Aspex [2025] QBCCMCmr 185 | Case summary

Within three months from the date of this decision, the committee of the Body Corporate for Aspex CTS41732 must reconsider the decision to impose the following condition on the approval granted to Debra Ann Lawrie, the occupier of Lot 205, to keep her pet Standard Poodle, Pearl, on the said Lot:

"The approved animal must be carried or in a trolley at all times when passing through Internal Common Areas and whilst in an elevator; or alternatively may be walked in and out of the building via the stairs."

[1] This dispute is about a condition imposed on an occupier by the body corporate regarding the keeping of a medium sized pet dog named Pearl. The condition in question requires the occupier to either carry Pearl or take her in a trolley when traversing with her through the common property areas within the scheme buildings including the lifts.

[2] Aspex is a community titles scheme located in Gladstone Central, Queensland. It comprises 37 lots and common property, predominantly within five buildings labelled alphabetically.
[3] The respondent is the body corporate.
[4] The applicant is the owner and occupier of Lot 205, which is located within Building A. She states that she is over 60 years of age and lives with a degenerative musculoskeletal condition that affects her knees and lower back.
[5] The applicant purchased her lot in April 2022. In or around September 2023, she began occupying the same with her pet Standard Poodle, Pearl, who weighs approximately 16 kilograms. The applicant states that over the past six years, Pearl has provided her with great emotional support and a greater quality of life after the death of her husband.
[6] However, pursuant to complaints of barking, the committee of the respondent body corporate learnt of Pearl's presence on the lot, and directed the applicant to the scheme's by-laws which require committee approval for the keeping of any pets.
[7] Specifically, By-law 22 states as follows:

Occupiers must not keep Pets or animals within the Development or a Lot, without the written permission of the Committee unless otherwise permitted under these By-Laws.

Occupiers are allowed to keep Pets within a Lot on the following conditions;

(a) a maximum of two Pets are allowed;

(b) only one dog less than 10 kg in weight and 30cm in heigh or one cat is allowed;

(c) dogs and cats must wear an identification tag, tattoo or micro chip; and

(d) all Pets, if required by law to be licensed or registered, are licensed or registered.

(a) clean and remove any mess left on Common Property by any Pet under their control;

(b) ensure that dogs and cats are appropriately restrained while on Common Property; and

(c) ensure Pets are at all times kept clean, quiet, controlled and within their Lot.

The Committee may, at the cost of the Owner or the offending Lot, remove a Pet from within the Scheme if the Pet is disturbing others, in the Committee's opinion.

Occupiers mentioned in section 5 of the Guide Dogs Act 1972 have the right to be accompanied by a guide dog while within the Development.

[8] Accordingly, on 19 September 2023 the applicant sought the approval of the committee to keep Pearl in her lot.
[9] On 4 October 2023, pursuant to a vote outside a committee meeting, the applicant received approval to keep Pearl in her lot subject to the following conditions:

(1) the noise from the animal be kept at a level so as not to disturb the neighbouring residents;

(2) the animal be kept within the lot and exclusive use area;

(3) any waste be cleaned and removed immediately;

(4) the animal must be kept free of vermin and disease at all times and the committee must be supplied with a veterinary certification of health if requested;

(5) any council requirements are complied with;

(6) this approval applies to this animal only, and if another animal is requested then a separate application must be made;

(7) the committee may revoke the approval and may require the animal to be removed immediately if any of the conditions are breached;

(8) the approved animal is only permitted to be brought into or taken out of the property via the ground level car park exits and must be on a lead, carried or in a trolley;

(9) the approved animal is not permitted to be brought into the main foyer at any time;

(10) the approved animal must be carried or in a trolley at all times when passing through Internal Common Areas and whilst in an elevator; or alternatively may be walked in and out of the building via the stairs; and

(11) in the event of the approved animal defecating, dropping hair or urinating whilst on or passing through Common Areas, the Owner is responsible for cleaning up all residual matter and sanitising the area using a licensed Professional cleaner.

[10] This dispute pertains to the operation of condition ten above ('Tenth Condition') which requires Pearl to either be carried or placed in a trolley when passing through the common property areas within the building including the lifts. Alternatively, the applicant can walk Pearl on a leash in and out of the building using the stairs.
[11] The applicant states that she has had trouble getting Pearl to travel in a trolley given she panics and tries to jump out. The applicant complains that she is unable to push and pull the trolley whilst holding Pearl at the same time.
[12] Accordingly, the applicant attempted to use the alternative staircase route as per the Tenth Condition. However, she complains that the staircase area was initially dark having had no lighting. She states that the respondent body corporate later installed sensor lights in the staircase area. She indicates that these lights soon began to malfunction and were not repaired until six weeks after her complaint. She has provided contemporaneous evidence of her notifying the committee of the same. She adds that having had to walk in the dark with Pearl on a leash, she fell and injured herself more than once.
[13] The applicant has in support of her application provided three letters ('Supporting Letters') from a doctor, a physiotherapist and a remedial massage therapist which collectively indicates that she lives with a degenerative musculoskeletal condition that affects her lower back and knees. One of the letters identifies her having fractured her toe while walking Pearl up the stairs. These letters indicate that the use of stairs, steep inclines, carrying weight exceeding ten kilograms and any pushing and pulling of a trolley with her heavy dog in it would worsen her condition.
[14] Accordingly, the applicant requested the committee to amend the Tenth Condition to permit Pearl to pass through the internal common property areas including the lifts on simply a leash without being required to place her in a trolley. She also offered to explore the option of putting Pearl in socks.
[15] On 11 October 2023, the committee refused her request.
[16] Subsequently, the applicant tabled a motion for Annual General Meeting ('AGM') dated 11 September 2024 essentially containing the same request. The committee provided an explanatory note in this regard which noted among other things that:
1. The conditions were imposed for the safety, hygiene and quiet enjoyment of all owners and occupiers, and to limit the impact of having pets in the building on the same;
2. 'The [committee] is very concerned about the Hygiene and Safety issues of having dogs walking into the carpet areas of the Foyer and Lift and the problems this may raise';
3. 'The [committee] is also very concerned that there are several elderly residents and also many residents that have young children visiting or in the complex and having a large dog in the lift and foyer areas not being restrained in a pet trolley or if able being carried could pose a danger and may cause injury. Other residents should not be made to feel unsafe in common areas.'
4. 'The [committee] feel that the conditions that we have asked to be meet [sic] are very reasonable and have endeavoured to act on all the requests that have been asked of us by this Pet Owner and that NO changes should be made to the previously agreed House Rules.'
[17] The motion was defeated with five votes in favour, eleven against and one abstention.
[18] It is pertinent to note that the AGM predates all of the Supporting Letters, and as such these letters were not taken into account by the respondent body corporate when considering the applicant's request to amend the Tenth Condition.
[19] In these circumstances, the applicant seeks an order to require the respondent body corporate to permit her to walk Pearl on a leash, in and out of Building A through the lifts and other common property areas.

[20] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the Community Management Statement ('CMS')[1] or about the exercise of rights or powers or performance of duties under the Act or CMS.[2] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[3] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [4]
[21] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of sections 276(1)(a) and (b) of the Act (read together with section 227(1)(b) of the Act).

[22] The dispute was the subject of an application for department conciliation which concluded on 7 June 2024.
[23] This application for department adjudication was lodged on 30 September 2024.
[24] On 3 October 2024, the Commissioner through her delegate sought further information from the applicant pursuant to section 240 of the Act.
[25] By 15 November 2024, the applicant provided the information sought and amended her application.
[26] On 19 November 2024, the Commissioner provided a copy of the application and invited all owners, and the committee (on behalf of the respondent body corporate) to make submissions.
[27] Submissions were made by the committee on behalf of the respondent body corporate, the owners of Lots 302, 305, 401, 403, 404, 501, 502, 503, 504 and the occupiers of Lots 404, 503.
[28] Subsequently, the applicant obtained copies of the submissions and replied to the same.
[29] On 15 January 2025, the Commissioner referred the dispute to department adjudication.
[30] I have investigated the dispute by reviewing the application, submissions and reply, in accordance with section 271 of the Act

(c) Submission by the respondent body corporate

[31] The respondent body corporate states that the pet approval conditions for other occupiers with dogs are the same as those imposed with respect to Pearl, thereby demonstrating consistency in its approach.
[32] It states that the circumstances of the scheme were taken into account when considering the request to keep Pearl and the conditions imposed. It notes the following physical characteristics of the scheme:
1. All 37 lots at the scheme are residential lots. The majority of these lots open directly into shared common property hallways which are serviced by the lifts;
2. Safe ingress and egress to all lots is available to pet owners via the common stairwells.
[33] The respondent body corporate states in relation to the imposition of the Tenth Condition that a dog of any size or breed, even if restrained on a leash in a lift may:
1. Cause stress or otherwise adversely affect the wellbeing of other persons;
2. If startled, may urinate or defecate, creating an unpleasant and unhygienic environment; or
3. Damage common property.
[34] The respondent body corporate submits that given the circumstances, it did not act unreasonably in contravention of section 94(2) of the Act in imposing additional conditions and in refusing to amend the Tenth Condition upon the applicant's request for the same. In this regard, it notes that:
1. The conditions seek to balance the concerns of occupiers with pets and those without;
2. If approval conditions were to differ for one owner, it may impact future pet applications;
3. Potential liability risk to the applicant and the respondent body corporate;
4. The absence of an objective test for dog behaviour;
5. Potential issues such as pets urinating in the lifts, room in the lifts for persons, and unwanted pet contact.

[35] The owner of Lot 302 states that the respondent body corporate has disregarded the applicant's right to peaceful enjoyment at the scheme and further disregards Queensland's evolving legislation that permits the keeping of pets in community titles schemes. He adds that the respondent body corporate's conduct suggests that dog paws carry bacterial, faecal and other matter. He states that it is well reported that domesticated pets are clean and go to great lengths to clean themselves, often better than some humans, when they walk through dirt. He states that Gladstone is an industrial city with many employees of the ports and aluminium industries residing at the scheme. He adds that on a regular basis, dirt of unknown origin is walked into the foyer, with boot prints often seen on the carpet. He states that the onsite caretaker is diligent with the timely cleaning of the common property areas but the potential for harbouring unwanted bacteria cannot be dismissed if it remains the respondent body corporate's primary concern.
[36] The owner of Lot 302 further states that the applicant's fall in the staircase ought to be a liability concern for the respondent body corporate. He adds that Queensland like most other states has clear regulations pertaining to assistance dogs and their owner's freedom to traverse through all spaces. He states that while Pearl (an emotional support dog) may not be classified as an assistance dog, there is presently nothing prohibiting the applicant from getting a classified assistance dog, at which point the respondent body corporate would have no grounds for objection.
[37] The co-owners of Lot 305 submit that the scheme's by-laws are outdated. They add that using the stairs or using a trolley in an elevator is a safety hazard, and they hope that if they were to welcome a pet into their home someday, they would be able to use the elevator and walk safely through the foyer of the building.
[38] One of the occupiers of Lot 404 submitted that she is 73 years old and suffers from asthma requiring daily medication. She adds that she is also allergic to dogs, cats, horses etc. She states that she also has thin skin which makes it more susceptible to tearing. She submits that if a large heavy dog were to jump on her even with the friendliest of intentions, it could do serious damage. She states that a smaller dog on the other hand is acceptable in accordance with the by-laws.
[39] The owner of Lot 504 states that she too suffers from asthma which is triggered by dogs, cats, horses and dust mite; and always carries her medication. She states that she does not feel comfortable going into a lift where a dog has been on the carpet. She also addresses the Supporting Letters provided by the applicant in this application, and then draws an analogy to pushing a trolley of groceries.
[40] The owner of Lot 404 states that he is concerned about the harm a heavy dog could cause to his three-year old son who frequently visits the lot. He too states that a small dog or cat is acceptable in accordance with the scheme's by-laws.
[41] A co-owner of Lot 503 states among other things that if the Tenth Condition is amended as per the applicant's request, the body corporate would incur greater cleaning costs.
[42] Another co-owner of Lot 503 states that there have been plenty of cases of adults and children being mauled by dogs. She adds that it is not sufficient for a dog to only be restrained by a leash when on a lift.
[43] The owner of Lot 502 states that the Tenth Condition relating to the use of trolleys on common property is a reasonable one that works well in other schemes too. She states that it is important to take into consideration that some children and adults have a real fear of dogs.
[44] The owner of Lot 403 noted concerns with any large dogs having access to common property.
[45] The owner of Lot 501 largely reiterated the submission made by the respondent body corporate.

[46] The applicant states that she had previously indicated to the respondent body corporate that if her request to amend the Tenth Condition was granted, she and Pearl would wait for an empty lift and would not enter an occupied lift.
[47] She reiterates that Pearl is a pedigree Standard Poodle, a breed that is known to cause less reaction due to the nature of their coats. She adds that Pearl is groomed every four weeks and is given regular baths.

[48] Whilst I have not set out every aspect of the application, submissions and reply, all such material have been duly considered.
[49] With disputes such as this the primary questions ordinarily before me for determination would be whether the condition in question (in this case the Tenth Condition) is not reasonable and appropriate in the circumstances as required under section 169B(4)(b) of the Act; and whether in the circumstances the respondent body corporate acted unreasonably in contravention of sections 94(2) and 100(5). The findings for these questions will then inform whether the order sought by the applicant is warranted.
[50] However, in the circumstances of this dispute, I am of the view that it would not be just and equitable to make the order sought. Instead in my view, the just and equitable way forward is to remit the decision regarding the Tenth Condition back to the committee for reconsideration. My reasons in this regard are set out further below.
[51] I will also note some of my observations that may be relevant in assisting the respondent body corporate when reconsidering the decision upon remission; and in assisting the parties, lot owners and occupiers with pet-related disputes going forward. For the same reasons, I will set out a summary of the law on reasonableness in the context of body corporate conduct and decision-making, and the law on pet approval in community titles schemes and recent legislative developments.

[52] There is a general requirement under section 94 of the Act that a body corporate must act reasonably in among other things, enforcing its CMS (including the by-laws), carrying out its functions under the Act and CMS and making or not making any related decisions.[5]
[53] Similarly, under section 100(5) of the Act, the committee is required to act reasonably in making a decision. (Further, section 100(1) of the Act states that a decision of the committee is a decision of the body corporate.)
[54] In the event this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute.
[55] The question of whether a body corporate has acted unreasonably is not a straightforward one. What is reasonable is a question of fact, based on a consideration of all relevant matters in the circumstances of the particular case. There is no onus on a body corporate to satisfy an adjudicator that it acted reasonably.[6] Rather, it is for the person alleging that the conduct or decision was unreasonable to prove the same.
[56] The test of reasonableness was considered by the Queensland Civil and Administrative Tribunal ('QCAT') in Body Corporate for Beaches Surfers Paradise v Backshall[7] ('Beaches') which held as follows:

(a) 'Reasonable action is evidence-based and rational';[8]

(b) 'A finding that a decision or action in issue is "not irrational, absurd or ridiculous" does not necessarily mean it is a reasonable one'.[9]

[57] A legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong'.[10] Accordingly, it is not sufficient to find that the body corporate could have made a better or more reasonable decision, or that a different body corporate could reasonably have come to a different decision.[11] Further, it is not the adjudicator's role to substitute his/her own view as to what would be the preferable decision by the body corporate.[12]

(b) What does the legislation say about by-laws and the keeping or bringing of animals onto scheme land?

[58] The Act and regulation module empowers a body corporate to make by-laws for the administration, management and control of its common property and body corporate assets; for the regulation of the use and enjoyment of lots, common property, body corporate assets, and services and amenities supplied by the body corporate, and for other matters permitted under the Act.[13]
[59] This power is however not unlimited and unfettered. For e.g., a body corporate cannot make by-laws that are oppressive or unreasonable having regard to the interests of all owners and occupiers and the use of common property.[14] Additionally, a by-law cannot discriminate between types of occupiers;[15] and a by-law (other than an exclusive use by-law) cannot impose a monetary liability on the owner of occupier of a lot.[16] Further, if a by-law is inconsistent with a provision of the legislation, the legislative provision prevails to the extent of the inconsistency.[17] Similarly, if a by-law is inconsistent with another provision of the CMS that is not a by-law, the said other provision prevails to the extent of the inconsistency.[18]
[60] Historically, Queensland courts have distinguished between the power to regulate and the power to prohibit an activity. The view has been that the power to regulate implies that the activity will be capable of continuing, rather than being completely prohibited. However, the prohibition of an activity in part, in a particular case or circumstances may be necessary to achieve effective regulation.[19]
[61] In 2023, Parliament enacted new legal provisions in relation to the keeping of animals at community titles schemes by way of an amendment to the Act. In the Explanatory Note to the Body Corporate and Community Management and Other Legislation Amendment Bill 2023 ('2023 Amendment'), the following was noted:

Australia has a high level of pet ownership and the keeping of animals in community titles schemes is a pertinent issue as more people choose to live in these schemes.

While there is no explicit guidance in the [Act] about how a body corporate may regulate animals, decisions of adjudicators, QCAT and courts have resulted in a well established body of interpretation about how the general provisions about by-laws in the [Act] and the requirements for bodies corporate to act reasonably apply in relation in animals. These decisions have established that by-laws that prohibit pets, or restrict the size, type or quantity of pets, are unreasonable. Also, to act reasonably, bodies corporate must consider each request to keep an animal on its merits, concerning all relevant facts and circumstances and ignoring irrelevant factors.

The existing legislative framework as interpreted by adjudicators, QCAT, and courts appropriately balances the rights and liberties of owners and residents who wish to keep pets against those owners who want to live without disturbance that may be caused by pets.

[62] Accordingly, section 169B(2) of the Act which was introduced by the 2023 Amendment sets out further limitations on a body corporate's power to make by-laws specifically in relation to animals (except for guide, hearing or assistance dogs), as follows:

(a) prohibit the keeping or bringing of an animal on a lot or the common property of the community titles scheme; or

(b) restrict the number, type or size of an animal that an occupier of the lot may keep or bring on the lot or common property for the scheme.

[63] However, section 169B(3) of the Act states that:

However, a by-law may provide that an occupier must not without the written approval of the body corporate for the scheme, or the committee for the body corporate -

(a) keep or bring an animal on the lot or the common property; or

(b) permit an invitee to keep or bring an animal on the lot or the common property.

[64] The remainder of section 169B of the Act which encapsulates other important principles, states as follows:

If a by-law requires the written approval of the body corporate for the scheme, or the committee for the body corporate, to keep or bring an animal on the lot or the common property, the body corporate, or the committee -

(a) must, after receiving a request for approval, within the period prescribed by the regulation module applying to the scheme decide whether to grant the approval; and

(b) may, in writing, grant the approval subject to conditions, that are, in the circumstances, reasonable and appropriate; and

Examples of conditions that may in particular circumstances be reasonable -

The animal must be in a carry cage, in a pet pram or on a leash in order to limit the animal's movement when in a lift in the scheme.
The animal's waste must be disposed on in a way that does not unreasonably expose another occupier or the other occupier's invitee to the odour or sight of the waste.

To remove any doubt, it is declared that the body corporate's or the committee's refusal to approve an owner's or occupier's request to keep or bring an animal on the lot or the common property on the grounds that no pets are allowed is unreasonable.

The body corporate, or the committee, may refuse to grant approval under subsection (4) only if the body corporate, or the committee, is satisfied, on reasonable grounds, of any of the following matters -

(a) keeping the animal would pose an unacceptable risk to the health and safety of an owner or occupier of a lot because -

(i) the owner or occupier is unwilling or unable to keep the animal in accordance with reasonable conditions that address the risk; or

(ii) the risk could not reasonable be managed by conditions imposed on the keeping of the animal:

An owner or occupier of a lot has a severe allergy to a particular type of animal and it is not possible to impose a condition that would manage the person's risk of exposure to the allergen.

A local law that prohibits certain types of animals being kept at a lot or restricts the number of animals that may be kept at a lot

(d) keeping the animal would unreasonably interfere with an occupier of another lot's use and enjoyment of the lot or common property and the interference could not be reasonably managed by conditions imposed on the keeping of the animal;

(e) keeping the animal would unreasonably interfere with native fauna that live on, or visit, the scheme land and the interference could not reasonably be managed by conditions imposed on the keeping of the animal;

(f) the occupier does not agree to reasonable conditions proposed by the body corporate for keeping the animal;

(g) another matter prescribed under the regulation module applying to the scheme.

Also, the body corporate's approval may be withdrawn if the occupier does not comply with the conditions stated in the written notice given under subsection (4)(b).

[65] The Act provides a limited and exhaustive list of grounds on which a body corporate can deny a request to keep or bring an animal on a lot or common property.
[66] A body corporate or its committee, when faced with any objections to the presence of an animal on scheme land based on potential interference with an occupier's use of the same, must first assess whether such objections are reasonable. If so, it must then decide whether the interference can be reasonably managed by conditions. If it can do so, then it cannot deny approval for the animal to be kept or brought onto scheme land.
[67] Similarly, if a body corporate or its committee receives sufficient evidence that the presence of an animal on scheme land poses a risk to the health and safety of another occupier, the committee must determine whether the risk can be reasonably managed by conditions. If the occupier seeking approval for the animal is either unable or unwilling to comply with these conditions (and thereby makes the risk an unacceptable one), the body corporate or its committee can refuse to grant approval for the keeping of the animal.
[68] Furthermore, the 2023 Amendment sets out a clear principle in relation to the imposition of conditions subject to which approval is granted for the keeping of an animal at a scheme, i.e., that any condition imposed must be reasonable and appropriate in the circumstances. Conditions that are based on unwarranted or excessive caution may therefore be challenged for being unreasonable and inappropriate.
[69] Accordingly, a cluster of rigid conditions that are to have blanket application across the scheme to all occupiers not accounting for the unique circumstances of each occupier or animal or lot, may not always be appropriate and reasonable. Rather, it would be prudent to leave room for body corporate or committee discretion to vary or waive either or all of these conditions.

(c) Relevant considerations: reasonableness & appropriateness of the Tenth Condition

[70] If this dispute did not involve any medical condition or physical impairment impacting the applicant and precluding her from complying with the Tenth Condition, I would not be satisfied that the circumstances warrant the order sought. This is because, firstly, there is nothing inherently unreasonable or inappropriate about the Tenth Condition. Secondly, there is no evidence of a genuine effort on the part of the applicant to train Pearl to use a trolley or dog pram. I note that the Tenth Condition was imposed on 4 October 2023. A mere five days later, the applicant expressed that she was unable to use a trolley. This, at first glance is not indicative of a genuine effort to train Pearl to use a trolley.
[71] Thirdly, the applicant has not provided any evidence to demonstrate that such a requirement to train Pearl is unreasonably onerous in the circumstances. I also note that a veterinarian or other professional may be able to assist the applicant in this regard.
[72] Furthermore, the applicant states that given Pearl's attempts to jump out of the trolley, she is unable to both hold her in place and push or pull the trolley at the same time. If there was no aspect of a physical impairment or medical condition, it would be reasonable to expect the applicant to consider reasonable solutions such as enclosed trolleys and dog strollers that are readily available in the market.
[73] However, given there may be a genuine medical condition or physical impairment affecting the applicant as well as two other occupiers regarding which I lack sufficient evidence, I am not prepared to determine the reasonableness and appropriateness of the Tenth Condition at this stage. Instead in my view the just and equitable outcome is for the respondent body corporate to reconsider its decision relating to the Tenth Condition. My reasons in this regard are explained in detail further below. However, I am of the view that some comments regarding the factors that appear to have been considered by the respondent body corporate may be useful to assist the parties to resolve the dispute.
[74] The law acknowledges that people in Australia increasingly choose to live with pets. It is not uncommon for people to encounter animals such as dogs out in public in Queensland.
[75] Generally, dogs are permitted by local councils to be walked in public provided they are on a leash at all times or are otherwise appropriately restrained.[20] Local councils such as the Gladstone Regional Council, have identified dog-free areas (where self-explanatorily, dogs are prohibited), dog on-leash areas and dog off-leash areas.[21]
[76] I note that the Animal Management (Cats and Dogs) Act 2008 ('2008 Act') provides for among other things the responsible ownership of dogs; the effective management of regulated dogs and the prohibition of the ownership and particular dealings with dogs of particular breeds. This 2008 Act was recently amended in response to the rise in dog attacks on persons and animals in Queensland.
[77] Statistical data recorded by Queensland Health indicates 2,553 hospitalisations from dog related incidents in 2021-2022.[22]
[78] In 2023, the Department of Agriculture and Fisheries (now the Department of Primary Industries) noted that children under the age of four years have the highest occurrence rate of hospitalisation, with the highest recorded place of occurrence being within a private residence.[23] It adds that older people however suffer more fatalities and have longer hospital stays when attacked or bitten by a dog with the length of hospital stay vastly increasing once a person hits 50 years of age.[24]
[79] It is noteworthy that the Gladstone Regional Council prohibits the presence of dogs within ten metres of certain local government-controlled areas such as a designated playground and any playground apparatus provided for the use of minors.[25]
[80] Accordingly, the keeping of a dog is not entirely a risk-free practice even in the context of community living. The respondent body corporate and other owners and occupiers have expressed their concern regarding the vulnerability of children and aged persons in particular, around a dog such as Pearl. The data noted above, as published by the Queensland Government, indicates that this is not an irrelevant concern.
[81] It is therefore prima facie[26] not unreasonable or inappropriate for bodies corporate to impose conditions requiring pets to be placed in a trolley, or pram when traversing through common property areas. This does not necessarily mean that such a condition is always reasonable and appropriate. Bodies corporate must assess each request for approval to keep a pet on its merits and based on the individual circumstances of the matter.
[82] Similarly, it is also worth noting that the law, specifically the 2008 Act provides for important safeguards by way of legal obligations on dog owners to for e.g., take reasonable steps to ensure the dog does not attack, or act in a way that causes fear to a person or another animal.[27] Failure to comply with these legal obligations can attract hefty penalties. Furthermore, this Act also provides for the identification of regulated dogs (i.e., dangerous or menacing dogs) albeit upon the occurrence of a relevant adverse incident.
[83] Another interesting factor is that the 2008 Act imposes an obligation on dog owners to exercise effective control of the dog if it is in a public place.[28] 'Effective control' of a dog[29] (in public places that are not dog off-leash areas) requires its owner to be physically able to control the dog; and restrain the dog using a leash or other device, or keep the dog in a temporary enclosure etc.[30] It is unlikely that the entire common property of a residential community titles scheme is covered under the definition of a 'public place' under the 2008 Act. Accordingly, it is possible that this legal obligation to exercise effective control does not extend to when a dog is on common property.
[84] In such circumstances, it is reasonable for a body corporate to impose conditions that ensure similar effective control when a dog is on common property. In that regard, it may take into account the occupier's physical ability to control the dog, and require a suitable apparatus to be used to restrain the dog. While a leash may be sufficient for larger and more open common property spaces, an apparatus that provides for greater restraint may generally be more suitable for smaller spaces such as lifts.
[85] On the other hand,[31] it is noteworthy that visitors and other occupiers at the scheme are free to refrain from entering a lift if Pearl is present, or maintain a suitable distance from Pearl on other common property areas. The respondent body corporate may also consider imposing a condition on the applicant to prevent Pearl from boarding an occupied lift or to seek the consent of those occupying it for Pearl to board.
[86] As stated above, the submissions include concerns regarding the health and safety of two occupiers at the scheme living with asthma and allergies triggered by dogs. One of these occupiers however does not object to the presence of small dogs at the scheme, but believes that relatively larger dogs like Pearl pose a risk of harm. It would not be unreasonable for the respondent body corporate to seek any necessary medical evidence from these occupiers to better understand these concerns and how any risk to their health can be reasonably managed by conditions on Pearl's approval to be kept on scheme land.
[87] I note that any evidence regarding the allergen levels and shedding levels of a dog of Pearl's breed can be a relevant consideration when imposing any conditions that are intended to manage a risk of triggering an occupier's allergy.
[88] In this regard, I note that requiring an animal to be carried or placed in a trolley when on common property within a building, although does not eliminate the risk of triggering such an allergy, may nonetheless minimise it. There may be other conditions that the committee could consider that may similarly minimise this risk, such as requiring the use of pet socks (as proposed by the applicant) and/or an anti-shedding dog suit.
[89] I note the respondent body corporate's submission that one of the objectives of the Tenth Condition and the use of a trolley in particular is to prevent the floors of the lifts from catching any dog urine or faeces. Whilst this is a relevant consideration, it is worth noting that if an occupier were to choose to carry the dog instead of placing it in a trolley (as per the Tenth Condition), this objective may not effectively be achieved. It is also worth taking into account that if the risk of urination or defecation on common property were to materialise, there are conditions already in place requiring the applicant to undertake cleaning and sanitisation.
[90] The respondent body corporate also expresses its concerns regarding the potential for Pearl to damage common property if not placed in a trolley when traversing through internal building spaces and the lifts. It may consider imposing a further condition that requires the applicant to make good any damage so caused.

(d) Remitting the decision back to the committee for reconsideration

[91] In the circumstances of this dispute and for the following reasons, I have decided to remit the decision involving the review of the Tenth Condition as it applies to the applicant, back to the committee of the respondent body corporate for reconsideration:
1. I am not satisfied that the approach admittedly taken by the committee in dealing with requests to keep or bring animals onto scheme land, and in imposing associated conditions is particularly consistent with the provisions of the Act as recently amended;
2. The Supporting Letters (including medical evidence) provided by the applicant in this application were not available and presented to the respondent body corporate at the time it decided the applicant's request for the Tenth Condition to be withdrawn or amended;
3. The submissions indicate health concerns for two occupiers in being exposed to dogs. I have not been provided with any medical evidence to this effect but I appreciate that the respondent body corporate may have, and/or is in a better position to conduct further reasonable inquiry to determine how best to balance the interests of these occupiers as well as the applicant in reviewing the Tenth Condition;
4. By-law 22.2 as it currently stands is inconsistent with section 169B of the Act.

[92] The respondent body corporate submits that the conditions subject to which Pearl was approved to be kept at the scheme are identical to the two other pet approvals granted at the scheme. It adds that if the conditions were to differ for one occupier, it may impact future approvals.
[93] The 2023 Amendment as well as the precedent that predated this amendment makes clear that bodies corporate must consider each request to keep a pet on its merits taking into account the individual circumstances of each case. The corollary of this is that any conditions imposed may likely vary from one request to another based on circumstances, including but not limited to the type of animal, the breed, the location of the lot on which the animal is requested to be kept on, the particular circumstances of the occupier (e.g., a disability that they live with).
[94] I agree that maintaining consistency is the norm. In the case of the imposition of conditions, consistency ensures like treatment to some extent. However, a body corporate must not invoke consistency as a justification for denying a reasonable variation of a condition where the individual circumstances of the request to keep the pet warrants such variation. Rather, a body corporate must balance the need to maintain consistency in decision-making with accounting for the unique circumstances of each request.
[95] The Supporting Letters & the two occupiers with allergy concerns
[96] The findings and recommendations made in the three Supporting Letters are consistent with each other. I note that whilst the remedial massage therapist notes that the applicant lives with a degenerative musculoskeletal condition, the doctor's letter does not contain a diagnosis.
[97] In my view the respondent body corporate must be given an opportunity to consider this evidence, and appropriately scrutinise the same. It may require the applicant to provide further information from her doctor confirming the diagnosis, and any other necessary information that may reasonably aid its decision-making in that regard. Based on the information it receives, it may then determine whether it is reasonable and appropriate to waive or amend the Tenth Condition.
[98] It may adopt a similar approach with respect to the occupiers who have indicated that they have allergies triggered by dogs, as explained above in this decision.

[99] Section 169B(2)(b) of the Act states that a by-law must not restrict the number, type or size of an animal that an occupier of the lot may keep or bring onto scheme land.
[100] By-law 22.2(a) and (b) states that occupiers are not allowed to keep more than two pets within a lot, and that only one dog less than 10 kilograms in weight and 30 cm in height or one cat is allowed.
[101] Accordingly, (pursuant to the 2023 Amendment) this by-law is inconsistent with section 169B(2)(b) of the Act. The latter prevails over the former to the extent of the inconsistency.
[102] In these circumstances, in remitting the decision to review the Tenth Condition as it applies to the applicant, back to the committee, it is also given an opportunity to revise its by-laws to ensure consistency with the Act.

[103] The evidence indicates that the applicant may have a medical condition or impairment that affects her ability to comply with the Tenth Condition. Further, there is also some evidence to suggest that one of the objectives of the Tenth Condition is to manage a risk posed by Pearl to the health and safety of two other occupiers at the scheme, who live with allergies triggered by dogs. If the respondent body corporate were to amend or waive the Tenth Condition, there may have to be other conditions in place to reasonably manage the risk to these occupiers.
[104] The evidence indicates that this medical information pertaining to the applicant was not available and presented to the respondent body corporate when it confirmed the imposition of the Tenth Condition and refused to waive or amend the same.
[105] Accordingly, I am of the view that it is just and equitable to remit the decision back to the committee for reconsideration.

[1] The CMS includes the scheme's by-laws

[2] Sections 276)(1)(a) and (b) of the Act

[4] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]

[6] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[8] SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 [15] - [16] as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23]

[9] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [60] (Hayne J) as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [24]

[10] Woden Valley Glass v Psaila (1993) 122 ALR 378, 391 as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47]

[11] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[19] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57, para 17 and 18, citing Mineralogy Pty Ltd v The Body Corporate for "The Lakes Coolum" [2002] QCA 550; [2003] 2 Qd R 381, at paras 6-8; see also Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 and Crystal Waters Permaculture Village & Ors v Boyle [2020] QCATA 80 - as cited in Macleay Tower & Villas [2022] QBCCMCmr 237 at [16]

[21] See 'Dogs in Public Places - Gladstone Regional Council' (Gladstone Regional Council) accessed 20 May 2025

[22] Queensland Health (2023). SDLO advice note: Presentation and admissions for dog bites (17 April 2023) as cited in Department of Agriculture and Fisheries, Impact Analysis Statement - Stronger Dog Control Laws (Queensland Government 2023)

[23] Department of Agriculture and Fisheries, Impact Analysis Statement - Stronger Dog Control Laws (Queensland Government 2023) accessed 20 May 2025

[25] 'Dogs in Public Places - Gladstone Regional Council' (Gladstone Regional Council) accessed 28 May 2025.

[31] And in relation to the respondent body corporate's concerns regarding unwanted pet contact

Corporate and Community Management (Standard Module) Regulation 2020

Management (Cats and Dogs) Act 2008

Corporate and Community Management Act 1997

Aspex [2025] QBCCMCmr 185 (2 June 2025)

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