At what point can the body corporate intervene and regulate pets in the community building? In this case, the owner of a unit allowed her dog to urinate on the balcony and it dripped onto the balcony of the lot below. The question was whether this interfered with the peaceful enjoyment of another lot and whether the Adjudicator could make an order to remove the pet from the building.
- A body corporate has the responsibility to keep the balance between two competing individual rights as well as the collective individual rights of owners. The matter needs to be considered on a case by case basis.
- Prohibitive by-laws are invalid.
- If you have anybody corporate concerns or issues, please contact us.
Case Study (Part 1)
Skyring Apartments is an apartment complex located in Newstead Brisbane.
In 2017, the Body Corporate for Skyring brought an application to the Office of the Commissioner for Body Corporate and Community Management. The Body Corporate alleged that Mrs Baradel had kept her dog in the unit in a way that caused a nuisance to other owners and breached s167 of the Body Corporate and Community Management Act 1997 (Qld) ("BCCMA"). Mrs Baradel allowed her dog to urinate on the balcony of the unit and the urine was running off the balcony onto the lot below Mrs Baradel's unit.
Parties attempted to resolve the dispute and as a result of conciliation entered into an agreement in May 2017 as follows:
- Mrs Baradel acknowledged that she had taken responsibility and stopped the dog urinating on the balcony;
- Mrs Baradel would be allowed to keep her dog if she complied with her acknowledged responsibility and conditions in the by-laws relating to the keeping of animals;
- If Mrs Baradel failed to comply with these conditions, then she would be given one more opportunity to comply. If she did not, the committee would withdraw approval for her to keep the dog; and
- The committee would lodge an adjudication application seeking removal of the dog. Provided that Mrs Baradel complied with the conditions of the approval, the committee would withdraw the application prior to any order being made. The parties agreed to act in good faith to carry out terms of the agreement.
The Body Corporate argued that Mrs Baradel did not comply with the terms of the agreement and her dog continued to urinate on the balcony which dripped onto the balconies below.
The Adjudicator made an order to request Mrs Baradel to remove her dog within six weeks of the date of the order. The Adjudicator's grounds for making the order were that it was a breach of body corporate by-laws for animals to disturb other occupiers and it was further in breach of s167 of BCCMA because it unreasonably interfered with another owner's use of their lot.
S167 of the Act provides:
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that –
- causes a nuisance or hazard; or
- interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
- interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
Mrs Baradel appealed the decision and requested that the order of the Adjudicator be stayed pending the determination of the appeal.
S289(2) of the BCCMA provides that an appeal of the Adjudicator's order is allowed on a question of law. The Tribunal found that Mrs Baradel's grounds of appeal were as follows:
- That the decision was unnecessarily harsh;
- That there were inadequate reasons given for the Adjudicator's decision; and
- The evidence that urine belonged to her dog was unreliable or inadequate (for example, wild birds perch on balustrades leaving droppings on balconies below).
Without a formal hearing, the tribunal made an interim order on 30 May 2018 to suspend the operation of the Adjudicator's order until further order of this Tribunal.
In order for stay of orders made by an Adjudicator, proper basis need to be shown.1
The Tribunal dismissed the application after taking into consideration the history of the matter and the numerous opportunities Mrs Baradel has been given to remedy the situation. The Tribunal added that the Adjudicator's decision does not preclude her from having any dog on the premises and it only affects the particular dog that has been causing the problem. It is not unreasonable or harsh to require that the offending dog no longer be present.
For the reasons mentioned above, the application for a stay was dismissed and the order made on 30 May 2018 to suspend the operation of the adjudicator's order was set aside.
Case Study (Part 2)
In February 2019, the Tribunal reached a decision in relation to the request for appeal. The Tribunal found that there is:
- No substance to the contention that there were adequate reasons given for the Adjudicator's decision; and
- No substance to the contention that the decision was unnecessarily harsh.
The Tribunal added that there are challenges to the factual findings of the Adjudicator that the urine belonged to Mrs Baradel's dog. However, it does not constitute an appeal from the Adjudicator's order on a question of law. Even if one takes Mrs Baradel's assertions about the evidence at face value, it had been her dog whose urine had dripped over the balcony and caused the disturbance below.
The contention that there might now be an appeal about a finding of fact does not raise a question of law. The application for appeal was dismissed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.