McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57 (28 September 2010)

Last Updated: 26 October 2010

DECISION

APPEARANCES and REPRESENTATION (if any):

Decision heard on the papers in the absence of the parties.

Introduction

1. This proceeding constitutes an appeal, pursuant to section 289 of the Body Corporate and Community Management Act 1997 (Qld) (the “Act” or the “BCCM Act”), from an order of an adjudicator made under Part 9 of Chapter 6 of the Act concerning the respondent (“Kings Row Centre”). The applicant in this proceeding is a co-owner of one of the lots in the scheme and, together with her co-owner (her mother), was the applicant to the adjudicator.
2. The application concerns by-law 11 of the respondent’s by-laws forming part of its community management statement. The by-law reads as follows:

“11. Keeping of animals

11.1 Subject to s143[1] of the Act, no dog or cat of any kind is allowed to be kept within a lot, with the exception of those animals currently registered as approved by the Committee as of 18 January 2004.

11.2 If any owner makes a request to keep a pet, other than a dog or cat, the Committee is authorised to grant or deny permission upon the receipt of a written application.

11.3 If permission is granted, the details of the pet shall be provided to the Resident Manager for inclusion on the authorised list.”

3. By her application for adjudication, the applicant and her mother sought an order that the applicant’s mother be allowed to keep her cat within their unit. That application appears to have been filed in the face of a notice of continuing contravention of a body corporate law which had been served on her by the body corporate on 15 April 2009, requiring her to cease contravening by-law 11 by keeping a cat within her lot.
4. Although no cross-application was made by the respondent for an order enforcing the by-law, by his decision made on 22 February 2010 the adjudicator ordered that, within 6 months, the applicant and her mother remove and keep removed any cat from their lot.
5. The applicant appeals from that decision. The grounds of the appeal are as follows:

“1. The adjudicator erred in law in relation to:

(a) the proper construction and application of the Body Corporate and Community Management Act 1997 and the Standard Module Regulation thereto;

(b) the proper construction and application of by-law 11 of the Kings Row Centre.

2. The adjudicator erred in law in finding by-law 11 of the Kings Row Centre was:

(a) “within power”;

(b) not “unreasonable and oppressive”.”

Findings of fact

6. The adjudicator made the following relevant findings of fact:
   • (a) the applicants (the appellant and her mother) have been keeping a cat in their lot since August 2005;
   • (b) the cat is of significance importance to one of the applicants (the appellant’s mother) and the keeping of the cat assists in the management of her depression and other medical conditions;
   • (c) owners have since been notified of the applicants’ circumstances and have been given the opportunity to vote on changes to by-law 11. The by-law has not been changed. In particular, some owners hold the view that allowing dogs or cats may result in other occupiers being affected by undesirable odours or other negative consequences; and
   • (d) the keeping of a cat by the applicants has not led to any other occupiers being affected by undesirable odours or other negative consequences.
7. The submissions of the applicants before the adjudicator were, in essence, to the effect that:
   • (a) the applicant’s co-owner (her mother, Phyllis Scruse) is 80 years old;
   • (b) Mrs Scruse’s doctor has suggested she get an animal to help overcome depression;
   • (c) some friends gave her the cat in August 2005; the cat has lived within the unit and has never been on common property since; it has not caused any concern to anyone;
   • (d) the cat is Mrs Scruse’s life and she could not go on without her.
8. These facts were not contested and led to the findings made by the adjudicator.

The adjudicator’s reasons

9. The adjudicator found that by-law 11 was valid and in accordance with a legislative intention that owners be entitled to adopt by-laws about keeping of animals on scheme land (referring to s180(2) of the BCCM Act). He noted that by-law 11 appeared to be within power as it relates to regulation of the use and enjoyment of lots (referring to s169).
10. The adjudicator also said that there was no real argument to the effect that the by-law is oppressive and unreasonable (referring to s94(2) and schedule 5, item 20). He said that the conclusion that it was unreasonable would be fairly open if it prohibited the keeping of all pets, including pets for which there was no rational basis for thinking that the pet could cause any difficulty to any other lot owner.[2] However, by-law 11 only prohibits the keeping of cats and dogs and allows occupiers to seek permission from the Committee to keep other types of pets. A number of owners appear to have the view that allowing dogs or cats may result in some occupiers being affected by undesirable odours or possibly other negative consequences such as allergic reactions. The question is not whether a statutory obligation to act reasonably results in “correct” decisions but whether the decisions are objectively reasonable. In all the circumstances, he was not satisfied that the body corporate acted unreasonably in adopting by-law 11 or that the by-law itself is oppressive or unreasonable.
11. The adjudicator then went on to note that by-law 11 did not allow any discretion for the committee to approve the keeping of any cat and attempts by the applicants to have the by-law changed had failed. The body corporate has a duty to enforce the by-laws.
12. In the circumstances of the importance of the cat to the applicants before him, the adjudicator made an order enforcing the by-laws by requiring the applicants to remove the cat from the premises, but allowed them 6 months to do so in order to be just, equitable and reasonable in the circumstances.

The parties’ submissions

13. This appeal is brought on the basis that by-law 11 is invalid, as not being within the power of the Body Corporate or being unreasonable and oppressive.
14. In this appeal, the applicant relied upon Tutton v Pivotal Point for the proposition that any by-law containing an absolute ban or blanket ban in relation to the keeping of animals within a lot is unreasonable. She submitted that the distinction made by the adjudicator, that this by-law does not impose a blanket ban on all animals, but only on dogs and cats, is not a real distinction. It is not the object of a ban (namely, a cat or other animal) that is relevant, but the reasonableness of the circumstances in which a ban may be imposed. If those circumstances do not afford any discretion to be exercised in any circumstances (as in the present case), the ban will be unreasonable and the relevant by-law will be void. In this case, there is an absolute prohibition on the keeping of cats and therefore by-law 11 is unreasonable and void and the adjudicator has erred.
15. The respondent body corporate submits that by-law 11 is valid and is not unreasonable or oppressive. The by-law does not prevent the applicant from keeping a pet, other than a cat or dog, in the building. The applicant was aware of the by-law when she brought a cat into the building and therefore the committee’s enforcement of the by-law could not be said to be oppressive or unreasonable.
16. The respondent submitted that the applicants’ submission set out in paragraph [14] above, if applied generally, would mean that any by-law prohibiting a particular activity, no matter how objectionable that activity may be, would be void unless it granted a discretion in relation to the enforcement of the by-law. That cannot be correct. The question of reasonableness relates to the object of the ban. A ban on the keeping of all animals would be unreasonable, but this by-law constitutes a prohibition only on the keeping of cats and dogs. The object of such a prohibition is to exclude animals that have the potential to foul the common area, destroy or injure birds and other wildlife, bring fleas and other pests into the building and make noise. It is therefore reasonable that there should be a by-law which prohibits the keeping of cats or dogs in a lot.

Discussion

17. Section 169(1) of the BCCM Act provides relevantly that the by-laws for a community title scheme may only provide for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme.
18. A distinction has been recognised in the authorities between the regulation of an activity and its prohibition. A section such as s169 permits the regulation of the use and enjoyment of lots, but does not authorise a by-law prohibiting a certain use and enjoyment of lots. The underlying rationale is that a power to regulate an activity implies that the activity will, despite such regulation, be capable of continuing, which it would not do if it were completely prohibited. Prohibition of an activity in part, in a particular case, or in a particular way, may however in some circumstances be needed in order to achieve effective regulation.[3]
19. In my opinion, s169 seeks to regulate the use of enjoyment of lots by regulating the keeping of animals in lots. As part of that regulation, it prohibits the keeping of cats and dogs. It therefore falls within the power given by s169(1)(b)(i).
20. The real issue in this case is whether the by-law, in regulating the keeping of animals in lots in the manner it does (that is, by prohibiting the keeping of cats and dogs but allowing the keeping of other animals with the committee’s permission), is “oppressive or unreasonable”. If it is, then it is contrary to subsection 180(7), which provides:

“A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme.”

21. Schedule 4 of the BCCM Act, constitutes by-laws for schemes where a community management statement does not include by-laws (s168(2)). It includes a by-law (also no. 11) concerning the keeping of animals, in the following terms:

“(1) The occupier of a lot must not, without the body corporate’s written approval –

(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 the common property.

(2) The occupier must obtain the body corporate’s written approval before bringing, or permitting an invitee to bring, an animal onto the lot or the common property.”

22. Section 181 of the BCCM Act provides a specific exemption from any by-law prohibiting animals in a scheme with reference to a guide dog, a hearing dog or an assistance dog in accordance with the Guide, Hearing and Assistance Dogs Act 2009. That exemption does not apply to a cat, notwithstanding that, were it an appropriately trained dog, the animal may well fall within the purview of that Act.
23. If a decision maker errs in concluding that a particular law is “reasonable” when it is not, it can be held that an error of law has been established. Furthermore, where it is established that the findings of fact which are made show that there has been an error in the understanding of the legal meaning of the words to be interpreted (such as oppressive or “unreasonable”), an error of law can be established.[4]
24. In Tutton v Pivotal Point, Mr Dorney QC (as his Honour then was) considered whether a by-law which prohibited all animals was unreasonable and therefore invalid. His consideration of that point was obiter, but it is relied upon by the applicant in this case.
25. Having regard to the submissions before him, Mr Dorney said the following:

“[34] Hence, if in the determination of this proceeding it can be held that the meaning given to ‘animal’ in the new by-law 16.1 is a meaning which makes the particular provision ‘unreasonable’ because it has the effect that an animal such as a goldfish is also the subject of the absolute ban ..., it is open to the Tribunal to decide that the provision is invalid as being unreasonable. ...

[35] Since there is clearly no rational basis upon which it can be said that the keeping of a goldfish in a safe and healthy environment could be a matter which could cause any difficulty to any other lot owner, yet is the subject of an ‘absolute’ ban, the conclusion is fairly open that such a by-law is ‘unreasonable’.”

26. In that case, the relevant by-law provided, subject to certain preservation rights for owners who already had approved animals in their lots, that an owner or occupier “must not bring or keep an animal on the lot or common property or permit an invitee to bring or keep an animal on the lot or common property”.
27. By-law 11 in this case does not prohibit absolutely the keeping of animals, but it does prohibit absolutely the keeping of cats or dogs. There is certainly a distinction between a by-law that prohibits the keeping of cats or dogs only and allows other pets to be kept with the permission of the Body Corporate Committee, on the one hand, and a by-law that prohibits the keeping of any animal at all. I agree with Mr Dorney’s opinion that there is no rational basis upon which it could be said that the keeping of some animals (such as a goldfish) in a safe and healthy environment could cause any difficulty to other lot owners and therefore a by-law which imposed an absolute prohibition on the keeping of such animals would be unreasonable.
28. Clearly there are rationale bases on which it might be said that the keeping of a cat or a dog, even in a safe and healthy environment within a lot, could cause inconvenience to other lot owners. However, the very facts of this case demonstrate that that is not always the case. The applicant’s mother had kept her cat within her unit for nearly 4 years before the body corporate took any action to require her to remove it, and that has not led to any other occupiers being adversely affected. On the other hand, the cat is of significant importance to Mrs Scruse from a medical perspective.
29. Cats and dogs are ordinary domestic pets, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions. In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable.
30. I therefore consider that by-law 11.1 and the words “other than a dog or cat” in by-law 11.2, are unreasonable and invalid. An alternative version of clause 11.1, such as the following, would in my opinion be reasonable and valid:

“Subject to section 181 of the Act, the occupier of a lot must not, without the body corporate’s written approval, bring or keep an animal on the lot or the common property.”

31. It would then be for the committee to consider each case upon its facts and, in making a decision whether or not to approve the keeping of a particular animal in a particular lot, the committee would have to act reasonably. In the circumstances of this case, I consider that it would be unreasonable of the committee to refuse the applicant permission to keep the cat which she and Mrs Scruse have had in their lot since 2005.

Orders

32. Section 294 of the BCCM Act provides that, in deciding an appeal, in addition to the jurisdiction and powers of the appeal tribunal under the QCAT Act, the tribunal may also exercise all the jurisdiction and powers of an adjudicator under the BCCM Act. However, the appeal tribunal may amend or substitute an order only if the adjudicator, who made the order being appealed, would have had jurisdiction to make the amended or substituted order or decision.
33. Section 276 of the BCCM 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, among other things, a claimed contravention of the Act. Subsection 276(3) provides that the adjudicator may make an order mentioned in schedule 5 of the Act. Paragraph 21 of schedule 5 lists, as one of the types of order that an adjudicator may make, “If satisfied a by-law is invalid – an order declaring that the by-law is invalid and requiring the body corporate to lodge a request to record a new community management statement to remove the by-law.”
34. Section 146 of the QCAT Act provides that, in deciding an appeal against a decision on a question of law only, the appeal tribunal may, among other things, confirm or amend the decision, or set aside the decision and substitute its own decision.
35. In the circumstances, I make the following orders:

(1) The order of the adjudicator made on 22 February 2010, be set aside.

(2) I declare that paragraph 11.1 of by-law 11, and the words “other than a dog or cat” in paragraph 11.2 of by-law 11, in the community management statement of the respondent, are invalid.

(3) Within 21 days of the date of this order, the respondent body corporate lodge a request to record a new community management statement in which paragraph 11.1 of by-law 11 and the words, “other than a cat or dog” in paragraph 11.2 of by-law 11, are removed.

36. It will then be up to the body corporate to put, to the members at a general meeting, a resolution adopting a new by-law in reasonable terms, having regard to these reasons for my decision.
37. It will also be necessary for the applicants to apply to the committee for permission to keep the cat in their unit in the future.
    
    

[1] s143 of the BCCM Act was renumbered to s181 on 1 December 2003. By-law 11 was inserted on 20 March 2004. As the adjudicator noted, this appears to be an erroneous reference to s143 instead of s181. I take it to refer now to s181, as did the adjudicator.

[2] The adjudicator referred to Tutton v Body Corporate for Pivotal Point Residential CTS 33550 [2008] QCCT BCCM 12, at [35].

[3] Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550; [2003] 2 Qd R 381, at [6]-[8].

[4] Tutton v Pivotal Point, at [22].