Riverside Park [2011] QBCCMCmr 5 (6 January 2011)

Last Updated: 21 February 2011

REFERENCE: 0958-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31061
Name of Scheme:	Riverside Park
Address of Scheme:	11 Eden Court NERANG QLD 4211

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

Peter and Suzanne Clausen, the Owners of lot 20

I hereby declare that paragraph 16.1 of by-law 16 in the community management statement of the respondent, is invalid to the extent that it includes the words weight of the dog to not exceed 10kg. I further declare that the applicants are entitled to keep their 9 year old dog within their lot subject to compliance with the conditions contained in clause 16.3 of by-law 16. I hereby order that within 5 months of the date of this order, the respondent body corporate is to lodge a request to record a new community management statement containing an amended by-law 16 regarding the keeping of animals.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0958-2010

“Riverside Park” CTS 31061

The scheme

“Riverside Park” community titles scheme 31061, is an 80 lot scheme regulated by the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation (Standard Module). The scheme is registered on a Standard Format Plan and is designed for residential purposes.

Application

This application was made on 15 October 2010 by Peter and Suzanne Clausen, the owners of lot 20 seeking the following order:

To have the by-law for keeping of animals (16.1) invalidated as they believe each animal should be taken on its own merit and not by weight.

The outcome that they are seeking is to be permitted to keep their 9 year old dog on their lot.

Background

The applicants are seeking to have current by-law 16.1 declared void as they believe it is is oppressive and denies owners and occupants the opportunity to fully enjoy their lot.

By-law 16 provides as follows:

KEEPING OF ANIMALS

16.1 The owner/occupier of a lot shall not keep any animal upon the lot other than either of one bird, one cat or one dog (weight of the dog to not exceed 10kg) or several fish.

16.2 In the event that the owner or occupier is, in the opinion of the committee, in contravention of By-Law 16.1, the Committee may notify the owner or occupier in writing of such contravention and in the event that the owner or occupier does not comply with the Committee’s direction within the timeframe stipulated in the notice the Committee may take the action necessary to remove any animal from the lot.

16.3 Animal Care:-

(1) Owner/occupier will be responsible for their animal at all times

(2) All cats will be contained within their lot at all times, other than 16.3.3, in accordance with local council by-laws

(3) All dogs and cats will be controlled by a lead at all times when outside their lots.

(4) Droppings to be picked up by the person in control of the animal when outside the lot

(5) All animals will be registered with the Body Corporate

(a) Future animals as from the 16th April 2008

(b) Existing animals by no later than 30th April 2008

The applicants state that they purchased their property in good faith unaware of any by-law pertaining to dogs over 10kg, and it was not until the contract became unconditional that thery were made aware of the applicable by-law. They further state that two committee members previously indicated that they would be able to keep their dog because she is well behaved.

The applicants argue that while a 10kg weight limit may be reasonable for dogs kept in high rise community title schemes, it is unreasonable for a scheme where each lot consists of land averaging 300 square metres upon which detached houses have been built. They believe that the adoption of an arbitrary weight limit is unreasonable because it operates to exclude pet dogs which are unlikely to cause a nuisance or inconvenience to other owners and occupiers.
For example, their pet dog is over 9 years old, is docile and never leaves their fenced yard unless on a lead or in their car.

Pursuant to section 243 of the Act all owners and the body corporate committee were invited to make submissions regarding the application. Overall some 47 submissions were received including numerous pro-forma submissions which read as follows:

(Name of unit owner) state:

• I am the owner of lot number..... within the Riverside Park Community Title Scheme No. 31061.
• I have read the submissions put forward by Peter and Suzanne CLAUSEN in their application.
• I strongly object to the granting of the application.
• I wish to submit that By-laws 16.1.,2 and 3, dealing with the control of Animals in Riverside Park, should remain as they are at present, and have been since inception of the Community Title Scheme.
  

Yours Faithfully
............................

Other submissions opposing the application included the following:

• The applicants should have made themselves aware of the scheme by-laws prior to purchasing their lot;
• Granting the application could create a precedent for other occupiers wishing to keep pets;
• The lots are each around 300 square metres in size with a 3 or 4 bedroom home and double garage, which leaves 4-5 metres between dwellings. The by-laws ensure that living at such close quarters is made tolerable;
• Several other nearby schemes have a “no pets policy”;
• The relevant by-law has been in place since the scheme was established and the by-law has worked well to date;
• Copies of the scheme by-laws were provided to other purchasers of lots in the scheme and at least 2 owners had to find alternative homes for their pet dogs before moving into the scheme;
• Most residents are retired or semi-retired and purchased dwellings because of the strictly enforced by-laws including animal control by-laws, resulting in a quiet and peaceful environment;
• The applicants will have an opportunity to submit a motion to amend by-law 16 at the next AGM in April 2011.
  

Submissions made on behalf of the committee included the following:

• The by-law states that an owner/occupier of a lot shall not keep any animal upon the lot other than either of one bird, one cat or one dog (weight of the dog to not exceed 10kg) or several fish;
• If the by-law was to be completely invalidated owners would be able to keep any type of animal without any controls in place;
• At the time of signing the contract to purchase their lot, the applicants should have been provided with details of “common obligations of a body corporate” which include by-laws relating to the keeping of pets;
• On the second page of the contract, there is a checklist which includes the question “Have you read and understood the body corporate by-laws?”;
• The applicant’s dog has previously been seen on common property;
• The 2007 AGM considered 2 motions relating to the keeping of pets. The first motion was that the by-laws be changed to completely prohibit the keeping of pets. This motion was defeated with 8 yes votes and 39 No votes. The second motion was that by-law 16 be strictly enforced and was carried with 33 yes votes and 9 No votes;
• The applicants have previously agreed to present a motion for consideration at the next AGM in April, to have by-law 16 amended to permit dogs of more than 10kg. The committee believes that this would be the most appropriate course of action.
  

A number of lot owners indicated that they did not believe the by-law should be invalidated because this would mean that any type of animal could be kept in the scheme. However, they were in favour of each case being considered on its merits and in this particular case, they believed that the applicants should be able to keep their pet dog provided it did not create a nuisance and did not go onto common property.

Submissions made by those owners who support the application included the following:

• The committee is acting unreasonably in seeking to ensure that no dogs over 10 kg are brought into the scheme;
• They do not believe that there is any logic in adopting a 10kg limit because some breeds of dog that grow to less than 10 kg have a propensity for barking or “yapping” whereas some breeds which grow to more than 10kgs but rarely bark;
• A neighbour, who is retired and at home most days, was unaware that the dog was being kept in lot 20 until it was brought to the attention of the committee;
• The dog is unlikely to cause a nuisance to anyone it is 9 years old and would not be seen or heard outside the confines of the applicants’ lot.
  

Jurisdiction

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

(c) a claimed or anticipated contractual matter about-

(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)).

Subsection 276(3) provides that the adjudicator may make an order mentioned in schedule 5 of the Act. Paragraph 21 of schedule 5 lists, as one of the types of order that an adjudicator may make, “If satisfied a by-law is invalid – an order declaring that the by-law is invalid and requiring the body corporate to lodge a request to record a new community management statement to remove the by-law.”

Decision

The applicants are seeking an order invalidating by-law 16 regarding the keeping of animals. They believe that a 10 kilogram limit on the size of dogs which may be kept within the scheme, is arbitrary and unreasonable because it has little or no relevance to the question of whether a pet dog would cause an inconvenience or nuisance to other owners. More specifically, they are seeking permission to keep their 9 year old dog on their lot.

The current community management statement (CMS) for the body corporate was registered on 23 June 2008, and contains the following by-law:

16. KEEPING OF ANIMALS

16.1 The owner/occupier of a lot shall not keep any animal upon the lot other than either of one bird, one cat or one dog (weight of the dog to not exceed 10kg) or several fish.

16.2 In the event that the owner or occupier is, in the opinion of the committee, in contravention of By-Law 16.1, the Committee may notify the owner or occupier in writing of such contravention and in the event that the owner or occupier does not comply with the Committee’s direction within the timeframe stipulated in the notice the Committee may take the action necessary to remove any animal from the lot.

16.3 Animal Care:-

(1) Owner/occupier will be responsible for their animal at all times

(2) All cats will be contained within their lot at all times, other than 16.3.3, in accordance with local council by-laws

(3) All dogs and cats will be controlled by a lead at all times when outside their lots.

(4) Droppings to be picked up by the person in control of the animal when outside the lot

(5) All animals will be registered with the Body Corporate

(a) Future animals as from the 16th April 2008

(b) Existing animals by no later than 30th April 2008

The applicants believe that this by-law is unreasonable and therefore void because it purports to arbitrarily prohibit the keeping of dogs that weigh more than 10 kilograms. In this regard, subsection 180(7) of the Act 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.

The keeping of pets in community title schemes has become a topical issue owing to the increasing popularity of community living. In a number of recent decisions, tribunals have held that by-laws which purport to arbitrarily impose a ban on the keeping of certain animals, are unreasonable and therefore invalid.[1] For example in McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA, Mr. Barlow SC of the Queensland Civil and Administrative Tribunal observed that cats and dogs are ordinary domestic pets, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions. In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable.

In that case, the tribunal observed that where the keeping of certain animals in a safe and healthy environment would not cause any difficulty to any other lot owners, a by-law which imposed an absolute prohibition on the keeping of such animals would be unreasonable. Conversely, the tribunal also observed that in certain circumstances there may be rational bases on which it might be said that the keeping of a cat or a dog, even in a safe and healthy environment within a lot, could cause inconvenience to other lot owners.

Reasonableness is a question of fact and the applicable test is an objective one, requiring a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[2] The question is not whether the decision was the "correct" one but whether it is objectively reasonable.[3] This indicates that, for a decision to adopt a by-law, there will be a range of potential by-laws that are “reasonable” but some potential by-laws that fall outside the range of what a body corporate acting reasonably could adopt.

The by-law under consideration does not completely ban the keeping of animals, but provides that the owner/occupier of a lot shall not keep any animal upon the lot other than either of one bird, one cat or one dog (weight of the dog to not exceed 10kg) or several fish. Therefore an owner or occupier is entitled, as of right, to keep:

• several fish;
• one bird;
• one cat; or
• one dog not exceeding 10kgs in weight.
  

The by-law does not give the body corporate a discretion to allow an owner or occupier to keep a dog which weighs more than 10 kilograms.

While “Riverside Park” is a community title scheme, it does not consist of a high-rise tower or townhouses. The scheme involves a subdivision of land by way of a standard format plan and comprises some 80 lots with an average land area of approximately 300 square metres, with a detached house built upon each lot. I also note from the material at hand that each lot has vehicular access to the roads within the scheme.

I believe its is quite possible for some breeds of dog exceeding 10 kilograms in weight, to be kept within lots without causing nuisance or annoyance to other lot owners. As a number of owners have pointed out, some small dog breeds have a high activity level and a propensity for barking whereas some dog breeds grow to more than 10kgs but rarely bark. Further, given that there is vehicular access to each lot, it would be possible to transport an animal to and from a lot by vehicle, thereby obviating concerns regarding the presence of larger dogs on common property. Having regard to the circumstances, I am of the view that to the extent that by-law 16.1 restricts ownership of dogs to dogs not exceeding 10 kilograms in weight, that part of clause 16.1 is unreasonable and therefore invalid.

The appeal decision in McKenzie v Kings Row makes two main points regarding the validity of by-laws relating to pets. Firstly, that the keeping of common domestic animals is a normal use of a lot. Secondly, that it is unreasonable to place a blanket ban on normal activities that will not necessarily inconvenience other owners. Therefore it would appear that the committee would need to retain a discretion to approve pets such as Mr and Mrs Clausen’s dog if the keeping of the dog was unlikely to inconvenience other owners.

Obviously the body corporate can validly do some things to restrict ownership of pets within the scheme. If the committee reasonably concludes that a dog is likely to inconvenience other owners, then the committee could exercise its discretion to refuse to allow that dog to be kept within the scheme. Also if any animal within the scheme causes inconvenience to other owners contrary to section 167 of the Act, then the body corporate could require the owner to remove the animal or otherwise abate the nuisance. However, having regard to the nature of this scheme which comprises detached houses with private yards, I believe that a 10 kilogram restriction on the weight of a dog which may be kept, is unreasonable.

The applicants state that their 9 year old dog is docile, sleeps much of the time and is not seen or heard outside the confines of their fenced lot. This is corroborated by a number of neighbouring owners who state that the dog is well natured and creates little, if any, noise. I have not been provided with any evidence to suggest that this dog is likely to cause a nuisance to other owners and occupiers. I therefore believe that they should be able to keep the dog on their lot.

This leads to the question of what action the body corporate should take to regulate the keeping of animals in the scheme. I note that prior to its amendment at the AGM held in April 2008, clause 16.1 of the by-laws provided:

16.1 The owner/occupier of a lot shall not without the approval in writing of the committee keep any animal upon the lot other than either of one bird, one cat or one dog (weight of the dog to not exceed 10kg) or several fish.

One option for the body corporate to consider is whether the previous version of clause 16.1 could be adopted, so that as previously, it would be for the committee to consider each case upon its merits and, in making a decision whether or not to approve the keeping of a particular animal in a particular lot, the committee would have to act reasonably.

Orders

For the above reasons I have made the following orders:

(1) Paragraph 16.1 of by-law 16 in the community management statement of the respondent, is invalid to the extent that it includes the words weight of the dog to not exceed 10kg.

(2) The applicants are entitled to keep their 9 year old dog within their lot subject to compliance with the conditions contained in clause 16.3 of by-law 16.

(3) Within 5 months of the date of this order, the respondent body corporate is to lodge a request to record a new community management statement with an amended by-law 16 regarding the keeping of animals.

This will allow sufficient time for the body corporate to put to the members at the next annual general meeting in April, a motion to adopt an amended by-law.

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[1] See for example Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] QCCT BCCM 12 and McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA
[2] 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 paragraph 61.
[3] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at pages 34, 38.