The Mirage [2017] QBCCMCmr 104 (2 March 2017)

Last Updated: 21 March 2017

ADJUDICATOR’S ORDER

Office of the Commissioner

for Body Corporate and Community Management

ORDERS MADE:

REASONS FOR DECISION

Introduction

[1] The Mirage is a community titles scheme at Alexandra Headland, containing 59 lots and is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module). The applicants are the owners of lot 25 and seek the following outcomes:

That motion 11 considered at the AGM on 28 October 2016 be declared carried and for the body corporate to give effect to the resolution on that motion; and

That the owners of lot 25 be granted approval to allow their dog “Banjo” to reside in their unit, whenever they visit their unit, subject to standard conditions applicable to other dogs residing with their owners at the Mirage.

Overview

[2] The applicants state that they submitted the following motion for consideration at the last Annual General Meeting on 28 October 2016:

That Peter and Ann Robinson, the owners of lot 25 be granted approval to allow their 3 year old Jack Russell dog called Banjo to reside in lot 25 whenever they visit the unit.

[3] They further state that the motion was subject to the standard conditions applicable to other dogs residing with their owners at The Mirage. The motion noted that Banjo is an indoor pet, fully trained and very quiet. The applicants say they are a retired couple who take their dog wherever they go.

[4] In support of the application the applicants say the decision to disallow the motion was inequitable because approval was given for the owners of lot 47 to keep a similar sized dog in their unit at the same AGM. They also note that there are dogs kept in other units in the scheme. The proposed conditions of approval were identical to those imposed on lot owners who have been permitted to keep a dog in their unit. These conditions cover the dog’s behaviour and include a requirement that the dogs be carried over the common property.

[5] They believe the decision was unreasonable because it was based on an erroneous argument that it would be more difficult to enforce the by-laws against a visiting animal. They consider that any contravention of the by-laws would be equally enforceable, whether or not the animal is on site all the time. In fact they believe it is less likely that there would be problems resulting from their request, as their dog would only be there one or two weeks per year.

[6] Pursuant to section 243 of the Act, all lot owners (excluding the applicants) and the committee were invited to make submissions regarding the application. Submission were received from the committee and three lot owners. A dispute resolution recommendation was then made referring the dispute to departmental adjudication.

[7] Submissions were made by the committee which points out that it was not a decision of the committee to refuse the applicants permission to keep a dog in lot 25. Rather, this was a decision by the body corporate in general meeting and the outcome of the vote was 7 “Yes” votes, 11 “No” votes and 2 abstentions.

[8] The committee notes that unit 47 was permitted to keep a dog in their unit but submit that the circumstances differ between the two lots. The committee is concerned that the applicants’ dog could create a nuisance irrespective of how many weeks per year they are in residence. The committee also says it would be difficult to enforce any conditions against the owners if they are only in residence for a short period of time each year. As an example they say that if the dog barks, they would not be able to take action because the “problem will have disappeared until the dog returns”.

[9] The owner of lot 54 says he has kept a dog in his unit and also voted in favour of the request by the owners of lot 47. However he says the request by the owners of lot 25 is completely different. For example, if their dog barks, by the time a complaint is recorded and a breach notice can be issued, the owners will have gone home interstate for the rest of the year.

[10] The owners of lot 45 made similar submissions. They say that they do not approve of temporary or short term approval of pets as it is impossible to enforce any conditions attached to such approvals. Further, they say that all pets take a short period of time to settle in, and pets that are there temporarily are never likely to settle in during the short duration of their stay.

[11] The owners of lot 47 made a short submission saying that they would like to vote in favour of lot 25 being granted approval.

[12] The applicants made submissions in response. They say that by-law 11 relating to the keeping of animals, requires that owners keeping animals be subject to a set of conditions and the conditions currently imposed by the body corporate appear to be effective. This includes a process to resolve any written complaints about a pet from two or more owners. The process includes a written warning notice to the owner, outlining any problems with the pet and the ability to withdraw approval if the committee receives further written complaints.

[13] The conditions apply to all owners that keep animals in their unit and there is nothing in the conditions that prevent them from being enforced whether or not the animal is a permanent or temporary resident. They say the committee provides no sound argument as to why “breaching of the dogs barking would fall by the wayside” or why it would be difficult to enforce against a pet in temporary residence.

[14] The applicants believe the committee is making a generic assumption and refers to the decision in Trafalgar Towers [2016] QBCCMCmr where the adjudicator stated “The primary issue for a body corporate in considering any pet application is whether there is any genuine likelihood of an adverse impact on common property or any person. Great care needs to be given to refusing a pet based on hypothetical concerns about a pet’s potential impact”. The applicants say the concerns raised are hypothetical and do not apply to dog, which is calm by nature and rarely barks.

[15] They also note the comments by the owners of lot 45, who state that “temporary pets never settle in” and that “every time they visit they disturb other guests”. However given the apparent policy of excluding pets in temporary residence, they question how these observations could be made. In their view, these conclusions do not appear to have any basis in fact, are generic and do not specifically relate to their dog.

[16] In conclusion, the applicants say the decision by the body corporate is unreasonable and inequitable having regard to the approval given to other lot owners to keep pets in their units.

Jurisdiction

[17] Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

[18] An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

Analysis

[19] This application concerns the refusal of the body corporate to grant permission pursuant to by-law 11 which provides as follows:

Keeping of Animals

(1) Subject to section 181 of the Act the owner or occupier of a lot must not, without the written consent of the body corporate given by ordinary resolution at a general meeting:-

• (a) Bring or keep an animal on the lot or the common property; or
• (b) Permit an invitee to bring or keep an animal on the lot or on common property.

(2) In the event of consent being given pursuant to by-law 11(1) an owner or occupier agrees to keep and maintain the animal subject to any conditions determined by the committee.

(3) The cost of any extraordinary general meeting expressly called for the purposes of seeking consent pursuant to by-law 11(1) must be at the cost of the owner or occupier making the application.

(4) In accordance section 42(1)(c ) of the Accommodation Module the giving of approval for the keeping of animals shall be a restricted issue for the committee.

[20] At the last AGM, held on 28 October 2016, motion 11 was considered but was not carried. That motion provided as follows:

That Peter and Ann Robinson, the owners of lot 25 be granted approval to allow their 3 year old Jack Russell dog called Banjo to reside in Lot 25, whenever they visit their unit subject to the following conditions:

• The pet must be kept within the confines of lot 25;
• Whenever leaving or returning to The Mirage, the pet must be carried whilst within the confines of The Mirage property, and carried whilst in the lifts and foyers;
• The pet must not enter the pool or tennis court areas at any time;
• The pet must not cause any undue noise or behave in a manner which interferes with the peaceful enjoyment of owners or occupiers of other lots;
• Upon deceasing the pet must not be replaced without further Body Corporate approval;
• If the committee of the body corporate receive written complaints about the pet from two or more owners or occupiers of lots which the committee deem are reasonable, a written warning may be issued; and
• If the committee receive further written complaints by two or more other owners or occupiers of lots, which the committee deems reasonable, the owners of lot 25 must be given written notice that the pet must be removed from the lot immediately.

It should be noted that Banjo is an indoor pet that is fully house trained and is very quiet. We are a retired couple and Banjo is our companion who travels with us wherever we go.

Body corporate decision-making

[21] The primary issue for consideration is whether the approval which the Body Corporate could have granted under by-law 11, was unreasonably withheld. A body corporate and its committee must act reasonably in making or not making a decision^[1].

[22] Adjudicators have consistently held that by-laws like by-law 11 are ‘permissive’ in that they allow the keeping of pets.^[2] The body corporate must exercise the discretion given to it in the by-law by considering each request to keep a pet on its merits.

[23] The key question in this dispute is whether the Body Corporate failed to act reasonably in making a decision under by-law 11 to refuse permission to the owners of unit 25 to keep their pet dog with them when they stay in their unit. A body corporate must act reasonably in making

[24] or not making a decision^[3]. If satisfied that the decision of the body corporate was unreasonable, an adjudicator is able to overturn it.

[25] The issue of reasonableness is not whether the decision was ‘correct’ but whether it was objectively reasonable.^[4] What is reasonable is a question of fact, based upon a consideration of all relevant matters in the circumstances of each case. This approach has been confirmed by the Queensland Court of Appeal.^{[5 ]}

[26] A permissive by-law does not require all requests to be approved. A body corporate must decide each request on its merits. Relevant considerations would include the likelihood of an adverse impact on common property or any owner or occupier, and whether any actual or potential impacts can be adequately managed by appropriate conditions

[27] The Queensland Civil and Administrative Tribunal has accepted the proposition that keeping pets is a normal domestic activity and that cats and dogs can potentially be kept in multi-level buildings without incident.^[6] Pets are not necessarily incompatible with high density living. No evidence has been provided that this dog is inherently unsuited to predominantly indoor living.

[28] While it is not possible to determine the basis upon which owners in general meeting voted against motion 11, submissions by the committee and two lot owners raised hypothetical concerns. In particular they are concerned that if the dog barks, the body corporate would not be able to take enforcement action, because the applicants only stay in their unit for one or two weeks per year. In my view it is unreasonable to refuse permission to keep a pet based on hypothetical concerns, without a cogent basis to believe the animal will actually cause problems or the lot owner will not comply with conditions of approval. It is appropriate to impose conditions to avoid problems arising, and to withdraw approval if those conditions are not met.

[29] Similarly, it is difficult to see how the body corporate would not be able to take enforcement action in the event that the applicants’ dog causes a nuisance. While there may be a time delay between when a breach of the conditions occurs, and taking of enforcement action, I do not believe this means that the conditions of approval cannot be enforced against the applicants. The applicants are the owners of unit 25, they stay in unit 25 whenever they visit the scheme and the requested approval relates to the keeping of a dog in unit 25 only. It stands to reason that if the applicants are in breach of the conditions of approval, then the body corporate could withdraw the approval and they would not be able to bring their pet dog into the scheme on future visits to their unit.

[30] While I note the concerns raised by the owners of unit 45 regarding temporary or short term approvals, any such approval must be given by the body corporate in general meeting in accordance with by-law 11. Further, there is no legal basis for owners to be forced to allow short or long-term tenants to keep a pet in their lot. Even if the Body Corporate approves dogs generally, or in a specific case, a tenant still requires the approval of the lot owner under normal tenancy arrangements. If owners in the letting pool do not want dogs in their lots, they do not have to allow them. Potentially the building manager could decline to accept lots in the letting pool where pets are allowed in that lot.

[31] 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^[7].

Conclusion

[32] Under By-law 11, an animal may not be kept in a unit without the consent of the Committee. The issue in this application is whether the applicant has established that the Body Corporate acted contrary to law by refusing permission for the dog. There is no evidence that the presence of the dog in lot 25 is likely to cause any adverse impacts for other owners and occupants. I am satisfied that, subject to the various conditions outlined in motion 11, the dog can be housed in lot 25 having little contact with, and minimal impact on, other residents. The conditions provide that approval can be withdrawn if conditions are not complied with.

[33] For the above reasons I have ordered that that the resolution by the Body Corporate on 28 October 2016, refusing the applicants permission to periodically house their pet dog in lot 25 whenever they visit their lot, was at all times void.

[34] I have also ordered that the body corporate is deemed to have granted approval for a Jack Russell dog, Banjo, to reside at lot 25 from time to time subject to the following conditions:

• The pet must be kept within the confines of lot 25;
• Whenever leaving or returning to The Mirage, the pet must be carried whilst within the confines of The Mirage property, and carried whilst in the lifts and foyers;
• The pet must not enter the pool or tennis court areas at any time;
• The pet must not cause any undue noise or behave in a manner which interferes with the peaceful enjoyment of owners or occupiers of other lots;
• Upon deceasing the pet must not be replaced without further Body Corporate approval;
• If the committee of the body corporate receive written complaints about the pet from two or more owners or occupiers of lots which the committee deem are reasonable, a written warning may be issued; and
• If the committee receive further written complaints by two or more other owners or occupiers of lots, which the committee deems reasonable, the owners of lot 25 must be given written notice that the pet must be removed from the lot immediately.

^[1] See sections 94(2) and 100(5) of the Act.

^[2] For example: Sherwood Glen [2005] QBCCMCmr 179, Pivotal Point Residential [2007] QBCCMCmr 21

^[3] Sections 94(2) and 100(5) of the Act

^[4] Cwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311; (1997) 150 ALR 1 pp 34, 38

^{[5 ]} Albrecht v Ainsworth & Ors [2015] QCA 220

^[6] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57

^[7] Section 167 of the Act