Sunwaves [2013] QBCCMCmr 433 (30 October 2013)

Last Updated: 14 January 2014

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 22nd May 2013 and amended on 29th May 2013 by Colin Verrall, co-owner of Lot 2, against the body corporate, for an order that Motion 2 of an adjourned extraordinary general meeting held on 25th February 2013 is overturned.

JURISDICTION

[2] “Sunwaves” CTS 9889 is a four-lot community title scheme at Coolum Beach created under building unit plan of subdivision BUP 5307 and registered on 5th November 1982.

[3] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] This is a dispute between a lot owner and the body corporate. Section 276(1) of the Act provides that 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.

OVERVIEW

[4] The Applicant proposed to a general meeting on 25th February 2013 that he be permitted to bring a female adult red kelpie pet dog into the scheme subject to nine conditions. The body corporate voted against the motion. The Applicant says that the body corporate’s refusal was unreasonable in the light of the proposed conditions.

[5] The dog had previously been allowed by the body corporate into the scheme and has been coming and going at weekends and holidays since 2010. The body corporate withdrew its consent for the dog to be in the scheme at the annual general meeting in October 2012.

[6] The body corporate says that the dog is unreliable and something of a nuisance to owners and guests. It also says that a kelpie is not a suitable dog for the scheme and that the scheme has a “no pets rule”.

SUBMISSIONS

[7] In accordance with section 243(2)(b) Act, submissions were invited from all lot owners.

[8] The three other owners made submissions against this application. In brief they said –

• Kelpies are instinctive, a risk for biting and being aggressive, and cannot be completely controlled;
• The Applicant has previously refused to keep the dog on a lead on common property;
• The dog is intimidating especially to people not used to dogs;
• The risk of a small child being bitten is a concern;
• The by-laws have always prohibited animals without the consent of the body corporate;
• The body corporate is concerned about its own liability if someone was injured by the dog on common property;
• The dog threatened Paula and Kenneth Ring, owners of Lot 4, in the common property car park in 2011 by growling and barking;
• The dog jumped out at a lot-owner’s guest in August 2012, barking and snarling as she passed Lot 2;
• Tenants of Lot 3 have reported that they have been disturbed by barking;
• The dog plays with a ball on the stairs and hallways and could trip someone up;
• The dog has been given a fair trial but is not suitable;
• The Applicant does not like to see the dog restrained on a lead.
  
  

[9] The body corporate says that it has been more than fair to the Applicant in the light of the “no pets rule”, when the Applicant asked if he could bring a small dog into the scheme. It echoes the submissions of the owners. The Applicant has failed to comply with previous “stringent conditions”. The scheme has a single entrance and stairwell and the dog would not be able to avoid coming into contact with occupants.

[10] The Applicant exercised his right of reply. He says that the body corporate is entrenched in its views and has not reasonably considered the conditions which he has now put forward and with which he is willing to comply. He has never received complaints of barking from the body corporate. The body corporate only discusses the dog once a year at general meetings and if there was a real problem, a meeting could have been called to deal with it. He has stopped the practice of allowing the dog to chase a ball up and down the stairs. He denies that the dog has ever been uncontrolled by him even if off the lead.

[11] About the incident when the dog got into the garage with Mr and Mrs Ring, he said that he was with the dog and saw it dive under the roller door. He went to collect it immediately. He saw Mr Ring waving his arms at the dog. The dog was not acting aggressively and came to him when called. He believes that he apologised to Mr and Mrs Ring at the time. Mr and Mrs Ring did not complain to the body corporate about this incident.

[12] He did not witness the dog lunging at one of Mr and Mrs Ring’s guests and is of the view that this is unlikely, or may have been an invitation to play made by the dog. He says that the dog would not have been unattended for more that a few moments at the time of this incident as he was about to go out for a walk with the dog and went briefly back inside.

[13] The Applicant says that the dog is good with small children. He says that the number of times that the dog would have been unsupervised and off the lead on common property in the entire time in which the dog has been visiting the scheme would be “very rare”.

DETERMINATION

Historical background and effects

[14] At the body corporate’s annual general meeting in October 2010 the Applicant asked other owners in “general business” if he could bring the dog with him on his visits to the scheme. The Applicant lives habitually in Maryborough and says that he has been bringing the dog into the scheme since August 2009. The owners discussed the “no pets rule” and three owners, including the Applicant, agreed that the dog could come. For what it’s worth, I find that this was not a decision of the body corporate since the body corporate cannot make decisions in “general business”. The minutes do not report any conditions being attached to the keeping of the dog.

[15] At the annual general meeting in October 2011, again in “general business”, the behaviour of the dog was discussed by all owners. It was noted that the dog had threatened Mrs Ring in the common property garage. The Applicant was asked to keep the dog on a lead when on common property but would not agree to this “for 100% of the time”. The owners discussed insurance if the dog was to bite someone and the liability of the body corporate. The owners decided to review the situation in six months’ time. Again, this was not a decision of the body corporate. It was simply a discussion between owners and neighbours.

[16] The body corporate did not review the situation in six months’ time.

[17] At the annual general meeting in October 2012, a motion was “put from the floor” by the owner of Lot 1 that the body corporate approval for the dog be withdrawn. This was voted on by all owners 3 – 1 in favour. The legislation makes no provision for a motion to be “put from the floor”. Motions must be submitted and circulated on an agenda prior to the meeting[2]. This “motion” was therefore invalid as a decision of the body corporate, although it indicated the view of owners. In addition, since the body corporate had not granted approval for the dog, any proposal to revoke the approval was equally flawed. However, none of these purported resolutions were challenged by the Applicant as being defective.

[18] The Applicant requested a general meeting to be convened so that owners could reconsider the “vote” at the 2012 annual general meeting and consider his proposed conditions. His motion, Motion 2, was defeated 3 -1. This was a decision of the body corporate made on 25th February 2013.

[19] The body corporate sent the Applicant a contravention of by-law notice on 5th April 2013 citing “By-law 11(1)” and saying that the dog had been seen at the scheme on 28th March 2013 without the approval of the body corporate. The dog has not visited the scheme since the Applicant received the contravention notice.

This application

[20] The wording of Motion 2, as drafted apparently by the body corporate manager on the instructions of the Applicant is not challenged in this application, although the Applicant says that he did not have a chance to review the wording “or to write something in support of the motion” before it appeared on the agenda for the general meeting. I do not find that such criticism, if correct, is relevant to the outcome sought. The format for general meetings is that a written motion is circulated 21 days in advance and owners vote by mail or by attending the meeting. There is no necessity to attend a general meeting. The legislative format does not require discussion or submissions. As mentioned above, motions may not be passed in “general business”.

[21] The Applicant challenges only the vote on Motion 2 which he says is an unreasonable decision of the body corporate. The body corporate has a duty to act reasonably in all things in performing its functions, including making or not making a decision (Section 94(2) Act). The main thrust of his argument is that the conditions he now proposes to be attached to the body corporate’s approval for keeping his dog in the scheme, and with which he is bound to comply, are sufficient to ensure that the dog cannot cause any nuisance to other persons within the scheme. It is therefore unreasonable of the body corporate to refuse his application.

By-laws

[22] There is some confusion about by-laws in this scheme, which is understandable in the light of the age of the scheme and changes made to the legislation and the way in which by-laws have been recorded historically. By-laws are subordinate legislation which can be enforced under penalty in the Magistrates Court. They must be recorded in the Land Titles Registry in order to be effective and enforceable.[3] They are not “house rules”, or similar, which cannot be enforced and are usually no more than guidelines for standards of behaviour within the scheme.[4]

[23] There are no by-laws recorded in the Land Title Registry for this scheme. The former legislation, the Building Units and Group Title Act 1980 (BUGTA 1980) also provided at section 30(3) that by-laws were of “no force or effect until recorded by the Registrar of Titles.”

[24] The body corporate refers both to having a “no pets rule”, and to requiring an owner to seek the body corporate’s consent to bring a pet into the scheme. A contravention of by-law notice sent to the Applicant and his wife on 5th April 2013 quotes “By-law 11”, apparently from “Schedule 4” of the Body Corporate and Community Management Act 1997.

[25] Prior to 2000, scheme by-laws were recorded piecemeal as “dealings” and recorded on the plan of subdivision. Amendments to the legislation in 1997 required that all schemes had to decide on a “community management statement” (CMS) to be lodged in the Land Titles Registry within three years. This document contains the scheme by-laws in an attached schedule. Those schemes which had not recorded a CMS by 13th July 2000 had a “standard community management statement” recorded for them by the Registrar. After that date, those schemes which had no recorded by-laws had the legislation’s by-laws attributed to them.[5]

[26] “Sunwaves” has a “standard CMS”. It says simply, and on the face of it, not helpfully, that the by-laws for the scheme are whatever they were on 13th July 2000. What then were the scheme by-laws on 13th July 2000?

[27] The legislation in force when this scheme was established in 1982 was the BUGTA 1980. Section 30 BUGTA 1980 stated that “the by-laws set forth in the Third Schedule shall be the by-laws in force in respect of each plan.” There were 21 statutory by-laws in the Third Schedule in 1980, number 20 referring to “Keeping of Animals” as follows –

“A proprietor or occupier of a lot shall not keep any animal upon his lot or the common property after notice in that behalf from the council”.

[28] The council was the former name for the committee. In other words, at that time, owners had a right to bring animals into the scheme until such time as being asked to remove them by the committee.

[29] In October 1988, BUGTA 1980 was amended and new by-laws were drafted in a new Schedule Three. Again, section 30 of the amended act said that, save for certain specific exceptions, “... the by-laws set forth in the [new] Third Schedule shall be the by-laws in force in respect of each plan.” By-law 11 of the new Schedule Three stated -

“Subject to section 30(12)[6] a proprietor or occupier of a lot shall not without the approval in writing of the body corporate, keep any animal upon his lot or the common property”.

[30] There do not appear to be any savings for earlier by-laws in the amended legislation, unless such were recorded by the body corporate within six months of the amended act being passed.[7] The new act, the Body Corporate and Community Management Act which came into force in 1997 provided that the by-laws for a scheme were as set out in the CMS (section 168 Act), or if there were no by-laws, then the by-laws as set out in Schedule Four of the new Act were to apply. The CMS for this scheme however, says that the by-laws are taken to be those in effect as at 13th July 2000, which is where they will stick until changed by the body corporate.

[31] I am of the view therefore that the by-laws in respect of this scheme are those as set out in the Third Schedule of BUGTA 1980 as amended. By-law 11 requires a condition of prior consent before an animal is brought into the scheme, although it is “permissive” in that it assumes that animals may be brought into the scheme.

[32] I have set out this historical overview for completeness. It does not assist greatly as to whether or not the body corporate made a reasonable decision on 25th February 2013. However, it has the effect that the contravention notice sent to the Applicant on 5th April 2013 quoted the incorrect by-law. The notice must therefore be invalid, although only on a technicality.

The Facts

[33] I find the facts in this application to be as follows –

• The scheme does not have, and never has had a “no pets” by-law;
• The red kelpie Nullah has been visiting scheme land since before October 2010;
• The dog is not permanently resident in the scheme;
• At some time prior to October 2011, the dog was seen unrestrained on common property at night and caused severe fright to the owners of Lot 4;
• In August 2012, an invitee of the owners of Lot 4 was frightened by the dog on the common property stairs;
• The dog has on occasions played with a ball on the common property stairs and stairwell;
• There is no evidence of complaint about the dog by other occupiers eg. tenants of lots;
• the results of owners’ discussions about the dog at the annual general meetings of 2010, 2011 and 2012 were not resolutions of the body corporate.
  
  

Has the body corporate acted reasonably in refusing the Applicant’s motion?

[34] The current status of the law about pets in community titles schemes is that keeping a dog is “an activity which the owner of a lot would normally, according to the ordinary rights of a land owner, be entitled to carry on in using and enjoying the lot”[8].

[35] In McKenzie –v- Body Corporate for Kings Row Centre CTS 11632, the QCAT Member found that a dog was an “ordinary domestic pet, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions”. He went on to say: “In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable,”[9] although he later qualified this in the River City case by saying that such a by-law might not always be unreasonable depending on the circumstances. He said –

“... it is necessary for that question to be considered in each case having regard to the facts before the adjudicator and, in the context of those facts, the interests of all owners and occupiers in the scheme and the use of the common property.” (para 62)

[36] I find that the body corporate has refused permission for the Applicant to bring the dog onto scheme land based on the misconception that it has a “no pets” by-law. The evidence against the dog is that on two occasions in two years, whilst running free on common property, it has frightened residents. At least one of those persons confronted has a fear of dogs. I do not find the evidence of barking proved. Whilst the playing on the stairs may not be wise, there is no evidence that the playing on the stairs has caused a nuisance to persons or damage to property.

[37] I am satisfied that the dog may be controlled within the scheme by relevant conditions of an approval. I am acutely aware that other owners do not want this dog in the scheme, but I am also of the view that there is no legal reason why other owners should prevent the Applicant from keeping a dog, any more than neighbours in a street may dictate majority opinion to another neighbour. A fear or dislike of dogs is not evidence against the dog. If the Applicant has chosen to make himself unpopular with his neighbours, that is not a question of law.

[38] The other owners may take comfort from section 167 Act which provides as follows -

167 Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

[39] It has been held that the interference must be “substantial” in order to be unreasonable, and that the ordinary standards of the civil law of private nuisance apply.[10]

[40] There is insufficient evidence that the actions of this dog have, as yet, caused such substantial interference or a private nuisance, which to be proved generally requires some evidence of continual disturbance. However, the Applicant is putting his behaviour on trial here and has chosen to do so. If he breaches the conditions of this order, or allows the dog’s behaviour to breach section 167 Act, I am of the view that the body corporate may be reasonable in seeking the removal of the dog from the scheme.

[41] I wrote to the parties on 4th October 2013 seeking submissions about certain conditions of an approval. In respect of the conditions the body corporate added that it would like to see a condition that the dog will refrain from “barking every morning, or other given times even when it is with its owners”. One owner thought that the condition about the dog being withdrawn by its handler if it meets people was impractical, especially when passing in the stairwell. I have taken these submissions into account, and find that the Applicant is willing to abide by any reasonable conditions.

[42] The Applicant has proposed that one condition would be that the dog would be “withdrawn by its handler” if it meets any person whilst on the common property. This is a bit vague and may in practice be difficult to do on the stairs. I also note that there are concerns about barking although no complaint about barking has been made to the body corporate by any of the submitters. I am of the view that it is not possible to prevent a dog from barking now and again, and it is the nature of dogs that they will occasionally bark.

[43] I therefore make an order that the Applicant may keep the dog in the scheme on the following conditions –

a) the dog must be kept on a lead at all times on common property and that the handler must have hold of the lead;

b) that at all times when the dog is on a lead on common property, the lead will be fixed at a length of no more than 1m in length;

c) that the dog is restricted to the areas of common property between Lot 2 and the Applicant’s family’s car or Lot 2 and the footpath;

d) that the dog’s handler will make an effort to avoid an encounter with persons on the stairs, for example, by not ascending or descending the stairs if there is a person already on the stairs;

e) that the dog will be restrained by its collar if during the times when the dog is on the common property, the dog and its handler encounter any person legitimately on the common property;

f) that the dog is not allowed to play on the common property stairs;

g) the dog is not left unattended within Lot 2 ;

h) that the owners or occupiers of Lot 2 shall ensure that the dog does not cause excessive noise by barking or otherwise so as to be likely to interfere with the peaceful enjoyment of residents;

i) the Applicant, as owner of the dog, indemnifies the body corporate against all or any claims for damage to property or injury to persons caused or contributed to by the dog; and

j) the conditions are in respect only of the female red kelpie currently known as “Nullah”.

[1] Sections 227,228, 276 and Schedule 5 Act

[2] Section 74 Standard Module

[3] Section 179 Act

[4] Mr and Mrs Ring’s submission refers to a document entitled “Sunwaves Body Corporate by-laws”, and this list of ten items is also mentioned in a draft letter dated 12th December 2012 from CSG Solicitors to the body corporate, which is “Attachment 12” in the application. These are not body corporate by-laws, even if they purported to be so at a general meeting in July 1986.

[5] These are set out in Schedule Four of the current Act.

[6] An exception for guide dogs.

[7] Section 5(10) BUGTA 1980 as amended by the Building Units and Group Titles Act Amendment Act 1988. The amending act was passed on 3rd October 1988.

[8] Per Kenneth Barlow SC, QCAT Member in Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 in a discussion on Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550; [2003] 2 Qd R 381.

[9] At para 29

[10] Stephen Holmes Enterprises Pty Ltd –v- The Body Corporate Mactaggarts Place CTS 16563 Brisbane District Court 667/07 17th January 2008, unreported, Skoien DCJ