Vantage [2011] QBCCMCmr 69 (22 February 2011)

Last Updated: 7 March 2011

REFERENCE: 0978-2010

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

The Body Corporate

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0978-2010

“Vantage” CTS 34057

APPLICATION

This is an application dated 19th October 2010 and amended on 27th October 2010 by the body corporate for Vantage CTS 34057 (the body corporate) against Hendrik Zeeman (Mr Zeeman) owner of Lot 11, for an order that Mr Zeeman removes the two terrier dogs from Lot 11 and from scheme land.

JURISDICTION

“Vantage” CTS 34057 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are 69 lots in the scheme created under two Standard Format Plans of subdivision, SP 173254 (lots 1 – 17) and SP 210913 (lots 18 – 67).

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 body corporate says that the committee considered Mr Zeeman’s request to keep two small dogs at Lot 11 on 18th November 2008. It decided not to grant approval to Mr Zeeman, and provided a copy of the minutes on a vote taken outside a committee meeting. The by-law about animals which then applied, is the same by-law which applies now.

The current community management statement By-law 12 states as follows –

KEEPING OF ANIMALS

12.1 Subject to by-law 12.2 and By-law 12.6, all animals are prohibited on the Scheme Land and the Resort.

12.2 Subject to clause 12.6, an occupier of a lot:

(a) may keep one dog with the prior written approval of the Body Corporate Committee;

(b) must not, without the Body Corporate Committee’s written approval, allow or permit its invitees to bring or keep an animal on the lot or Common Property.

12.3 If the occupier of a lot keeps a dog pursuant to this by-law 12, the occupier must:

(a) ensure that the occupier’s lot is fenced so as to prevent the dog from escaping the lot, with the fence to be constructed and maintained in accordance with the standards contained in the Building Code ( as amended by the Body Corporate from time to time);

(b) ensure that the animal is quiet at all times;

(c) not allow or permit the dog to enter the Resort or any part of the Common Property other than when the dog is being transported in accordance with by-law 12.4;

(d) clean and remove any mess or animal excrement created or associated with the dog.

12.4 In the event any animal permitted by this by-law 12 to be kept in a lot is to be transported to or from a lot this shall only by (sic) done by vehicle.

12.5 In compliance with Local Government requirements, the Body Corporate cannot allow an occupier to keep or bring a cat onto a lot.

12.6 A person mentioned in The Guide Dogs Act 1972 section 5 who:

(a) is an Owner or occupier of a lot has the right to keep a guide dog on the lot; and

(b) has a right to be on a lot or on the Common Property in the scheme, is entitled to be accompanied by a guide dog while on the Common Property.

12.7 The Owner or occupier must use their best endeavours to keep the guide dog quiet at all times, that the guide dog remains on a lead at all times when on Common Property and that all animal excrement is cleaned up.

At a committee meeting on 27th May 2009, the committee noted that Mr Zeeman had two dogs at Lot 11. The body corporate manager was asked to write to Mr Zeeman and ask him to remove one dog from Lot 11. On 2nd June 2009, the body corporate manager did so, saying: “The body corporate understands that you have two dogs residing in your lot. By-law 12 states that only one dog with written approval of the body corporate can be kept on the lot.” The letter asked him to remove one dog and seek approval for the remaining dog.

On 13th October 2009 Mr Zeeman sent an email to the body corporate manager saying that “The Covenant” stipulates only “one small dog may be kept on each lot” and some owners had big dogs. He sought approval for two small dogs, mentioning that his block was in excess of 1,000sq. m. and that the local authority would permit two dogs on a block that size.

At a committee meeting held on 14th October 2009, which Mr Zeeman attended, the committee decided that it had no power to allow two dogs on one lot because of the by-laws. The committee suggested that Mr Zeeman should submit a motion to the next general meeting to change the by-laws. At the same time the committee resolved to send a by-law contravention notice to Mr Zeeman. On the same day, Mr Zeeman sent an email requesting a motion be put to the next annual general meeting in August 2010 that two dogs might be kept on a lot over 1,000 sq. m.

On 21st October 2009 the body corporate sent Mr Zeeman a notice of continuing contravention of a by-law. The contravention notice said that he was keeping two dogs at Lot 11 and had not made an application to the committee to keep one dog. He was given 30 days to cease the contravention.

At a committee meeting on 10th February 2010, the committee noted that there had been no response from Mr Zeeman, and the committee did not know if he had removed either dog or both of them. On 17th February 2010, the body corporate manager wrote to Mr Zeeman and asked if he had removed one dog. Mr Zeeman replied that he was proposing his motion to a general meeting in August.

At a committee meeting on 30th June 2010, the committee noted that Lot 11 still had two dogs, and that the body corporate had received a complaint about dogs barking. The complaint was made by committee member Denis Trethewy, owner of Lot 10, who said that the two dogs at Lot 11 “have become unbearable due to a lack of control and the owners (sic) complete disregard for neighbours.” The dogs “continually keep barking when anyone passes or when children are at play.”

Mr Zeeman’s motion to amend the by-laws was defeated at the annual general meeting held on 6th August 2010 by a voting tally of 47 – 0. The minutes of the annual general meeting show that “LLD (Coolum Western) Pty Ltd”, the original developer, still owned 44 lots in the scheme at that time.

On 26th August 2010, the secretary Terry Short (Mr Short) wrote to Mr Zeeman and again asked Mr Zeeman to seek the committee approval for one dog. Mr Short asked Mr Zeeman to send a photo of the dog and “verified weight” with his request.

Mr Zeeman wrote back saying that no reason had been given to him why his motion was defeated, and requiring the body corporate to give him a valid reason. He replied that his dogs weigh 16kg and 17kg each respectively, are called Dougal and Turbo and are “his family.” He quoted “By-law 12(b)(1)” about the permitted weight of a dog being 10kg.

On 29th September 2010 the committee advised that there was no longer any weight restriction in respect of one dog, but that it could not approve two dogs.

Mr Zeeman has now removed the two dogs from the scheme as 4th October 2010. He says that the dogs have been with him for nine years and that their removal has caused him great cost and distress.

At a committee meeting on 14th October 2010, the committee refused to allow the owner of Lot 13 to keep a bird at Lot 13, since no animals are allowed with the exception of “one dog.”

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

Ray Graham and Sandi Osborne, representatives of R.P.Graham Pty Ltd, owner of Lot 5, say that the 2 dogs are very noisy at all hours and disturb their sleep.

Adrian and Bronwyn Driver, new owners of Lot 36, say they noted the disturbance caused by the two dogs when they were looking to buy into the scheme. The dogs were noisy and aggressive to cars and passers by.

Diana Carr and Michael Puttock, representatives of Carrock Holdings Pty Ltd, owner of Lot 7, say that they have no problem with Mr Zeeman keeping 2 dogs. They have not seen or heard them.

Tony Bryan, co-owner of Lot 52 made a submission in favour of the rule being changed in favour of Mr Zeeman and in support of him keeping two dogs at Lot 11.

Mr Zeeman provides ‘petition’ letters of support for the keeping of the two dogs from the owners of Lots 1, 3, 6, 7, 8, 16, 17, 52 and 59. The letters refer to a weight restriction of 25kgs. The owner of Lot 8 suggests that when one of the dogs dies, it should not be replaced. Mr Zeeman also provided an email from Ray Graham of Lot 5 saying he did not have a problem with two dogs provided Mr Zeeman is able to stop the dogs from barking endlessly.

Mr Zeeman also says that the body corporate has ‘refused permission for even one’ of his dogs although there are other dogs in the scheme. He thinks the by-laws are unreasonable and inappropriate for a “golf course community”, and that as the non-resident original owner still “owns 47 lots”, the views of the resident owners are not reflected.

The body corporate exercised its right of Reply.

It denies that the body corporate has refused permission for one dog, since Mr Zeeman has asked only for permission to keep two dogs. It further says that in his request to owners to support his petition by signing pro-forma letters, Mr Zeeman said that the body corporate was forcing him to destroy the dogs. This is untrue and misleading, and as such the letters or “petitions” signed by other owners should be ignored.

I sought further information from the body corporate and from Mr Zeeman.

Mr Zeeman confirms that the dogs were removed from the scheme and are currently housed in kennels as from early October 2010. The dogs have lived in the scheme since November 2008, when he moved into the house. Dougal is 11 years old and Turbo is 9 years old. His block of land is 1,069m² (sic) in size, and his lot is free standing.

The body corporate provided a copy of the former by-laws for the scheme. The first community management statement was recorded on 3rd June 2005, and a new one on 29th February 2008. The February 2008 community management statement by-law about animals removed a prior restriction on a dog of over 10kgs. A new community management statement lodged in December 2008 did not affect the new By-law 12.

The body corporate is not aware of any “covenant” affecting scheme land. It says it is not able to provide any documentation from Sunshine Coast Regional Council which specifically forbids the keeping of a cat on scheme land. The body corporate believes that Mr Zeeman “first occupied the dwelling” which he constructed on scheme land, in about October 2009.

DETERMINATION

In this matter the body corporate seeks to remove two terrier dogs from scheme land. The owner of the dogs has removed the dogs from scheme land as of 4th October 2010, after this application was lodged. Technically there is no longer any dispute between the body corporate and Mr Zeeman, and I could therefore dismiss this application.

However, I do not think that such an order without further consideration of the issues would be particularly helpful to either party.

The body corporate wishes to rely on its By-law 12 as justification for the removal of the dogs. By-law 12 prohibits “all animals” as a matter of policy with the exception that owners may keep one dog with the approval of the body corporate committee and on certain conditions. The body corporate committee does not think that it has the power to allow more than one dog, or any other type of animal onto scheme land, in reliance on By-law 12.

Section 180(7) 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.”

A chain of cases, terminating in McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57, has recently held that not only is a blanket prohibition on all animals unreasonable,[1] and that such a by-law is therefore invalid, but that a ban on specific species ie “cats and dogs” which was pertinent to the by-laws in the Kings Row Centre CTS 11632 scheme, is also unreasonable. A weight restriction of 10kg on a dog in a by-law has also been held to be unreasonable.[2]

In Mackenzie, Member Mr Kenneth Barlow said –

1. “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.
2. 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.
2. ...............
3. 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) .....”:

He found[3] that “[c]ats 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.”

“It would then be for the committee to consider each case upon its facts 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.” [4]

I am therefore of the view, following the two appellate authorities, that a by-law which puts a blanket ban on “all animals”, for example birds, is unreasonable and invalid. The proviso to by-law 12, seems to me to be equally unreasonable, in that there is an arbitrary “one dog” policy. One dog may, or may not, be as capable of causing inconvenience to others as two dogs. The animal(s) proposed should be judged on its/their actual disposition and known propensities. In Pivotal Point, Mr Dorney QC, as His Honour then was, took the question of a goldfish, which would fall foul of a blanket ban on animals without being likely to cause any inconvenience whatsoever to other owners. I cannot think that the point is not pertinent to two goldfish.

The scheme is made up of freehold lots in a standard format plan, that is, all owners have a surveyed plot of land on which their houses are constructed. Some lots are quite large, and the smallest lot is currently 492 sq.m. which is larger than some “town” blocks. Mr Zeeman’s lot is 1,067 sq.m. in area as shown on the registered plan.

I am therefore of the view that by-law 12 is oppressive and unreasonable having regard to the interests of all owners and occupiers of lots, and is therefore invalid. As such, it cannot be relied upon by the body corporate in this or any other matter.

I also note that by-law 12.1 appears to seek to regulate an area outside the scheme in that it purports to be applicable to “the Resort” which abuts the scheme. A by-law for a community titles scheme can only provide for the administration, management and control of common property, the regulation of the use and enjoyment of lots, common property and body corporate assets, and services and amenities supplied by the body corporate.[5] Section 180(1) Act provides that where a by-law is inconsistent with the Act, or a regulation module, then the by-law is invalid to the extent of the inconsistency.

However, I am not satisfied that any part of By-law 12 can validly stand, since the conditions of keeping a dog, which appear reasonable in themselves, are part of a proviso which otherwise prohibits all other animals, and which is unreasonable. Further, the body corporate whilst apparently not wishing to rely on By-law 12.1 which is wise in the circumstances, can provide no evidence of documentation from the local authority which prohibits the keeping of cats, with reference to By-law 12.5. The Sunshine Coast Regional Council allows unit holders to keep one cat as of right, subject to approval by the body corporate, and maintains a register of cats.[6]

The body corporate also might like to note that the current piece of legislation relating to “guide dogs” is the Guide, Hearing and Assistance Dogs Act 2009.

Mr Zeeman has on several occasions asked the committee if he might keep two dogs at Lot 11. The body corporate has replied that it has no power to allow more than one dog, and that Mr Zeeman has not made an application for “one dog”. I find that Mr Zeeman has in fact made an application to the committee to keep “at least” one dog. I also find that in November 2008, that the committee gave no reasons to Mr Zeeman why he should not keep “at least” one dog, but relied solely on the body corporate “policy” by-law without considering the merits of the dogs or either of them.

Mr Zeeman seems to have expected “reasons” for the failure of his motion when it was put to the annual general meeting in August. Unlike the committee exercising its discretion, the body corporate at a general meeting does not have to give reasons for its decision. A motion is passed by a majority of owners voting for it, and the reasoning of the voter is not generally known.

I highlight this point simply to demonstrate that there seems to be, from both the point of view of the body corporate and the point of view of Mr Zeeman, some basic misunderstandings as to the purpose and operation of a community titles scheme. Mr Short was asking Mr Zeeman about the weight of his dog on 26th August 2010, when that was by then an irrelevant consideration in respect of the existing By-law 12.

This scheme is relatively new with, it appears, only 26 lots sold as at today’s date. SH Coolum Western Pty Ltd, whom I understand to be the original owner, although it appears as “LLD (Coolum Western) Pty Ltd” in the minutes of the annual general meeting, now owns 41 lots being 18 – 35 inclusive, Lots 38 - 42, Lots 45 – 51, Lots 53 – 57, Lots 60 – 63, and Lots 66 and 67. Coeur de Lion Investments Pty Ltd, a related company, owns undivided lots 300 and 301. This makes a total of 43 lots effectively still held by the original developer.

The body corporate must make reasonable by-laws, and owners may like to play a more of an active role. I note that Mr Zeeman did not vote at the annual general meeting at which he had proposed a motion, although the minutes seem to indicate that there were 48 voters present but only 47 votes cast on most motions without abstentions.

In this matter, since I find that the body corporate cannot rely on an invalid by-law in any particular, there is no reason why Mr Zeeman should not bring and keep two dogs at Lot 11. I therefore order that Mr Zeeman may keep the two dogs Dougal and Turbo at Lot 11, subject to any reasonable conditions which the body corporate may subsequently impose. The onus not to cause a nuisance however is on Mr Zeeman. Section 167 Act says -

167 Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The standard is one of reasonableness of course. Any dog will bark now and then. Three owners have noted the barking and that the dogs over-react to outside stimuli, although two of the complainants appear to live interstate, and are not personally resident in the scheme. Nine owners support Mr Zeeman’s application to the committee to keep the dogs which he currently owns, one with the proviso that the barking is controlled. I note that the committee did not know between October 2009 and February 2010 whether or not Mr Zeeman had removed one dog as requested by the contravention notice. It follows that there were no complaints about the dogs barking during that period. The only complaint made to the committee about the dogs barking appears to have come in June 2010.

I dismiss this application. I also order that the body corporate should remove/amend the invalid By-law 12 from its community management statement within 4 months of the date of this order.

[1] Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] QCCT BCCM 12

[2] Riverside Park CTS 31061 – Adjudicator’s Order 0958-2010

[3] At para 29 Mackenzie.

[4] At para 31 Mackenzie

[5] Section 169(1) Act

[6] http://www.sunshinecoast.qld.gov.au/sitePage.cfm?code=cat-registration