission to keep a dog. She says her son (the occupier of Lot 1) who has asked to keep a boxer dog on the property is a responsible pet owner, is studying veterinary science and has had animals all his life. The Applicant provided copies of correspondence to Mary Smithers of Body Corporate Services (the Body Corporate Manager), Stephen Nicholson (the owner of Lot 5 and chairperson), and Carole Jones (the owner of Lot 6) about this issue. On October 1, 2, and 7 2007, the Applicant corresponded with Mr Nicholson about her son wanting to keep a boxer dog which Mr Nicholson stated (from searching websites) is a medium sized dog weighing approximately 25 to 35kg.

On 8 January 2008, the Applicant wrote to Mary Smithers submitting two resolutions for circulation; one of which stated: “That permission be granted for Unit 1 to keep a dog on the premises as provided under the By-Laws. In granting permission the owner of Unit 1 understands that it is the owner’s responsibility to ensure that there is no unreasonable inconvenience to other lot owners as a consequence of the presence of the dog on the property. The dog to be kept on a lead at all times while entering & leaving the property and access to Unit 1 be through the garage entry and by the most direct route across the common property when the dog is entering or leaving the premises”.

On 25 February 2008, the Applicant wrote to Stephen Nicholson, Carole Jones and Mary Smithers and included in her correspondence a resolution for the extraordinary general meeting. The proposed resolution stated:

“That permission be granted for Unit 1 to keep a dog on the premises as provided under the By-Laws. Permission to the owner of Unit 1 is under the following conditions

On 23 June 2008, the Applicant wrote to Mary Smithers, Stephen Nicholson and Carole Jones about the Extraordinary General Meeting dated 27 June 2008 (June EGM) expressing concern about the inclusion of a weight condition in the motion when the dog weighs around 24kg stating the conditions will cause her to vote against her motion. On 25 June 2008, the Applicant informed Mary Smithers that the motion put to the June EGM was not the motion she had submitted and the conditions stated in the motion are designed to prevent keeping the dog currently owned by her son.

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

The committee
The committee opposed the application stating the question regarding a pet resulted in a lost motion as the Body Corporate had never given permission and the pet had the potential to impact the amenity of residents in the scheme and other blocks in close proximity. The committee submits that a friend of the Applicant’s son kept a small dog on the Lot and the exclusive use area for the Lot resulting in pet faeces not being cleaned from the pavers which residents indicated was offensive and a potential health hazard. The committee considers this shows the Applicant has little or no capacity to manage the activities of her son.

The committee submits that a boxer is a medium sized dog, the male usually weighs up to 35kg and the bitch 28kg. It says the Applicant is aware a boxer could not be construed to be a small pet and wanting to act reasonably, it agreed to conditions that would align with those asserted by the Applicant — small pet allowed. The committee’s view is that a small pet is 10kg or less.

The committee provided a copy of a motion proposed for the consideration of owners that proposed agreement to allowing the owner of Lot 1 to keep a pet under conditions such as: only 1 small pet is permitted (less than 10kg); the pet is to remain on the exclusive use area; the pet owner is to ensure there is no inconvenience to other owners; pet waste is to be cleaned immediately; the pet is to be exercised and not left on the property overnight if the pet owner is not there; and the pet is to be carried over common property. The committee states the conditions ensure the Body Corporate has the ability to manage arrangements and that any decision did not impact on the amenity of residents.

Owners
Janelle Zahmel of Lot 2 submits that as the owner of the adjoining Lot, she does not favour keeping dogs in unit blocks at all. Ms Zahmel states the small area and the proximity to others necessitate that the Body Corporate should be able to exercise some level of control of the type of dog allowed. She says allowing a dog with conditions was reasonable.

Stephen Nicholson of Lot 5 submitted he is concerned the Applicant wants to confine a medium sized dog in a small paved area and the scheme does not lend itself to keeping a pet.

Carole Jones of Lot 6 opposes the application saying a dog the size of a boxer is an inappropriate breed to be kept on a confined area. Ms Jones states her amenity will be adversely impacted from the dog barking and health concerns from flies on the dog’s faeces which was a major issue when the dog was previously kept on the scheme. She adds that adjoining schemes will be impacted.

Applicant’s reply to submissions
In response to submissions, the Applicant provided the opinions of Dr Letitia Cruickshank (BVSc. Hons) of Don Crosby Veterinary Surgeons, Dubbo NSW and Dr Benjamin Willcocks (BVSc. Hons) of Moruya Veterinary Hospital, Moruya NSW.

Dr Cruickshank states: “The area proposed to house a boxer dog at 1/60 Swann Road, Taringa, is deemed suitable for its residence. This recommendation has taken into consideration the owner, his lifestyle, the proposed residence and the location of the dog in relation to surrounding areas such as dog parks. All veterinary students are trained...in animal nutrition and welfare needs. Jonathan Sirasch...will be well aware of the exercise and social needs of a fully-grown 25kg dog...The welfare of the dog is not in jeopardy in the area proposed...The dog...is 25kg...Barking is a problem associated with boredom, territory assertion...Jonathon’s dog, with regular exercise, and limited street access for stimulation is unlikely to produce a barking habit. Being sheltered away from street traffic, walked daily, and not having already developed this problem makes the boxer an unlikely candidate to develop a barking problem. The boxer breed also tends not to be a barking breed. Therefore in my professional opinion, I deem the proposed area and exercise scheme suitable for a 25kg, 2 year old boxer breed dog...”

Dr Willcocks states: “I am writing in regard to Mr Jon Sirasch’s proposal to reside his boxer dog at 1/60 Swann Rd, Taringa. With consideration given to the welfare, practicality, convenience and intrusion to neighbours and local residents, I deem the residence to be very compatible for the dog in question. Boxer Dogs are a canine breed very well suited to residing in an urban environment. They are placid, good natured, and intelligent animals...in my professional opinion, this dog can be suitably housed in an urban environment, such as an apartment block or intensively housed estate, and is more than capable of being trained to be quiet and well behaved...I have no hesitation in guaranteeing that the living arrangements available for the boxer in question satisfy all welfare concerns regarding the animal...Being a veterinary student...Jon Sirasch is more than capable of assessing the health of the animal...Students of the BVSc degree get a firm grounding in animal welfare, animal behaviour and the management and modification of behavioural traits, and the importance of exercise and environmental enrichment for a pet. Therefore, I am more than confident that Mr Jon Sirasch is capable of managing all of these issues appropriately and for the benefit of neighbours and of course his dog...”

The Applicant states the conditions submitted for consideration by the Body Corporate knowingly excluded the particular dog subject to the request. She says the boxer which was on the exclusive use area of Lot 1 belonged to a local veterinary student who brought the dog to the Lot on a number of occasions over a week. The Applicant submits that she asked that he not visit with the dog.

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

Jurisdiction
An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, 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).

Investigation
The Body Corporate was created under the Building Units and Group Titles Act 1980 (BUGT Act) when the registrar of titles registered Building Units Plan 11968. A search of the registrar’s records indicates that on 4 November 1992, the registrar recorded a ‘Notification of Change of By-Laws’ which included By-Law 10 stating: “Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal or bird upon his lot or the common property”. Since 2000, a standard community management statement recorded under the Act has applied to the scheme.

On 9 April 2009, I requested the Body Corporate Manager provide a copy of the minutes of the June EGM.

Scheme by-laws
As the standard CMS applied at the time of the June EGM, the abovementioned By-Law 10 had effect (s 337 and s 339(4)(g) and (5), Act). The By-Law provides discretion regarding keeping an animal on a lot or the common property. A proprietor (owner) or occupier requires Body Corporate approval before keeping an animal on scheme land.

The copy of the minutes of the June EGM provided by the Body Corporate Manager includes Motion 4 where it was resolved that By-Law 10 be changed. While the Body Corporate decided to change the By-Law, the change does not have effect until the registrar records a new CMS including the by-law (s 179, Act). Once a body corporate consents to recording a new CMS it must prepare and lodge the new statement in accordance with sections 63 to 65 of the Act. Section 65(1) provides that a request to record the new statement must be lodged with the registrar within three months of the consent. There is no evidence that the Body Corporate has implemented the resolution passed on Motion 4 in the way required by the Act.

Body Corporate consideration of request to keep dog on Lot 1
Other than a reference to consideration of this issue at the annual general meeting held in 2007, Motions 3 and 4 at the June EGM related to keeping an animal on scheme land (I have already mentioned Motion 4). Motion 3 submitted by the committee dealt with an application to keep a pet on Lot 1. The minutes for the Motion include a brief reference is made to a motion from the Applicant stating: “...the owner of Unit One has submitted a motion seeking that permission be granted for the resident of Unit One to keep a dog on the premises.” The minutes then state three potential actions: change the by-law to exclude pets; support a motion on pets with a number of reasonable conditions; and not support the owner of Lot 1’s motion to keep a pet. The minutes note the committee decided the most reasonable way forward is to prepare a motion in keeping with the action that the Body Corporate does not support the owner of Lot 1’s motion to keep a pet but which will provide the owner with permission to keep a pet. Motion 3 proposed agreement to granting the owner of Lot 1 the right to permit the resident of the Lot a pet dog under 15 conditions (which included those I mentioned under submissions from ‘The Committee’). Motion 3 was carried by 3 votes to 0.

Even though the resolution has not been specifically challenged, the Applicant has questioned it stating it was not in the form she submitted. The Applicant has provided material suggesting that in early 2008 she submitted motions to the Body Corporate relating to keeping a dog on Lot 1. This material has not been disputed. There is no evidence that both motions were subsequently withdrawn by the Applicant. Subject to statutory limitations not relevant in this dispute, a motion submitted by a lot owner must “be included on the next general meeting agenda on which it is practicable to include the motion” (s 69(2), Standard Module). The minutes of the June EGM refer (at Motion 1) to confirming the minutes of the Annual General Meeting dated 19 September 2007. Given the agenda of a general meeting must include a motion to confirm the minutes of the last general meeting, it can be concluded the September 2007 meeting was the last general meeting held before the June EGM (s 76(2)(v), Standard Module). In the absence of information to the contrary, I consider the second motion submitted on 25 February 2008 is the latest request to keep a dog. This motion should have been included on the agenda of the June EGM. The mere reference to a motion submitted by the Applicant is insufficient. The voting paper included in the notice of the general meeting must state the motion in the form in which it is submitted without amendment and the name of the person submitting the motion (s 70 and s 71(5)(a)(i) and (ii), Standard Module).

While there is nothing to prevent the committee submitting a motion proposing an alternative action to that suggested by a lot owner and while the motion does refer to the request for the occupier of Lot 1 to keep a dog, it is significant that the Applicant’s motion was not included in the voting paper for the June EGM in the form submitted. The Applicant proposed a motion requesting Body Corporate approval under By-law 10 to keep a dog on Lot 1. The motion included 3 conditions. While the committee may have opposed the submitted motion, the Body Corporate has acted contrary to the legislation by not including the Applicant’s motion on the agenda of the June EGM in the form submitted and by only including an alternative proposal from the committee.

I do not consider the motion submitted by the committee and voted on as Motion 3 replaces the legislative requirement to include the Applicant’s motion. She clearly does not agree with some of the conditions stated in the Motion. In the absence of any agreement with the person proposing to keep the dog, there would seem to be no purpose putting the Motion to owners. It is evident from correspondence between the Applicant and Mr Nicholson dated prior to the June EGM that the intent was to keep a boxer dog. The Applicant is rightly concerned the resolution passed contains at least one condition which would seem to be designed to prevent keeping the boxer dog. While the Applicant’s motion lacks any information about the dog, it is evident from earlier correspondence that there was knowledge the dog was a boxer, a breed of dog weighing well above the 10kg weight limit stated in the first condition.

In my view, the Body Corporate has not given proper consideration to the request made by the Applicant.

Decision
However, this finding does not necessarily warrant an order in the terms sought. Body Corporate consideration of a request such as the one proposed here must be based on its merits. The circumstances must be considered. There is an obligation on the person making the request to provide sufficient information to the Body Corporate. In my view, the request made by the Applicant to the Body Corporate and the information contained in this application does not provide sufficient detail.

The Applicant’s motion did not provide information about the dog being proposed to be kept on Lot 1. There is no evidence that explanatory material was provided by the Applicant for inclusion with the motion. While I have noted correspondence from the Applicant to some owners and the Body Corporate Manager referred to the dog as being a boxer, it is significant that the material submitted by the Applicant for inclusion on the agenda of a general meeting did not contain information to identify the dog or the person who would keep and be responsible for the dog. There is no evidence that all owners have been given the same specific information about the dog actually being proposed to be kept on the scheme. While reference is made to the type of dog, there is little specific information about the animal. In the reply to submissions, the Applicant provided statements by two veterinarians about the dog. However, there is no evidence this information has been provided to the Body Corporate or owners. The Body Corporate should be giving consideration to a proposal to keep particular dog; not general approval to keep a dog. In addition, the motion refers to permission being given to the Applicant owner, yet it would seem the Applicant’s son will keep the dog. There is no evidence that the Applicant will be occupying a lot included in the scheme. There is nothing from the occupier stating his intentions, including that he wants to keep a particular dog or that he agrees to the conditions mentioned by the Applicant in the motion she submitted to the Body Corporate.

In these circumstances, I do not consider there is any basis to make an order in the terms sought. For these reasons, I have dismissed the outcome sought. In making this decision, I have not reached any conclusions about the request to keep a boxer dog on Lot 1 or the adjoining exclusive use common property.

As this decision effectively leaves the matter unresolved, I consider it is appropriate for the order to contain ancillary provisions. The motion submitted by the Applicant on 25 February 2008 for a dog to be kept on Lot 1 needs to be properly considered by the Body Corporate in the form submitted unless it is withdrawn. For this reason, I have ordered the Body Corporate to include the submitted motion on the agenda of a general meeting to be held within two months of the date of this order. The Applicant may choose to withdraw the motion and may decide to provide the Body Corporate with another motion and if she considers it necessary, related explanatory material. The submitter of a motion may give the secretary an explanatory note about the motion which must be included in an explanatory schedule if the note is not longer than 300 words (s 73(1)(a), Standard Module). The Applicant may wish to redraft the proposal given the indication by owners voting at the June EGM and the comments I have made in this statement of reasons.
If the Applicant proposes providing additional explanatory material to that stated in the regulation, she can correspond with lot owners.

It should be noted that section 94(1)(a) of the Act provides that a body corporate must enforce the community management statement, including any by-laws. Section 94(2) provides that the body corporate must act reasonably in anything it does under section 94(1) including making or not making a decision. With respect to submissions opposing the application, it should be noted that a request to keep an animal pursuant to By-Law 10 must be considered on its merits. The potential for there to be a problem, a past experience with another animal, or personal views about keeping an animal in a community titles complex do not necessarily constitute an objective basis for opposing a proposal to keep an animal. In addition, I am not convinced of the basis for restricting keeping animals to a small pet and for defining such a pet as being less than 10kg. If the Body Corporate opposes a motion about keeping a dog, consideration can then be given to making a further dispute resolution application on the basis for example, that the Body Corporate acted unreasonably in making the decision.

It is not in dispute that the resident is the son of the Applicant. While the Applicant has taken action about, it would seem, the son keeping a dog, the By-Law and the legislation contains provisions about occupiers. The By-Law allows approval to be given to an occupier, a person who is bound by scheme by-laws in a similar way to owners (s 59, Act). Further, section 167 of the Act provides for nuisance and provides: “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”.

Number of Scheme:	3632
Name of Scheme:	Tallaringa View
Address of Scheme:	60 Swann Road TARINGA QLD 4068

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Tallaringa View [2009] QBCCMCmr 188 (14 May 2009)