Le Parc [2009] QBCCMCmr 55 (18 February 2009)

Last Updated: 9 March 2009

REFERENCE: 1025-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	308
Name of Scheme:	Le Parc
Address of Scheme:	3 Chester Court MANUNDA QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Kenneth and Raylee Rickard, the owner of Lot 2

I hereby order that the body corporate for Le Parc community titles scheme 308 is deemed to have given approval under By-Law 14 to Kenneth and Raylee Rickard, the owner of Lot 2 to keep the Jack Russell Terrier dog which is presently being kept on Lot 2 subject to the following conditions: The dog must be restrained on a leash whenever it is on common property for the scheme. The owner of Lot 2 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.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1025-2008

“Le Parc” CTS 308

The scheme
“Le Parc” community titles scheme 308 is subject to the Body Corporate and Community Management Act 1997 (Act).

Application
This application made on 28 November 2008 is by Kenneth and Raylee Rickard, the owner of Lot 2 (Applicants) against the Body Corporate seeking an outcome: “that their dog, a Jack Russell Terrier, be permitted to reside with them at Lot 2 of the Le Parc Community Titles Scheme at Chester Court subject to reasonable conditions imposed in relation to the management and control of the animal”.

The Applicants submit, by way of background, that after they unsuccessfully originally applied for permission to keep the dog at Lot 2, the Body Corporate made a conciliation application under the dispute resolution provisions of the Act. The Applicants state that as a consequence of a conciliation agreement dated 21 October 2008, they made another request to the Body Corporate to keep the dog.

The Applicants provided a copy of a letter dated 27 October 2008 to the Body Corporate (written by Williams Graham Carman Solicitors for the Applicants) requesting permission to keep the dog and stating:

• The dog is approximately 14 years old and is kept in excellent condition. The letter attached a letter dated 1 October 2008 from Paul Matthews of Balaclava Veterinary Surgery stating he found the dog to be in good health and condition. Also attached was a letter dated 23 September 2008 from Diane Ward of Kuranda Pet Resort saying the dog: has boarded at the facility for a total of 12 days; was extremely well behaved; was well groomed; and did not bark excessively or cause any trouble.
• They are not aware of any complaints about the behaviour of the dog.
• On 16 May 2008, they had written to The Community Managers (Body Corporate Manager) seeking permission to keep the dog. They say this was within weeks of keeping the dog on the Lot and that neither this nor later emails were responded to.
• The dog benefits Mr Rickard by motivating him to exercise more frequently.
• By-Law 11 is drafted in a permissive way and cannot be interpreted as banning all animals. The letter refers to a previous adjudication made under the Act on this point [Banksia Lodge [2005] QBCCMCmr 39 (27 January 2005)].
• The dog: is kept within Lot 2; has not barked or disturbed other owners or occupiers; has never soiled common property; is exercised twice a day; and is kept on a leash at all times while moving across common property.
• They are willing to comply with reasonable conditions imposed by the Body Corporate including: the dog will always be on a lead when on common property; the dog will otherwise be confined to Lot 2; the dog would not cause a nuisance or disturbance to other owners or occupiers; and the dog would not be the source of any odour or cause any concern for the health and safety of other owners or occupiers.
• They intend to move to another residence in the future and that the dog then will only be kept on the Lot on weekends or sporadically.
  

The Applicants provided a copy of a resolution passed outside a committee meeting on 5 November 2008 where 4 committee members voted against the motion: “That the owners of Unit 2 be permitted to house their Jack Russell Terrier within the confines of the Unit, as per attached written application outlined by Williams Graham Carman Solicitors”.

The Applicants provided a copy of a letter dated 10 November 2008 from the Body Corporate Manager who on behalf of the committee informed the Applicants that: “The committee has declined your request for a dog to be kept in Unit 2. Please ensure that your animal is removed from the premises within the next 7 days. Failure to remove your pet within this time will result in the direct involvement of the Body Corporate; you will be in contravention of the scheme’s by-laws, more specifically, keeping a pet without the written approval from the Body Corporate Committee. This will result in Contravention Notices being issued without further notice. To avoid this and subsequent costs, your immediate co-operation is appreciated”.

The Applicants has restated the terms of the abovementioned 27 October 2008 request to the Body Corporate as grounds on which this outcome is sought saying the committee has not acted reasonably or fairly in refusing permission for the dog to be kept on the lot.

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 Applicants) and the committee, with an invitation to respond to the matters raised in the application (s 243, Act).

The committee responded referring to a letter from Mrs Rickard dated 16 August 2002 stating: she would not be so as unkind as to keep a dog penned indoors; allowing a dog to be kept in Unit 4 would set a precedent; and it would be a disaster for animals and dwellers; and common sense and good manners should prevail. The committee submits that the May 2008 email was never received by the Body Corporate Manager and that it was not made until after the Applicants had been given a by-law contravention notice dated 15 May 2008. It says Mrs Rickard (as a previous secretary) was well aware of the by-laws and should have sought approval prior to the dog’s arrival. The committee submits that to date approval has not been granted. The committee submits that for continuity and consistency the application for permission to keep a dog must be denied.

The Applicants made a written reply to submissions stating the discretionary nature of the By-Law requires the Body Corporate to consider each case individually on its merits. With respect to the 2002 letter, the Applicants state Mrs Rickard is entitled to have a genuine change of heart given the change in her and her husband’s circumstances.

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).

Investigation
The by-laws applying to a scheme are stated in the community management statement (CMS) recorded by the registrar of titles, Department of Natural Resources and Water (s 52 and s 168, Act).

Schedule C of the CMS for the scheme (702808980) recorded by the registrar on 31 July 1998 includes By-Law 14 relating to keeping animals and stating:

(a) Subject to Section 143 of the Act, an Occupier must not, except with the consent in writing of the Body Corporate Committee:

• (i) bring or keep an animal or bird on the Lot or the Common Property, or
• (ii) permit an Invitee to bring or keep an animal or bird on the Lot or the Common Property.

(b) Any consent of the Body Corporate Committee may be:

• (i) given on conditions, and
• (ii) withdrawn at any time.

Scheme by-laws
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).

A function of the Body Corporate is to enforce the CMS, including the scheme by-laws (s 94(1)(b), Act). In doing so, the Body Corporate must act reasonably, including making or not making a decision (s 94(2), Act). A decision of the committee (other than a decision on a restricted issue) is a decision of the body corporate (s 100(1) and (2), Act). The committee must act reasonably in making a decision (s 100(5), Act).

Sections 182 to 188 of the Act make provision for by-law contraventions. Relevantly, section 182 provides that if a body corporate reasonably believes that a lot owner is contravening a by-law and the circumstances make it likely that the circumstances will continue, the body corporate may give a continuing contravention notice to the owner to remedy the contravention.

It is not disputed that the Body Corporate gave the Applicants a contravention notice. In giving the notice, it would seem the Body Corporate reasonably believed the Applicants were keeping the dog on Lot 2 without consent. The Body Corporate was entitled to take this action in the circumstance where it reasonably believed the dog was being kept on the Lot in contravention of By-Law 14 (although I note from the copy of the notice provided by the Applicants that the Body Corporate referred to a by-law 11).

By-Law 14
The Applicants quoted a by-law 11 in the grounds to the outcome sought. The by-law cited is the same as By-Law 11 as stated in schedule 4 of the Act. This by-law does not apply to the scheme (s66(1)(e), Act). While the Applicants have mentioned the incorrect by-law, its terms are similar to By-Law 14. Significantly, as argued by the Applicants, 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.

While the Applicants erred in bringing the dog onto the Lot without the requisite approval, this fact alone should not prevent the committee, acting reasonably, from giving consideration to the subsequent request for approval. This should be the case whether or not the Applicants had known about the By-Law or had earlier expressed an unfavourable opinion about the keeping of an animal on a lot included in the scheme. While the submitted reason for denying approval is not necessarily in the terms of a ‘no pets’ policy, it could be argued that “for continuity and consistency” is essentially the application of a policy of this nature. As pointed out by the Applicants, 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 14, it cannot impose a ‘no pets’ policy (See also for example, 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, an 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

Detailed information was provided to the committee by the Applicants. This information should have been considered on its merits. Yet the resolution of the committee and the subsequent letter of advice to the Applicants did not explain the basis for the committee denying the request. While the committee has the power to refuse an owner’s request to keep an animal, there must be a reasonable basis for the decision (s 100(5), Act).

Decision
In my view, nothing has been presented demonstrating that the committee gave consideration to the circumstances stated by the Applicants in their request. The Body Corporate has been provided with specific information about the dog, including information from persons who I would regard as being independent and being able to form an opinion on the dog. The information in this application is in terms similar to that provided to the Body Corporate and has not been specifically questioned or challenged. At the time the request was made to the committee, it is evident that the dog had been kept on Lot 2 for some time. No material has been forwarded to indicate that the dog has caused a nuisance, inconvenience or there is another reason to support a reasonable view that the dog should not be allowed to be kept on scheme land. In this regard, it is significant that there was no response to the Commissioner’s invitation to owners to make submissions about the application.

In my view, the committee has failed to provide good reasons for refusing to approve the Applicants request to continue to keep the dog. While the circumstances of the initial reluctance of the Applicants to request permission are unclear, it is apparent that the Applicants presented a detailed case for committee consideration including, information from Paul Matthews of Balaclava Veterinary Surgery and Diane Ward of Kuranda Pet Resort. The committee has not provided any material to cast doubt on this explanation. Neither has the committee demonstrated there are concerns relating to the dog given that it has been kept on the Lot for a number of months. There is no reason to doubt the veracity of this evidence. In the circumstances, I consider the committee acted unreasonably in refusing permission to keep the dog on Lot 2.

For the reason that I do not consider the Applicants should now have to apply to the committee for approval, I consider it is just and equitable that I make an order deeming Body Corporate authorisation to the Applicants to keep the dog on Lot 2 subject to conditions similar to those agreed to by the Applicants. A number of the conditions stated by the Applicants relate to nuisance and I have included reference to section 167 of the Act in the order. This section states:

167 Nuisances

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.

The order does not prevent any subsequent Body Corporate decisions 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, clause 19 of Schedule 5 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.