Gateway Gardens Two [2012] QBCCMCmr 147 (30 March 2012)

Last Updated: 5 April 2012

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] The applicant recently purchased a keeshond puppy. On 18 September 2011 and 12 October 2011 the applicant emailed the committee asking for permission to keep the dog in her unit. On 14 October 2011 the committee denied the applicant’s request for the dog stating “until advised further by the body corporate there is no consent to keeping a dog at your unit”. On 17 December 2011 (post the lodgement of this application) the committee reconsidered the applicant’s pet request and again denied her permission to keep the dog in her unit.

[2] The applicant disputes the committee’s decision and seeks permission to keep her dog in her unit.

[3] An owner or occupier may keep a dog in their unit if:

1. The dog is an ‘assistance dog’ pursuant to section 181 of the Act; or
2. He/she has been granted permission to keep the dog under the relevant by-law. Such permission cannot be unreasonably withheld.

Jurisdiction

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

Procedural Matters

[5] On 29 November 2011 I made an interim order permitting the applicant to keep the dog in her unit pending a final order, subject to certain conditions.

[6] After the issuing of the interim order, a copy of the application was provided to the Body Corporate Committee (the committee) and all owners to respond to the matters raised by the application.[4] Submissions were received from the owners of thirteen lots and the committee. One of these submissions supported the application while the remaining submissions opposed the application. The applicant obtained a copy of the submissions received and made a written reply.[5] A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

Matters in Dispute

[7] The applicant says she should be granted permission to keep her dog in her unit due to the following:

• The by-laws allow for the keeping of animals.
• The committee did not act reasonably in denying her permission.
• The applicant is home 90% of the time and would be able to control any barking and prevent the dog causing a nuisance.
• There is at least one cat living on the complex.
• The dog would be transported by car between the unit and the road to ensure he wouldn’t relieve himself on common property.
• The unit has a grassed area (measuring 18m x 7m) and a patio (measuring 8.4m x 2.6m) where the dog could run and roam.
• The applicant’s unit is at the end of the complex and her end wall backs on to grassland and paddocks. Therefore, due to the location of the unit, other owners are unlikely to come into contact with, or be affected by, the dog.
• The applicant suffers from Immune Infection/Dysfunction and an abnormal stress response which results in severe vasolilation/flushing and neuropathy. The applicant says she would gain physical and therapeutic benefits from owning a dog.
  
  

[8] Included in the application is a letter from Karen Koks, Zillmere Veterinary Surgery, stating that a well trained keeshond dog would be suitable for the applicant. Further, the application contains letters from Dr Gary Deed stating that the applicant would benefit physically and psychologically from a dog.

Analysis

Is the dog an ‘assistance dog’?

[9] Section 181 of the Act gives a person who relies on a guide, hearing or assistance dog an automatic right to be accompanied by the dog while on a lot or common property.

[10] The applicant says she suffers from Immune Infection/Dysfunction and an abnormal stress response. Initially, the applicant claimed she required the dog as an ‘assistance dog’ under the Act. The committee disputed this assertion.

[11] While the applicant still maintains she requires the dog for therapeutic and ‘medical’ reasons, she is no longer claiming she has an automatic right to keep the dog as an ‘assistance dog’. Rather, the applicant is now applying to keep her dog as a pet under by-law 11 and has sought (and been denied) the permission of the committee on this basis.

[12] In the remainder of this decision, I will consider by-law 11 and the reasonableness of the committee’s decision to deny the applicant’s pet application.

Does the by-law allow the keeping of animals?

[13] By-law 11 regulates the keeping of animals. This by-law says:

“(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 the common property

(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 the common property.”

[14] By-law 11 is a permissive by-law. This means that the by-law does not prohibit the keeping of animals, but rather, allows occupiers to keep animals if they have the written permission of the committee. Under the by-law the committee is given a wide discretion to decide whether, and under what circumstances, it will approve a specific request for a pet.

Did the committee act reasonably when considering the applicant’s pet application?

[15] In determining any pet application, the committee must act reasonably[6] and consider each case on its individual merits. That is, the committee must consider whether there is any genuine likelihood of the animal causing an adverse impact on common property or any owner or occupier. Where there are genuine concerns, it is then necessary to consider whether the imposition of conditions on the keeping of the pet would alleviate any such concerns and in turn be more reasonable than the outright refusal of the pet.

[16] Whether a decision is ‘reasonable’ is a question of fact. It is an objective test which requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’. The question is not whether the decision was the “correct" one but whether it is objectively reasonable.[7]

[17] In the sub-headings below, I will consider the ‘reasonableness’ of the committee’s and individual owners’ objections to the pet application having regard to any conditions which may be imposed.

‘No-pets’ policy

[18] Many owners oppose the application on the basis that the scheme has a ‘no-pets’ policy. 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. Accordingly, I am not satisfied any such policy is a reasonable basis to deny the applicant’s pet application.

Precedent

[19] Numerous owners oppose the pet application on the basis that any approval granted for this dog would set a precedent leading to other owners also being permitted to keep animals in the complex.

[20] The issue of creating a precedent is a concern for many bodies corporate. However, any decision to approve a pet is made on the specific circumstances of a matter (including the situation of the applicant, the configuration of the particular lot, and the type of pet) and does not entitle others in different circumstances to assume they can also have a pet. Accordingly, I am not satisfied any issues regarding the creation of a precedent is a reasonable consideration in the circumstances.

Previous experience with dogs

[21] Some years ago the body corporate gave permission for two dogs to be kept on the premises. The committee says one dog barked, howled and cried constantly.[8] Following this incident, the committee says, “a large majority of committee members are strongly against any more dogs on the premises...” While I note these arguments, I am not satisfied any issues involving a previous dog on the scheme are related to, or anyway impact upon, the present application. Rather, each pet application must be considered on its own individual merits.

General Meeting

[22] The committee says the applicant’s request to keep the dog needs to be considered by all owners at a general meeting.

[23] There is no requirement in the by-laws or the legislation for the applicant’s pet request to be considered at a general meeting. Rather, the by-law bestows this decision-making discretion upon the committee. Nevertheless, if the committee wanted this issue to be considered at a general meeting, it has had since September 2011 to call one. The committee has made no attempt to call a general meeting to consider the applicant’s request. A general meeting could have been called with as little as 21 days notice to all owners.[9]

Fear of the dog

[24] One owner, in his submission, opposed the application on the basis that he had Parkinsons disease and was terrified of being knocked over by the dog.

[25] While I note this owner’s concerns, no objective evidence has been presented to suggest this dog would cause him (or his condition) detriment. For example, no evidence has been presented to suggest that the dog has jumped up on him or another owner/occupier (or attempted to jump up on him or another owner/occupier) while on common property. Further, no evidence has been presented to suggest that the owner is any more at risk of being knocked over by this dog than any other person or child in the scheme. Accordingly, I am not satisfied this concern forms a reasonable basis for denying the pet application.

[26] However, even if this concern was considered prima facie ‘reasonable’, I believe it could be addressed by the imposition of a condition requiring the animal to only traverse common property for the purpose of entering and exiting the scheme and to be appropriately restrained or transported by vehicle during such times. This would ensure the animal is never ‘loose’ or unrestrained on common property and therefore unable to come into direct contact with other owners.

Special circumstances of the applicant

[27] The applicant claims she suffers from Immune Infection/Dysfunction and an abnormal stress response. The applicant says she would gain physical and therapeutic benefits from owning a dog. The committee and opposing owners say the applicant’s medical conditions do not form a reasonable basis for the granting of permission to keep the dog.

[28] In determining the reasonableness of the committee’s decision, it may be necessary to consider any special circumstances of the applicant. ‘Special circumstances’ may include any purported physical or therapeutic benefits associated with pet ownership.

[29] In the preceding paragraphs I have considered the committee’s arguments as to why it denied the applicant’s pet application. In the absence of any cogent arguments as to why this dog, with conditions, should not be allowed in the scheme, I do not consider it necessary to address the applicant’s purported ‘special circumstances’ in this matter. Rather, such considerations are only necessary where the committee and/or opposing owners have presented objectively reasonable opposition to the particular animal.

Summary

[30] Based on the material presented, I am not satisfied the committee’s decision to deny the applicant’s pet request was reasonable in the circumstances. This is particularly the case given that no evidence has been provided to suggest the dog barks excessively or otherwise causes a nuisance which interferes with other owners use and enjoyment of a lot or common property. Accordingly, I consider the applicant should be granted permission to keep her dog in her unit pursuant to by-law 11. However, in order to alleviate some owners’ concerns, I consider it reasonable to make this permission subject to certain conditions.

[31] Firstly, I consider a condition should be imposed stipulating that the dog must be kept within the lot while it is present on the scheme.

[32] Secondly, due to any issues surrounding a purported fear of the dog, I am stipulating that 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 appropriately restrained or transported by vehicle. This would ensure the animal is never ‘loose’ or unrestrained on common property and therefore unable to come into direct contact with other owners, occupiers or visitors.

[33] Thirdly, I have stipulated that the dog is not permitted to cause a nuisance or interfere unreasonably with any person’s use or enjoyment of another lot or common property. This does not mean that the dog cannot make any sound or bark, but rather the dog must not create unreasonable levels of noise (or other impacts).

[34] Fourthly, I consider it appropriate for the applicant to take reasonable steps to minimise the transmission of airborne allergens. As the dog is not to have any direct contact with owners, I would not anticipate it would trigger allergic reactions. Nevertheless, I am ordering that the applicant take reasonable steps to minimise the transmission of airborne allergens from the dog to other lots, for example, by vacuuming the lot and grooming the dog. I do not envisage onerous obligations in this regard and normal levels of vacuuming the lot and grooming the dog should be adequate for this purpose.

[35] Fifthly, because this is a medium size scheme with lots in relatively close proximity, I consider there would be benefit for all occupiers in requiring that the dog be kept in good health and free from fleas and parasites. Although there is little risk of impact from an indoor pet on

other owners in this regard, I consider this condition is a general requirement of responsible pet ownership and should not be onerous for the applicant.

[36] Sixthly, I consider it appropriate to place some parameters around the disposal of the dog’s waste. On this basis, I am ordering that any animal waste must be disposed of in such a way that it does not create noxious odours or otherwise contaminate the scheme.

[37] Seventhly, I am ordering that the committee may rescind permission for the dog to remain on the scheme if the specified conditions are not complied with. However, the committee must act reasonably in doing so, which would include giving the applicant the opportunity to respond to any complaints.

[38] Finally, I am ordering that the approval granted only applies to this dog and does not authorise the keeping of any additional, replacement, or substitute animals on the lot.

Conclusion

[39] I have made an order allowing the dog to remain in the applicant’s unit, subject to certain conditions aimed at ensuring the dog does not create a nuisance or interfere unreasonably with the use and enjoyment of lots and common property.

[40] I wish to stress that my decision to allow this dog is based on the specific facts of this case, and should in no way be taken as a general precedent allowing owners or occupiers to bring or keep an animal in their lot without the approval of the body corporate.

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

[2] Section 276(2) of the Act

[3] Section 284(1) of the Act

[4] Section 243 of the Act.

[5] See sections 246 and 244 of the Act respectively.

[6] Section 94 of the Act.

[7] Q1 [2010] QBCCMCmr 433 (21 September 2010).

[8] Neither dog currently resides in the scheme.

[9] Section 74 of the Standard Module.