Seaspray Caloundra [2012] QBCCMCmr 2 (5 January 2012)

Last Updated: 20 January 2012

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

CITATION:	Seaspray Caloundra [2012] QBCCMCmr 2
PARTIES:	Ron and Jill Burnett (applicants) Body Corporate for Seaspray (respondent) All owners (affected persons)
SCHEME:	Seaspray Caloundra CTS 10114
JURISDICTION:	Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA), applying the BCCMA and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0935-2011
DECISION DATE:	5 January 2012
DECISION OF:	D Toohey, Adjudicator
CATCHWORDS:	BY-LAWS – whether committee permission to keep dog remains in force – requirement the body corporate act reasonbly. BCCMA, ss 94, 100.

ORDERS MADE:

I hereby declare that resolution 17 of the annual general meeting on 24 September 2011 is void and of no effect. The 18 December 2010 approval for Ron Burnett to bring a dog to his unit when in residence therefore remains in effect.

REASONS FOR DECISION
Introduction

[1] In December 2010 the committee voted to allow Mr Burnett to bring a dog to his unit when they were in residence. At the annual general meeting in September 2011 owners voted to review this decision. Mr Burnett argues it would be unreasonable for the body corporate to do this as he only walks the dog through the scheme occasionally on the way to the beach.
[2] The specific order sought by Mr and Mrs Burnett is for the permission granted by the committee to be reinstated. Having reviewed the minutes of the body corporate meetings I am satisfied this committee permission has never been overturned and remains in effect. Mr and Mrs Burnett are therefore entitled to the above order. I have provided the full reasons below and included some information about body corporate decisions to approve pets.

Analysis

Committee resolution remains in effect

[3] On 18 December 2010 the committee resolved:

PERMISSION TO KEEP A DOG – Unit 11 - Ron Burnett was given approval by the Committee to speak on this issue and he presented a request to the Committee for permission to bring a dog to his unit when they are in residence at the building. Moved Ian Watson, Seconded Dennis Mee 2 Votes for, 1 Abstain, 1 Against 1 Unable to vote. Permission was granted under the following conditions:

1. That if the dog creates a nuisance the Committee can request its removal.
2. The dog must not defecate on the common property.
3. The dog is allowed on a temporary basis at the building only when the owner is there.

[4] At the 24 September 2011 annual general meeting owners voted on the following motion 17:

REVIEW THE DECISION TO ALLOW UNIT OWNERS TO BRING DOGS INTO THE SEASPRAY COMPLEX – Resolved, that by majority resolution, this motion is for the full Body Corporate to vote on whether they approve the decision made by the committee to allow dogs to be kept at Seaspray. If the owners don’t accept the committee decision then the approval to bring dogs to the Seaspray Complex is withdrawn. (2 VOTES FOR & 7 AGAINST & 2 ABSTAIN)

[5] As there were only 2 votes for this motion and 7 against, this motion failed to pass. That means the motion has no legal effect. The motion was not well drafted so it is not clear whether a vote in favour would have supported the committee decision, supported another vote on the issue, or supported overturning the committee decision.[1] However, whatever this motion says is irrelevant because the motion failed to pass.
[6] The committee resolution of 18 December 2010 has not been revoked and remains in effect. Mr and Mrs Burnett are therefore entitled to the above declarations.

Body corporate must act reasonably when considering whether to grant permission to keep pets

[7] A body corporate must act reasonably in making a decision (BCCMA 94(2), 100(5)). This means the body corporate must consider any application to keep a dog on its merits and cannot simply adopt a policy to refuse all dogs.
[8] Last year, the Queensland Civil and Administrative Tribunal invalidated a by-law that prohibited the keeping of dogs and cats in a high rise building.[2] The Tribunal recognised that cats and dogs are ordinary domestic pets and that some of these animals could be kept in a safe and healthy environment within a unit without causing inconvenience to other residents.
[9] A body corporate can impose reasonable conditions on the keeping of a dog. However, if the dog is unlikely to inconvenience anyone else it is generally unreasonable for the body corporate to refuse permission altogether. A reasonable body corporate could refuse or withdraw permission if the dog was likely to inconvenience others or if complaints about the dog are accepted. In doing so, it would normally be expected the body corporate would give the dog owner an opportunity to address any concerns or complaints.[3]

Conclusion

[10] The committee resolution of 18 December 2010 has never been revoked and remains in effect. This authorisation to keep a dog may be reconsidered in a committee or general meeting. This is, however, subject to a requirement the body corporate acts reasonably.

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[1] Owners can telephone this office on 1800 060 119 to obtain some guidelines on drafting motions.
[2] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57.
[3] Refer to sections 94 and 100 of the BCCMA regarding the requirement the body corporate act reasonably and section 167 of the BCCMA regarding a requirement that an occupier not use a lot in a way that causes a nuisance.