212 on Margaret [2011] QBCCMCmr 400 (14 September 2011)

Last Updated: 28 September 2011

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

APPLICATION

[1] This is an application dated 23rd June 2011 by Georgina Herbertson, owner of Lot 105, against the body corporate for “212 on Margaret” CTS 33840 for an order that the wording of the new pet by-law is altered to “a more reasonable one”, or in the alternative that the “unreasonable aspects” of the new by-law be struck out, or a “more standard pet by-law be lodged in its place.”

OVERVIEW

[2] “212 on Margaret” is a Brisbane CBD residential development. Many of the units are let as serviced apartments. There are 137 lots in the scheme but there is limited common property. However, the scheme is one block from the Botanical Gardens, and close to West End and New Farm.

[3] This application is about a new pet by-law which the Applicant says is unreasonable. The new by-law was approved by the body corporate on 24th March 2011 and its creation follows a previous application to this Office by the Applicant, in which I made an order that any new by-law must allow for the reasonable exercise of discretion by the committee in allowing a pet to live in the scheme.

[4] There has been a string of recent cases about keeping animals in community titles schemes, and these cases broadly say that to keep a pet is a normal domestic activity and that the body corporate is acting unreasonably if it prohibits such an activity completely. Instead, the body corporate must use its discretion in assessing each application to keep a pet, and that the discretion should be exercised against some discernible criteria so that owners can see a level playing field.[1]

[5] The body corporate argues that the by-law does not prohibit animals within the scheme but merely sets out certain criteria which the body corporate may, or may not, consider when an application to keep a pet is made.

[6] This then is an application about a question of law. I will therefore be looking at the new by-law to see if it complies with the tests for reasonableness followed in these recent cases.

JURISDICTION

[7] I am satisfied that this matter falls within the legislative dispute resolution provisions.[2] It is a dispute between a lot owner and the body corporate about the exercise of rights or powers under the community management statement.[3] An adjudicator’s order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] Further, an adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

SUBMISSIONS

[8] The Applicant says that following an adjudicator’s order made in November 2010 the body corporate was told that any new by-law about pets had to provide for the reasonable exercise of discretion on the part of the body corporate. On 22nd March 2011, at an extraordinary general meeting, the body corporate voted by special resolution 14 -7 in favour of the following new pet by-law –

“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 Common property; or
• (b) permit an invitee to bring or keep an animal on the lot or the 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 In deciding whether or not to consent to an occupier of a Lot keeping an animal on the Lot, the following conditions may be required by the Body Corporate –

• (a) a report by a suitably qualified veterinarian regarding the suitability of a pet to live in the complex;
• (b) the pet does not weight (sic) more than ten (10) kilograms;
• (c) the pet is kept within the lot;
• (d) the pet does not cause a nuisance to or disturb any other Lot Owner or occupier;
• (e) the pet is prohibited anywhere within the pool area;
• (f) the pet is restrained when on Common Property and is carried whilst in entry lobbies, individual floor lobbies and lifts;
• (g) the pet is domesticated, kept clean, quiet and controlled at all times, whilst within the Lot and whenever on Common Property;
• (h) the pet does not go to the toilet nor run loose whilst on Common Property. The owner will subject to a cleaning fee for a breach of this condition;
• (i) the pet wears an identification tag clearly showing the owner’s name, address and telephone number;
• (j) a photo of the pet is supplied to the building manager and body corporate manager;
• (k) this consent will only apply to the existing pet and shall not apply to any further subsequent or replacement pet;
• (l) only one (1) animal is to be kept within the lot;
• (m) that the pet not be a risk to the health or create unacceptable distress to an occupant in the event that the pet escapes the control of the owner;
• (n) whether it is appropriate and humane to keep such an animal on the lot;
• (o) an appropriate level of supervision; and
• (p) the body corporate shall be entitled to withdraw its consent and require removal of the pet upon receiving two (2) substantiated complaints regarding the pet or the owner breaches any of the conditions of the approval.

[9] The Applicant says that the following aspects of the by-law are unreasonable –

• that the pet does not weight more than 10 kg;
• that only one animal is allowed;
• that the pet must be carried whilst in entry lobbies, floor lobbies and lifts; and
• that the body corporate is entitled to withdraw its consent, and require removal of the animal on receiving two substantiated complaints or [if] the owner breaches any of the conditions of the approval.

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

• [11] There were submissions from five owners who, in summary, made the following points –
  • The conditions may be arbitrary but then there must be some limits;
  • A dog under 10kg can be carried easily;
  • Sharing a lift with a large dog on a rainy day would not be a pleasant experience;
  • Perhaps the body corporate could provide owners with a list of breeds (of dog) which would be likely to find favour in theory with the committee;
  • That the strict limits of the conditions would be unlikely to be applied and the committee would be reasonable;
  • The units and confined common property are not suitable places for dogs as they are carriers of fleas, they fight and bite, and they need to defecate;
  • The new by-law is fair;
  • That owners should have known what the by-laws were when they purchased a lot;
  • The scheme is not suitable for housing dogs at all as it operates as a busy hotel with rented suites;
  • Dogs are unpredictable in city situations eg when confronted with fire alarms and/or fireworks and their presence would increase the risk management of the scheme;
  • The majority of the units are small and keeping a dog in them would not be fair on a dog.

[12] The body corporate says that the pet by-law is reasonable and consistent with both QCAT and BCCM decisions. It says that the by-law shows that the committee will exercise its discretion reasonably and it is not imposing an absolute ban on pets.

[13] The conditions may or may not be exercised by the committee, dependent on the type of animal and the type of lot, and logic would apply. The body corporate is in any event bound to act reasonably pursuant to section 94 Act. It also refers to section 167 Act which enables the body corporate to take steps if the animal is a nuisance or interferes unreasonably with the use or enjoyment of another lot or the common property.

• [14] The Applicant did not wish to exercise her right of reply.
  
  

DETERMINATION

[15] The Applicant is challenging the new by-law, saying in effect that it is, or parts of it are, unreasonable. She objects to four parts which are listed as possible conditions which may be imposed by the body corporate in the event that the keeping of a pet is permitted.

[16] Section 180(7) Act says that a by-law cannot be oppressive or unreasonable having regard to the interests of the lot owners and occupiers of lots in the scheme and the use of the common property for the scheme

[17] There are 16 conditions listed as possibly being required by the body corporate whenever an owner seeks the written consent of the body corporate to keep an animal. Some of the conditions are probably only practically applicable to a dog or cat, for example, the requirement to wear an identification tag.

[18] The conditions are listed in the community management statement and are part of by-law 14. Whilst the body corporate might require any reasonable condition, the acceptance of that condition would be by agreement with the owner, and would not be part of the by-law itself. A breach of a condition agreed between the parties would not trigger a breach of by-law, whereas a breach of one of the listed conditions imposed by the committee, would in my view be a breach of the by-law itself.

[19] The conditions to which the Applicant objects are as follows –

• that the pet does not weigh more than 10kgs (condition (b));
• that only one animal is allowed ( condition (l));
• that the pet must be carried over certain parts of the common property (condition (f)); and
• that the body corporate may withdraw its consent and require removal of the pet if there are two substantiated complaints, or the owner does not comply with the conditions (condition (p)).
  
  

Condition (b)

[20] In Riverside Park [ 2011] QBCCMCmr 5, the adjudicator said that he thought it was quite possible for some breeds of dog exceeding 10kg in weight to be kept without causing a nuisance or annoyance to other owners. However, it does appear that this decision was influenced by the circumstances of that scheme in which the lots consisted of detached houses each having vehicular access, in a standard format plan.

[21] In this scheme which is a high-rise building where there is a main entry point, it may well be that a dog over 10kg in weight would be more noticeable, and may be inclined to have contact with other occupiers. But in practical terms, this condition cannot be enforced. A dog may put on weight, or a puppy may grow. A cat is unlikely to be 10kg in weight but still have the capacity to cause a nuisance.

[22] It seems to me that to have a condition of a by-law that an arbitrary weight or size is the criterion which the committee relies on to decide whether to allow a pet into the scheme is unreasonable in the same way as a by-law itself which fixes a limit by weight or size. It also does not achieve the objective for which it is designed. It would be far better for the committee to retain flexibility so that each animal may be assessed on its known propensities or likely attributes. A reasonable criterion would be that “the committee may consider an animal’s size and weight.” That would then give the committee the ability to refuse, say, a small dog known to be yappy or snappy.

[23] In other words, the size or weight of any animal is not an indicator of whether it might be an annoyance or nuisance to other occupiers.

Condition (l)

[24] In Vantage[6] I found that there was nothing to distinguish an arbitrary policy about the keeping of one dog only, from a by-law which banned dogs or animals completely, a by-law which was found to be unreasonable in McKenzie - v - Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57.

[25] Again the emphasis was on the likelihood that one dog might, or might not, cause as much inconvenience as two dogs. The number of animals kept is not in itself the criterion on which to judge whether particular animals are likely to cause an unreasonable interference or nuisance to others.

[26] Since each application must be assessed on its merits, the committee cannot say that one of the conditions may be that only one animal will be allowed. In an application to keep two animals, the committee must assess the combined effect of two animals and if there is likely to be any interaction between the two. For example, a budgerigar and a cat are unlikely to act in concert. An owner who already keeps one type of pet, may want another of the same type of pet, or a completely different species. Depending on the pet, and the species, and the needs of the animal in question, the committee needs to be able to assess the combined effect of the animals proposed, and to be able to say whether or not the keeping of one or two or more animals is, or is not, in its view likely to have a detrimental effect on neighbours or other occupiers.

[27] The effect of such a condition if applied to the first animal, would prohibit absolutely the same applicant from applying to keep a second animal, that is, the applicant would have no right to apply, which cannot demonstrate a reasonable consideration of the second animal by the committee.

[28] I therefore find that this numerical basis for a condition sets out an unreasonable criterion which should not be applied.

Condition (f)

[29] The Applicant says that part of this condition is unreasonable, that is, that the committee may say that the condition for keeping an animal is that it is carried when in common property lobbies and lifts. She says that this is almost the same as saying that the animal must be under 10kg in weight.

[30] When this condition has formed part of a permissive by-law it has not been found to be objectionable because it is seen as regulating the activity of keeping a pet, rather than banning it completely.

[31] Again, the spotlight is on what is reasonable for this scheme. If the committee found that it was reasonable to allow a Golden Labrador in the scheme, then it would perhaps not be reasonable to do so on condition that it was carried in lobbies and in the lift. The conditions must not prevent the exercise of the permission.

[32] However, such a hypothetical situation cannot be entertained since this application is about the resolution of a dispute. The dispute here is that the conditions of the new by-law are said to be invalid because they are unreasonable in themselves, or are oppressive in themselves, having regard to the interests of the lot owners and occupiers of lots in the scheme and the use of the common property for the scheme (Section 180(7) Act.)

[33] I am of the view that should the committee find that an animal might live in the scheme and be unlikely to have any negative effect on neighbours or occupiers, that it may in some circumstances be a reasonable condition that the animal is carried when in public foyers and lifts.

Condition (p)

[34] The body corporate is required to act reasonably in all things pertaining to the administration of the common property and the enforcement of the community management statement (section 94(2) Act). Here, the committee is setting out the criteria for when it might withdraw its consent. I find that such criteria is arbitrary in that again it depends on a set number of complaints, and the way in which the complaints are to be substantiated is not explained. There is also no right of appeal given to the owner, and no process set up by which the withdrawal of consent is to be exercised.

[35] If an owner breaches any of the conditions of the approval, the conditions being reasonably applied, then the owner may be served with a by-law contravention notice in accordance with the legislation in the usual way. Such a notice requires the contravenor to cease the contravention within a certain number of days, following which action may be taken by the body corporate. The content of the contravention notice and the steps required are set out at section 182 Act.

[36] I have some concern that this condition, if imposed, attempts to improve upon the legislation. Section 180(1) Act says that any by-law, which is inconsistent with the legislation, will be invalid to the extent of the inconsistency. By imposing a “two strikes and out” condition, the body corporate is not following the legislated procedure.

[37] In addition, section 167 Act enables the body corporate to take steps if an animal is a nuisance or hazard, or interferes unreasonably with the use or enjoyment of another lot or the common property.

[38] At common law, a private nuisance consists of a wrongful disturbance or interference with a person’s use of land. In order to be actionable -

“there must be an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant and dainty habits of living but according to plain and sober notions among our people. ”[7]

[39] The interference must be both unreasonable and substantial as a matter of fact to be determined in reference to all the circumstances of each particular case and it is also a matter of degree. What standards are reasonable must be determined by common sense, taking into account relevant factors including the ideas of reasonable people, the nature of the location of the land, the character, duration and time of the interference and the effect of the interference.[8]

[40] “Unreasonable interference” requires a lesser test than “nuisance”, but the interference must be “unreasonable” in the prevailing circumstances, and is not likely to be a “one-off” occasion. Occupants of community title schemes, especially in high-rise apartments are going to be largely aware of each others’ movements and are going to be able to hear sound emanating from other units.

[41] The “two strikes” rule therefore takes away legislative rights and proposes a standard of compliance which is higher than that provided for in either the legislation or at common law. Such a condition would not be reasonable, and therefore should not be listed in the criteria which may be considered by the committee.

Conclusion

[42] The Applicant seeks to have four of the conditions struck out, or the wording altered. I am of the view that it would not be appropriate for me to alter the wording of the conditions, especially when no other specific wording has been made part of this application for the consideration of the parties. However, I do have the power to order that certain by-laws or conditions are invalid because they are unreasonable.

[43] I therefore order that condition (b), condition (l), and condition (p) are unreasonable conditions and as such are invalid, and must be omitted from the community management statement.

[44] I do not find that condition (f) is unreasonable, and therefore it is not invalid.

[45] I have some sympathy for the body corporate because the more it tries to regulate by defining parameters, the more likely it is to fall into the error of creating by-laws which will be held to be unreasonable. Whilst a busy tower block in the city does not seem an ideal place for dogs and cats perhaps, there will be circumstances in which it will be quite reasonable to keep a pet, including a dog or cat, depending on the circumstances. The first condition that the committee may require a report from a vet is a good one because it engages an expert in the field with the emphasis on the welfare of the animal. I note however that the condition does not say who is to provide the vet’s report.

[46] Each request must be assessed individually and the body corporate must give reasons for any refusal, or apply conditions which are reasonably required in the circumstances. The circumstances might include the needs of the particular animal as well as the occupiers of the scheme.

[47] Finally, I note that the body corporate has now recorded a condition that an owner whose animal gets out or goes to the toilet on common property “will be subject” to a cleaning fee for breach of the condition. This appears to me to be a monetary penalty for breach of a by-law which may not be imposed by a body corporate, but only by a magistrate. The by-laws already do not allow for marking of, or damage to, common property structures (By-law 6.1).

[48] If the animal does actual damage to the common property, like chewing skirting boards, or staining carpet, or leaves an odour which necessitates cleaning without actual physical damage, then the body corporate may seek payment from the person in charge of the animal in the usual way. An owner who does not pay for the repair or rectification of the wrong done may be pursued through the courts.[9] Such an event might in any event constitute nuisance and fall under section 167 Act.

[1] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57, Tutton –v- Body Corporate for Pivotal Point Residential CTS 33550 [2008] CCT KA005-08; Vantage [2011] QBCCMCmr 69 (22 February 2011)

[2] See sections 227, 228, 276 and Schedule 5 Act

[3] Section 276(1)(b) Act

[4] Section 276(2) Act

[5] Section 284(1) Act

[6] [2011] QBCCMCmr 69 (22 February 2011)

[7] Don Brass Foundry Pty Ltd v. Stead [1948] NSWStRp 47; (1948) 48 SR(NSW) 482 at 486 -487

[8] Oldham –v- Lawson ( No. 1) [1976] VicRp 69; [1976] VR 654 at 655 per Harris J (noise)

[9] Section 36 Act