Horton Apartments [2013] QBCCMCmr 176 (26 April 2013)

Last Updated: 22 May 2013

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] This application is brought by the occupier of Lot 2308 against the Body Corporate seeking permission to keep her cat, Dinkie, in the lot. The applicant says that Dinkie is a twelve year old female Burmese, weighing approximately four kilograms, and has been an indoor cat for all of her life.

[2] The applicant states that the Body Corporate may grant approval to keep a pet under the applicable scheme by-law but that the Body Corporate has adopted a blanket “no pet policy” rather than consider the merits of her request.

[3] The question then is whether the Body Corporate has acted reasonably in the circumstances to refuse permission for the cat, or whether approval for the cat should be given.

Preliminaries

[4] Horton Apartments community titles scheme 36939 (‘the scheme’) consists of 145 lots and common property. The scheme is subject to the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management (Accommodation Module) Regulation 2008.

Jurisdiction

[5] I am satisfied that this dispute falls within the dispute resolution provisions of the legislation.[1]

[6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in a community titles scheme about a claimed or anticipated contravention of the Act or the community management statement (CMS), or the exercise of rights or powers or performance of duties under the Act or 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 appropriate.[3]

Procedural Matters

[7] The Commissioner invited submissions about the application from the Body Corporate Committee and owners of all lots included in the scheme. Submissions were received from the Committee and owners of twelve lots.[4] The applicant inspected, and replied to, submissions.[5]

[8] A dispute resolution recommendation[6] was made referring the file to department adjudication.

[9] I then investigated the dispute[7], which included reviewing the application, submissions and reply. Additionally, I conducted a search of titles records held by the Department of Natural Resources and Mines, obtaining a copy of the current CMS for the scheme (including the current schedule C ‘By-laws’).

Submissions

[10] The Committee states that the Body Corporate has maintained a “No Pets” policy since the scheme was established in 2007. The Committee claims that the scheme is unsuitable for pet occupation and that the peace and enjoyment of other residents could be undermined should the applicant be allowed to keep her cat. The Committee says its serious/major concerns are:

• the cat would be alone for long periods because the applicant is at work all day and noise from a lonely pet could disturb other residents; and

• all residents use a common chute facility for garbage disposal and so hygiene and odour from animal refuse may be an issue.

[11] Other concerns raised by the Committee relate to the size of the lot, fire safety requirements to keep the front door of the lot closed, and balcony doors being locked when occupiers are not home to prevent unlawful entry.

[12] Owners opposing the application state that if pets are allowed it could lead to problems with noise, smell and litter, which may affect other occupiers’ health. In particular, a number of owners echoed the Committee’s concerns regarding noise should a pet be left unattended. Several owners also voiced apprehension about the net impact from 145 lots seeking to have animals, should permission for this cat set a precedent for future requests.

[13] Other submissions against the application assert that Horton Apartments, as a multi-storey apartment complex, is unsuitable to keep a pet having regard to the health and well-being of the animal. Concerns included the size of lots and balconies, lack of sunlight, and risk of injury to a pet (or persons below) should it fall from the balcony.

[14] Owners who made a submission supporting the applicant’s request state that the pet by-law is permissive and that the Body Corporate has not given consideration to the specific circumstances. Rather, they claim that the Body Corporate is seeking to maintain its blanket ban on animals.

Reply

[15] In her response to the submissions the applicant admits to having kept her cat in the lot since 8 February 2013. The applicant says that since that time she has not received any complaint or comment from other owners or occupiers regarding the cat.

[16] The applicant says that each morning kitty litter is bagged in a plastic bag and taken off premises for disposal in an industrial bin at her work.

[17] Additionally, that applicant states that she has not witnessed her cat jumping onto the balcony railing and, in any event, the cat cannot jump as high as she used to due to age. Moreover the applicant states that the cat is only ever on the balcony when applicant is home, although the applicant admits she does not watch her cat continuously during those times.

Analysis

Scope of By-law 16

[18] The first, and only, CMS for Horton Apartments was recorded on 31 May 2007 and includes the following by-law:

16. Keeping of Animals

Subject to Section 143(1) of the Act, an Owner or Occupier of a Lot shall not, without the prior approval in writing of the Committee, bring or keep any pet or animal upon his Lot or the Common Property. The Committee can make rules, from time to time, which apply to animals that are brought onto the Scheme Land. Such rules must be complied with. For example, the Committee may make a rule about restraining animals while they are on Common Property.

[19] Adjudicators have consistently held[8] that by-laws like By-law 16 are ‘permissive’ in that they permit the keeping of pets, subject to the owner or occupier obtaining prior consent. Simply put, since it was established Horton Apartments has had a by-law that permits animals, albeit with the written consent of the Committee. Regardless of how the by-law has been applied in the past, it is not correct to say that the scheme has always prohibited pets. If an owner purchased a lot in the scheme in the belief that pets were prohibited in Horton Apartments then such a belief was without foundation.

[20] Adjudicators have further held[9] that a permissive by-law requires a committee to exercise discretion in whether to approve an animal or not, including whether to grant conditional approval. A committee may have certain preferences regarding pets but it cannot impose a blanket ban on all animals. To do so would purport to override the permissive by-law, which is beyond the authority of the Committee.[10] Accordingly the Body Corporate must consider each request on its merits.

Body Corporate must act reasonably

[21] One of the most important questions raised by the application and owners is whether the Committee considered the specific request of the applicant, or just automatically refused the request because it doesn’t want any animals in the scheme.

[22] In performing its obligations to administer and enforce by-law 16, the Body Corporate and its Committee must act reasonably in making a decision.[11] Where this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute, including declaring void a resolution purportedly passed.

[23] The test for ‘reasonableness’ is an objective one that requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.[12] In determining whether the Body Corporate’s decision to refuse permission for the cat was reasonable, the question is not whether the decision was ‘correct’ but whether it was ‘objectively reasonable’ in all the circumstances.[13]

Basis for decisions about keeping animals

[24] In 2010 the Queensland Civil and Administrative Tribunal[14] noted that cats and dogs are ordinary domestic pets, some of which could be kept in a community titles scheme (in that case a high rise building) without inconveniencing others. Adjudicators have since consistently ruled[15] that the primary issue for a body corporate when considering a pet application is the likelihood of any adverse impact on common property or an occupier’s use or enjoyment of a lot or common property. Where there are genuine concerns about the potential impact of a pet, the imposition of appropriate conditions may be more reasonable than outright refusal.

[25] A body corporate should exercise caution if considering refusing permission for a pet based solely on concerns about potential problems that a pet may cause unless, at the time of its decision, there is convincing evidence before the body corporate that the keeping of the proposed animal is likely to have an adverse impact and that either:

• the pet owner will not, or is unable to, comply with appropriate conditions to mitigate any adverse impact; or
• the adverse impact cannot be mitigated by the imposition of appropriate conditions.

[26] Irrespective of any conditions of approval, the legislation prohibits an occupier from using or permitting the use of a lot in a way that causes a nuisance or interferes unreasonably with the use or enjoyment of another lot or common property.[16] Consequently, where a body corporate grants approval for a pet, any subsequent nuisance or unreasonable interference caused to another person by the pet may form a basis to revoke the approval.

Applicant’s request to keep a cat

[27] The Body Corporate, through its Committee, declined the applicant’s initial requests to keep a cat in December 2012. On 1 February 2013, following a conciliation session[17] conducted through this Office, the Committee again resolved not to approve the applicant’s request. No reasons for the refusal are cited in the minutes, although the Committee’s submission unequivocally states that the Body Corporate is maintaining a “no pets” policy.

[28] I accept that the design of Horton Apartments, including the proximity of lots, is such that the potential for noise, smell and other problems from pets may be of genuine concern to the Committee and some owners. However, in this particular matter I am of the view that any such concerns could be alleviated through the imposition of clear, documented conditions.

[29] Lot 2308 is a 92m2 apartment, with an 18m2 balcony, on Level C of Tower B for the scheme. In the absence of compelling evidence to suggest that a unit of this size, or the design of the unit, is unsuitable to house a cat, I am satisfied that the cat could be safely contained within the lot.

[30] Noise can be a genuine concern for bodies corporate. For example, a dog that barks continuously can have a significant impact on nearby neighbours. However the circumstances of the applicant’s request are entirely different. In this case the cat was proposed to be, and since early February 2013 has in fact been, kept inside the lot. While it is generally accepted that noise can carry, even by transmission through the structure of an apartment building such as Horton Apartments, I have not been provided with any objective evidence to show how this twelve year old cat is going to cause (or that is has already caused) a noise disturbance. It seems to me that, at the present time, ‘noise’ remains a hypothetical concern only.

[31] I also note the current method of disposal of kitty litter and waste by the applicant which, in the absence of any complaint, appears to be a satisfactory means of addressing any issue of smell. Again, concerns expressed in the submissions regarding a potential smell appear only to be fear of what could hypothetically happen.

[32] One of the commonly expressed comments made in opposition to the applicant’s request is that approval for this cat will set a precedent for other requests, which the Body Corporate would presumably not be able to refuse. This is not correct. The Body Corporate must consider any request on its merits and in the specific circumstances of the matter, and act reasonably in making a decision to either approve or deny the request. Put simply, permission for one animal to be allowed in the scheme does not require each subsequent request to also be granted if there are bona fide reasons for the Body Corporate to say no to a particular request.

[33] Nevertheless, it is true that the Body Corporate must be consistent in its interpretation and application of by-laws and so past decisions, or precedents, may be taken into account where relevant. However, concern about setting a precedent alone is an insufficient basis for outright opposition to a request made in accordance with By-law 16.

[34] It appears to me that the reasons cited by the Committee as justification for its position relate to hypothetical concerns regarding the scheme as a whole, stemming from the clear desire of the Committee to keep the scheme pet free. There is no evidence to suggest that the Committee gave sufficient consideration to the particular circumstances of the applicant’s request. In particular I have not been presented with any compelling evidence that the cat will cause a nuisance or substantial inconvenience to other persons using or enjoying the common property or lots.

[35] I am satisfied that refusal of permission to keep the cat in Lot 2308 was objectively unreasonable in the circumstances of the request.

Conclusion

[36] By-law 16 does not prohibit pets from being kept at Horton Apartments. Rather, cats (and other animals) are permitted with the written permission of the Committee. The primary issue in this application was whether the Body Corporate unreasonably refused the applicant’s request for her cat, Dinkie. For the above reasons I am satisfied that the Committee’s decision was unreasonable.

[37] I consider that, with the imposition of reasonable conditions, the applicant’s cat can be kept in Lot 2308 without impacting other occupiers. Consequently I will authorise the applicant to keep her cat in the lot, subject to certain conditions. I do not believe these conditions will impose an unreasonable burden on the applicant given her original undertaking to the Body Corporate regarding the cat and her current practices of waste disposal; however I envisage that these conditions will alleviate any potential impact on other occupiers.

[38] In particular the applicant must ensure that the cat does not cause noise, or undertake other behaviour, that could cause a nuisance or unreasonable inconvenience to other persons using or enjoying the common property or lots. This does not mean that it can never make noise – just that any noise should not amount to a nuisance.

[39] Even so, the Committee may rescind permission for the cat if the conditions are not complied with. The Committee must act reasonably in this regard, and so any action it may wish to take to compel removal of the cat can be challenged if such action is not reasonably justified. As a minimum the Committee would need to alert the applicant to any concerns before any rescission, such as by issuing a by-law contravention notice, and affording the applicant an opportunity to remedy any perceived contravention of the conditions before pursuing removal.

[40] This authorisation applies only to the existing cat, Dinkie. If at a later time the applicant would like an additional, replacement or substitute animal then she must apply separately for any such approval. The Committee would then be obliged to consider the request on its merits and, as in this application, the Committee’s decision may be overturned if found to be unreasonable.

[41] By way of general observation I note that the committee meeting minutes of 1 February 2013 record two other requests to keep pets, subject to conditions, were unanimously refused by the Committee. In light of my findings regarding this request for a cat, the Committee may wish to revisit those other refusals to consider whether, in the circumstances of each request, the Committee’s decision was objectively reasonable.

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

[2] Section 276, Act

[3] Section 284(1), Act

[4] Section 243, Act

[5] See sections 246 and 244, Act respectively

[6] Section 248, Act

[7] The investigative powers of an adjudicator are set out in section 271, Act

[8] For example: Sherwood Glen [2005] QBCCMCmr 179, Pivotal Point Residential [2007] QBCCMCmr 21

[9] See also Bayshore Central [2007] QBCCMCmr 225, Le Parc [2009] QBCCMCmr 55

[10] Section 42, Accommodation Module

[11] Pursuant to sections 94(2) and 100(5), Act

[12] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621. See also McKinnon v Treasury [2006] HCA 45 per Hayne J at paragraph 61.

[13] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; (1997) 150 ALR 1 at page 34.

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

[15] For example: Palm Grove Village [2012] QBCCMCmr 197, Pandanus Mooloolaba [2012] QBCCMCmr 200

[16] Section 167, Act

[17] Pursuant to section 252E(5) of the Act evidence of anything said or done about the dispute in the conciliation session is inadmissible in this adjudication proceeding. As such, I have not taken into account any admissions or offers claimed to have been made under the conciliation process.