The Gardens [2010] QBCCMCmr 569 (17 December 2010)

Last Updated: 18 February 2011

REFERENCE: 1137-2010

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11750
Name of Scheme:	The Gardens
Address of Scheme:	204 Alice Street BRISBANE QLD 4000

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John and Diane McGrath, the Owners of Lot 62

I hereby order that, pending a final determination on this matter, John and Diane McGrath shall be permitted to bring and keep their dog, a terrier known as ‘Tess’, on Lot 62 providing that: (a) the dog is kept within Lot 62 while it is present on the scheme land; (b) the dog is not permitted to roam on common property or into other lots in the scheme; (c) the dog traverses common property only for the purpose of being brought onto or taken off the scheme land, at which time the dog is carried or otherwise adequately restrained; (d) any animal litter or waste associated with the dog is effectively and promptly disposed of; and (e) the dog is not permitted to make noise, or otherwise cause a nuisance, such that it interferes unreasonably with any person’s use or enjoyment of another lot or common property. This interim order has effect until six (6) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1137-2010

“The Gardens” CTS 11750

The Gardens community titles scheme 11750 (The Gardens) consists of 107 lots and common property. The Community Management Statement (CMS) for The Gardens indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme. Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 3411.

INTERIM APPLICATION

This is an application for interim orders lodged by John and Diane McGrath, the Owners of Lot 62 (applicants) on 6 December 2010 under the Body Corporate and Community Management Act 1997 (Act). The applicants sought interim orders against the Body Corporate for The Gardens (respondent) in the following terms:

That pending the final resolution of the dispute, the applicants who are the occupiers of unit 62 "The Gardens" (the lot) shall be allowed to bring or keep a dog on the lot or the Common Property.

The application also seeks the following final order:

That the applicants (or where the applicants are absent, persons authorised by the applicants), who are the occupiers of unit 62 "The Gardens" (the lot) shall be allowed to bring or keep a dog on the lot of the Common Property.

PROCEDURAL MATTERS

In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me to decide whether the nature or urgency of the circumstances of the application warrant an interim order. The Commissioner has referred the application notwithstanding that affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application[1].

I provided the Body Corporate Committee with a limited opportunity to make a submission on the interim orders sought. A submission was made in due course.

MATTERS IN DISPUTE

This application relates to the applicant’s request to keep a dog within their lot.

The events leading to the application were as follows.

­ The applicants purchased the lot in May 2010.
­ On 17 August 2010 the applicants wrote to the Body Corporate seeking its consent, pursuant to By-law 14, to have a dog in Lot 62.
­ The letter explained that the dog is a 7 year old terrier named ‘Tess’, weighing less than 9kg, which has completed training, has regular vet care, is quiet and will not disturb neighbours, would be exercised at least twice daily outside the scheme, and would be retrained at any time that it was outside their unit. The letter noted that they were responsible pet owners.
­ They then heard that the Body Corporate had refused consent for a dog earlier in the year.
­ On 18 October the applicants wrote again to the Committee noting that By-law 14 is a permissive by-law and that the Committee could not ban dogs from the scheme by unilaterally withhold consent.
­ On 22 November the Committee refused permission for the dog. One of the applicants was invited to address the meeting and then asked to leave for the Committee consideration of the motion. There were two votes in favour of the proposal to give consent and three against. The minutes noted that “...the building had always been pet-free and some members had concerns about issues relating to animals on the property.” The minutes also noted that “The matter of pet ownership within the building will be put before the owners at a general meeting as part of the general review of the CMS.”
­ After receiving the meeting minutes on 2 December, the applicants wrote to the Committee. They noted that they were aware of By-law 14 before they purchased their lot and, on seeing that pets were allowed with consent saw no reason why they would not obtain consent. It is only since they requested permission for the pet that they were informed of the ‘no pets’ policy. They noted changes in the community in the 30 years since that policy was first established, and information on Tribunal decisions on the issue. They requested that the decision be reconsidered.

The applicants argue that:

­ By-law 14 is a permissive by-law allowing occupiers to keep a dog with the consent of the Committee.
­ In refusing consent the Committee said the building has always been ‘pet-free’ and that some members had concerns animals on the property.
­ The Body Corporate failed to consider the applicants’ request on its merits.
­ The Body Corporate viewed the request with a closed mind and continued a 30 year history of denying occupiers the benefits of keeping pets in their units.
­ The Body Corporate took a long time to consider their request for consent.
­ The Body Corporate acted in an oppressive and unreasonable manner towards the applicants.

The applicants dispute the Committee’s decision and seek an order that they be given consent to keep a dog. Moreover, they seek an interim order allowing them to keep their dog in their lot until the dispute is determined. It seems the applicants have sold their other property where their dog is currently residing. They will be moving into Lot 62 on 18 January 2011 and have no alternative accommodation for the dog. As such they say they will have no choice but to keep the dog in their lot from that date. The applicants intend to pursue internal dispute resolution with the Committee and conciliation if that fails. But it is unlikely that this will be resolved before 18 January 2011 and the applicants do not wish to be liable for prosecution for a breach of the by-laws.

The applicants say they have had insufficient time to prepare full arguments in support of the orders sought and rely on the contents of their letters to the Body Corporate. They reserve the right to submit full argument if the matter fails to resolve prior to adjudication.

The submission from the Committee is that:

­ It did not approve the McGrath’s application.
­ It has determined to review the existing CMS and the pet clause.
­ It would like the decision to be deferred until the CMS review process.
­ If an interim order is made in the McGrath’s favour it may prejudice any decision that the owners may wish to make.
­ If an interim order is made in the McGrath’s favour, the Committee asks that it be specific to the McGrath’s dog, rather than a blanket decision and have suitable conditions regarding health, cleanliness, noise, refuse, the animal being carried in a pet container in public places, ‘quiet enjoyment of other residents, and complaint procedures for other owners.

At my request, a member of the Commissioner’s Office staff contacted the body corporate manager to query the status of the process being undertaken by the Body Corporate to review the CMS, as referred to in the submission. The manager advised that nothing has started. She commented that it was only talked about by the Committee after a number of requests for pets were received.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[2]

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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

Section 279(1) of the Act allows an adjudicator to make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances of the application.

DETERMINATION

Urgent interim relief

At this time, I am concerned with the application for an interim order and the threshold issue of whether interim orders are warranted. An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates.[5] Any order granted must be just and equitable in the circumstances.[6] The examples in section 279 of the Act indicate the usual circumstances where an interim order might be made and are in the nature of injunctive relief. While it is not possible to define the range of matters that might be the subject of an interim order, an applicant needs to establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency relates to an applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order.

It is not appropriate to consider the substantive issues in the application in detail at this time. But to determine whether it is just and equitable to grant interim relief, it is relevant to briefly consider the issues raised in the application. As an interim order can be considered on an ex parte basis, an adjudicator must be satisfied that the application raises serious legal questions and that the balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted.

Serious legal question

There is a general legislative requirement[7] that a committee and body corporate act reasonably in making a decision. There does appear to be a genuine question as to whether the Committee acted reasonably in deciding on 22 November 2010 to refuse permission for the keeping of a small dog in Lot 62.

By-law 14 is clearly not a by-law that prohibits animals being kept in this scheme. Rather it permits them with prior consent. Particularly by allowing for the inclusion of conditions, the by-law specifically contemplates the potential that animals be approved in the scheme. As such, the Committee is given discretion to decide whether and under what circumstances it will approve specific requests for pets under By-law 14.

Disputes regarding the application of by-laws of this nature are common in this Office. Adjudicators have consistently held that the Committee must actually exercise its discretion and consider each application on its merits. It is appropriate for a committee or owners generally to have clear and reasonable policies to guide the exercise of the discretion under the by-law. But adjudicators have found that it would not reasonable for a body corporate to rigidly apply a ‘no pets’ policy without consideration of the individual circumstances of each request. To do so would be to override the by-law and prevent the exercise of the discretion provided for in the by-law. The Committee cannot purport to change a by-law in such a manner because the change of a by-law requires the approval of a general meeting to records a new CMS.

The question in the current application is whether the Committee has properly exercised its discretion under By-law 14 or simply imposed a no-pet policy without due consideration of the specific requestion. The submission from the Committee has not commented on the reasons for its decision, but this can be investigated in the course of determining the final order application. There will be issues of whether there are any reasonable grounds to refuse permission for a dog in Lot 62. Without limiting the matters that may be considered in respect of what would be a reasonable decision, one key issue is whether the proposed dog is likely to have any adverse impact on any other occupant.

The Committee has indicated that it intends to review By-law 14. This may well be appropriate if the current by-law does not reflect the wishes of owners[8]. However, the Committee must be cognisant that the request for approval for this dog was made and refused under the current by-law. Therefore, while the views of owners as expressed by some future consideration of the by-laws may be relevant, fundamentally this application must determine whether the decision was reasonable in respect of the Committee’s obligations under the current by-law, not under some potential by-law that owners may choose to adopt at some point in the future.

Inconvenience from an interim order

It is not apparent to me that there will be a significant detriment to the Body Corporate from allowing the dog to be kept in Lot 62 until this dispute is finally resolved. The Committee submission claims that the order would prejudice any subsequent decision of owners regarding the review of the CMS. However the Committee does not explain how they consider the decision would be prejudiced. In fact, allowing the dog to remain in the lot for a short period of time could even assist the resolution of the matter in that other occupiers will be able to identify whether there are any actual, rather than just hypothetical, concerns with the existence of this particular dog.

If the interim order sought was not granted, the applicants would be faced with having to either find temporary accommodation for their dog for an indefinite period until this dispute was finally resolved, or keep the dog in breach of the by-laws and risk by-law contravention action being taken against them. If the applicants are ultimately not successful in this application they will of course need to find a permanent solution to the accommodation of their dog. However I consider that making such permanent arrangements are a different matter from the uncertainty of any necessary temporary arrangements.

The Committee would like this application deferred until they have reviewed the CMS. However as that process has apparently not even commenced, it would be inappropriate to leave this matter on hold indefinitely. Moreover, as noted above, this dispute relates to the Committee’s application of the current by-law and not what by-laws they may adopt in future.

Conclusion

On balance I am satisfied that the applicants have raised a genuine legal issue in regard to whether the Body Corporate Committee has acted reasonably in refusing their request to keep a dog in Lot 62. In the circumstances I consider that there is sufficient justification for the applicants to be permitted to keep the dog in their lot until this dispute can be finally resolved.

I have made an order in these terms, imposing conditions on the keeping of the dog which should ensure that other occupiers are not adversely affected by the presence of the dog. If the Committee has concerns that the applicants are not complying with the conditions, and can provide evidence in support of their claim, they may apply for a variation of the order. I note also that this order applies only to the dog Tess and does not apply to any other animal that the applicants may seek at any time, or that any other occupiers may seek.

Next steps

The applicants have expressed an interest in pursuing conciliation if they do not receive a favourable response to their letter of 2 December 2010. In referring this application back to the Commissioner under section 279 of the Act, I intend to recommend that he refer the application to the Conciliation Service of the Commissioner’s Office. Conciliation is frequently successful in reaching agreed resolutions to disputes about pets in community titles schemes.

In the event that the matter is unable to be resolved by conciliation, the applicants will be provided with an opportunity to submit further arguments in support of their application, as they have requested. The application would then proceed in accordance with the usual processes required by the legislation, including calling of submissions from all affected parties. A final order to the application would be made in due course.

All parties should note the provisions of section 279(2) of the Act, which provides that:

(2) An interim order—

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when—

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

I have provided that this interim order has effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This Office will not automatically renew an interim order and the order will automatically lapse upon a final order being made or this application being withdrawn.

---

[1] Section 247(3) of the Act
[2] See sections 227, 228, 276 and Schedule 5 of the Act
[3] Section 276(2) of the Act
[4] Section 284(1) of the Act
[5] Section 279 of the Act
[6] Section 276 of the Act

[7] Pursuant to sections 94(2) and 100(5) of the Act

[8] In doing so, the Body Corporate should have regard to relevant appeal decisions which have overturned by-laws that have purported to prohibit pets or certain classes of pets as being oppressive and unreasonable. See: McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57 (28 September 2010) and Tutton W & B v Body Corporate for Pivotal Point Residential CTS 33550 [2008] QCCTNCCM 12 (11 June 2008), both of which have been included in the application.