Kamilaroi [2009] QBCCMCmr 370 (1 October 2009)

Last Updated: 12 November 2009

REFERENCE: 0406-2009

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3403
Name of Scheme:	Kamilaroi
Address of Scheme:	3 Clancy Court TUGUN QLD 4211

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

Tina Kennedy, the Owner(s) of lot 50

I hereby order that Tina Kennedy, owner of lot 50 (applicant) is authorised to keep the cat that is currently being kept within her lot provided that: The cat is kept within the boundaries of lot 50 at all times (except that it may be carried across common property to a motor vehicle in lot 50’s car space if it is necessary for the cat to leave the lot); The cat is kept hygienically in accordance with any reasonable actions appropriate for keeping the cat in good health; This authorisation does not allow the keeping of any cat other than the cat currently being kept within lot 50; and This authorisation may be withdrawn by the committee if the cat constitutes a nuisance to other occupiers.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0406-2009

“Kamilaroi” CTS 3403

Application

Kamilaroi Community Titles Scheme (Kamilaroi) is a 54 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

This application is by Tina Kennedy, owner of lot 50 (applicant) seeking orders against the body corporate for Kamilaroi (respondent). The applicant says that the body corporate has acted unreasonably in refusing to authorise her to keep a cat pursuant to by-law 11 for the scheme.

Background

By-law 11 for Kamilaroi provides:

11. KEEPING OF ANIMALS
    • (1) The occupier of a lot must not, without the body corporate’s written approval -
      1. bring or keep an animal on the Lot or the common property, or
      2. permit an invitee to bring or keep an animal or bird on the lot or the common property.
    • (2) The occupier must obtain the body corporate’s approval before bringing, or permitting an invitee to bring, an animal onto the lot or the common property.

Submissions

The applicant says that, in November 2008, she provided a key to the manager to investigate a roof leak and requested that the manager not allow her cat outside. She says that the manager then informed her that the complex had a ‘pet free’ policy. The applicant says that she has a friendly relationship with her immediate neighbours and they have never raised any concerns about her cat, that she is aware other units keep birds, and that there is no good reason for the body corporate refusing to allow her to keep a cat in her unit. In particular, she has provided information indicating that most animal professionals support cats being kept as indoor pets and argues that no other occupiers are adversely affected by her keeping a cat in her unit.

The committee has submitted that the applicant was treated with respect and due sensitivity for her problem. It is submitted that the committee prefers no animals be allowed in order to prevent problems rather than have to manage problems. In particular, it is submitted that allowing the applicant to have a cat would set a precedent for every other resident and create problems for management in determining what pets can be allowed, cleanliness issues, noise, damage and liability.

Submissions have been requested from all owners. Submissions in support of the application include submissions to the effect that:

• The cat seems to be well cared for and not a problem to other tenants or owners;
• It would be cruel to deny the applicant’s request as long as the applicant promises to keep control of the animal at all times;
• The cat has been in the unit for over a year, has caused no problems whatsoever, and the applicant’s neighbours are happy for her to keep the cat. An exception should be able to be made on the conditions the applicant has agreed to.
  

Submissions against the application are to the effect that:

• The by-laws do not allow any owner to keep an animal and were set a long time before the applicant purchased her unit;
• Allowing a pet may create a precedent and tenants might automatically assume they can keep a pet;
• The by-law banning pets in unit blocks was put in for obvious reasons and the question is not so much whether to agree to a house trained cat but the principle of pets in general in community living;
• I knew that no pets were allowed because of the by-laws and this was one of the reasons I purchased the unit because of allergies, including an allergy to animal hair;
• Allowing the cat could result in more pets causing environmental damage to the reserve behind the scheme;
• Body corporate rules exist for a reason and no exceptions to the rules should be made.

Decision

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. 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)). Further, by-laws cannot be inconsistent with the Act (Act, 180).

Animal by-law

By-law 11 prohibits the keeping of animals without body corporate permission. Therefore, if an occupier wishes to keep an animal they should first seek written permission. The body corporate then has a discretion whether to grant or refuse authorisation to keep any particular animal. However, the body corporate must act reasonably in exercising this discretion (Act, 94).

“No pets” policy

Most submissions opposing the application indicate a fundamental misapprehension that by-law 11 prohibits pets being kept at Kamilaroi. In fact, by-law 11 allows occupiers to keep pets provided that the occupier has the written permission of the body corporate to do so.[1]

In deciding whether or not to grant written approval for the keeping of a pet the body corporate must act reasonably (Act, 94(2)). It is not appropriate to adopt a “no pets” policy and apply that policy as a blanket rule. Rather, the discretion to approve or refuse a particular animal should consider the individual circumstances. It is not reasonable to apply a policy as a hard and fast rule.

I note that owners may wish to limit possible arguments about criteria upon which pets may be approved by amending by-law 11 to place more specific restrictions on the keeping of pets. However, it may be prudent to ensure that any changes to the by-law are not so restrictive as to unreasonably prevent an occupier from keeping a pet in circumstances where the keeping of that pet could not rationally cause any difficulty to any other lot owner.[2]

Should the respondent’s cat be approved?

Contravention of by-laws is a serious matter. I consider that the applicant has significantly contributed to the acrimony of the dispute by failing to seek the body corporate’s written permission prior to bringing the cat onto her lot. However, I do not consider it just and equitable to require the respondent to remove her cat simply because she brought it onto the scheme without permission from the committee. Rather, it is necessary to look at the merits of allowing the respondent to keep the cat.

I accept submissions to the effect that the cat has been kept within the applicant’s lot for a substantial period of time without causing any problems to any other occupier. In particular, while the owner of lot 29 has submitted that he is allergic to animal hair, I note that lot 29 is located in a separate building to lot 50 and there is no evidence that the keeping of a cat in lot 50 contributes to any allergies of the occupiers of lot 29 or to any other occupiers.

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute including overturning a resolution and giving effect to a motion as necessary (Act 276, Schedule 5 Items 8, 10). I am satisfied in the circumstances that the committee and body corporate have failed to Act reasonably by failing to approve the applicant’s cat in circumstances where the by-law allows approved animals to be kept and where there is overwhelming evidence that the cat is kept within the applicant’s unit and does not interfere with the use or enjoyment of the scheme by any other occupier (Act, 84(2), 100(5)). In the circumstances, I will make an order that will authorise the applicant to keep her cat pursuant to by-law 11. In doing so I consider it appropriate to add some conditions to the authorisation to address concerns other occupants may have about the keeping of the cat. These include conditions to require the cat to be confined to the lot and to require the cat to be carried if it is necessary to take it across common property. The respondent should be aware that the cat will need to be removed from the scheme if it causes nuisance to other occupiers (Act, 167).

Order

For these reasons, I make the order above.

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[1] Although, note that if the occupier is a tenant then the occupier would also need to comply with any relevant obligations under the lease, for example, obtaining written permission of the landlord to keep a pet within the landlord’s unit.
[2] Tutton v Body Corporate for Pivital Point Residential [2008] CCT KA005-08 at paragraph 35.