Marcoola Beach [2012] QBCCMCmr 1 (4 January 2012)

Last Updated: 13 February 2012

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 11th August 2011 by Carmel Lock, owner of Lot 85, for an order that she be able to bring her dog into her unit at the scheme.

JURISDICTION

[2] “Marcoola Beach” CTS 30404 is a community titles scheme governed by the Act and the Accommodation Module. There are 125 lots in the scheme created under two Building Unit Plans of subdivision.

[3] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] It is a dispute between an owner and the body corporate about the exercise of rights or powers under the community management statement.[2] An adjudicator’s order may require a person to act, or prohibit a person from acting, in a way stated in the order.[3] Further, an adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]

OVERVIEW OF THE APPLICATION

[4] The scheme has a by-law about animals which says –

“11.Keeping of Animals

11.1 An owner or occupier of a Lot shall not, without the approval in writing of the Committee of the Body Corporate, keep or bring onto any Lot or Common property any animal. Any permission given by the Committee pursuant to this By-law may be withdrawn at any time.

11.2 On approval, the animal must be controlled in accordance with “House Rules” which the Committee of the Body Corporate may from time to time determine.

11.3 On approval, the Owner or occupier of the Lot shall ensure that noise from the animal shall be kept to a minimum so as not to interfere with the peaceful enjoyment of other occupants.”

[5] The Applicant sought permission but the committee on 14th June 2011 refused the motion to keep a dog subject to five standard conditions on the body corporate’s form “Application for a Pet”. The committee gave no reasons for its refusal. The Applicant sought reasons from the committee. The reasons given later in committee minutes were that -

• The scheme is a holiday resort with a number of children roaming the complex;
• There are no facilities available for a pet;
• The dog might get out without a lead onto common property like the pool area;
• Consideration must be given to guests who may have allergies.
  
  

[6] The Applicant says that this is unreasonable and unfair as the dog is only likely to be with her for a few days at a time since she lives elsewhere.

[7] This dispute concerns whether the application of By-law 11 by the committee is reasonable in respect of the Applicant’s request.

[8] Section 94(2) Act requires the body corporate to act reasonably in anything it does in enforcing its by-laws and in carrying out its functions under the community management statement.

SUBMISSIONS

[9] The Applicant says that she looked at the scheme by-laws before purchasing the unit and spoke to the chairman about bringing in a dog. The chairman told her that the scheme “did not allow pets”. When she said that the by-law indicated otherwise, the chairman said that they had not allowed any in so far.

[10] There were 19 submissions against the application and one submission from an owner who wanted to know more about the type of dog before saying anything more. In brief, submissions against were as follows –

• Some owners have allergies to pet hair, or are asthmatic;
• Many children are terrified of animals;
• The dog could bite children and open up the scheme to litigation suits;
• The dog could injure children or elderly people by jumping up;
• The resort is beachside holiday accommodation and not suitable for animals;
• The dog should not be allowed on common property where in may come into contact with people;
• To allow the dog in would set a precedent. The scheme does not want 125 dogs;
• To allow many dogs into the scheme would be unmanageable;
• Dogs have fleas, cause smells and make noise;
• Dogs can damage gardens;
• It is not fair on a dog to keep it in a small unit;
• A dog in the scheme will detrimentally affect the scheme’s attractiveness to visitors with resultant loss of income to the letting agent and owners;
• Dogs would spoil the peaceful atmosphere and require the body corporate to deal with negative problems attached to dogs;
• Owners would not have purchased if pets were allowed in;
• The regulations say “no pets” and it is clear that pets “aren’t allowed”. There is a “no pets” policy;
• No other holiday complexes allow dogs;
• To allow dogs in would devalue the units;
• There are no places for a dog to urinate or defecate in the scheme;
• There has been a complaint made about a dog barking;
• The Applicant is already contravening the by-law by bringing the dog in;
• It is a health and safety issue. The scheme could be overrun with cats and dogs;
• It might devalue the management rights;
• The majority of the scheme is opposed to the idea;
• It is not in the best interests of owners and the body corporate;
• It would have an adverse affect on the amenity of the resort;
• By-laws are there to be observed;
• A dog would harass the plentiful wildlife such as scrub turkeys and lizards.
  
  

[11] The Applicant exercised her right of reply. She said that her dog is a ‘quite timid’ 10-year old Maltese terrier and that her unit is on the third floor. From her car park directly below her unit, there is a staircase shared by only four other units. The dog would have minimal interaction with other residents. Access to the beach involves crossing about 50 metres of lawn along the north-east perimeter of the building

[12] She says that the dog does not shed hair, has never bitten anyone and is tolerant of children. He is healthy and well-groomed and does not bark unnecessarily. Noise in the scheme is already generated by the frequent aeroplane flights to and from Maroochydore Airport, the basketball half-court, and the swimming pool.

[13] After the closing of submissions I noticed that the committee had not made a submission. The committee was contacted and said that what it wanted to say was reflected by the submission from Mr Mulvihill of Lot 46, although individual committee members have made personal submissions. It asked that Mr Mulvihull’s submissions be accepted as the respondent body corporate submission.

[14] Mr Mulvihull who is a committee member, and whose submission has been seen by the Applicant, says that an owner should not assume that a pet will be automatically approved, and should not have bought her dog into the scheme without consent. He also says that “management received a complaint about a dog barking” and that an owner has seen an unleashed dog in the vicinity of the Applicant’s unit.

[15] By-laws are for the benefit of all, and the scheme is a beachside holiday resort offering homes and holidays to families with small children. The committee is concerned about litigation following a bite or illness if someone came into contact with animal waste. A dog could escape even if it was intended to be kept inside.

[16] The committee is also concerned about the scheme becoming overrun with cats and dogs which would not be acceptable to the majority, and that if one dog was allowed in the by-laws would be open to challenge and that if that occurred, the resort could sink into a “second rate resort” rather than a four star resort.

[17] It also fears discord between occupants, common property being contaminated by the presence of a dog between the Applicant’s car and her unit, and children playing and rolling on the grass in contaminated areas.

[18] Finally, the committee says that it is concerned about the likely detrimental affect on the caretaker’s business which the body corporate “has a moral; and ethical obligation” to protect, and that since the caretaker bought into the scheme “fully aware that there were no animals on the premises at the time” then the body corporate has a duty not to shift the goal posts. It says that the frequency of the dog’s visits are irrelevant.

DETERMINATION

[19] The Applicant wishes to bring her Maltese terrier dog into the scheme in which she has a holiday unit. Her unit is on the third floor, and there is no lift but there are access stairs shared by other occupants. There is no dispute as to the facts of the application.

[20] However, the committee refused her application on 14th June 2011 by voting 6 – 1. On asking the reasons for the refusal the Applicant was given the four reasons set out at paragraph 5 above.

[21] I am of the view that the four reasons given are “generic” reasons, that is, they are not specific to the Applicant’s dog, but would be applicable to any dog. This is unsurprising as the committee and other owners in the scheme are of the view that the scheme does not allow pets of any description and that the by-laws clearly say “no pets”. It is the reason given by some owners for purchasing into the scheme.

[22] However, the scheme does not have a “no pets” by-law.[5] By-law 11 specifically addresses the question of an occupier bringing a pet into the scheme, and says that in order to do so, the occupier needs the permission of the committee. As such, this is quite a usual by-law, seen in many schemes.

[23] The by-law invites an occupier who want to keep a pet to apply to the committee for permission as the Applicant did. The body corporate has even developed a form for this purpose which the Applicant filled in as requested. The type of pet envisaged on the form is “Dog, cat, bird”, and the committee asks specific questions as to the type and size of pet, its appearance and name.

[24] Importantly, the form sets out the wording of the application to the committee, so that an applicant understands that on seeking the committee’s consent, the applicant will have to abide by certain conditions as follows -

• the application relates only to the animal described on the form;
• the animal is not allowed to roam on the common property;
• the owner is responsible for the animal’s care and shall be held responsible for damage;
• if the animal makes a disturbance “by way of noise, mess or other” then the body corporate may withdraw its consent and ask the animal to be removed;
• any approvals/registrations required by the local authority will be current and kept up to date.
  
  

[25] The committee’s reasons for refusal given to the Applicant make the application form meaningless. The body corporate cannot say that it has concerns that a pet will occupy common property when the application is made on the condition that no animal must roam onto common property. There is no consideration of the Applicant’s dog being a dog which will, or be likely to, roam onto common property in breach of the condition. In any event, if the condition was breached, the body corporate could revoke the consent and ask the pet to be removed.

[26] Further, neither the application nor the dog can have resulted in the body corporate being aware that the scheme is principally used as a holiday resort where children may play. That is a given, and the scheme has a by-law which allows pets with the consent of the committee. It is a permissive by-law, it being up to the committee to consider each application, and each pet’s attributes (as detailed on the form) and to make suitable conditions for the keeping of the animal so that other occupants are not inconvenienced.

[27] The reason that “guests may have allergies” is not a consideration of the Applicant’s request. Reasonable conditions may be attached to the keeping of a pet so that guests with allergies have no contact with the pet.

[28] If the committee has considered the application and feels that there is a reason relevant to the pet (and not the scheme) why an applicant may not bring the pet into the scheme, then the committee may reasonably refuse the application. Such an application might apply to a horse, or other animal totally unsuited to being kept in a domestic interior.

[29] However, cats and dogs have been held in matters before the Queensland Civil and Administrative Tribunal (QCAT) to be “ordinary domestic pets” and it is recognised that some species may well be suitable for keeping in community titles schemes subject to conditions that the animal did not unreasonably annoy other occupiers.[6] Conditions such as a dog not being allowed unleashed on the common property, or being carried over common property, or not being allowed in the lift, all might be thought reasonable.

[30] I find that the committee, perhaps acting under the mistaken view that there are to be no pets within the scheme as a matter of policy, did not give any, or proper, consideration to the Applicant’s application.

[31] I also find that there is no evidence of bad behaviour by this dog. There is evidence that it has been brought into the scheme by the Applicant (who does not deny this) but there is no satisfactory evidence about the report of barking. Who made the complaint and to whom is not explained by the committee’s spokesperson. Nor is it clear that it was this dog which was barking, or in what circumstances. The committee does not give as a reason for its refusal that the dog has a tendency to bark.

[32] I am satisfied that the committee did not act reasonably.

By-laws

[33] By-law 11 is probably a reasonable by-law but it must be operated reasonably by those having the power to give the approvals. I have some reservations about any approval being “withdrawn at any time”. Such withdrawal should not be applied capriciously but be used if there is good reason, and the owner of an animal whose approval is being withdrawn given reasonable time to make arrangements for its removal. The criteria for the withdrawal of the approval are not set out.

[34] The application form for keeping a pet is better worded, that is that the body corporate may withdraw permission to keep the animal if it creates “any disturbance by way of noise, mess or other”... Even so, such statement jars with By-law 11(c) which says that an approval requires that an owner must ensure “noise is kept to a minimum so as not to interfere with the peaceful enjoyment of other occupants.”

[35] By-laws are not written in stone and may be change by the body corporate by a special resolution at a general meeting and the lodging of a new community management statement. The submissions about the “no pets” by-laws attracting purchasers or having an effect on management rights are therefore not only wrong in fact, but no purchaser can rely on the by-laws remaining the same forever. Any owner may propose to a general meeting that the by-laws, including the by-law about keeping animals, be changed in any way, and it would be for the remaining owners to vote on that motion.

[36] The body corporate already has its safeguards written into By-law 11 and enacted at section 167 Act. If an animal does cause “a disturbance” in the ways set out, then the permission may be (reasonably) revoked.

[37] Section 167 Act deals with nuisance of any kind. If permission is given to an owner or occupier to keep an animal on reasonable conditions, then the animal must still not cause a nuisance, or hazard, or interfere unreasonably with the use and enjoyment of another lot or the common property. If it should do so, the body corporate may take steps to ask the animal’s owner to comply with the conditions or to remove the animal from the scheme.

CONCLUSION

[38] The committee referred me to the case of The Arbour on Grey - North [2011 ] QBCCMCmr 430 where a Referee refused to allow an applicant to keep her small dog in a scheme. That case can be distinguished from this dispute since that was a matter brought under different legislation (the Building Units and Group Titles Act 1980) and there was evidence that the dog had caused a nuisance partly because of continuous barking. It was not a case about a “pet-free” building. The Referee was at pains to point out that the building did not have a “pet-free policy” and that each application must be considered on its merits. She invited the applicant to make her application again to the committee and to be willing to accept conditions on the keeping of the dog. In addition, there is no specific duty imposed on a committee governed by the Building Units and Group Title Act 1980, to act reasonably, though this might be implied.

[39] Returning to this dispute, since there is no evidence to the detriment of the Applicant’s dog, and I have found that the committee did not act reasonably in the application of by-law 11, the Applicant shall be allowed to keep the dog Beau described on the application form signed in May 2011 at Lot 85 subject to conditions as follows –

• the dog is to be carried across common property, by car, by carrier, or in the arms of the Applicant or a person acting on her behalf, including any common property staircase;
• the dog must not roam on the common property;
• the Applicant is responsible for the dog’s care and shall be held responsible for any damage caused to the common property by the dog;
• any approvals/registrations required by the local authority will be current and kept up to date;
• If the dog makes a disturbance by way of unreasonable noise then the body corporate may withdraw the consent after a reasonable period of notice is given to the Applicant and ask for the dog to be removed from the scheme.
  
  

[40] This means that Ms Lock or her invitees must carry Beau between her unit and the beach.

.

[1] See sections 227, 228, 276 and Schedule 5 of the Act

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

[3] Section 276(2) Act

[4] Section 284(1) Act

[5] In fact, a total ban on pets or even some “ordinary” pets would be likely to be held to be invalid as an unreasonable by-law pursuant to section 180(7) Act because section 169(1) Act provides only that by-laws may only regulate (and not prohibit) the use and enjoyment of lots in a scheme.

[6] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57