Island Terraces [2013] QBCCMCmr 168 (23 April 2013)

Last Updated: 22 May 2013

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

INTERIM ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] This application relates to the applicant’s request for approval to keep a dog within her lot.

[2] Island Terraces has an animal by-law (By-law 8) which provides that animals cannot be kept on a lot or common property without the written approval of the Body Corporate. In September 2012 the Owner of Lot 23 applied for approval for a small, elderly poodle to be kept within the lot. The matter was put to the Annual General Meeting (AGM) of the Body Corporate on 13 December 2012 but the request was refused with 2 votes in favour, 9 against and 1 abstention.

[3] On 5 March 2013 the Committee passed a resolution outside a committee meeting (2 votes in favour and nil against) to issue a by-law contravention notice to the applicant in respect of the dog, because approval was not given. The resolution also agreed to apply for an order to remove the dog if the notice was not complied with.

[4] Although it is not apparent the applicant has yet been sent a by-law contravention notice, or that an application to remove her dog is imminent, she seeks an interim order to prevent the Committee resolution being implemented. As a final order she wants approval for the dog.

[5] The applicant refers to her health issues and provides medical evidence to support her claim that being prevented from keeping her pet would be detrimental to her health and wellbeing. She believed the scheme was pet friendly because the caretaker had a dog.

[6] It appears their have been complaints that the dog has been left to bark in the early morning. The applicant disputes the veracity of the complaint. She says the only dogs barking are the dog owned by the caretaker and one on an adjacent property. The applicant says the caretaker’s dog barks continually. She comments that the caretaker made it clear from the day she moved in that the dog would not be approved, and claims he has bullied her.

[7] The Body Corporate opposes the application, saying it has acted reasonably in considering the request for a dog despite technical deficiencies. However it says the applicant has not had regard to the by-laws or the Body Corporate’s community responsibility.

[8] The question at this time is whether serious legal issues have been raised and whether the balance of convenience between the parties warrants the making of the interim order sought.

Preliminaries

[9] Island Terraces community titles scheme 26113 (Island Terraces) consists of 32 lots and common property. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as Survey Plan 103203.

[10] The applicant lodged this matter on 25 March 2013 seeking the following interim order:

The Body Corporate be prevented from actioning on motion 1 of 5/3/2013.

[11] The applicant further seeks the following final orders:

As I suffer mental illness my dog, Pepe who is a toy poodle, is very much apart of my everyday wellbeing, my stability and my best friend. I also have no family and I am a Forgotten Australian. I am seeking permission to keep Pepe in Lot 23 for my health and wellbeing.

I have the support of my doctor and psychologist who believe that Pepe is very much apart of my wellbeing and stability. The Owner of Lot 23, David Jackson is very supportive towards myself and towards Pepe being allowed in Lot 23. Mr and Mrs Holmes, Caretakers who lives within CTS 26113 has a dog themselves who barks and has been seen present throughout the CTS 26113 Common Areas including the Pool Area.

I applied for approval to the Body Corporate and at the next AGM it was not agreed to, and recently received a breach of By-Law from the committee who plan to lodge an application with the Office of the Commissioner for Body Corporate and Community Management for an order to remove the dog.

Pepe has been in Lot 23 permanently for approximately 2-3 weeks.

I declare that motion 1 of 5/3/2013 be declared invalid so it's decision/action can be prevented.

Jurisdiction

[12] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1]

[13] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] An order may require a person to act, or prohibit a person from acting, in a way stated. An order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

[14] In particular, an adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances.[4]

Procedural matters

[15] The Commissioner has referred this application to me to decide whether the nature or urgency of the circumstances warrants an interim order[5]. As provided for by the Act, the Commissioner made this referral notwithstanding that affected persons had not been given notice of the application or afforded an opportunity to make submissions about the application.

[16] In the circumstances, I provided the Committee with a limited opportunity to comment on the application for interim orders. A submission was provided on behalf of the Body Corporate.

Interim submission

[17] The submission from the Committee opposes the application and includes the following:

1. Reference is made to the obligations in By-laws 6, 7 and 14, as well as By-law 8 which provides for pets. The by-law is valid.
2. The dog is not an assistance dog.

100. The dog has resided in the scheme for much longer than the 2-3 weeks stated.

4. The lot owner applied for the dog before he became the owner, so it was invalid.
5. The lot owner was unable to adhere to the conditions he agreed to in his application for the dog by failing to take residency.
6. There is no evidence of a prior relationship between the dog and the applicant and so it is assumed to have formed since the applicant and the dog have co-habited on the lot. On that basis the letter from the clinical psychologist cannot be relied upon.
7. The Committee acted reasonably in issuing by-law breach notices and taking the issue to the AGM. It acted promptly.
8. Motions to approve animals in Lot 23 and 27 failed at the AGM in December 2012.
9. The applicant has breached and continues to breach By-law 8 by bringing a pet onto the scheme without approval. She has also breached By-law 7.
10. The noise and disturbance complaints regarding the dog remain a concern. The applicant has made no effect to ameliorate the noise which has resulted in complaints.
11. Copies of written complaints about the dog in Lot 23 are provided.

50. The unsubstantiated claims on peripheral issues are not appropriate to be dealt with in the context of this application.

Analysis

[18] The only issue at this time is whether an interim order is warranted. However to determine whether it is just and equitable to grant interim relief, it is necessary to consider the substantive issues in dispute in the application.

Basis for an interim order

[19] Any order granted must be just and equitable.[6] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[7] The examples in the Act indicate the usual circumstances where an interim order might be made are in the nature of injunctive relief. While it is not possible to define the range of matters that might be the subject of an interim order, an applicant must establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency is a desire to expedite the dispute.

[20] An adjudicator must be satisfied an application raises serious legal questions and the balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence an interim order is necessary to prevent serious or irreparable harm.

Serious legal issue

[21] By-law 8 is clearly not a by-law that prohibits animals being kept in this scheme. Rather it permits them with prior consent. The Body Corporate has the discretion to approve an animal, and would have the option to impose conditions on the granting of that approval. The Body Corporate must actually exercise this discretion and consider each application on its merits, rather than imposing a blanket prohibition on pets. In exercising its discretion it should have regard to any evidence or likelihood that the particular animal will interfere unreasonably with any other person’s use of their lot or common property.

[22] There is a general legislative requirement[8] that a body corporate act reasonably in making or not making a decision. Therefore the Body Corporate must act reasonably in deciding whether or not to grant approval for a dog under By-law 8.

[23] The question in this dispute is whether the Body Corporate acted reasonably in refusing to give approval for a dog in Lot 23. I note that the Body Corporate also refused permission for a dog in Lot 27 at the AGM.

[24] It is not apparent that the applicant has been given any particular reasons why her dog was refused at the AGM. The Body Corporate gives no clear explanation in its submission as to why the dog was refused. It is unclear whether, for example, objections arose from a general preference against dogs and their impacts, or the circumstances of the applicant’s request, or because of the specific complaints made regarding the dog. Any reasons for owners voting against approval for the dog will need to be considered in the final order in deciding whether the AGM decision was reasonable.

[25] There is also a question as to whether the Body Corporate has had sufficient regard to the particular circumstances of the applicant’s request, including the age and other attributes of the dog and the particular reasons that the applicant has for seeking approval for the dog. Failure to consider the request on its merits could be viewed as unreasonable.

[26] In enforcing the by-laws a body corporate must not discriminate between owners and occupiers. If the Body Corporate were to approve a dog being kept in one lot, and refuse dogs in other lots, that might be discriminatory (and therefore unreasonable) unless there is a good reason for the distinction. The Body Corporate has not commented on the applicant’s assertion that a dog has been permitted in the caretaker’s lot. This is an issue that will require further consideration.

[27] If the dog has been refused, entirely or in part, based on the complaints about the dog, there is a question as to the veracity of the complaints which may require investigation. Similarly, if complaints have been made about the alleged barking by the caretaker’s dog which have not been actioned by the Body Corporate, particularly when complaints against the applicant have, there may also be a question of whether the Body Corporate has acted reasonably.

[28] Much is made in the Body Corporate’s submission of the defects in the lot owner’s original request. I am unclear whether any weight was given to these issues when deciding against the applicant’s request. Prima facie I see little basis in the claims of defects.

[29] One issue is that the lot owner applied for the dog before he was an owner. I see no difficulty with this and certainly do not see how it renders the request ‘invalid’. The by-law does not limit who can ask for consent or when, and there are no restrictions on who the Committee (or Body Corporate) could give approval to or when. There is certainly nothing in either the by-law or the legislation that would restrict approval for a pet to only a current lot owner or occupier who applies on their own behalf. Indeed I consider that in some circumstances it may be quite logical, and in the interests of all, for a prospective owner or occupier to request permission for a pet before they purchase or sign a lease or move in, and likewise for a lot owner to apply for a pet on behalf of a prospective purchaser or tenant of their lot.[9]

[30] The second issue is that the lot owner failed to comply with the promised conditions of approval because he did not take residence in the lot. Although perhaps it could have been more explicitly stated in the original letter of request and the AGM motion, I consider that it is clear that the lot owner was applying on behalf of his tenant (the applicant) for approval for the tenant to keep her dog in the lot. It seems evident that prior to the AGM the Committee knew that the dog was being kept by the tenant on the lot and not by the lot owner. In any event, as no approval has been given there were no approved conditions for the lot owner to have failed to comply with.

[31] The third issue is the Body Corporate’s bizarre conclusion that because it was the lot owner who applied for the dog and because the applicant has not demonstrated that she knew the applicant before she moved in, the dog is his and she has only known the dog since she moved in and so she cannot really be reliant on it. This is a wholly unsubstantiated series of irrelevant assumptions. The applicant’s name was on the original request letter. I consider that it is now very clear (even if the Committee were initially confused) that the dog is and always was the applicant’s and that the lot owner was simply asking for approval on her behalf. Accordingly the applicant’s evidence in support of her request for the dog is relevant.

Balance of convenience

[32] The applicant seeks an interim order to stop the Body Corporate acting on its resolution to issue a by-law contravention notice and apply for an order to remove the dog. The Body Corporate has not specifically commented on the request for an interim order.

[33] I am unclear whether the Body Corporate has purported to act on its March resolution to issue a contravention notice, and if it has whether it has pursued the enforcement of that notice. If the Body Corporate has or were to issue a contravention notice it may take some time to pursue the enforcement of the notice and so there may not be any immediate risk that the applicant will be required to remove the dog. However I do consider that the pursuit of any proceedings to require removal of the dog pursuant to a by-law contravention notice, whether through this Office or the Magistrates Court, will unnecessarily complicate the current dispute about whether the decision not to approve the dog was reasonable. In the event that the application is not successful, that action can still be pursued.

Other issues

[34] The application includes considerable material about ‘peripheral’ issues. It appears the applicant may believe this information substantiates her complaints that she is being treated unfairly. However at this time the applicant has not demonstrated any relevant link between the information provided on these issues and the questions to be determined in this application. In that context the information confuses the issue and is unhelpful. The applicant may wish to review her application to ensure that only directly relevant information is included. If she believes that the Body Corporate has not complied with the requirements of the legislation on other issues, it is open to her to lodge a separate application on those matters.

Conclusion

[35] I am satisfied there is a question to consider in this application about whether the Body Corporate has acted reasonably in deciding at the AGM in December 2012 not to give approval for the applicant to have a dog on Lot 23.

[36] In the circumstances I am satisfied that it is appropriate to prevent the Body Corporate from taking action to implement its March resolution or otherwise take action against the applicant for the alleged breach of By-law 8, until the reasonableness of the decision to refuse the dog is determined.

[37] It is important that all parties note that this order does not prevent the Body Corporate from otherwise enforcing its by-laws, including By-law 6 regarding noise, or from pursuing a complaint under section 167 of the Act regarding nuisance, if the presence of the dog in Lot 23 is believed to be unreasonably interfering with the use and enjoyment of lots and common property. Accordingly, the applicant is on notice that she must take great care to ensure that her dog does not bark excessively or otherwise cause a nuisance to other owners. However, the Committee must act reasonably in implementing these by-laws.

[38] This application will now be referred back to the Commissioner to progress under the provisions of the Act. I anticipate that the Commissioner will invite the applicant to review the material supporting her application. Submissions will then be sought from the Committee and all owners on the final order application. In due course, the application will be referred back to me for determination.

Effect of an interim order

[39] All parties should note the provisions of section 279(2) of the Act below. I have provided that this interim order will have effect for a period of not longer than six months. It is the responsibility of the applicant to apply to extend this order if no final determination has been made within that period. The interim order will not automatically be renewed and will automatically lapse upon a final order being made or this application being withdrawn.

(2) An interim order—

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; and

(c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when—

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred.

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

[2] Section 276 of the Act

[3] Section 284(1) of the Act

[4] Section 279(1) of the Act

[5] Section 247 of the Act

[6] Section 276 of the Act

[7] Section 279 of the Act

[8] Pursuant to sections 94(2) and 100(5) of the Act

[9] That was the conclusion in Bay Vista Apartments [2012] QBCCMCmr 188