Sailview Villas [2009] QBCCMCmr 416 (26 October 2009)

Number of Scheme:	19334
Name of Scheme:	Sailview Villas
Address of Scheme:	21 - 27 Glenora Street WYNNUM QLD 4178

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Robert Gallagher, a co-owner of Lot 4

I hereby order that the body corporate for Sailview Villas community titles scheme 19334 is deemed to have given approval under By-Law 15 to Robert Gallagher, a co-owner of Lot 4 to keep a Staffordshire bull terrier on Lot 4 subject to the following conditions:

The dog must be restrained on a leash whenever it is on common property for the scheme.
Mr Gallagher must ensure the dog 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 scheme
“Sailview Villas” community titles scheme 19334 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application made on 4 June 2009 is by Robert Gallagher, a co-owner of Lot 4 (Applicant) against the Body Corporate seeking an outcome: “to acquire and keep a small dog (Staffordshire bull terrier) at my residence”.

The Applicant believes his request is reasonable given the location of Lot 4, there is a large backyard area for a small dog, and there is minimal traffic past the Lot. He submits that as stated in his letter to the committee, he has owned this breed of dog before and is familiar with their temperament and training requirements. The Applicant states the dog would be enclosed in the backyard and would not have access to common property. He says he does not foresee any problems with this breed causing annoyance by habitual barking. The Applicant adds that if this occurred, he would take steps to remedy the problem by seeking professional help. He submits the dog will always be on a leash while on common property and if the dog does soil the common property, he will immediately clean up. The Applicant undertakes to ensure the dog will not cause a nuisance to other occupiers.

Submissions to the Commissioner
On 10 June 2009, 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). On 12 June, the Manager informed the Commissioner that the documentation had been distributed to owners.

On 6 July 2009, a representative of the Body Corporate Manager informed the Commissioner that the committee would not be putting in a submission.

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 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).

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 21 October 2009 I asked the Applicant to provide information about the current circumstances with respect to keeping a dog on Lot 4. The Applicant responded on 22 October 2009.

Scheme by-laws
The keeping of a dog on a lot is primarily regulated by By-Law 15 in schedule C of the community management statement for the scheme which was recorded by the registrar of titles on 14 May 2001 (No. 704754136). The By-Law states:

The community management statement 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 15
Significantly, the By-Law provides discretion regarding keeping an animal on a lot or the common property. An occupier requires the approval of the committee before the occupier can keep an animal on scheme land. Prior to bringing or keeping the dog mentioned in the outcome sought, the Applicant informed the committee stating information of the nature stated in the grounds on which the outcome is sought. He submitted a motion for consideration by the Body Corporate in general meeting. It is apparent the Body Corporate opposed the Applicant’s proposal.

A function of a body corporate is to enforce the community management statement, including the by-laws (s 94(1)(b), Act). A body corporate must act reasonably in anything it does under section 94(1), including making a decision for the subsection (s 94(2), Act). In determining whether the Body Corporate acted reasonably in deciding Motion 13 it is appropriate to consider if the decision is objectively reasonable: Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’: Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621 (see also McKinnon v Treasury [2006] HCA 45 per Hayne J at p61).

The Applicant is entitled to dispute the reasonableness of the decision made by the Body Corporate at the AGM. There is nothing in the minutes of the meeting to explain the basis for the opposition. Despite the Commissioner’s invitation, neither the committee nor owners made submissions outlining the reasoning for opposing the Motion. One owner supported the application. In the absence of any feedback from the Body Corporate or owners, it is difficult to assess the justifiable basis for opposing Motion 13 particularly when the Applicant was not keeping the animal on the Lot. The circumstances suggest he has acted appropriately and in accordance with the By-Law.

Although not apparent in this matter, a common reason for opposing an occupier keeping an animal on a lot in a community titles scheme is a ‘no pets’ policy. If this is the case in this matter, it should be noted that there have been a number of decisions made by adjudicators under the dispute resolution provisions of the Act stating that when a body corporate has adopted a discretionary by-law of the nature of By-Law 15, it cannot impose a ‘no pets’ policy (Waters Edge on the Broadwater [2008] QBCCMCmr 83 (10 March 2008); The Mews Bowen Hills [2008] QBCCMCmr 94 (13 March 2008); and Riviera Southbank Apartments [2008] QBCCMCmr 72 (3 March 2008)).

Further, any argument about the creation of a precedent is not a relevant consideration while the By-Law provides discretion. A decision to approve a particular animal to be kept on the scheme does not create a precedent to the extent that the Body Corporate would be powerless to prevent any animal from being kept on scheme land

Decision
In my view, the Applicant provided detailed information to the committee about keeping the animal. While it is not known if this information was also given to owners, the grounds to this application clearly explain the matter in dispute. This information was given to owners by the Body Corporate Manager when the Commissioner invited submissions. The information should have been considered on its merits.

Nothing has been presented demonstrating that the Body Corporate gave consideration to the particular circumstances stated by the Applicant. The Body Corporate has been provided with specific information about the dog, including information about the Applicant’s commitment to ensure that the dog does not cause a nuisance. The information in this application is in terms similar to that provided to the Body Corporate and has not been specifically questioned or challenged. It is significant that there was no response to the Commissioner’s invitation to owners to make submissions about the application. No material has been provided that casts doubt on the explanation provided by the Applicant.

It is evident from the information provided by the Applicant to me on 22 October 2009 that he has not yet obtained a Staffordshire bull terrier and that he still would like to do so. In my view, there are no circumstances which were apparent when the Body Corporate opposed the Applicant’s request, and there are none evident now, which would suggest that the Body Corporate could reasonably refuse permission to the Applicant to keep the dog on Lot 4.

For these reasons, I have made an order deeming Body Corporate authorisation to the Applicant to keep the dog on the Lot subject to conditions similar to those agreed to by the Applicant. I have included reference to section 167 of the Act in the order. This section states:

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—

(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.

The order does not prevent any subsequent Body Corporate decision or a subsequent dispute resolution application being made should for example, the dog 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 the schedule states an adjudicator may order the removal of an animal if satisfied the animal is causing a nuisance or a hazard or unduly interfering with someone else’s peaceful use and enjoyment of another lot or common property.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Sailview Villas [2009] QBCCMCmr 416 (26 October 2009)