Harbour Lights [2014] QBCCMCmr 264 (21 July 2014)

Last Updated: 30 July 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 Lot 27.

[2] Harbour Lights has an animal by-law (by-law 9) which provides that animals cannot be kept on a lot or common property without the prior written approval of the body corporate. In May 2013 the applicant sought approval for his tenants, who are his daughter and her husband, to be permitted to have a dog in lot 27. The committee resolved, by a vote outside a committee meeting, to refuse the request. No reason was given. A further request in June 2013 was refused. The applicant was advised that unless the dog was a trained hearing dog it would ‘simply be a pet’ and would be refused by the committee.

[3] The tenants purchased a Maltese x Toy Poodle x American Staffordshire terrier puppy (named ‘Bailey’) in August 2013 and brought it onto the lot without approval. Three days later they were issued with a by-law contravention notice and subsequently removed the dog from the scheme. In September 2013, the applicant made a third request to the committee for approval to keep the dog. It was again refused.

[4] The applicant’s daughter and tenant, Anna Rogers, is profoundly deaf and cannot hear without hearing aids, which she cannot wear while sleeping or in water. One of the reasons for the tenants seeking the dog is to provide her with extra support when her husband is away. It is indicated that the dog will be trained to alert her to alarms, door knocks, a crying baby and similar noises which she would not otherwise hear when she is not wearing her hearing aids. Her doctor has stated that the dog would be of benefit to her mental and physical health. The dog is also vaccinated and has completed puppy training.

[5] The applicant seeks an order for approval to keep the dog in lot 27. The key issue to determine is whether the decision of the body corporate to refuse permission for the dog was reasonable, and whether or not approval for the dog should be given.

Jurisdiction

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

[7] 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

[8] Initially the applicant applied for conciliation.[4] Conciliation was conducted in October 2013 but the conciliation certificate states no agreement was reached. This application was then lodged.

[9] The Commissioner invited submissions on the application from the committee and all owners.[5] Submissions were received from the committee and the owners of 14 lots. The applicant inspected and responded to the submissions received.[6] A dispute resolution recommendation[7] was made referring the file to department adjudication.

Submissions

[10] The Committee submission opposes the application. Its comments include:

1. The dog was initially refused permission because it was identified as being an American Staffordshire terrier. The committee had concerns regarding the level of aggression often associated with this breed.
2. At no time did the committee indicate that the application would be refused if the dog was a correctly trained assistance dog from a suitable training organisation. The committee accepts that a trained hearing dog would pose little or no threat.

100. The submission is accompanied by a petition signed by 17 lot owners and apparent proxies for a further two lot owners supporting the committee’s refusal of approval.

4. The dog was returned to lot 27, without approval, on 4 December 2013.

[11] Submissions from the owners of 13 lots oppose the application.

1. Several submissions refer to the dog as potentially aggressive or dangerous, and express concern for the safety of children and elderly residents if they were to come into contact with the dog.
2. Several submissions say this scheme is known as a ‘no dog’ complex.

100. Two submissions claim the by-laws do not allow for the keeping of dogs.

4. The owner of lot 28 (next to the applicant’s lot) says the dog howls and barks when the tenants are not home. The owner says this is stressful for her and annoying when she is trying to sleep.
5. One submitter raises concern about defecation in the complex.
6. Some submissions argue that the courtyard area is not sufficient room for a dog to be exercised, and it is not fair to confine a dog to such an area.
7. Some submissions claim that if one dog is allowed, there will be more applications for dogs which will disturb the currently quiet scheme.

[12] One submission received supports the application. The submitter argues that the refusal of approval was unreasonable. He queries the conduct of the committee, including the failure to give reasons for their decision; approval of other dogs in the past; and false information about the breed of dog with a petition to current occupiers.

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

1. All or most of the submissions are based on the premise that the breed of dog sought is a pure bred American Staffordshire terrier. Originally approval was sought for such a dog but the request was refused (without reason). Subsequently approval was sought for a Maltese x Toy Poodle x American Staffordshire terrier.
2. Incorrect information has been given to owners about the potential danger of the dog. There is an element of fear about the dog.

100. Concerns about noise and behaviour are dealt with by the by-laws. Approval can be rescinded if there are substantiated complaints.

4. The applicant purchased in the scheme on the basis that allowance was made in the by-laws for occupiers to keep a pet.
5. The applicant applied for a companion dog, not a hearing dog as claimed. It takes at least two years to obtain a trained hearing dog but Mrs Rogers (one of the tenants) would benefit from the dog now.
6. The tenants complied with the contravention notice. The dog was returned to the scheme after the failed conciliation application while awaiting the adjudicator’s decision.
7. The dog has been kept on the scheme in compliance with the by-laws. She is walked regularly, does not bark, is well behaved and has been desexed. She is not expected to be a big dog.

Analysis

[14] The issue in this matter is whether the body corporate has validly refused to give approval for the dog in question. In determining this application, I will consider the animal by-law in this scheme, the applicant’s request, and the objections to the dog.

Does the by-law allow the keeping of pets?

[15] By-law 9 governs the keeping of animals. This by-law states:

By-law 9 - Keeping of animals

Subject to Section 30(12) a proprietor or occupier may keep an animal on site with prior written approval of the Committee of the Body Corporate subject to the following rules:

1. Noise and behaviour from the animal must not interfere with other proprietors or occupiers.

2. No animal is to be permitted to roam free on common property.

3. Any approval WILL be rescinded by the Committee on the receipt of three separate written substantial complaints.

[16] Although several submissions appear to believe that the current by-law prohibits the keeping of animals in the scheme, that is not correct. By-law 9 is a permissive by-law. This means it allows occupiers to keep animals if they have the prior written permission of the committee. This gives the committee and/or body corporate discretion to allow pets.

Did the committee act reasonably when considering the applicant’s pet application?

[17] In determining any pet application, the committee and/or body corporate must act reasonably[8] and consider each case on its individual merits. That is, the committee and/or body corporate must consider whether there is any genuine likelihood of the animal causing an adverse impact on common property or any owner or occupier. Where there are genuine concerns, it is then necessary to consider whether the imposition of conditions on the keeping of the pet would alleviate any such concerns and in turn be more reasonable than the outright refusal of the pet.

[18] Whether a decision is ‘reasonable’ is a question of fact. It is an objective test which requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’. The question is not whether the decision was the “correct" one but whether it is objectively reasonable.[9]

[19] In the remainder of the application, I will consider the committee and individual owners’ reasons for denying the applicant’s pet application and consider whether the decision is objectively reasonable having regard to any conditions which may be imposed.

Breed of the Dog and Aggression

[20] The committee says it initially refused permission for the dog because it was identified as being an American Staffordshire terrier. The committee had concerns regarding the level of aggression allegedly associated with this breed. While the committee acknowledge that the applicant has subsequently been applying for a ‘cross breed’ dog (as opposed to a pure bred American Staffordshire terrier) the committee and opposing submissions hold concerns regarding the ‘American Staffordshire terrier’ element of the dog’s breeding and the alleged potential for aggression within this breed.

[21] The applicant disputes these concerns and says that the dog’s temperament is friendly. The applicant says that the dog has no dangerous or aggressive behaviours and that the initial misunderstanding regarding the breed of the dog (i.e. that the dog is not a pure bred American Staffordshire terrier) has created an element of fear about the dog.

[22] On 18 February 2014 our Office wrote to the committee and asked:[10]

1. Whether the committee had any evidence to support its concern that the dog, with the stated breed combination (i.e. Maltese x Toy Poodle x American Staffordshire terrier) will demonstrate dangerous, aggressive or otherwise inappropriate behaviour (as distinct from the genetic potential for aggression in one of the dog’s component breeds); and
2. Whether the dog has displayed any dangerous, aggressive or otherwise inappropriate behaviour while it has been present on the scheme;

[23] The committee declined to provide any information with respect to these issues.

[24] The onus is on the body corporate to provide sufficient evidence to substantiate its claims. An Adjudicator has no jurisdiction to make orders with respect to hypothetical or potential concerns. In this instance, no evidence has been provided to suggest that the dog in question is aggressive or dangerous or has ever displayed any aggressive or dangerous qualities. Further, no evidence has been presented to suggest that the dog, with its particular breeding (i.e. Maltese x Toy Poodle x American Staffordshire terrier) has any predisposition towards aggressive or dangerous behaviour. Accordingly, I am not satisfied the pet request should be denied on the basis of these concerns.

Petition

[25] The committee argues that the majority of owners do not want the dog in question to remain on the scheme. In this regard, the committee makes reference to a petition (circulated in September 2013) signed by 17 lot owners and 2 apparent proxies supporting the committee’s decision to refuse the dog.

[26] While the views of owners are relevant, and there may be a general preference against animals in the scheme, the body corporate and the committee have 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. Accordingly, I am not satisfied that the presence of the petition, in and of itself, is a sufficient basis to deny the applicant’s pet request. Rather, it is necessary to examine owners’ individual views for objecting to the pet request as identified through the submissions process.

Precedent

[27] Several owners oppose the applicant’s pet request on the basis that any approval granted for this dog would set a precedent leading to other owners or occupiers believing they can also bring animals onto the complex.

[28] The issue of creating a precedent is a concern for many bodies corporate. However, any decision to approve a pet is made on the specific circumstances of a matter (including the situation of the applicant and the type of pet) and does not entitle others in different circumstances to assume they can also have a pet. Accordingly, I am not satisfied any issues regarding the creation of a precedent are a reasonable consideration in the circumstances. Further, I note that there are already several animals in the scheme (with and without body corporate approval) including a dog in lot 7 and cats in lots 5, 12, 19, 22, 25 and 29.

‘No dogs’ policy

[29] Several owners oppose the application arguing that the scheme has a ‘no dogs’ policy (these owners may be unaware of the existence of the dog in lot 7). However, irrespective of this issue, by-law 9 does not prohibit the keeping of animals, including dogs. Rather, the by-law allows occupiers to keep animals if they have the written permission of the committee. Accordingly, I am not satisfied any such policy (if in fact stringently enforced) is valid or forms a reasonable basis to deny the applicant’s pet application.

Suitability of the Scheme

[30] Many owners object to the pet request saying the applicant’s unit and courtyard is too small for the keeping of a dog.

[31] In McKenzie v Body Corporate for Kings Row Centre[11] the scheme in question was a high rise building. Despite this, the Tribunal found the scheme could prima facie be suitable for the keeping of pets. Following this decision, I am not satisfied the unit in question is inappropriate for the keeping of this dog merely because it is a ‘unit’ (as opposed to a house or other dwelling type) or contained in a high density housing area. Further, I note that no evidence whatsoever has been presented to suggest that the dog in question is too large or otherwise inappropriate to be housed in the applicant’s unit. Accordingly, I am not satisfied these arguments form a reasonable basis to deny the applicant’s pet request.

Dog on Common Property

[32] The committee disputes the applicant’s pet application arguing that the dog, on one occasion, has been outside the unit on common property and near the pool area without restraints. In support of their arguments, the committee has provided one photograph showing the dog outside the front of lot 27, near the unit’s garage.

[33] In response, the applicant’s tenants (the owners of the dog) note that the photo shows the gate to the backyard is open. The tenants say they do not know why or how the gate was opened. However, in order to ensure the incident does not happen again, they have purchased and installed a lock for the gate. The tenants say this is the only time the dog has been unrestrained on common property.

[34] Whether or not this incident forms a reasonable basis to reject to applicant’s pet application is a difficult question. While it is reasonable to expect that a pet would remain on the lot unless appropriately restrained, on balance, I am not satisfied this one incident alone forms a sufficient basis to reject the applicant’s pet request. In this regard, I note that no information has been received to suggest that any detriment was caused from this event. Further, no information has been received to suggest that the dog has since escaped or otherwise interfered with common property.

[35] However, I wish to caution the applicant and his tenants, that should permission be granted for the dog, they must take all necessary steps to ensure that such incidents do not occur in the future.

Defecation

[36] One owner opposes the applicant’s pet request raising a concern about defecation in the complex.

[37] An Adjudicator has no jurisdiction to make orders with respect to hypothetical or potential concerns. An Adjudicator can only make an order where there is actual (as opposed to hypothetical) evidence of a dispute. While I note this concern, no evidence has been presented to suggest that the applicant’s dog has caused any defecation problems in the scheme. Accordingly, I am not satisfied the pet request should be denied on the basis of this concern.

[38] However, in order to alleviate this concern, I consider any permission (if granted) could be subject to a condition requiring any animal waste to be disposed of in such a way that it does not create noxious odours or otherwise contaminate the scheme.

Barking

[39] The committee and one lot owner dispute the applicant’s pet application on the basis that the dog barks and howls when the tenants are not home. In support of these assertions, the committee provided our Office with two videos of the alleged barking. In these videos you can hear a dog barking and howling. However, it is not clear from the videos where the barking/howling is coming from or which dog (or dogs) is causing, or contributing to, the barking. Rather, all the videos show is the floor, screen door and outside area of a dwelling.

[40] The committee has also provided several emails from the owner of lot 28 detailing the dates of the alleged barking as follows:

1. Email dated 16 March 2014 stating that the dog is barking, howling and crying;
2. Email dated 14 March 2014 stating that the dog is barking and howling;

100. Email dated 23 March 2014 stating, “I’ve just had Karen from unit 26 at my door about the dog. She’s just called the tenants to complain and they’re adamant its not their dog barking even though they’re [sic] not home to even hear it!”.

4. Two emails dated 23 March 2014 stating that this is the third night in a row the tenants have left the dog at home alone and allowed it to continuously bark.

[41] In response, the applicant and his tenants state:

1. One of the tenants (the applicant’s daughter) is on a disability pension and works only two days per week. The dog does not bark or howl while the tenants are home. The dog is always left with friends or family if the tenants are away overnight.
2. The tenants have crept outside and listened at the door when they have returned home (and the dog is unaware of their return). The tenants say they have heard no barking or howling on these occasions.

100. The tenants have had numerous friends and family visit the unit and although the dog gets excited it does not bark or howl.

4. Some months ago a dog became resident in the neighbouring complex which does bark quite a lot. However, the tenants’ dog does not join in with the barking. The committee and opposing owners may be confused as to the source of the barking. This is particularly the case given that the rear boundary of lots 26, 27 (the applicant’s lot) and 28 are common to the other complex.
5. The committee’s videos do record a dog barking but do not identify the dog or the property in which the dog is located. As previously stated, there is a dog which is at the rear of lots 26, 27 and 28 which often barks/howls.
6. The only person who has provided a written complaint of the dog allegedly barking is the owner of lot 28. No other occupier or owner has complained in writing.
7. In relation to the email dated 23 March 2014 which alleges that the dog has been left on its own for 3 nights and allowed to bark, the tenants say that although they were out on the date of the email (Sunday 23 March 2014) they were home all night on the previous night (Saturday 22 March 2014). On Saturday 22 March 2014, the dog did not bark or howl as alleged.
8. After receiving a call from the owner of lot 26 on Sunday 23 March 2014 the tenants came straight home. When the tenants arrived home they heard no barking or howling from their dog.
9. The tenants have bought a barking collar and will place it on the dog.

[42] The applicant has also provided three videos to support his assertion that the tenants’ dog is not the source of the barking. The first video is taken from inside the applicant’s unit. In this video, you can hear a dog (or dogs) barking from an unknown location, however you can see that the source of the barking is not the tenants’ dog as the tenants’ dog is standing silently in the applicant’s unit at the time. The second video is taken from outside the front of the applicant’s unit. In this video, you can also hear a dog (or dogs) barking from an unknown location, however you can see that the source of the barking is not the tenants’ dog as the tenants’ dog is standing silently at the time. The third video is taken from inside the applicant’s unit. In this video you can again hear a dog (or dogs) barking from an unknown location, however you can see that the source of the barking is not the tenants’ dog as the tenants’ dog is sleeping inside the unit at the time.

[43] On 26 June 2014, I sent these videos to the committee for comment. In their response (dated 28 June 2014) the committee notes that the dog is calm and quiet when the owners are home.

[44] Based on the evidence presented, I am satisfied there is a regular occurrence of barking in or around the scheme. However, whether or not this barking is coming from the applicant’s tenants’ dog (as opposed to another dog/s) is a very difficult question of fact.

[45] While the committee has provided video evidence in which you can hear a dog (or dogs) barking, it is not clear from the evidence presented where the barking/howling is coming from and/or which dog (or dogs) is causing, or contributing to, the barking. The applicant on the other hand, has provided video evidence in which you can hear a dog (or dogs) barking, but see that the source of the barking is not the tenants’ dog as the tenants’ dog is silent in the video frame at the time.

[46] Further, while the committee has provided emails from the owner of lot 28 detailing three occasions (namely 14 March 2014, 16 March 2014 and 23 March 2014) on which she alleges the dog was barking, these emails do not provide any specific details or other information to indicate that it was the applicant’s dog (as opposed to another dog/s) that was barking. The applicants however, refer to one of the nights that the dog allegedly barked (namely Saturday 22 March 2014 per the email dated Sunday 23 March 2014) and say that they were home the whole night and their dog did not bark.

[47] On balance, while I note the committee’s and opposing owners’ emails and video evidence, I am not satisfied sufficient evidence has been provided to demonstrate that the barking in question is coming from this particular dog (as opposed to another dog in or around the scheme). Accordingly, I am not satisfied that the allegations of barking form a reasonable basis for the committee to reject the applicant’s pet application.

[48] However, I wish to caution the applicant and his tenants, that should permission be granted for the dog, they must ensure that the dog does not bark in a manner that unreasonably interferes with others’ use and enjoyment of their lot. If the dog does cause a disturbance in the future, that issue could be pursued through the nuisance provision of the Act in the same way as any noise.[12] Alternatively, it could be a basis for subsequently withdrawing permission for the dog.

Tenant’s Circumstances

[49] In deciding whether to approve a pet, the committee must consider all of the circumstances of the request. The application includes a letter from Dr Wyld, dated 30 August 2013, stating that the presence of a companion dog would be beneficial for one of the tenant’s (Anna Rogers) physical and mental health.

[50] In the preceding paragraphs, I have considered the committee’s arguments as to why it denied the applicant’s pet application. In the absence of sufficient evidence as to why this dog, with conditions, should not be allowed in the scheme, I do not consider it necessary to address the applicant’s purported ‘special circumstances’ in this matter. Rather, such considerations are only necessary where the committee and/or opposing owners have presented objectively reasonable opposition to the particular animal.

Summary

[51] Based on the material presented, I am not satisfied the committee’s decision to deny the applicant’s pet request was reasonable in the circumstances. Accordingly, I consider the applicant and his tenants should be granted permission to keep the dog in lot 27 pursuant to by-law 9. However, in order to alleviate some owners’ concerns, I consider it reasonable to make this permission subject to certain conditions.

[52] Firstly, I consider a condition should be imposed stipulating that the dog must be kept within the lot while it is present on the scheme.

[53] Secondly, I am stipulating that the dog must traverse common property only for the purpose of being brought onto or taken off scheme land, at which time the dog must be appropriately restrained. This would ensure the animal is never ‘loose’ or unrestrained on common property and therefore unable to come into direct contact with other owners.

[54] Thirdly, I have stipulated that the dog is not permitted to cause a nuisance or interfere unreasonably with any person’s use or enjoyment of another lot or common property. This does not mean that the dog cannot make any sound or bark, but rather the dog must not create unreasonable levels of noise (or other impacts).

[55] Fourthly, I consider it appropriate for the applicant and his tenants to take reasonable steps to minimise the transmission of airborne allergens. As the dog is not to have any direct contact with owners or common property, I would not anticipate it would trigger allergic reactions. Nevertheless, I am ordering that the applicant and his tenants take reasonable steps to minimise the transmission of airborne allergens from the dog to other lots, for example, by vacuuming the lot and grooming the dog. I do not envisage onerous obligations in this regard and normal levels of vacuuming the lot and grooming the dog should be adequate for this purpose.

[56] Fifthly, I consider there would be benefit for all occupiers in requiring that the dog be kept in good health and free from fleas and parasites. Although there is little risk of impact from an indoor pet on other owners in this regard, I consider this condition is a general requirement of responsible pet ownership and should not be onerous.

[57] Sixthly, I consider it appropriate to place some parameters around the disposal of the dog’s waste. On this basis, I am ordering that any animal waste must be disposed of in such a way that it does not create noxious odours or otherwise contaminate the scheme.

[58] Seventhly, I am ordering that the committee may rescind permission for the dog to remain on the scheme if the specified conditions are not complied with. However, the committee must act reasonably in doing so, which would include giving the applicant and his tenants the opportunity to respond to any complaints.

[59] Finally, I am ordering that the approval granted only applies to this dog and does not authorise the keeping of any additional, replacement, or substitute animals on the lot.

Conclusion

[60] I have made an order allowing the dog to remain in the applicant’s lot, subject to certain conditions aimed at ensuring the dog does not create a nuisance or interfere unreasonably with the use and enjoyment of lots and common property.

[61] I wish to stress that my decision to allow this dog is based on the specific facts of this case, and should in no way be taken as a general precedent allowing owners or occupiers to bring or keep an animal in their lot without the approval of the body corporate.

[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 0894-2013

[5] Section 243 of the Act

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

[7] Section 248 of the Act

[8] Sections 94 and 100(1) of the Act.

[9] Q1 [2010] QBCCMCmr 433 (21 September 2010).

[10] See the investigative powers of an Adjudicator in section 271 of the Act.

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

[12] Section 167 of the Act.