Bougainvillea [2013] QBCCMCmr 448 (11 November 2013)

Last Updated: 14 January 2014

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

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] Bougainvillea has an animal by-law (By-law 11) which provides that animals cannot be kept on a lot or common property without the prior written approval of the Body Corporate. The applicant purchased a lot in the scheme in May 2013. Before settlement of the contract, she applied to the Committee for approval to keep her miniature dachshund dog ‘Sebastian’ in her lot. The Committee refused. The applicant’s solicitors wrote again, noting that the dog is small, house-trained and well behaved, and the applicant is emotionally dependent on the dog. The Committee again refused her request.

[3] The application details the applicant’s personal circumstances, including health issues. Medical evidence is attached. While the applicant had not brought the dog onto the lot at the time the application was lodged, the application suggested that not being able to keep her dog, or lengthy delays in a decision on her dog, will be detrimental to her health. She sought an interim order to enable her to keep the dog in the lot until the dispute is determined. The interim order was granted and the dog has been at the scheme since July.

[4] The applicant seeks an order for approval to keep the dog in her lot, subject to any reasonable conditions to minimise any impact on any other occupier. The issue to determine is whether the decision of the Body Corporate to refuse permission for the dog was reasonable, and whether or not ongoing approval for the dog should be given.

[5] The applicant also seeks reimbursement of her application fees because the Body Corporate did not participate in conciliation. The question there is whether there was any reasonable basis for the Committee not to conciliate and whether their failure to conciliate unnecessarily delayed the dispute, such that an award of costs is warranted.

Preliminaries

[6] Bougainvillea community titles scheme 9477 (Bougainvillea) consists of 50 lots and common property. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as Building Unit Plan 5728.

[7] The applicant lodged this matter on 25 June 2013 seeking the following final order:

Consent and/or approval of the Body Corporate to keep an animal within lot pursuant to the By-Laws and/or under compassionate grounds. The approval can be accompanied with reasonable conditions to minimise any possible nuisance to other occupiers within the building.

Costs of conciliation and adjudication in this matter.

[8] On 2 July 2013 I made an interim order in the following terms:

I hereby order that, pending a final determination on this matter, Janette Carr shall be permitted to bring and keep her dog, a dachshund known as ‘Sebastian’, on Lot 5 providing that:

(a) the dog is kept within Lot 5 while it is present on the scheme land;

(b) the dog is not permitted to roam on common property or into other lots in the scheme;

(c) the dog traverses common property only for the purpose of being brought onto or taken off the scheme land, at which time the dog is carried or otherwise adequately restrained;

(d) any animal litter or waste associated with the dog is effectively and promptly disposed of; and

(e) the dog is not permitted to make noise, or otherwise cause a nuisance, such that it interferes unreasonably with any person’s use or enjoyment of another lot or common property.

This interim order has effect until twelve (12) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

Jurisdiction

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

[10] 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]

Procedural matters

[11] Initially the applicant applied for conciliation.[4] Unfortunately a conciliation session was unable to proceed. The Conciliator issued a certificate that the respondent Body Corporate did not make a reasonable attempt to participate in conciliation. This application was then lodged.

[12] Prior to determining the interim order I provided the Committee with a limited opportunity to comment on the application for interim orders.

[13] The Commissioner then invited submissions on the final orders from the Committee and all owners.[5] Some 12 submissions were received from lot owners. The applicant inspected and responded to the submissions received.[6]

[14] A dispute resolution recommendation[7] was made referring the file to department adjudication.

[15] I then investigated the dispute[8], which included reviewing the application and submission and seeking clarification from the Body Corporate.

Submissions

[16] The Committee submission to the interim order opposes the application:

1. The current By-law 11 has been in place since 1983. The applicant had an opportunity to receive a copy of the by-laws when she purchased.
2. It appears the applicant made a conscious decision to disregard By-law 11 by intending to bring a pet into the building.

100. While the applicant has considered that medical opinion would override the by-laws, the Committee considers the by-law should be upheld.

4. The Committee and some owners have concluded the building is not suitable for pets.
5. The current ‘no pets’ by-law influenced their decision to purchase in the scheme. The capacity of investors to make a return could be in jeopardy if pets are allowed.
6. The Committee discussed the matter at length and did not arrive at the decision to refuse the application without serious consideration.
7. The Committee is concerned about a precedent being set if this request is approved.

[17] The Committee made no further submission to the final order application, other than to advise of an incident on 25 July. The caretaker emailed the applicant’s solicitor at 3.07pm stating that the dog had been barking for 35 minutes and affecting a sick, elderly woman on the same floor. The solicitor responded at 3.45pm saying the applicant had been out of the building with the dog since 9.30am and since they returned the dog had not barked. The caretaker reiterated that he had heard the dog barking from the office on the ground floor and checked from his apartment and by knocking on the Lot 102 door. The caretaker said it was the first time he had heard the dog but that the woman on the same floor had heard it for a couple of days.

[18] The owners of ten lots oppose the application. Their comments include:

1. The Body Corporate rules have historically excluded animals in the building, and they wish that to be retained. The by-laws have restricted pets for over 20 years.
2. All prospective buyers would have been made aware that there was a no-pet policy in the scheme. New owners have an obligation to determine the rules before purchasing.

100. The applicant should have purchased in a ‘pet-friendly’ scheme if she needs her dog.

4. One owner should not be able to challenge the ruling where pets are not favoured, or buy into a scheme and expect to change the rules for their convenience. The applicant’s request is unreasonable to other owners and occupiers.
5. Maintaining good neighbour relations is paramount in this policy.
6. Apartment living does not lend itself to the keeping of pets, and these lots are too small.
7. Animals can be a nuisance to common property and other owners, and difficult to police even if conditions are imposed.
8. The adjacent lots will be affected by noise. The unit overlooks the pool and noise from the pool area could upset the dog, causing it to bark. One submitter claims others have heard the dog barking.
9. The lot adjacent to the applicant’s lot is occupied by an elderly woman who requires a low level of noise to recuperate from significant health issues. The lot was specifically purchased as a quiet, pet-free environment.
10. There is a concern about the impact if the owner did not clean up after the dog. Dog waste on the balcony will be deposited on the ground floor balconies.
11. Young children may be frightened by the presence of an animal on common property, particular in the elevator. Other occupiers may have phobias to dogs.

50. Some people are allergic to animal hair, and odour can be unpleasant for others.

13. One submitter claims she has been told that there is constant sand, hair and smell in the common area of the applicant’s floor.
14. There will be increased maintenance costs for cleaning up
15. Approval of the application would set a precedent for other requests, reducing the amenity of the scheme for other occupiers.
16. Having a dog in the building will affect the business of renting units to the public, by destroying the reputation of the scheme if complaints about the dog are reported. This would lower the value of the management rights and cause a loss of income to owners.
17. The only fair way is to put it to a vote and let the majority rule.
18. If approval was given, strict conditions should be imposed.

[19] Two submissions from owners support the applicant’s request. One says the applicant has been through emotional traumas and needs the dog for personal reasons. She notes that pets provide comfort and enjoyment. The submitter argues that the actions of the Committee are unreasonable, as it previously approved a dog on the basis of a medical certificate.

[20] In responding to the submission the applicant makes the following comments:

1. She is a responsible pet owner. Her dog is trained, clean, healthy and has vet checks.
2. She does not take the dog onto common areas and if her application is approved she is sure others will not be aware of the dog’s presence.

100. The dog arrived on 23 July. The first she was aware of the 25 July complaint was the telephone call from her solicitor. The dog was off the scheme and in her company from 9.30am to 3pm. She left the dog alone in the unit for about 10 minutes while taking rubbish to the bin and getting something from her car. There was no noise or barking when she returned. She considers this a one-off incident which has not occurred since.

4. She acknowledges the concern of the adjacent lot owner. She wishes to assure the lot owner and the occupant that she would not wish to disturb her in any way.
5. She refutes claims of hair, sand and odour in common areas. She takes the dog out via the fire exit and has never taken the dog into the reception area or other common areas referred to. Any sand in the building would be because it is a beachside building.
6. Approving one pet will not set a precedent as applications are judged on merit.
7. Another dog is in the scheme already and has been for quite a while.

[21] I wrote to the Body Corporate seeking clarification of other animals in the scheme and any complaints about the applicant’s dog. From its response I ascertained that:

1. The Committee gave approval “some years ago” for a small dog in a penthouse lot. It is asserted that this approval was given because the lot was large and has a balcony, giving plenty of room for the dog, and “divorced to some extent from adjacent units”.
2. The dog was approved on the basis that it would not be replaced if it died. However the original dog did die and was replaced by a similar animal without notification. That replacement dog is currently residing in the lot.

100. The current body corporate manager has no record of the decision approving the dog in the penthouse lot, or of any approval of other animal currently or previously.

4. The body corporate manager has no record of any complaints about the applicant’s dog since the incident on 25 July.

Analysis

[22] The issue in this matter is whether the Body Corporate has validly refused to give approval for the applicant to bring her dog onto the scheme. In determining this application I will consider the animal by-law in this scheme, the applicant’s request, and the objections to the dog. Finally, I will consider the costs request.

Body Corporate by-laws

[23] Bougainvillea was registered in July 1983 under the Building Units and Group Titles Act 1980 (BUGTA), which has since been superseded by the Act. At that time the by-laws for the scheme were the default by-laws in BUGTA’s Schedule 3. Schedule 3, By-law 11 provided that an owner or occupier could not have an animal on their lot or common property without the approval in writing of the body corporate. This by-law was retained when new by-laws were recorded for the scheme on seven occasions between November 1983 and September 1996.

[24] When the current Act commenced in 1997 the concept of a CMS was introduced. An interim CMS was automatically in place at that time which retained the existing by-laws. The Body Corporate then recorded a new CMS in November 1999 which included the following by-law which was substantially the same in effect as the original by-law:

11. Keeping of animals.

Subject to the section 143 of the Act, an owner or occupier of a lot shall not without the approval in writing of the Committee, bring or keep any animal or permit an invitee to bring or keep any animal upon his lot or the common property.

[25] That by-law was retained in the CMS recorded in May 2005, September 2011 and March 2013.

Nature of By-law 11

[26] Both the Committee and many submitted appear to believe that By-law 11 prohibits pets in the scheme. That is not correct. Adjudicators have consistently held[9] that by-laws like By-law 11 are ‘permissive’ in that they allow the keeping of pets, albeit with prior consent.

[27] Adjudicators have further held[10] that where there is a permissive by-law, the body corporate cannot impose an automatic ‘no-pets policy’. A body corporate may have a preference against pets, but it cannot override the potential in the by-law for consent to be given by imposing a policy of banning all animals. Under a by-law of this nature, the committee must consider each request for a animal on its merits and exercise discretion in whether to approve an animal or not. Accordingly the Body Corporate must consider each request on its merits.

[28] Some schemes have tried to adopt by-laws that ban all animals, but this has been found to be contrary to section 169 of the Act[11]. Section 169 provides for by-laws to regulate the use and enjoyment of lot, but does not authorise a by-law prohibiting such use and enjoyment.

Basis for decision-making about animals

[29] It is important to note that a permissive by-law does not automatically mean that all animals must be approved. Rather, it simply means the Body Corporate must consider each request on its merits and must act reasonably in making its decision.[12] The Body Corporate may retain a preference against pets, however it cannot exercise its discretion under a permissive by-law by automatically refusing all requests, or refusing them without appropriate reasons, or by applying irrelevant considerations.

[30] The primary issue for any body corporate considering approval of a pet is the likelihood of an adverse impact on common property or any person. A committee could legitimately seek further information about a request to ascertain any impact. If there are concerns about actual or potential impacts, consideration needs to be given to whether they could be adequately managed by appropriate conditions. Where there are genuine concerns, the imposition of reasonable conditions may be more reasonable than outright refusal.

[31] Great care needs to be given to refusing a pet based on hypothetical concerns about the potential impact. It is entirely appropriate to impose conditions to avoid problems arising, and to withdraw approval if those conditions are not met. But I do not consider it reasonable to refuse permission based on potential problems without any cogent evidence that the proposed animal will actually cause those problems or the lot owner will not comply with the conditions.

[32] It should also be noted that the legislation specifically 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[13].

[33] In determining whether a body corporate’s decision was reasonable, the question is not whether the decision was “correct” but whether it is objectively reasonable, and a "logical and understandable basis for the decision" is a factor in determining the reasonableness of a decision but does not necessarily mean the decision is reasonable as important matters may have been overlooked or discounted[14].

Applicant’s request

[34] I will comment on the circumstances of the applicant’s request and the objections to it in considering whether the Committee acted reasonably in refusing the request for a dog.

Knowledge of the by-laws

[35] Many submissions suggest that the applicant should have known the by-laws prohibited pets, and should not have purchased in a scheme with such a by-law. However these submissions are defective in that, as noted above, By-law 11 does not prohibit animals and never has. It is also curious that there is an apparent belief that pets cannot be considered, despite the fact that a dog was approved in a penthouse lot.

[36] The applicant was quite entitled to purchase her lot in the belief that she would be able to request approval for a dog (although not that she would automatically receive approval). Contrary to claims that she has disregarded By-law 11, the applicant has acted in strict compliance with it. She applied for approval at the earliest opportunity and before bringing her dog onto the scheme; exercised her right to challenge the refusal; and she only brought the dog onto the scheme when authorised. It is not reasonable to argue that she is trying to ‘change the rules’ when she is simply following the rules that have been recorded since 1983.

[37] While some owners may have purchased lots in the belief that pets were prohibited, that belief was incorrect. While there may be a preference against pets, this does not and cannot override the terms of the by-law which contemplate the possibility of pets being approved. Moreover, knowledge of or expectations of the by-laws by the applicant or other owners does not alter the Body Corporate’s obligation to act reasonably when applying the by-laws.

Suitability of the scheme

[38] Some submissions claim that apartments generally, and those in this building in particular, are not suitable for pets. It is suggested that the lots are too small, and approval was only given for a dog in one lot that is larger.

[39] I appreciate that some owners may be concerned about confining a dog to a small apartment. However, while the Body Corporate and other owners have a legitimate interest in anything that could directly affect them, they do not have a right to impose onto others their personal views on how pets should be looked after. If any person has a valid concern about the welfare of a dog, the proper avenue for pursuing those concerns is the local council or RSPCA.

[40] The Queensland Civil and Administrative Tribunal has accepted the proposition that cats and dogs can potentially be kept in high-rise buildings without incident.[15] Nothing in the submissions details anything in the nature, structure or environment of this scheme which convinces me that lots in the scheme are automatically unsuitable for a dog. It is evident that two dogs have resided in a penthouse lot without apparent incident.

[41] The indication from the Body Corporate is that the penthouse lot is considered suitable for a dog, while Lot 5 is not, because it is larger and has a rooftop balcony. However that appears to impose a view as to the space or amenities the Committee believes dogs generally require, rather than considering whether Lot 5 is adequate for this particular dog or whether any deficiency in space or amenity could have any impact on any other owner or occupier.

[42] The applicant’s dog is a small breed, which I understand is generally considered suitable for indoor living as it has limited space or exercise requirements. I have not received any basis to suggest that the applicant’s dog has not been able to appropriately adapt to living in Lot 5.

Noise

[43] Barking is a common concern in disputes about dogs in community titles schemes. It is a legitimate issue for the Body Corporate to consider. Particular regard needs to be given to those occupiers in close proximity to Lot 5, which are at greatest risk of an impact. However I do not consider it would be reasonable to refuse a dog based on simply hypothetical concerns.

[44] While several submissions are concerned about the potential for noise, in over three months there appears to have been only one definite noise complaint. I have considered the incident on 25 July, two days after the dog moved in to the scheme. The applicant disputes the details of the complaint and I have no means of verifying which version of events is true. However it is relevant to note that the Body Corporate has not been notified of any further incidents. Perhaps the dog was initially unused to its new surroundings but has now settled down.

[45] While I appreciate the apprehension of other residents, I am not satisfied that there is sufficient evidence that the dog has caused or is likely to cause an ongoing noise disturbance such that a complete ban on the dog would be warranted.

[46] However that is not the end of the matter. The applicant has an ongoing obligation to ensure that her dog does not disturb others. She must ensure that the dog is sufficiently exercised and supervised so that it does not bark in a manner that unreasonably interfers with others’ use and enjoyment of their lot.

[47] If the dog does cause a disturbance in future, that issue could be pursued through the nuisance provision of the Act or the noise by-law in the same way as any noise[16]. Alternatively, continued barking could be a basis for subsequently withdrawing permission for the dog.

[48] One submission comments that a dog on the balcony of Lot 5 could be annoyed by noise from the pool and then bark. However there is no indication that the dog has in fact barked because of noise from the pool. If this actually occurred, it would be a simple matter for the applicant to prevent the dog going out on to the balcony to avoid the risk of barking. If she did not address the problem, she would risk the consequences noted above.

Odour

[49] One submission is concerned about the odour of dogs and another submitter claims to have been told of a smell in the common area on the applicant’s floor.

[50] There is no substantiation of any claims of odour since the dog moved in to Lot 5. I see no reason why the odour from a dog is likely to permeate into other lots on the applicant’s floor, or to other lots in the scheme, any more than other domestic odours such as cooking fumes, cleaning products and human body odour. If the dog was confined to Lot 5 there is no reason to suggest that its smell would affect any areas of common property. Similarly, if all animal waste is promptly and effectively disposed of, there is no reason why any other person should be affected by the smell of it. Accordingly I consider this objection is unsubstantiated.

Allergies

[51] One submission comments on the potential for residents to be allergic to dog hair, and another claims to have been told of hair in the common area of the applicant’s floor.

[52] I accept that some people suffer from allergies and other medical conditions that can be caused or triggered by animals and animal hair. However suggestions of dog hair in the common areas are not substantiated and it seems unlikely that a small dog would shed much hair in brief transits from the door of the lot to the fire stairs. I am not convinced that the hair from a dog that is confined to a lot is likely to affect residents in other lots,

[53] It is not clear to me that the potential exposure to dog hair in the very limited areas of the common area that the dog briefly transits would result in any greater exposure to allergens than from any public place where a dog may have been present at some time. However any risk could be ameliorated by the applicant ensuring that her dog is well-groomed and that any dog hair in her lot is regularly vacuumed.

[54] I would note that the particular sensitivities of an occupier in one lot would not necessarily be a basis for restricting a normal domestic activity in another lot. For example, the fact that an occupier may be allergic to the pollen in flowers would not mean that other occupiers could not have cut flowers in their lot or carrying them across common property.

Phobias

[55] One submission notes that some tenants may have phobias to dogs. Another is concerned that some children could be frightened by the dog. While there may be some basis for genuine concerns about larger dogs, it is more difficult to perceive such difficulties with such a small breed of dog. In any event, if the applicant were to always ensure that the dog was carried or adequately restrained during its brief transits across common property, there seems to me to be little risk of any adverse impact.

Maintenance and cleaning

[56] One submission is concerned about the applicant not cleaning up after the dog. If the dog was not permitted on common property except for brief transit purposes, any issue would be very limited. Moreover, if an ‘accident’ occurred during transit, conditions could also ensure that the applicant alone was responsible for cleaning it up. If she did not, I see no reason why the Body Corporate could not charge any additional cleaning costs directly to her and that could be a basis for withdrawing permission for the dog.

[57] Another submitter is concerned that dog waste on the Lot 5 balcony would be deposited onto balconies below. Again the applicant would need to ensure that waste did not drop on to lots below, by preventing the dog entering the balcony if necessary. I see no reason why these concerns cannot be readily addressed by specific conditions on the keeping of the dog.

[58] One submitter believes there will be increased maintenance costs, due to the need for additional cleaning of common areas and floor coverings deteriorating from constant cleaning and being scratched by the dog. However I fail to see how a small dog briefly walking (if not carried) though the a small part of the fire stairs and garage would have such an impact on the condition of those areas – compared to any human resident in any lot – that it could have a discernible cost impact. If necessary the applicant could ensure the dogs nails were clipped.

Compliance with conditions

[59] Some submissions indicate concern that people do not comply with conditions – for example to clean up after a pet. I acknowledge this reservation. It is for this reason that adjudicator’s orders allowing a pet commonly grant the body corporate the authority to withdraw permission for the pet if the conditions of approval are not complied with.

Economic impacts

[60] There is a suggestion that having a dog in the building will affect the management rights business, and the rental income to owners, if the reputation of the scheme is affected by complaints about the dog. This is unsubstantiated. There is no indication that the existence of the dog in the penthouse lot has had any such impact. If the applicant were to keep her dog in compliance with strict conditions, there would be no reason to expect any complaints.

Setting a precedent

[61] Some submissions are concerned that allowing this pet will set a precedent for other requests, affecting the amenity of the scheme.

[62] There is no evidence that any other person has sought approval for a pet but in any event, I do not agree with the objection. While the Body Corporate cannot discriminate between owners and occupiers, granting approval for one pet based on the particular circumstances of the request does not mean that other requests must be approved. The Body Corporate would retain the obligation to consider each and every pet request on its merits. For each request the Body Corporate would need to consider the likely impact of the pet on other occupiers.

Extent of opposition

[63] I note that the majority of submissions oppose the dog, and one says it should be put to a vote with a majority rule. The views of owners are relevant and there may be general preference against animals in the scheme. However the Body Corporate has a legal obligation to act reasonably in making a decision. A decision that is objectively unreasonable will still be unreasonable even if a majority agree with it.

Applicant’s circumstances

[64] In deciding whether to approve a pet, the Committee must consider all the circumstances of the request. The application includes medical evidence as to the impact on the applicant’s health if she could not keep her dog. In the absence of any evidence that the applicant’s dog would have any appreciable impact on other occupants, or that the applicant would not comply with reasonable conditions, I consider it would be unreasonable to deny the applicant approval for the dog in light of her personal circumstances.

Application fees

[65] Section 280 of the Act provides as follows for an order to be made requiring the payment of application fees:

280 Order for payment of application fees

(1) This section applies if—

(a) the applicant for an adjudication application made a conciliation application for the same dispute; and

(b) the respondent to the adjudication application was the respondent to the conciliation application; and

(c) the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.

(2) If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the conciliation application and adjudication application.

[66] The applicant made a conciliation application, with a fee of $67. I am satisfied from the Conciliation Certificate that the Body Corporate did not make a reasonable attempt to participate in conciliation. The Body Corporate has not given any reason for failing to participate in conciliation. As conciliation did not proceed, the applicant was required to lodge this application, with a further $140 application fee, to pursue the issue.

[67] The legislation sets out a dispute resolution process in which parties are generally required to make a reasonable attempt to resolve a dispute by internal dispute resolution (self-resolution) and then conciliation before a matter proceeds to adjudication. Conciliation is a simpler and quicker process that can enable disputes to be settled without requiring the intervention of an adjudicator.

[68] Although conciliation may not necessarily have resolved the dispute, that process could certainly have assisted with the parties’ understanding of the law and issues regarding animal by-laws, and each other’s position. I am satisfied that the respondent’s failure to participate in conciliation without reasonable excuse has unnecessarily delayed the progress of this matter and incurred increased costs for applicant. In the circumstances I consider that it is appropriate to exercise my discretion to make an order for the payment of the application fees.

Conclusion

[69] Bougainvillea has a by-law that allows owners and occupiers to have animals in their lot if they have obtained Committee approval. The Committee must act reasonably in deciding whether to give approval or not. I am not satisfied that the applicant’s dog is likely to adversely impact on any other owner or occupier if it is kept in compliance with some reasonable conditions. For that reason, and in light of the personal circumstances of the applicant, I do not consider the Body Corporate could reasonably refuse permission for the dog.

[70] In the circumstances, I consider it just and equitable to make an order giving the applicant approval for the dog subject to the listed conditions. I trust that those conditions will address the concerns of other owners. The applicant must ensure that she complies with those conditions at all times. If she does not, the Committee may pursue the matter with her and (providing it acts reasonably) could withdraw permission for the dog if she does not address legitimate concerns.

[71] Finally, I am satisfied that the Body Corporate should reimburse the applicants for the application fees for this and the related conciliation application. Had the Body Corporate participated in conciliation it may be that this matter could have been resolved much earlier and with less cost for the applicant.

[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] Application reference 0577-2013

[5] Section 243 of the Act

[6] See sections 246 and 244 of the Act respectively

[7] Section 248 of the Act

[8] The investigative powers of an adjudicator are set out in section 271 of the Act

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

[10] For example: Bayshore Central [2007] QBCCMCmr 225, Le Parc [2009] QBCCMCmr 55

[11] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57, para 17 and 18, citing Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550; [2003] 2 Qd R 381, at paras 6-8, and Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47, para 38-41

[12] Section 100(5) of the Act

[13] Section 167 of the Act

[14] Cwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 150 ALR 1 pp34, 38

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

[16] Section 167 of the Act (nuisance) and sections 182-188 of the Act (by-law enforcement)