212 on Margaret [2010] QBCCMCmr 503 (9 November 2010)

Last Updated: 13 December 2010

REFERENCE: 0758-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

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

Georgina Herbertson, the Owner of Lot 105

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0758-2010

“212 on Margaret” CTS 33840

APPLICATION

This is an application dated 25th August 2010 and amended on 26th August 2010 by Georgina Herbertson (the Applicant) owner of Lot 105, against the body corporate for the scheme (the body corporate) for an order as follows –

1. “that the adjudicator overturn the outcome of the special resolution vote at our 2010 AGM in relation to the ‘pets’ by-law. This would result in the by-laws being changed back to their pre-2007 version, in relation to pets (allowing pets provided the application is reasonable and the Body Corp provides approval)”
   
   

JURISDICTION

“212 on Margaret” is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module). There are 137 lots in the scheme.

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)).

SUBMISSIONS

The Applicant says that in 2007, the body corporate registered a new community management statement with by-law 14 which, save for an exception concerning guide dogs, says –

“The occupier of a lot must not

• bring or keep an animal onto the lot or the common property; or
• permit an invitee to bring or keep an animal on the lot or the common property.”
  
  

At the annual general meeting on 29th June 2010, the Applicant proposed a motion to change this by-law to the pets by-law which the body corporate had previously, before the new community management statement was registered. The former by-law said that animals must not be brought onto a lot or common property by an owner or visitor without the body corporate’s prior written approval.

She says that there were also criteria for the committee[1] to follow built into this former by-law, and these were: - that it would consider the nature/breed of the animal; the size of the animal; the likelihood of the animal causing noise or disturbance to others; whether it is appropriate or humane to keep such an animal in a lot; and the level of supervision which the animal would receive. The “committee”[2] could also impose reasonable conditions, and consent could be revoked.

The Applicant added her own “rider “to the motion that she be authorised “to house a pet within her Lot subject to complying with conditions to be set by the committee if this motion is approved.” The motion was defeated 22 – 15, with a poll vote called for resulting in a 15,735 – 10,587 vote, so a special resolution was not achieved.

The Applicant says that there were some invalid votes and most owners failed to vote at all, demonstrating that they do not care either way. Many of the lots are in the “Oaks” hotel letting pool so that it is unlikely that the question of bringing a pet would arise in respect of hotel guests. The vote does not demonstrate that an overwhelming majority do not want to see animals in the scheme.

The Applicant believes that the current By-law 14 is unreasonable and unenforceable, since it is a blanket ban on all animals with no regard given for species, eg. a goldfish, which has no capacity to annoy others. She says that the by-law is irrational, restrictive and oppressive.

She says further that the drive for the change of by-law in 2007 came from the committee, with only 10 votes in total out of a scheme of 137 lots; and that the committee has in effect practised a “no pets policy” even before the by-law was changed.

She says that she would like the opportunity of having a small dog.

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

Jo Anast, owner of Lot 81, says she would like the possibility of having pets in the scheme and is in favour of the application.

Shane Doepel and Shaun Stevens, owners of Lot 31, say that the building is not suitable for housing pets in any circumstances, being a high-density CBD residential development. Most of the units are let as part of a very busy hotel. The scheme only has “modest common areas.” Owners who are buying into the scheme do so knowing that there is a “no pets” policy which in their case influenced their decision to buy.

Frank and Marilyn Moes, owners of Lot 61 (unit 1501) say that they purchased because of the “no pets” policy. They do not believe that living in the city is an appropriate environment for animals such as dogs and cats. There are no immediate close areas where a dog can be exercised, and dogs and cats should not be in all day but have a yard to play in and access to fresh air. Mr Moes also has an allergy to animal hair.

Rachel Findlay, owner of Lot 23 (unit 805) supports the application, believing it unreasonable to ban all pets. She has lived in CBD buildings which allow pets, and the animals have not been disruptive. In “Aurora” at 420 Queen Street, it is one of the reasons why the units are highly sought after. The body corporate should allow pets within reason such as pets below a certain weight/size.

Maria Barnett and Paul Schaller, owners of Lot 121 (unit 2701), say that before purchase they checked that pets were not allowed. He has severe allergies to dog and cat hair and would not be able to use the lifts or foyer if there was animal hair in the carpets. They say that in their experience with tenants, fish tanks can cause damage to carpets, clog drains and leave stains. The building is used as a hotel so a blanket ban on pets in not unreasonable. No matter how well- behaved pets are, they would cause extra work for the management and result in blocked-in balconies which would change the exterior of the building.

Verne Baistow, owner of Lot 95 (unit 2203) says that he supports a “no pets policy.” The units are too small to provide adequate room for an animal, and the units are used for hotel accommodation. “No animals are allowed in hotels” so there should not be any animals in the scheme building either. He is also concerned about health issues and noise.

Colin Yeoman and Louisa Farthing, owners of Lot 33 (room 1005) say that the registered by-law should remain as it is, since the building is inappropriate for the housing of pets.

Christine Torbey, owner of Unit 1801, says that the building is an inappropriate residence for pets, especially dogs and cats. Animals are unpredictable and it is not possible for an owner to control entirely an animal’s behaviour. She says that this is a “standard rule in city apartment blocks generally.”

Gregory Firth, owner of Unit 603 says that the scheme should not entertain pets at all.

The body corporate, as respondent in the application, said the body corporate passed the change to the by-law in 2007 with no dissenting votes (12 – 0), and again rejected the Applicant’s motion in 2010. Any applications made before 2007 were considered on their merits. It notes that adjudicators have found the blanket ban to be “unacceptably restrictive” in the past but says that By-law 14 does not restrict an owner from submitting a request to a general meeting, but that it is only the committee which is prevented from considering a pet request.

It says that the numbers and types of owners who voted on the Applicant’s motion are irrelevant. The body corporate has properly considered both motions.

The Applicant exercised her right of Reply, noting that there were only 10 submissions in all. She says that she has some sympathy with the views expressed against her application but that the freedom of making a reasonable decision should not be taken away from owners at a future time. She denies that the use if the building as a hotel, makes it “a hotel.” It is freehold land in a community title scheme and all owners have rights to be heard. She also points out that the by-laws were only changed in 2007 so as not to allow pets. Owners who say that they bought into the scheme before that time, cannot have known that “no pets were allowed” since the by-law allowed pets. In respect of the issue of fresh air she says that all the balconies are glassed in and tiled and that fresh air is available through doors and windows. Further the scheme is one block from the Botanical Gardens, and close to West End and New Farm, and that dogs are permitted in the CBD on leads. She is aware of two CBD schemes which are pet-friendly.

She says that she too has a keen sense of smell and is perturbed by body odour and cigarette smoke but it would not be reasonable to complain about her occasional encounters with either in high density apartment living. In respect of noise issues, she says that the building is surrounded by noise of construction and city living, and the roar of air-conditioning systems on adjacent buildings. A quiet life is not available at the scheme with or without pets, and owners are resilient to noise. Returning to the original pet by-law could allow the body corporate in any event to deal with noise issues.

She also denies that all pets are not suitable for small units, or that the balconies would have to be changed in any way. These are theoretical issues which do not relate to the purpose of the application which is to consider whether or not the current by-law is invalid for unreasonableness.

DETERMINATION

The Applicant is seeking that the vote on a motion to change the pet by-laws, proposed by her to the annual general meeting held on 29th June 2010, is overturned. She says that this “would result in the by-laws being changed back to their pre-2007 version...”

I have identified the result sought by the Applicant as in fact two outcomes albeit related to each other. The first is to overthrow the result of a motion proposed by her to the annual general meeting on 29th June 2010; the second is to change the by-laws of the scheme back to the wording used by the scheme before the change made by the body corporate at its annual general meeting on 19th July 2007, and recorded in a new community management statement in the Land Titles Registry on 14th September 2007.

The Applicant’s motion, stated to require a special resolution, was as follows –

“That the body corporate amend by-law 14 which currently reads as follows .........

to be amended to read:

14 KEEPING OF ANIMALS

14.1 The occupier of a lot must not, without the Body Corporate’s written approval:

(a) bring or keep an animal on the lot or the common property; or

(b) permit an invitee to bring or keep an animal on the lot or common property.

14.2 The occupier must obtain the Body Corporate’s written approval before bringing, or permitting an invitee to bring an animal onto the lot or common property.



14.3 As a guideline, in deciding whether or not to consent to an occupier of a lot keeping an animal on the lot, the Body Corporate will consider the following issues:-

• (a) the nature/breed of the animal;
• (b) the size of the animal;
• (c) the likelihood of the animal causing noise or disturbance to the other occupiers;
• (d) whether it is appropriate and humane to keep such an animal on the lot;
• (e) the level of supervision that the animal will receive; and may impose requirements on the consent which it considers reasonable including –
• (f)
• (a) restrictions on the animal entering and using the common property;
• (b) supervision and exercise of the animal;
• (c) cleaning up any mess made by the animal in the common property;
  
  

In the event that the animal has caused unreasonable disturbance to other occupiers, the consent to keep the animal may be revoked.

14.4 Please note that section 181 of the Body Corporate and Community Management Act 1997 provides as follows .......

and the Chairperson and one (1) other Committee Member be authorized to sign and execute the Community Management Statement under Common Seal to give effect to this change.

Further that the owner of Lot 105 be authorised to house a pet within her Lot subject to complying with conditions to be set by the Committee, if this motion is approved.”

A special resolution was not achieved and the motion was not carried. There do not appear to have been any explanatory notes with this motion.

The Applicant’s argument is that the current By-law 14 is invalid and unenforceable for the reason that it allows no discretion to be exercised by the body corporate as to whether an animal may be brought into the scheme. It is a “blanket ban” on all animals, whatever they are. She has noted previous orders of adjudicators that have found this type of by-law to be unreasonable, and in contravention of section 94 Act which requires the body corporate to act reasonably in anything it does in the administration of the scheme.

However, the Applicant’s motion was not a motion to delete By-law 14 but to replace it with specific wording, and included a request for her to keep “a pet” if the motion passed. This rather muddied the waters. An owner who might agree that the present By-law 14 was unreasonable, and might even vote to remove it, is not in my view “reasonably” required to approve other specific wording and to allow the Applicant to keep a non-specified pet at the same time. It seems to me that 35 voters exercised their votes freely, and that there were some votes which were declared invalid for lack of the appointment of a nominee, and some voters who were “non-financial”. There is nothing improper alleged about the way in which the votes were cast.

The outcome sought is therefore dismissed.

However, on 21st September 2010, the Queensland Civil and Administrative Tribunal (QCAT) delivered an appeal decision in McKenzie –v- Body Corporate for Kings Row Centre CTS 11632[3] which found that a by-law which approves a blanket prohibition on all animals, and even on specific animals such as “cats and dogs,” is unreasonable and/or oppressive and therefore invalid. Such wording was held by Tribunal Member Kenneth Barlow to be unreasonable because each animal, which might be something innocuous, should be considered on its merits and the body corporate has no power to take away the freedom of a person to own an animal, for companionship or otherwise, unless it can mount a reasoned objection to that particular animal, based on relevant circumstances.

This decision has not only affirmed the line of adjudicator’s decisions whereby it was considered unreasonable to put a blanket ban on all animals, but also decided that putting a ban on specific types or breeds of animal is also unreasonable. The Member said -

“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.[4]

.......The real issue in this case is whether the by-law, in regulating the keeping of animals in lots in the manner it does (that is, by prohibiting the keeping of cats and dogs but allowing the keeping of other animals with the committee’s permission), is “oppressive or unreasonable”. If it is, then it is contrary to subsection 180(7) [Act], which provides:

“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.”

And further -

“29.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. “

Each case should be considered on merit and in the circumstances, and the body corporate/committee has a duty to act reasonably.

I am not of the view submitted by the committee that the current By-law 14 “does not restrict an owner from submitting a request to a ... general meeting” but only applies to applications to the committee. It would be futile indeed for an owner to make an application to a general meeting for the approval of keeping an animal when the by-law specifically prohibits the body corporate from granting an approval. The lot owners make up “the body corporate”[5] and the term may refer both to the committee which may make decisions for the body corporate, pursuant to section 100(1) Act[6]; and to a general meeting of owners.

I therefore find that By-law 14 as it now stands is invalid and unenforceable.

However, the related outcome sought by the Applicant that the pre-2007 By-law 14 is resurrected is not the result of such a finding. Section 284(1) Act provides that an adjudicator may make an order which contains consequential provisions such as are necessary and appropriate. Since By-law 14 is invalid, I order that the body corporate must remove By-law 14 from the community management statement within three months of the date of this order. I am giving the body corporate an extended time in which to remove an invalid by-law in view of the forthcoming Christmas holiday season. The body corporate may not rely on By-law 14 as it is. The body corporate may, if it wishes to do so in the meantime, put to members at a general meeting a resolution adopting a new by-law about the regulation of animals within the scheme in reasonable terms, having regard to the reasons for this decision.

In Mackenzie, Mr Barlow quoted with approval the “standard” by-laws set out at Schedule 4 Act, that is, the permissive by-law which says that animals may not be brought onto scheme land without the approval in writing of ‘the body corporate’, which might be the committee or the body corporate at a general meeting. In short, the wording suggested by the Applicant in her motion, and which the body corporate had before the new community management statement was lodged in September 2007, would be considered by the test in Mackenzie to be valid.

I am of the view that the “guidelines” proposed by the Applicant are also reasonable in that they show to the person who is seeking approval, what criteria are to be considered. However, how the committee or the body corporate might decide on the “likelihood” of something occurring (noise or disturbance) is a matter of evidence.

Of course, when an animal is permitted to remain within scheme land, its owners are still subject to the provisions of section 167 Act that they must not within their lots or on common property cause a nuisance or interfere unreasonably with the use and enjoyment of another lot or the use and enjoyment of the common property by another person. The body corporate therefore has its safety net within the legislation.

[1] Community management statement dealing no. 708843956 recorded 22nd July 2005 in fact states “the body corporate....” and not “the committee....” The Applicant’s motion to the annual general meeting on 29th June 2010 was worded that the “body corporate “ would consider the guidelines.

[2] See note.1 above.

[3] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 057 (10/APL056) Brisb Kenneth Barlow 28/09/2010

[4] Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550; [2003] 2 Qd R 381, at [6]-[8]. This case concerned the prohibition of construction being undertaken without reference to the body corporate.

[5] Section 31 Act

[6] “A decision of the committee is a decision of the body corporate.”