The Inlet [2011] QBCCMCmr 309 (25 July 2011)

Last Updated: 18 August 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	The Inlet [2011] QBCCMCmr 309
PARTIES:	Peter and Christine Stephenson, Owners of Lot 28 (applicants) Body Corporate for the Inlet (respondent)
SCHEME:	The Inlet CTS 4655
JURISDICTION:	Body Corporate and Community Management Act 1997 (Qld), (Act), ss 227(1)(b), 229(3)(a) Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module)
APPLICATION NO:	0304-2011
DECISION DATE:	25 July 2011
DECISION OF:	I Rosemann, Adjudicator
CATCHWORDS:	BY-LAWS – whether by-law prohibiting animals to be brought onto a lot or common property is reasonable – whether an alternative by-law should be substituted. Act, s 180(7)

ORDERS MADE:

I hereby declare that By-law 14 in the community management statement as recorded for the Body Corporate for The Inlet on 21 August 2006 (Dealing no. 709866349) and in subsequent community management statements for the Body Corporate for The Inlet, is invalid. I further declare that By-law 14 in the community management statement recorded for the Body Corporate for The Inlet on 18 August 2004 (Dealing no. 707982751) is invalid. I further order that, within two months of the date of this order, the Body Corporate for the Inlet must lodge a request to record a new community management statement removing the current By-law 14 and replacing it with a new By-law 14 as follows: Keeping animals (a) Subject to Section 181 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 (b) Any consent of the Body Corporate Committee may be: (i) given on conditions, and (ii) withdrawn at any time.

REASONS FOR DECISION
Introduction

[1] This application relates to the capacity of owners to have pets. The Body Corporate’s current by-laws prohibit animals. The applicants are lot owners who wish to amend this by-law, on the basis that it is oppressive and unreasonable, and ultimately seek to be able to have a small dog on their lot.
[2] There is division in the scheme on this issue. Some owners consider the by-law to be an unreasonable imposition on the right of residents to have pets, which they consider will not impact on other residents. Others say they purchased into a scheme without pets and object to the noise, smell and other impacts of pets.
[3] The issues in this application are whether the current animal by-law is valid and reasonable, and whether there is any basis to require the current by-law to be removed or altered.

Preliminaries

Application

[4] The Inlet community titles scheme 4655 (The Inlet) consists of 92 lots and common property. The community management statement (CMS) shows the Standard Module applies to the scheme. The scheme is registered as Building Unit Plan 10904.
[5] This application was lodged under the Act on 1 April 2011, seeking the following orders:

1. That By-Law 14 - Keeping of Animals for The Inlet Community Titles Scheme be declared Invalid.
2. Declare that within two months the body corporate for The Inlet Community Titles Scheme lodge a request to record a new community management statement replacing its current By-Law 14 with a new By-Law that has the same wording as the standard By-Law 11 of Schedule 4 of the Body Corporate and Community Management Act.
3. Declare that the committee acts in accordance with Chapter 3, Part 1, Division 2, 100 of the Body Corporate and Community Management Act and respond on behalf of the body corporate to requests to keep animals.
4. Declare that the committee cannot remove from itself the authority to act on behalf of the body corporate on the issue of approval of keeping animals.
5. Declare that the keeping of animals is not a restricted issue as mentioned in Chapter 3, Part 1, Division 2, 100 (2) of the Body Corporate and Community Management Act.
6. Declare that the committee should not delay responding to applications for approval to keep an animal in accordance with Chapter 3, Part 1, Division 2, 100(5) of the Body Corporate and Community Management Act.

Jurisdiction

[6] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1]
[7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about: a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated in the order. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

Procedural matters

[8] The Commissioner[4] provided the application to the Body Corporate, with an invitation to the Committee and all owners to respond to the matters raised by the application. Submissions were made on behalf of the Committee and by sixteen owners. The applicants inspected the submissions received but did not avail themselves of the opportunity to respond to them.[5]
[9] A dispute resolution recommendation[6] was made referring the file to department adjudication.
[10] I then investigated the dispute[7], which included reviewing the application and submissions and the titles records for the scheme.

Matters in dispute

[11] The applicants purchased their lot in 2010. However, they currently live elsewhere because they have a dog. They would like to be able to live in the scheme with their dog. They note that the neighbouring high-rise apartment building allows pets and that there are ‘significant’ numbers of dogs and cats at The Inlet.
[12] The applicants assert that the current By-law 14 which prohibits pets in the scheme is oppressive and unreasonable and should be invalidated. They refer to relevant case law.
[13] The application claims that while prior to 2004 there was no right to have a pet in the scheme, the Committee could approve pets. The applicants say the Committee then removed this right. They argue that it is not reasonable for the Committee to abrogate their responsibility to make day-to-day decisions in this manner, or to unnecessarily delay making decisions about pets, or to require owners seeking approval for a pet to seek the approval of the entire Body Corporate.
[14] The following key decisions in this scheme regarding the animal by-law are apparent:

1. The current By-law 14 was approved by special resolution at the Annual General Meeting (AGM) on 27 July 2004.
2. On 17 November 2009 the Committee considered recent case law and resolved to submit a new by-law to the next general meeting for pets to be kept with conditions.

100. On 16 February 2010 the Committee appointed a sub-committee to review the by-laws.

4. The AGM on 27 July 2010 considered Motion 9 to amend By-law 14 to permit animals subject to conditions. It lost with 28 votes in favour, 33 against and five abstentions.

Submissions

[15] The submission from the Committee declines to comment on the reasonableness of By-law 14 but includes the following:

1. The Committee has taken all reasonable steps to address issues relating to By-law 14. It denies that it has knowingly or otherwise abrogated its responsibilities or delayed in approving or refusing approval for pets when it had the discretion to do so.
2. The Committee did not remove from itself the authority to make decisions regarding animals – this was the result of the 2004 AGM decision. The Committee had no power to unilaterally vary By-law 14.

100. In regard to claims of significant numbers of pets in the scheme, it submits that there are only three dogs on the scheme which were approved under the previous by-law.

4. Outcomes 2-6 are unnecessary. If the adjudicator varies By-law 14 the Committee will act in accordance with that.
5. If the adjudicator is minded to vary By-law 14, the variation should simply reinstate the pre-2004 by-law rather than impose By-law 11 from Schedule 4 of the Act. By-law 11 from Schedule 4 gives the Committee a narrower discretion and does not provide for the Committee to withdraw approval if a pet becomes a nuisance.

[16] Five submissions support the application. Comments include:

1. The current by-law is unreasonable. A blanket exclusive is restrictive and interferes with a resident’s freedom to quietly enjoy their residence.
2. Small pets should be allowed if they are not troublesome to other residents.

100. The policy should allow pets under strict conditions, and be enforced by the Committee.

4. There are already many pets in the building, many of which are kept wholly within the apartment, and these do not interfere with current residents.
5. There is medical research to show the beneficial impacts of pets on the health and wellbeing of older persons.
6. The no pet by-law is turning away potential buyers and affecting property values.

[17] Ten submissions oppose the application. Comments include:

1. Being ‘pet-free’ for new owners was one of their reasons for purchase at The Inlet.
2. Pets can be a health hazard, and cause inconvenience, noise and unpleasant odours. The barking of dogs is a particular concern.

100. Animals should not be confined in apartments and should have a backyard.

4. The wishes of the majority vote at the AGM should be upheld.
5. The applicants were aware of the by-laws when they purchased in 2010. If they can now not live in their apartment it is due to poor judgement on their part.
6. Having pets in apartments causes problems from Committees and managers, creating bad feeling and arguments between owners.
7. Although many schemes allow pets, it is appropriate that some buildings are animal-free for residents who particularly wish not to have animals in their building.

[18] A further submission provides only the details of the submitter and no comment on the dispute.

Analysis

[19] In determining this matter I will consider the history of animal by-laws in this scheme, the relevant legislation and case law regarding animal by-laws, any basis to amend or remove the current by-law, and the terms of any alternative by-law.

Animal by-laws at The Inlet

[20] The Inlet was registered in April 1991 under the Building Units and Group Titles Act 1980 (BUGTA), which applied prior to the commencement of the current Act. At that time the by-laws in Schedule 3 of BUGTA applied. BUGTA By-law 11 states as follows regarding pets:

11. Keeping of animals

Subject to section 30(12)[8], a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property.

[21] The Schedule 3 by-laws were replaced by 49 new by-laws which were recorded in July 1991. This included the following By-law 21:

Subject to section 30(12) no animals or birds shall be kept in any Lot without the consent of the Committee which consent may at any time be withdrawn.

[22] In September 1999 a new CMS was recorded for the scheme, following the commencement of the new legislation in 1997. The new By-law 14 in this CMS was as follows:

14. Keeping animals

(a) Subject to Section 143[9] 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.

[23] New CMS were recorded in October 2000, February 2003 and May 2003. None of these CMS changed the animal by-law.
[24] In August 2004 a new CMS was recorded which changed By-law 14 as follows:

14. KEEPING ANIMALS
    1. That all Owners who currently have approval to keep pets on their Lots in accordance with by-law 14 of the current community management statement (“CMS”) may continue to keep such pets on their Lots until the pet passes away but shall not be entitled to replace such pet.
    2. No other Owners shall be entitled to request permission to keep pets on their Lots; and

100. The Committee shall not longer have the power to consent to Owners keeping pets on their Lots in accordance with by-law 14 of the current CMS.

[25] The next CMS recorded in August 2006 altered the animal by-law again. This By-law 14 provides that:

14. KEEPING OF ANIMALS

(a) Subject to Section 181 of the Act an occupier must not bring or keep an animal or bird on the Lot or common property or permit an Invitee to bring or keep an animal or bird on the Lot or common property.

(b) As an exception to By-law 14(a) owners who have previously been granted approval to keep pets may continue to keep pets on their lot until the pet passes away but shall not be entitled to replace such pet.

(c) The Committee shall no longer have the power to consent to an owner or Invitee keeping an animal or bird on the Lot or common property.

[26] New CMS were recorded in October 2008, October 2009 and August 2010. These CMS have not altered By-law 14 and so it is the 2006 version of By-law 14 that currently applies.
[27] I note the application and submission refer only to the general meeting decision to introduce the prohibitive by-law in 2004. No mention is made of any further decision in 2006. Although the effect of the two versions is the same, the current By-law 14 would be invalid if it was not approved by a special resolution at a general meeting. However for the reasons which I will outline, it is not necessary to investigate whether either version was properly recorded.

Applicable law regarding animal by-laws

[28] Section 169 of the Act provides for a body corporate to make by-laws. By-laws are permitted for the purpose of: the administration, management and control of common property and body corporate assets; regulation of, including conditions applying to, the use and enjoyment of lots, common property, body corporate assets included in the scheme; and services and amenities supplied by the body corporate; and other matters this Act permits to be included in by-laws.
[29] Section 180 of the Act sets out limitations on the by-laws that a body corporate may adopt. Section 180(7) specifically provides 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.”
[30] In 2008 the Commercial and Consumer Tribunal[10] considered the appeal of an adjudicator’s decision regarding a by-law which prevented an owner or occupier from bringing, or allowing an invitee to bring, any animal onto a lot or common property unless approval had been given under the previous by-law. While the original decision and the appeal were considered on a number of factors, one was whether a by-law that imposed a blanket ban on all animals was oppressive or unreasonable.
[31] The definition of ‘animal’ under the disputed by-law was agreed to cover any live member of a species including any mammal, reptile, amphibian, bird and fish. Although the dispute related to a dog, the parties accepted that the by-law had the effect of prohibiting any animal including a goldfish. In his decision, Mr Dorney QC concluded on this issue that [para 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”.

[32] A subsequent decision[11] of the Queensland Civil and Administrative Tribunal in 2010 similarly considered an appeal of an adjudicator’s decision regarding a by-law that specifically prohibited the keeping of just cats and dogs. The Tribunal member said [paras 17 and 18]:

Section 169(1) of the BCCM Act provides relevantly that the by-laws for a community title scheme may only provide for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme.

A distinction has been recognised in the authorities between the regulation of an activity and its prohibition. A section such as s169 permits the regulation of the use and enjoyment of lots, but does not authorise a by-law prohibiting a certain use and enjoyment of lots. The underlying rationale is that a power to regulate an activity implies that the activity will, despite such regulation, be capable of continuing, which it would not do if it were completely prohibited. Prohibition of an activity in part, in a particular case, or in a particular way, may however in some circumstances be needed in order to achieve effective regulation. [Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550; [2003] 2 Qd R 381, at [6]-[8].]

[33] The scheme involved in this dispute was a high rise building and it was recognised keeping a cat or a dog in a safe and healthy environment within an owner’s unit could inconvenience other residents. However the Tribunal found the by-law was unreasonable because cats and dogs are ordinary domestic pets and some of these animals could be kept in the scheme without causing inconvenience to other residents. As such the by-law prohibited a normal residential activity without sufficient regard to circumstances in which the activity was likely to inconvenience other residents. The Tribunal found that if there could be no rational basis to conclude that the keeping of some animals could cause difficulty to other owners, an absolute prohibition on such animals in the by-laws would be unreasonable. The body corporate was therefore required to amend its by-law so the committee, acting reasonably, would be able to decide whether or not to approve the keeping of any particular animal.
[34] This position has since been followed in numerous subsequent adjudications, including one in which the adjudicator expressly concluded that “by-laws that impose blanket bans or arbitrary limits on the keeping of pets are unreasonable.”[12] It is a settled matter of law then, that a blanket ban on any type of animal regardless of its potential impact on other owners is an unreasonable interference with an owner or occupier’s use of their lot.
[35] The current By-law 14, first recorded in August 2006, is clearly a prohibitive by-law, preventing any pet being brought onto the scheme unless approved under the previous permissive by-laws. Accordingly, I can only determine that it is invalid. It is similarly clear that the previous version of By-law 14, being that recorded in August 2004 was also invalid.

Alternative by-law

[36] For the reasons outlined above, I am bound to invalidate the current By-law 14. The question then is what happens next regarding animal by-laws at The Inlet. The applicants seek a new By-law 14 with the same words as By-law 11 from Schedule 4 of the Act. The Body Corporate prefers the reinstatement of the pre-2004 by-law, if any change must be made.
[37] Schedule 5 of the Act, although not limiting the power of an adjudicator to make an order that is just and equitable in the circumstances, provides examples of the sorts of orders adjudicators are empowered to make. Item 20 of Schedule 5 provides that - if satisfied that a by-law, having regard to the interests of all owners and occupiers in the scheme, is oppressive or unreasonable - an adjudicator may make an order requiring a body corporate to lodge a new CMS that removes the by-law and, if appropriate, reinstates an earlier by-law.
[38] It is common when a pet by-law is invalidated to reinstate the previous valid by-law. In one recent case[13] I determined that to do so would be inappropriate because the previous by-law was confusingly worded and would have enabled any pets to be automatically permitted on the scheme. In the absence of any viable alternative, I ordered that the invalid prohibitive by-law be replaced by the default by-law from Schedule 4 of the Act. The unusual circumstances that applied in that case do not exist here. Accordingly I do not consider that there is any reason to deviate from the standard approach of simply reinstating the by-law that previously applied.
[39] I will require the Body Corporate to reinstate the previous valid animal by-law, being By-law 14 as first recorded in 1999. However, to avoid any confusion the reference to “subject to section 143 of the Act” should be updated to “subject to section 181 of the Act”.
[40] Notwithstanding this, there is no reason why the Body Corporate could not choose to amend that in future providing that it has regard to the law as outlined on prohibitive animal by-laws. For example, owners may wish to include specific conditions on pets in the by-law. Providing that it acts reasonably and with regard to the real risk of impact on other residents, the Body Corporate can certainly resolve to adopt such a by-law. Nothing in my order prevents the Body Corporate from replacing the by-law I have directed them to record with a subsequent animal by-law, providing that a special resolution is passed at a general meeting.

Committee decision-making role

[41] The applicants have made various allegations of the Committee choosing to abrogate its responsibility to make decisions regarding pet applications. Given that the 2004 by-law was the result of the general meeting rather than committee decision this allegation is unsustainable. Unless and until that by-law was invalidated, the Committee had no capacity to make decisions regarding pet applications.
[42] The applicants seek various further orders (outcomes 3-6) that the Committee can make decisions in regard to requests for animals, that it cannot remove itself from this authority, that pet decisions are not a restricted issue and that it cannot delay in making decisions. I do not consider that any such orders are warranted.
[43] The new By-law 14 that will be required to be recorded and which will apply unless and until the Body Corporate resolves to pass any alternative by-law refers to the Committee giving and withdrawing consent for animals and potentially imposing conditions on approvals. Prima facie then it will be for the Committee to make a decision on any requests. However I do not consider that this prevents the Committee from choosing to refer any request to the Body Corporate for a decision at a general meeting if it considers it appropriate.
[44] Section 100 of the Act provides that the decision of a committee is the decision of the body corporate. A committee may make decisions on behalf of the body corporate except where the decision is a restricted issue for the committee. Restricted issues include those matters which the legislation require to be determined by a general meeting resolution, and where a general meeting has passed an ordinary resolution reserving the issue for a general meeting vote. However the mere fact that something is not a restricted issue does not mean that the committee has a legislative obligation to determine the matter itself. Moreover, the Body Corporate could pass a resolution at a general meeting overturning any Committee decision.
[45] There is no indication that, under the new by-law, that the Committee would seek to refer decisions on pet applications to a general meeting, or otherwise unreasonably delay decisions. However, if and when a resident who was seeking approval for a pet considered the Committee was acting unreasonably they could challenge the Committee’s actions.

Consideration of requests for a pet

[46] The obvious concern about a by-law that allows residents to keep pets with committee approval is that approved pets might interfere with the peace and enjoyment of other residents. Many submissions have expressed genuine concerns about noise or other nuisance that can result from the keeping of pets. I accept that some pets, such as dogs that frequently bark, can adversely affect other residents. Although I similarly note that some owners are of the view that, based on the experience of other animals in this and other schemes, there would be no adverse impact.
[47] A common and reasonable approach to the regulation of pets in community titles schemes is to preserve committee discretion to consider the merits of the particular pet in question and impose any reasonable conditions on the keeping of the pet. If the pet owner and the committee cannot agree on conditions to minimise the likelihood of the pet causing a nuisance to other residents then it may be reasonable for the committee to refuse to allow the pet.
[48] The Committee (or the Body Corporate) for The Inlet must act reasonably[14] in considering requests for consent under the new by-law. If consent is unreasonably refused the decision could be challenged in this Office. The primary issue for consideration in any request for approval of a pet is whether there is any genuine adverse impact on any other occupier. Where there are genuine concerns, the imposition of reasonable conditions on the keeping of the pet may be more appropriate than outright refusal for the pet. Adjudicators have consistently determined that committees cannot apply blanket policies prohibiting pets under a permissive by-law but must consider each request for a pet on its merit.
[49] The proposed by-law that was put to the AGM in July 2010 included a range of conditions. I will not specifically comment on the reasonableness of those proposed conditions other than to note that the test will be whether the condition is necessary to prevent any impact on other owners. If, for example, a blanket ban on multiple animals or on animals above a certain size were to have the effect that an animal that would not otherwise be likely to affect other residents was prohibited, the condition could be seen as unreasonable.
[50] Although they may not be appropriate in the current circumstances, particularly depending on the type of animal, examples of conditions considered in previous disputes[15] include:

1. That the animal is kept within the lot while it is present on the scheme land;
2. That the animal is not permitted to roam on common property or into other lots;

100. That the animal traverses common property only for the purpose of being brought onto or taken off scheme land, at which time the animal must be transported in a pet carrier or otherwise appropriately restrained;

4. That any animal litter or waste is promptly and effectively disposed of, including that any waste put in common bins is double bagged to avoid spillage or noxious odours;
5. That the animal is not permitted to make noise, or otherwise cause a nuisance, that would interfere unreasonably with any person’s use or enjoyment of another lot or common property;
6. That reasonable steps are taken to minimise the transmission of airborne allergens, for example by regular vacuuming of the lot and grooming of the animal;
7. That the animal is registered with the local council;
8. That reasonable steps are taken to keep the animal in good health and free from fleas and parasites;
9. The approval applies only to the proposed animal and does not authorise the keeping of any additional, replacement or substitute animals in the lot;
10. The committee shall be entitled to rescind permission for the animal if it reasonably considers that the occupier has not complied with the conditions of approval and has failed to respond appropriately to warnings about the concerns.

[51] Regardless of any conditions imposed, residents should also be aware that the legislation specifically provides the occupier of a lot must not use or permit the use of a lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot[16] Any resident who was genuinely disturbed by a pet could seek the removal of the pet on the basis of a breach of this obligation. As a matter of fairness any complainant should contact the pet owner first to give them an opportunity to address the concerns.

Conclusion

[52] Given the prevailing law I must conclude that the current By-law 14, which prohibits all pets in the scheme other than those previously approved, is unreasonable and therefore invalid. I will similarly declare that the previous version of By-law 14, recorded in 2004, was similarly invalid. Accordingly I will further order that the Body Corporate must record a new CMS removing the invalid by-law and replacing it with the previous valid animal by-law in the scheme, being the version of By-law 14 first recorded in 1999.
[53] The Committee will be responsible for lodging the new CMS at the Body Corporate’s cost. The Committee should consider any requests for pets, including the applicants’, pursuant to this new CMS. In addition, the Body Corporate is entitled to consider any alternative form of animal by-law at any future general meeting, having regard to the issues outlined in this order.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act
[2] Section 276 of the Act
[3] Section 284(1) of the Act
[4] Section 243 of the Act
[5] See sections 246 and 244 of the Act respectively
[6] Section 248 of the Act
[7] The investigative powers of an adjudicator are set out in section 271 of the Act

[8] Section 30(12) of BUGTA prohibits by-law restrictions on guide, hearing or assistance dogs. This restriction is maintained in section 181 of the current Act.
[9] Since renumbered as section 181, section 143 prohibits restrictions on guide, hearing or assistance dogs
[10] Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] CCT KA005-08
[11] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57
[12] Seachange Retirement Village [2011] QBCCMCmr 94
[13] Leeward Tower [2011] QBCCMCmr 251
[14] Sections 94(2) and 100(5) of the Act

[15] For example: Jaloura Court [2011] QBCCMCmr 87, K Resort Surfers Paradise [2007] QBCCMCmr 675; Lake View Park [2009] QBCCMCmr 105; Isle of Palms Resort [2010] QBCCMCmr 200
[16] Section 167 of the Act