The Groves No. One Minyama [2010] QBCCMCmr 159 (6 April 2010)

Number of Scheme:	21078
Name of Scheme:	The Groves No. One Minyama
Address of Scheme:	2 Longwood Street, MINYAMA QLD 4575

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

I hereby order that the application for an order that Jo Brosnahan, occupier of Lot 50 (unit 59), removes within seven days the dog currently maintained by her at unit 59, is dismissed for the reasons set out more particularly herein.

In respect of the application for an order that barbed wire is removed from a fence at Lot 50, this outcome sought is, at the request of the body corporate, dismissed.

This is an application dated 13th October 2009 by the body corporate for The Groves No.One Minyama CTS 21078 (the body corporate) against Jo Brosnahan (the respondent) occupier of Unit 59, (Lot 50) for orders that she cease the contravention of by-laws 8 and 15 as follows –

On 25th March 2010, the body corporate advised that the barbed wire had now been removed, and that the body corporate sought only a dispute resolution in respect of the dog. References to the barbed wire in the application and in the submissions have not been considered.

“The Groves No. One Minyama” CTS 21078 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 65 lots in the scheme created under a Group Titles Plan of subdivision.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

A proprietor or occupier of a lot shall not keep any animal upon the lot or the common property.”

The committee decided at its meeting on 21st August 2009 that a dog kept by the respondent on the lot, respectively breached the above-quoted by-law.
On 21st September 2009, the body corporate sent the respondent a “Notice of Continuing Contravention of Body Corporate By-Law” (BCCM Form 10) giving her seven days to cease the contravention in respect of keeping the dog in the unit.

In accordance with section 243(2)(b) Act all owners were invited to make submissions.

There were 19 submissions in support of the application, which submissions can be condensed to the following issues-

There was one submission against the application, and one neither for nor against. These submissions note as follows –

The body corporate exercised its right of Reply. It says that the submission about the by-law wording is out of date, and that by-law 15 was re-worded in 2008 as quoted. Residents in the same street as Lot 50 “regularly complain” about the barking and whimpering from the dog to the Council. An officer from the Council has visited the Respondent. In respect of the allegations that there are concerns for the respondent’s safety, the body corporate is aware that the respondent has blamed incidents on a particular resident who has been reported to the police although no action was taken after a police interview. If the respondent does not feel safe, that is a personal matter and not a “mandate belonging to the Committee.”

The body corporate also advised in response to a request for further information that the dog was a medium-sized Staffordshire bull terrier, and that one other owner in the scheme has a dog prior to the by-law being changed to prohibit the keeping of animals.

In this matter the fact that the respondent is keeping a dog at Unit 59 (Lot 50), does not appear to be in dispute. The respondent has chosen not to make a submission.

In respect of the dog, the body corporate relies on the very plain wording of by-law 15, which in effect prohibits the keeping of any animal; that is, the permission of the committee is irrelevant and not a pre-requisite. The body corporate could not in the light of by-law 15 give permission to an owner to keep “any animal” even if it wanted to.

A proprietor or occupier of a lot shall not keep any animal upon the lot or the common property.”

Section 94 Act requires the body corporate to act reasonably in anything it does to administer the common property, enforce the community management statement and carry out its functions.

Further section 180(7) Act says that a by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.

The words “any animal” in By-law 15 are not defined in the community management statement, but in an appeal decision from an adjudicator’s order, it has been held by the Consumer and Commercial Tribunal (CCT) that a by-law which had the effect of prohibiting all animals, “even a goldfish” must be an unreasonable by-law, since a goldfish could have no effect, nor cause any harm to other occupiers.

“34. ...[I]f in the determination of this proceeding it can be held that the meaning given to “animal” in the new by-law 16.1 is a meaning which makes the particular provision “unreasonable” because it has the effect that an animal such as a gold fish is also the subject of the absolute ban once all “prior” approvals have been spent, it is open to the Tribunal to decide that the provision is invalid as being unreasonable. .......

35. .. Since there is clearly no rational basis upon which it can be said that the keeping of a gold fish in a safe and healthy environment could be a matter which could cause any difficulty to any other lot owner, yet is the subject of an “absolute” ban, the conclusion is fairly open that such a by-law is “unreasonable”.[1]

Following this decision, an adjudicator in Koongamiah [2], faced with a similar by-law where no animals were to be brought onto a lot or common property, and where “an animal” was defined to include birds and fish, found that the by-law was unreasonable. The applicants in that case had sought an order that the by-law was amended or removed.

There is no requirement under the legislation that a prior order creates a precedent, but I am of the view that the ruling of an appellate body gives good guidance as to how the law is to be interpreted on a particular issue. Where the issue is on all-fours with the issue in dispute, there would logically need to be extraordinary circumstances present for the appellate body’s view to be varied or ignored.

I am of the view that leaving “any animal” undefined does not assist. In everyday speech, when one talks of animals, the common view is that one is talking about mammals, and that “birds” and “fish” are not “animals“. However, all are zoologically classified as fauna. The lack of definition, or lack of reference to a definition, simply creates uncertainty as to whether a keeping a goldfish or parrot would be breaching by-law 15.

If the test is that the animal must not be capable of causing “any difficulty” to a another owner (in which I would include, any occupier) then the goldfish might not reasonably be refused, whereas the parrot, or a particular parrot, might be “reasonably” unwelcome.

It seems to me that in the light of the Pivotal Point case, that by-law 15 is unreasonable and therefore unenforceable through a by-law contravention notice, or otherwise. If by-law 15 sought to prohibit only cats or dogs (which I believe is its main intention), or farm animals, or particular species which have the capacity to annoy others, then it might well be considered reasonable. It is the blanket ban on everything from a cow to a canary which the CCT in Pivotal Point said was unreasonable since certain species of animal could “on no rational basis” cause “any difficulty to any other lot owner.”

I must therefore dismiss this application and find that By-law 15 as it stands, is unenforceable.

The CCT concerned itself with effect on others of keeping an animal. Whilst I am of the view that by-law 15 might successfully be challenged as unreasonable, there is some evidence that the dog kept by the respondent has caused annoyance to others. Four submissions, all from lots in the row of units behind the respondent’s unit, say that that they have heard the dog whimpering “for hours”, whining, howling and barking continually when the respondent is out. It is not clear whether the submitters are within their own homes when they can hear the respondent’s dog. Other submitters do not say that they are directly affected by the noise of the dog, only that the by-law should be upheld.

Section 167 Act requires that an occupier of a lot must behave in a certain way. It says -

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.

Even without by-law 15, the body corporate might still rely on this provision. It seems to me that there is some evidence that the behaviour of the dog has interfered with the use or enjoyment of those lots whose occupiers have made submissions, although whether such interference is “unreasonable” has not been made out. I note that there is no other complaint about the dog.

The respondent should take steps to ensure that the dog does not bark, whine or howl for protracted periods of time. How she achieves this is a matter for her. She might best do this by taking the dog with her when she goes out, making sure that the dog is entertained and happy whilst it is alone at home, or by training the dog. The Sunshine Coast Regional Council website contains information for pet owners about methods of preventing barking when a dog is alone.

The stated period(s) of time and the frequency of the occurrence would be considered on the facts if the body corporate subsequently made an application to this Office about the respondent’s dog causing a nuisance (eg. by barking, whining and/or howling) pursuant to section 176 Act.

For the respondent there will be the ever-present concern that the dog will again attract complaints as soon as it makes a noise or causes interference which is demonstrably “unreasonable” in accordance with section 167. Knowing this, the respondent might like to make alternative arrangements for the housing of the dog in her own time, but that is a matter for her.

It appears to me that the body corporate wishes to embrace a “no pets” policy but the law is such that it cannot rely on policy alone. The body corporate must demonstrate either that it has reasonable by-laws, and has acted reasonably in exercising them, or that any animal kept has caused “a nuisance” such that the only remedy is for the animal to be removed from the scheme.

If the body corporate amends its by-law, for example, to a by-law inter alia prohibiting dogs, then the respondent may be asked to remove her dog from the scheme subject to reasonable notice being given to her. The respondent would of course be entitled in the event of a further dispute arising, to make application to this Office in the event that she is of the view that any notice given to her by the body corporate was unreasonable, or the actions of the body corporate were unreasonable.

An adjudicator may order that a by-law which is unreasonable is removed from the community management statement, and/or that an earlier by-law is restored.[3]

I make no order about by-law 15 but the body corporate is advised to act as soon as practicable to amend or remove by-law 15 in the usual way by special resolution of the body corporate at a general meeting. The validity of by-law 15 was not directly in question in this dispute. However, in making no order, I am effectively allowing the body corporate to maintain an unreasonable, and therefore unenforceable, by-law on its community management statement. The dangers of this are obvious, and leaves the body corporate open to challenge by lot owners wishing to keep pets within the scheme. I therefore urge the body corporate to re-amend its “pet by-law” so that the wording of it is considered ”reasonable” in the light of current state of the law.

[1] Tutton –v- Body Corporate for Pivotal Point Residential CTS 33550 [2008] CCT KA005-08 (11th June 2008) paras 34 and 35

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

The Groves No. One Minyama [2010] QBCCMCmr 159 (6 April 2010)