Eden by the Bay [2013] QBCCMCmr 183 (1 May 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] Eden by the Bay community titles scheme 36787 (Eden by the Bay) consists of thirty lots and common property. The applicant, Tiffany Bismark, wants to be allowed to keep her pet cat ‘Nora’ inside the lot she occupies. According to Ms Bismark, the cat has already been in the lot for six months. She said that she was not initially aware that she was breaching the by-laws. When she became aware she made an application to the body corporate committee (committee) for approval, which was refused on the basis that “Eden by the Bay Resort is to be strictly No Pets/Animals”.

[2] Ms Bismark then lodged this dispute resolution application and states:

“I am seeking to keep my pet cat ‘Nora’ inside lot 211 of Eden by the Bay”

[3] In determining this application, I will consider the following questions:

• (1) What do the by-laws for Eden by the Bay provide for with regard to pets?
• (2) Did the committee act reasonably when making its decision to refuse permission for Ms Bismark’s cat?
• (3) Should permission be given for Ms Bismark’s cat, and if so, under what conditions?

Jurisdiction

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

Procedural Matters

[5] The parties participated in a conciliation session with the commissioner’s office pursuant to section 248(3) of the Act. Unfortunately conciliation did not resolve the matter. Subsequently, this application was lodged.

[6] A copy of the application was provided to the respondent and the body corporate, with an invitation to the respondent and all owners to respond to the matters raised by the application[4]. Twelve submissions were received by owners. Three submissions supported the application, and nine were opposed to it. The committee, on behalf of the respondent, did not provide a submission. Ms Bismark inspected the submissions received and made a written reply.[5] A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

[7] I then investigated the dispute, which included reviewing the application and submissions, and reviewing the scheme’s registered plan of subdivision and current community management statement (CMS).

Analysis

By-law 20 - Keeping of animals

[8] By-laws, which may provide for the regulation of the use and enjoyment of lots[6], are contained within the CMS for a scheme.

[9] Ms Bismark argues that by-law 20 “Keeping of animals” (by-law 20) for Eden by the Bay contravenes section 180(7) of the Act in that it is “oppressive and unreasonable” and she should be given permission to keep her cat. A number of submitters, alternatively, claim that by-law 20 is not unreasonable and oppressive and that Eden by the Bay is a no pets/animals scheme.

[10] By-law 20 is contained within the CMS for the scheme recorded in January 2008. It states:

“20. KEEPING OF ANIMALS

20.1 An occupier of a lot must not, without the Body Corporate’s written approval –

(1) bring or keep an animal on the lot or common property; or

(2) permit an invitee to bring or keep an animal on the lot or the common property

20.2 An 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”.

[11] By-law 20 does not prohibit animals. It simply requires permission from the committee to keep an animal. It has been consistently decided by adjudicators that by-laws such as by-law 20 are in fact ‘permissive’[7], which means that it permits the keeping of pets, with the consent of the committee. Therefore Eden by the Bay does not have a ‘no pets’ by-law.

[12] I believe that this fundamental misunderstanding of the by-law has led to much of this dispute.

[13] As by-law 20 is a permissive by-law, and it is in identical terms to by-law 11 in Schedule 4 of the Act, I do not consider that there is any basis to argue that the by-law is contrary to section 180(7) of the Act. It is not “oppressive and unreasonable”[8] because it allows the committee to give approval for an animal after receiving a request from an occupier.

Reasonableness of committee’s decision

[14] As the by-law is permissive and contemplates the giving of approval to pets, the question is whether the committee acted reasonably in refusing permission for Ms Bismark’s cat.

[15] Ms Bismark states that her cat is contained within the lot and can not see how it has a negative impact on other people within the scheme. The owner of her lot supports her application and states that the cat has “not caused nuisance, noise or annoyance to anyone residing at Eden Bay”.

[16] The majority of submissions oppose permission being given for the cat. Reasons given for this opposition include:

• The scheme has a ‘no pets’ policy.
• It will set a precedent and it will be impossible to say no to any future animal requests.
• The scheme is not suitable for animals.
• There were will be potential problems with noise, odour, roaming on common property, and other issues of nuisance.
• It will affect investors’ returns.
  
  

[17] The committee is required to act reasonably when making decisions[9]. Reasonableness is a question of fact. The question is not whether the decision was the ‘correct’ one but whether it is objectively reasonable.[10] The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’.

[18] To act reasonably, a committee is required to exercise discretion when considering the merits of each pet application. A body corporate may have a preference for an animal free scheme but the committee cannot override a permissive pet by-law with a blanket ban on all animals[11].

[19] The main consideration in pet applications is whether there is any genuine likelihood that the animal in question is likely to have an adverse impact on a person or common property. If there are genuine concerns it may be reasonable and more appropriate for the committee to impose conditions to manage these concerns, as opposed to denying permission outright for the animal.

Precedent and ‘no pets’ policy

[20] A number of submissions object to the cat on the basis that a precedent will be set, and it will be difficult to say no to other animals including, for example, large dogs.

[21] This is a common concern with bodies corporate when considering pet applications. However, a decision to approve a particular animal does not give blanket approval for all animals. Each application must be decided on its merits, taking into account the particular circumstances of each animal and the request.

[22] When a committee makes a decision about an animal application, it must exercise its discretion and turn its mind to the particular animal and the circumstances of the particular request. Of course, the committee can not discriminate between occupiers and refuse one request when others have been approved without any basis for the distinction. However, if there are genuine concerns about the impact of one pet compared to others, there could be a basis to refuse this subsequent request.

Scheme not suitable

[23] A number of submissions object to the cat on the basis that keeping a cat inside an apartment is cruel or distressing to the animal.

[24] Obviously, if there is some serious distress to an animal, concerned owners or occupiers could pursue this matter through the appropriate authorities. However, it is not reasonable for owners to impose their personal opinions on others where there is no evidence of a direct impact on them. Moreover, it has been recognised by the courts that cats and dogs are ordinary domestic pets and that there are circumstances in which they could be kept in high rise apartments[12].

Affect on investors

[25] Some submissions explain that the cat should not be allowed on the basis that the scheme is predominately for short term holiday makers and that animals will affect the profits of owners, and that it should be treated as motel-like accommodation.

[26] Ms Bismark, and the owner of the lot she lives in, Craig Stanton, claim that there are a number of owner occupiers now living in the scheme.

[27] No compelling evidence has been provided to me that the applicant’s indoor cat has, or will, affect profits of owners or the enjoyment of guests visiting the scheme.

Impact of the cat on occupiers

[28] A number of submissions raise issues about problems that may be caused by the cat. These include:

• Animals can be a nuisance.
• The cat may cause damage to common property.
• The cat may make excessive noise, may attract strays, and may have fleas.
• Giving permission for the cat may cause conflict with holiday makers.
• Giving permission for the cat may encourage people to break other rules.
• Other owners and occupiers may be allergic to cats.
• The cat may be visible to other owners and occupiers.
  
  

[29] No evidence has been provided that the cat has actually caused any such problems. Most of these concerns can be dealt with by imposing reasonable conditions on giving approval, if any, for the cat. Some of these conditions could include that the animal will be regularly flea treated, that the animal will remain within the lot, and that the animal will not make excessive noise. Other concerns do not have any evidence attached to them, such as giving permission for the cat may lead to friction and disharmony in the scheme, and therefore in my opinion would not be a reasonable basis on which to refuse the application.

[30] No evidence has been provided to me as to why sighting the cat in the lot, which includes the balcony, is a basis on which to say no to the cat. With regard to guests or occupiers who may have allergies to cats, I have been provided with no evidence that there is a specific person affected, or likely to be affected, by cat allergens.

[31] Therefore I am not satisfied that any of the submissions regarding the impact of the cat on occupiers provides a reasonable basis for the committee to refuse Ms Bismark’s application.

Breach of by-laws

[32] Although by-law 20 is a permissive pet by-law, Ms Bismark breached it by not applying for permission to keep her cat before she brought the cat into her lot.

[33] However, this is not itself a basis for the committee to refuse an application for the cat. The committee, acting reasonably, must still consider the application on its merits. As the cat had lived in the scheme for six months, this gave the committee the opportunity to observe the cat and to consider whether it was causing any adverse impacts and whether there were any conditions that should be applied if permission were to be granted.

Conclusion

[34] I am of the opinion that the committee’s decision not to give approval for the cat was unreasonable. Despite the numerous concerns that permission for the cat may lead to negative consequences, the question of what is reasonable cannot be determined by the subjective preferences of any one owner or group of owners: it must be determined by objectively balancing all of the circumstances. Objectively balancing the evidence and submissions, I am not satisfied that any of the objections to the cat are reasonable.

[35] As I have found that permission was unreasonably refused, I will give permission for the cat on conditions. Ms Bismark has nominated a number of conditions, which I will take into account when making the order, but which in effect require that her cat is registered, reasonable steps are taken to keep the cat in good health, and the cat does not cause an adverse impact on a person or common property.

[36] I will not make any order that the cat be kept off the balcony, a condition proposed in this application, as this forms part of the lot that Ms Bismark has the right to occupy. Provided the conditions for approval are complied with, Ms Bismark can allow her cat onto the balcony if she so chooses and I am of the opinion it would be unreasonable to order otherwise.

[37] I will also order that the committee may rescind permission for the cat if it reasonably considers that the conditions of approval have not been complied with and Ms Bismark has not responded appropriately to warnings about these concerns.

[38] Further, this permission applies to the cat ’Nora’ only. Any future animals must be the subject of a further application to the committee for permission.

[39] I also bring to the attention of all parties that recent tribunal appeal decisions have decided that by-laws that prohibit the keeping of animals will be overturned. This is on the basis that these by-laws prohibit, as opposed to regulate, the use and enjoyment of lots[13], and/or that they are oppressive and unreasonable[14].

[1] See sections 227(1)(b), 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 169(1) of the Act

[7] See, for example, Warwick Court [2012] QBCCMCmr 550

[8] Section 180(7) of the Act

[9] Section 100(5) of the Act

[10] Q1 [2010] QBCCMCmr 433.

[11] See, for example, Palm Grove Village [2012] QBCCMCmr 197 and Breakers North [2013] QBCCMCmr 437

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

[13] Section 169 of the Act

[14] Section 187 of the Act, McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57 and Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47