The Arbour on Grey - North [2011] QBCCMCmr 430 (30 September 2011)

Last Updated: 17 October 2011

REFEREE’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] The Arbour on Grey – North at South Bank is comprised of 73 lots and common property. The scheme was established under the South Bank Corporation Act 1989 (the Act).

[2] This application was made by Margaret Michael, Lessee/Occupier of Lot 4 (applicant).

[3] In late October/early November 2010 the applicant received a toy poodle/bichon frise cross puppy called ‘Gussy’. The applicant says the dog was around ten weeks old when she received him. Further, the applicant says the dog will grow to approximately six kilograms in weight.

[4] The applicant did not obtain permission from the Body Corporate Committee (committee) prior to bringing the dog on the parcel. However, on 29 November 2010 the applicant requested permission to keep the dog in her unit. At the committee meeting dated 18 February 2011 the committee resolved to refuse the applicant’s pet application. This decision was communicated to the applicant in a letter dated 8 March 2011.

[5] The applicant disputes the committee’s decision and requests permission to keep the dog in her lot and to take the dog on common property (as needed) to enter and exit the scheme.

[6] In determining this application I will consider by-law 11 entitled “Keeping of animals” as well as the relevant arguments raised by each party.

Jurisdiction

[7] Section 47 of the Act provides as follows:

47 Subdivision of land by a leasehold building units plan

(1) Despite the Land Title Act 1994 or any other Act, South Bank public land may be subdivided by a leasehold building units plan only if the appropriate authority approves.

(2) The modified Building Units and Group Titles Act applies to land that is subdivided under this section.

[8] The ‘modified Building Units and Group Titles Act’ referred to in section 47(2) of the Act is contained in Schedule 4 of the Act. Schedule 4, Part 5 headed ‘Disputes’ contains the provisions relevant to the resolution of certain disputes under the Act by a Referee.

[9] Section 77(1) of Schedule 4 of the Act sets out the general powers of a referee to make orders, as follows:

77 General powers of referee to make orders

(1) A referee may, on the application of a body corporate, a body corporate manager, a lessee, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power or function conferred or imposed by this Act in connection with that parcel.

[10] I am satisfied this application falls within the scope of the dispute resolution provisions of Part 5 of Schedule 4 of the Act.

Procedural Matters

[11] A copy of the application was provided to the committee and all lessees (owners) with an invitation to respond to the matters raised by the application.[1]

[12] Five submissions were received from different owners supporting the application.

[13] Thirty-seven submissions were received from different owners opposing the application. The committee also made a submission opposing the application.

[14] The applicant was provided with a copy of the submissions received and made a written response. I then investigated the dispute, including reviewing the application and information received.[2]

Analysis

Does the by-law allow the keeping of animals?

[15] Lessees and occupiers are required to abide by the by-laws.[3] The applicable by-laws are those contained in Schedule 3 of the ‘modified Building Units and Group Titles Act’, unless they have been amended, added to or repealed.[4] In this case, the Schedule 3 by-laws were replaced with By-laws 1-44 which were recorded by the Registrar of Titles on 18 October 2001. The recorded By-law 11 provides as follows:

By-law 11 - Keeping of animals

Subject to section 30(12) of the Modified Building Units and Group Titles Act a lessee or occupier of a lot shall not keep any animal upon his or her lot or the common property without the written permission of the body corporate committee.

[16] Many owners oppose the application on the basis that the by-laws do not allow pets within the parcel. While I note these owners concerns, by-law 11 does not prohibit the keeping of animals. Rather, the by-law allows occupiers to keep animals if they have the written permission of the committee. This gives the committee discretion to allow pets.

[17] The applicant did not obtain the written permission of the committee prior to bringing the dog on the parcel. However, she subsequently made a request which the committee refused.

[18] In determining any pet application, the body corporate must consider each case on its individual merits. Unlike decisions made under the Body Corporate and Community Management Act 1997 (BCCMA), the Act in question does not impose any specific obligation on the body corporate to act ‘reasonably’ when making a decision. Accordingly, the question to be determined in the remainder of this decision is whether the committee’s decision to refuse the applicant’s pet application was ‘ultra vires’ or beyond the power given to the committee under by-law 11. This requires an examination of the reasons presented by the committee for rejecting the applicant’s pet application.

Did the committee appropriately exercise its discretion under by-law 11 when considering the applicant’s pet application?

‘No pet’ policy

[19] On or around 8 March 2011 the applicant received correspondence from the committee stating her pet application had been refused. The correspondence said, “previous applications of a similar nature have been declined and the committee is required to maintain consistency on the applications received”. Based on this letter, the applicant argues the committee have not appropriately exercised their discretion when considering her pet application. Rather, the applicant says they have simply applied a ‘no pet’ policy.

[20] In response, the committee acknowledge they have a ‘no-pet’ policy. However, the committee say they did not simply apply the ‘no-pet’ policy when making their decision on this matter. Rather, the committee say they made an informed decision based on the individual merits of the application aided by the physical presence of the dog in situ over a period of some months.

[21] As stated above, the Act does not impose any obligation on the body corporate to act ‘reasonably’ or ‘in a particular manner’ when making a decision. Accordingly, I consider there is nothing in the legislation to prevent the committee adopting policies to guide the exercise of their discretion under a by-law, including a preference against pets. However, any such policy does not override the by-law and cannot be rigidly enforced. Rather, each pet application must be considered on its individual merits.

[22] Despite the lack of reasons initially provided by the committee for refusing the applicant’s pet application, I am not satisfied the committee solely applied their no-pet policy when refusing the applicant’s request. Rather, I am satisfied the committee took into account additional factors, the relevance or appropriateness of which will be considered below.

Barking

[23] The committee say one factor in its decision to refuse the applicant’s pet application was the dog’s barking. The committee say they have received a number of complaints from owners regarding long periods of ‘yapping’ when the applicant is away from her lot.

[24] In support of the committee’s claims, several owners have expressed concerns about the dog’s barking. While some of these concerns relate to incidences occurring after the committee’s decision of 18 February 2011, I am satisfied they are indicative generally of the dog’s barking. These owners say the dog barks for prolonged periods whenever the applicant leaves her lot. Further, three owners have documented specific instances of the dog’s barking occurring in early December 2010, April 2011, August 2011 and September 2011.

[25] In reply, the applicant denies there are long periods of barking from the dog. However, she says she does leave the dog in the unit for a couple of hours each day while she runs errands.

[26] After considering the material provided, I am satisfied there is evidence of the dog repeatedly barking on various occasions. Whether or not this barking amounts to a ‘nuisance’ per section 51(1)(b) of the Act, is not the issue for determination in this matter. Accordingly, I have not made any findings in this respect. Rather, the issue for determination is whether the committee have appropriately exercised their discretion under by-law 11 by taking this barking into account.

[27] Given the wide discretion bestowed upon the committee under by-law 11 and the fact there is evidence of the dog barking repeatedly on various occasions, I am satisfied this was a relevant consideration for the committee.

Defecation

[28] The committee say the applicant fails to clean up the dog’s excrement in the parklands adjacent to the building. While the parklands may fall within the ambit of the Act, the Department of Environment and Resource Management records show the parklands are not part of The Arbour on Grey – North. As the powers given to the committee, only relate to issues associated with, and land within, the parcel, I am not satisfied it is appropriate for the committee to take into account any material relating to land outside the parcel. Accordingly, I consider this concern to be outside the ambit of the committee’s decision-making discretion.

[29] Additional issues regarding the dog defecating on the applicant’s balcony have been raised by the Chairperson and Resident Manager. On 19 May 2011 our Office received a photo (allegedly taken that day) of dog excrement on the applicant’s balcony. On 20 May 2011 our Office received a further photo displaying additional dog excrement on the applicant’s balcony. The Resident Manager says she received complaints from occupiers on 20 May 2011 due to the smell of the urine and excrement on the applicant’s balcony.

[30] In response, the applicant acknowledges the faeces may have been on her balcony for several hours. However, she says it was a one off event and that the dog has since undergone toilet training.

[31] It appears these events (dated May 2011) occurred after the committee’s decision. Although this may not have been a factor at the time of the committee’s original decision, I consider it may well support their decision.

Interference with occupiers or common property

[32] The committee and opposing owners raise the following concerns regarding the dog’s interaction with common property and occupiers while on common property.

1. Firstly, they say the dog has jumped up on an occupier while in the lift.
2. Secondly, they raise concerns regarding the effect the dog may have on occupiers with pet allergies. In this regard, one owner says he is an asthmatic whose asthma is triggered by dust which is commonly found in the fur of animals such as dogs and cats, another owner says his wife is allergic to dogs and the Resident Manager says the introduction of the dog has caused one occupier to require medication.

100. Thirdly, they say the dog may damage common property, create wear and tear and/or cause unpleasant smells in common areas. In this regard, the Chairperson and Resident Manager say the introduction of the dog has caused unpleasant smells in the foyer and lift, particularly in wet weather.

[33] In response, the applicant says she does not recall the dog jumping on up on anyone when on common property. Further, the applicant denies the dog smells when wet or otherwise and says the dog is regularly bathed and professionally groomed. Moreover, being a toy poodle/bichon frise cross dog, the applicant says the dog sheds very little of its low allergen hair.

[34] It is unclear from the evidence provided whether the dog, pursuant to any of the above claims, has unreasonably interfered with other occupiers or their use of common property. However, as set out above, it is not my role to determine whether the dog has caused a nuisance or otherwise interfered with owners’ use and enjoyment of the common property. Rather, my role is to examine the committee’s decision and to determine whether they have appropriately exercised their decision-making discretion pursuant to by-law 11.

[35] The applicant says she takes the dog out of the parcel for walks twice per day. This means the dog traverses the common property approximately four times per day for the purpose of entering and exiting the parcel. Based on this evidence, I consider the dog has frequent contact with common property. In this context, I am satisfied concerns regarding the dog damaging common property, creating unpleasant smells in common areas or interfering unreasonably with occupiers while on common property are genuine considerations by the committee.

Suitability

[36] The committee and many owners say the building, being a high rise residential complex in the South Bank area, is inappropriate for household pets. Rather, these owners say the dog should live where it can run and bark.

[37] In ‘McKenzie v Body Corporate for Kings Row Centre’[5], the Queensland Civil and Administrative Tribunal (QCAT) recognised the keeping of pets is a normal residential activity and pets (such as a dog or cat) could be kept in a high rise scheme, in certain circumstances, without inconvenience to other residents.[6] Accordingly, I am not satisfied ‘The Arbour on Grey – North’ is necessarily inappropriate for the keeping of a pet (including a dog) merely because it is a high rise residential building. It is not for other owners to impose their own personal philosophies about the housing of dogs on the applicant. Rather, the committee should consider whether the dog will impact on other owners or the common property. Accordingly, I consider this concern to be outside the ambit of the committee’s decision-making discretion.

Special Circumstances

[38] The applicant says the committee’s decision is ‘unreasonable’ as they have not considered the following ‘special circumstances’ of her pet application.

1. When the applicant received the dog she was not aware she needed body corporate consent. She only realised consent was required when the building manager visited her on 22 November 2010. The applicant applied for body corporate consent on 29 November.
2. The applicant has gained physical benefits from walking the dog. Included in the application is a letter from the applicant’s General Practitioner, Dr Darryl Funch, stating the applicant is suffering from “chronic obstructive airways disease and gets great physical and psychological benefit from exercising the dog”. The applicant says she has previously fainted from breathing problems which has left her anxious about suffering another attack by herself. Since having the dog, she has felt more confident about her illness.

100. The applicant is 82 years old and a widow and has been extremely lonely since the death of her husband in May 2008. The applicant has derived psychological benefits from the dog’s company and affection. The applicant would be heartbroken if she had to give the dog away as she has formed a very close bond to it. Further, she is worried the loss of her dog may affect her ability to continue to live independently.

[39] I refer to the applicant’s comments that she was not aware she needed body corporate permission prior to bringing the dog on the parcel. By-law 11 does not, in any way, suggest or imply approval for an animal is merely a formality. Rather, the by-law says written approval is required before any animal can be brought onto a lot or common property. Despite the applicant’s claims, I do not consider being ‘unaware’ of a particular by-law in any way alleviates its weight or affect. Accordingly, I do not consider the committee were required to give any weight to this particular issue when making their decision.

[40] I refer to the applicant’s comments regarding the physical and health benefits she has obtained from keeping the dog. While I note the applicant’s comments, she has provided no expert evidence to suggest the dog is ‘an assistance dog’ (as defined by the Guide, Hearing and Assistance Dogs Act 2009) or that the dog has in any specific way assisted or improved her health conditions. In fact, even the letter from Dr Funch does not state that the dog has improved or enhanced the applicant’s health problems. Rather, Mr Funch says the applicant has gained benefit from exercising the dog. While walking the dog may be a convenient form of exercise available to the applicant, no evidence has been presented to suggest this is the only form of exercise from which the applicant would gain a benefit.

[41] I refer to the applicant’s comments regarding her personal circumstances and emotional state since receiving the dog. While these are certainly relevant considerations, the applicant has presented no evidence that her ‘ability to live independently’ or her emotional state would be adversely affected should the committee require the removal of the dog. Further, the applicant has provided no expert evidence to demonstrate any ‘special circumstances’ exist which would otherwise require her to keep the dog.

[42] After considering the circumstances presented, I am not satisfied the committee have acted outside the scope of their powers by balancing the competing considerations and reaching their own conclusion. This is particularly the case given the limited evidence presented by the applicant to verify any special circumstances. Moreover, while I note the applicant’s comments that the committee’s decision is ‘unreasonable’, as stated above, there is no specific legislative provision requiring the committee to act ‘reasonably’ or ‘in a particular manner’ when making a decision.

Other issues

[43] In some pet disputes, an issue arises as to whether the body corporate, by failing to seek the removal of the pet, has caused the person in question to assume some implicit approval for their pet. Therefore, the question for determination is whether the applicant has been led to believe she could keep the dog by the body corporate’s behaviour.

[44] The applicant says she received the dog around late October or early November 2010. The committee say they approached the applicant regarding the dog upon finding out about it in November 2010. Consequently, in late November 2010 the applicant sought body corporate permission to keep her dog. Based on this evidence, it seems the dog was on the parcel for less than one month before the committee approached the applicant regarding this issue. Given this short amount of time, I am not satisfied the applicant has been led to believe she could keep the dog by the body corporate’s behaviour.

[45] Another issue to be considered is that of ‘discrimination’. Discrimination in the context of pet application can take many forms. For example, discrimination may be demonstrated where the body corporate has refused one proprietor permission to keep an animal, but then grants approval to another proprietor, where there is no logical or reasonable basis for the distinction. Alternatively, discrimination may occur where the body corporate seeks an order against one proprietor for the removal of an animal when there are several animals being kept on the parcel.

[46] In this instance, the committee say they are unaware of any other animals being kept on the parcel. The applicant has provided no evidence to dispute this statement. Accordingly, I am not satisfied the committee have displayed any discrimination in this matter.

Summary

[47] After considering the evidence before me, I am not satisfied factors such as owners’ preference for a pet free scheme, barking, damage to common property, unpleasant smells in common areas or interference with occupiers while on common property are inappropriate considerations by the committee. Moreover, while any ‘special circumstances’ of the applicant should be considered, I am not satisfied the committee have acted outside their discretion or beyond their power by balancing the competing considerations and reaching their own conclusion. This is particularly the case given the limited evidence presented by the applicant to verify any special circumstances. Accordingly, I am not satisfied the committee failed to properly exercise their discretion under by-law 11 such that their decision should be overturned at this time. On this basis, I am dismissing the application.

[48] I note that the applicant, in her reply to the submissions received, suggested some conditions which may be imposed on the keeping of her dog. These conditions have not been considered by the committee, nor were they part of the original approval sought. Accordingly, I consider them to be outside the scope of this particular application and have not considered them when determining the validity of the committee’s decision under by-law 11.

[49] The applicant may wish to consider re-applying to the body corporate for permission to keep her dog, subject to certain conditions aimed at reducing the impact the dog has on owners and/or the common property.

[50] Examples of conditions previously ordered by Adjudicators and Referees are as follows:

• The dog must be kept within the lot while it is present on the scheme land;
• The dog must traverse common property only for the purpose of being brought onto or taken off scheme land, at which time the dog must be carried in an appropriate restraint or container;
• Any animal waste must be disposed of in such a way that it does not create noxious odours or otherwise contaminate the scheme;
• The dog is not permitted to make noise, or otherwise cause a nuisance, such that it interferes unreasonably with any person’s use or enjoyment of another lot or common property;
• The dog is not permitted on the unit balcony unattended;
• The dog must be registered with the relevant local council;
• Reasonable steps must be taken to minimise the transmission of airborne allergens from the dog to other lots for example by vacuuming the lot and grooming the dog;
• Reasonable steps must be taken to keep the dog in good health and free from fleas and parasites;
• The committee shall be entitled to rescind permission for the dog if it reasonably considers the applicant has not complied with these conditions and that the applicant has failed to respond appropriately to warnings about their concerns;
• Any approval granted only applies to one dog and does not authorise the keeping of any additional, replacement, or substitute animals on Lot;
• If the authorised dog dies, the applicant must apply to the body corporate for approval to keep any further pet.

Conclusion

[51] After considering the evidence before me, I am not satisfied the committee failed to exercise their discretion under by-law 11 such that their decision should be overturned at this time. On this basis, I am dismissing the application.

[1] Section 73(1)(c) and (d) of Schedule 4 of the Act.

[2] Section 73(1)(f) of Schedule 4 of the Act.

[3] Section 30 of Schedule 4 of the Act.

[4] Section 30 of Schedule 4 of the Act.

[5] CTS 11632 [2010] QCATA 57.

[6] This decision was followed in Villa Casablanca [2011] QBCCMCmr 117 (17 March 2011); The Links [2011] QBCCMCmr 147.