This is the tale of a recent adjudication involving a lot owner (who will be known as Mary for our purposes) who originally sought permission for her daughter’s two dogs – a Fox Terrier and an English Bull Terrier– to stay with her temporarily for one to three months. This time frame was to allow her daughter to find appropriate accommodation for the trio.
The ‘dogs [were] toilet-trained, de-sexed, registered, socialised, controllable and not a danger’.[1] Her plan was to allow the dogs to enter and exit her ground floor apartment through the gate access she had which led onto a boardwalk.
Mary made a written application to the Committee as required under the complex’s by-law with respect to keeping of animals. She subsequently received advice that the Committee had refused her application because of the ‘suitability of the pets’.
Mary maintained that the request was not outside of her rights and other large dogs have been approved under the same by-law.
Her daughter found accommodation for the trio and so the request for approval from the body corporate shifted to seeking permission for the two dogs to visit Mary. She was advised that the body corporate would give such approval subject to a number of conditions. Mary objects to these, claiming they’ve not been imposed on others.
Did the body corporate fail to act reasonably in dealing with these requests?
What is interesting about this adjudication decision is that it continues to affirm that ‘a body corporate cannot automatically prohibit an activity that can potentially be approved under a permissive by-law’. Such a knee-jerk reaction may not be seen to be reasonably wielding the body corporate’s powers in the executing of its functions as required under the Act.
Rather than automatically denying an application for permission under a by-law, ‘a body corporate or its committee must exercise the discretion given to it in the by-law considering each request on its merits and in the particular circumstances of that request’.
Reasonableness is something that must be viewed in the context. It ‘involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue’.[2] and ‘requires that all relevant matters are taken into consideration’. But also, that all ‘irrelevant ones are left out’.
So how are body corporates meant to decide what is in and what is not?
In Mary’s case the Committee took twenty different factors into consideration. It looked at the fact that Mary already has two cats; that having four animals in the one unit may cause noise and disturb neighbours; whether the dogs would be predominantly inside or outside. The temperament of one of the dogs was questioned as there had been a previous incident where police were involved as he was aggressive while in the pool area; this may leave the body corporate open to liability should he attack anyone; and that his presence may impact on neighbours wanting to enjoy common property.
An animal behaviour expert and a vet were commissioned to assess the dogs’ suitability for community living. However Mary refused to participate or allow the dogs to participate. An assumption was made that an inference can be drawn that the dogs would have been found to be unsuitable.
The animal behaviour expert viewed an identical unit and the outside of Mary’s unit, making the conclusion that there was inadequate fencing which would have allowed the dogs to access common areas.
The body corporate stated that it acted reasonably. On balance, it could not accept the seriousness and high likelihood of something drastic happening. It had regard not only to the lack of appropriate fencing, the size of the lot and the number of pets and people but also to the serious consequences should one of the dogs attack someone.
All of this seems perfectly reasonable. Indeed, the body corporate told the Commissioner as much, maintaining it had ‘not acted automatically, arbitrarily or without regard for the relevant circumstances’.
If you have your own tale of woe and need guidance on a Body Corporate matter, please don’t hesitate to make contact with us. We can provide a no-obligation consultation, free of charge, to explore options that may be available to you.
[1] Winchcombe Place [2020] QBCCmr [2]. [2] Winchcombe Place [2020] QBCCmr [32], quoting Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 [43], citing McKinnon v Department of Treasury (2006) 228 CLR 423.
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