Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

ANIMAL BY-LAW - where the by-laws include a set of conditions subject to which the body corporate has granted approval for animals to brought to or kept in a lot at the scheme - where one of these conditions prevent the use of the ground floor entrances and exits - whether this condition is reasonable and appropriate and whether the by-law that contains the condition is oppressive or unreasonable.

Act, ss 169, 169B, 180

1. Declare that the prevailing By-laws for Macleay Tower & Villas CTS 24663 ('scheme') - under the Community Management Statement ('CMS') executed on 24 August 2022 and registered with the Queensland Titles Registry on 8 September 2022 - did not and do not prevent Benjamin Webb, the occupier of Lot 13 from taking his pet dog Abby between the said Lot and the Level A basement car park via the lifts in the foyer of Level B of the building tower of the scheme.
2. Declare that By-law 11.4(a) of the aforesaid By-laws for the scheme is invalid to the extent that it does not provide the Body Corporate for Macleay Tower & Villas CTS 24663 ('body corporate') or its committee with the discretion to vary or waive the condition imposed thereunder.
3. Order the body corporate to, within six months from the date of this decision, amend the aforesaid by-law to provide itself or its committee with the aforesaid discretion, and to record a new CMS to such effect.

• [1] This dispute is about the reasonableness of a by-law, and the reasonableness and appropriateness of a condition associated with the keeping of a pet imposed thereunder.

• [2] 'Macleay Towers & Villas' is a scheme located at Kangaroo Point, Queensland. It comprises 105 lots and common property. These lots, as the scheme name suggests, are contained within a building tower and villa.
• [3] The building tower and villas have a shared basement car park on level A. The building tower has 24 levels, whilst the villas which are within a separate albeit smaller building has four levels.
• [4] The respondent in this dispute is the body corporate. The applicant is the owner and occupier of Lot 13.[1]
• [5] The applicant's lot has been reserved for the scheme's caretaker and letting agent. This lot comprises several parts located on levels A and B of the building tower. The predominant portion of the lot within which the applicant resides is located on level B of the building tower i.e., the ground floor. This portion of the lot lies adjacent to the foyer of the building tower, and somewhat opposite the doors to the lifts that service the floor.
• [6] The scheme's by-laws require owners and occupiers to seek the approval of the committee of the respondent body corporate should they wish to keep or bring an animal to their lot.
• [7] On or about 1 December 2022, the applicant sought and received the approval of the committee to keep his pet dog Abby in his lot, subject however to a set of conditions which are laid down in the scheme's by-laws, namely By-law 11.4(a) to (g).
• [8] The main subject of this dispute is a specific condition under By-law 11.4(a) which mandatorily applies to all animal approvals at the scheme. It states as follows:

the Approved Animal must not roam on the Common Property, must enter and leave the buildings only via the basement (not the Ground Floor), and must be carried in a pet cage or be restrained by leash within a pram, stroller, trolley or similar device, when being taken from the lot across the Common Property.

• [9] The respondent body corporate has admittedly on the strength of this by-law, imposed a blanket prohibition of animals in the foyer on the ground floor of the building tower. According to it, animals are not permitted to use the main entrances and exits of this building that open into or around the foyer, and must only enter and exit the building through the basement.
• [10] For owners and occupiers living in the upper (non-ground level) floors of the building tower, this by-law appears to work in a relatively straightforward manner. As I understand it, they walk out the main door of their lots with their approved animal, through the foyer of which ever upper floor they are on, to summon the building lift which they use to reach the basement. They then exit the basement with their animal - either in a vehicle through the basement driveway or on foot through the pedestrian basement exit ('Boardwalk Door') that opens into a boardwalk or the basement driveway itself. They follow this process in reverse to enter this building.
• [11] However, for the applicant who lives on the ground floor of the building tower, this by-law is argued by the respondent body corporate, to preclude him from using the same lifts to travel to the basement with Abby. The respondent body corporate has instead provided the applicant with various alternative routes, which he complains as being highly inconvenient, onerous, often unsafe and unreasonable.
• [12] The applicant can exit the building tower on foot with Abby, through the door to the patio within his ground floor lot, which leads into the visitor car park and then onto the street. However, it is challenging for him to enter and leave the building tower with Abby in his vehicle, which is lawfully and ordinarily parked in the basement. The challenges associated with this vehicular access is one of the two main aspects of this dispute.
• [13] In these circumstances, the applicant also claims that a total prohibition of pets in the ground floor foyer of the building tower is unreasonable.
• [14] He further states that the impact of this by-law on other occupiers who have approved 'visiting pets' is unreasonable, given they are unable to access the building with a visiting pet without first entering scheme land just outside of the building tower, i.e., the visitor car park, and then leaving the scheme with the host occupier, walking out in the street around the scheme to the Boardwalk Door or the basement driveway. This is the second aspect of the dispute.
• [15] Accordingly, the applicant seeks an order for By-law 11.4(a) to be invalidated on the grounds of unreasonableness. He seeks an amendment of the same so that pets may be permitted in the ground floor foyer.

• [16] 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')[2] or about the exercise of rights or powers or performance of duties under the Act or CMS.[3] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[4] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [5]
• [17] 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).

• [18] This application was lodged on 23 August 2024.
• [19] On 12 September 2024, the Commissioner through her delegate sought further information from the applicant pursuant to section 240 of the Act.
• [20] Subsequently, the applicant provided the information sought and amended his application.
• [21] On 1 October 2024, the Commissioner provided a copy of the application and invited all owners, affected persons, and the committee (on behalf of the respondent body corporate) to make submissions.
• [22] Submissions were made by the committee on behalf of the respondent body corporate, the representative of the owner of lot 96, the owners of lots 4, 16, 22, 23, 47, 49, 51, 52, 53, 55, 58, 59, 82, and the occupiers of lots 27, 32, 34, 35, 37, 64, 82, 87,103.
• [23] Subsequently, the applicant obtained copies of the submissions and replied to the same.
• [24] On 11 December 2024, the Commissioner referred the dispute to department adjudication.
• [25] On 22 May 2025, I requested further information from the applicant, and invited the respondent body corporate to comment on the same. On the same day, I also shared with the respondent body corporate the reply made by the applicant and invited comment.
• [26] On 28 May 2025, the applicant provided the information sought. On 29 May 2025, the respondent body corporate provided its views on the applicant's submission and the additional information provided by the applicant.
• [27] I have investigated the dispute by reviewing the application, submissions, reply and further information provided, in accordance with section 271 of the Act.

The approximate location of the doors to the lifts on the ground floor foyer and the residential portion of Lot 13 on level B is portrayed in Figure 1. The route between the former and the door to the latter is roughly marked in red in this figure.

The applicant states that the distance between the door to this part of Lot 13 to the closest lift is 180 cm. He along with multiple lot owners states it is unreasonable for him to not be permitted to traverse such a small area of the foyer with Abby (in a trolley) to access the lifts.

There is a probability aspect of the applicant summoning the lift closest to the residential portion of his lot. In other words, he may not always be able to summon the lift closest to his lot, and would also have to use the other two lifts. This means that Abby may have to be moved in a trolley further through the foyer if permitted to access the lifts.

The respondent body corporate has permitted the applicant to temporarily park his vehicle in the visitor parking spaces to take Abby in and out of the building tower.

The location of the visitor car park is depicted in Figure 2. The routes to it from the residential portion of Lot 13 (as I understand it) is marked in this figure.

Accordingly, one of the routes made available to the applicant ('Route 1') is for him to take the foyer lift without Abby; access his vehicle parked in the basement; drive out of the basement and travel to the visitor car park via Goodwin Street; park his vehicle at the visitor car park; walk to the patio within Lot 13; collect Abby and walk back to his parked vehicle.

• [34] A second alternative ('Route 2') as described by the applicant is for him to take Abby out of the patio of Lot 13 to the visitor car park; walk along Goodwin Street to the basement where his vehicle is parked.
• [35] The applicant states that there are major safety concerns when travelling into and out of the basement on foot via the basement driveway given the absence of a pedestrian access thereon. He states that there is a risk of collision with an oncoming vehicle given various blind spots.
• [36] The applicant describes a third alternative ('Route 3') involving the use of the Boardwalk Door, i.e., the pedestrian entrance to the basement, which he states at the time this application was made was fenced off and closed to the public. (If it were open, the applicant could have walked with Abby out of his patio through the visitor car park, down Rotherham and Goodwin Streets into the basement car park through the Boardwalk Door.)
• [37] The applicant describes a fourth alternative ('Route 4') as being available on request. He states that this involves the use of a lift that services the villas at the scheme.
• [38] He states that all four routes to his vehicle involve him being exposed to the elements, often having to get wet in the rain with Abby. He states that he requested some flexibility from the respondent body corporate for when it rains, and he was provided with none.
• [39] He also states in this regard that it is unreasonable to be expected to walk out into the street to exit the building with an approved animal, given high crime rates in the area. He provides statistical data from the Queensland Police Service which indicates that 353 offences have occurred in Kangaroo Point between 2019 and 2024.

• [40] The visitor car park is located on the ground floor unlike the occupiers' parking which is in the basement. The applicant states that given the by-laws at the scheme, the manner in which a visitor to the scheme with an approved animal, is made to access the relevant lot is unreasonable.
• [41] He states that the host occupier first buzzes the visitor into the visitor car park; travels to the visitor car park; accompanies the visitor and the approved animal out into the street; walks along the street to the basement driveway or the Boardwalk Door (unless fenced off and closed); and travels up the lift from the basement.
• [42] The applicant states that the respondent body corporate proposed than an owner may give the visitor an extra fob to access the basement. He reiterates that given rising crime rates in Kangaroo Point, it is unreasonable to be required to walk in the streets at night to let a visitor and an approved animal into the building tower.

• [43] The applicant states that he attempted to have By-law 11.4(a) amended to remove the restriction of approved animals on the ground floor of the building tower, by way of a motion tabled at the 2023 annual general meeting ('AGM'). He adds however, that prior to the AGM, the committee of the respondent body corporate sent the following email to all owners:

Allowing an animal to transit the foyer to access the lifts or the VCP will unavoidably lead to multiple dogs traipsing across the full width of the foyer, climbing on the furniture and disturbing owners and visitors. These rules were made crystal clear to the current building manager before contracts were signed and now, less than a year later, this proposed change would upset the careful balance.

All residents must follow the bylaws and there is a particular duty on leaders, Body Corporate members, and the Building Manager to set an example and uphold the agreed, tested, balanced Community bylaws for everyone's comfort. Everyone should be treated equally and there can be no special privilege: Vote no.

• [44] This motion was defeated with 26 votes in favour, 43 against, one abstention and one invalid vote.
• [45] Subsequently, on 5 February 2024, the applicant sought committee approval to be able to use the foyer lifts to reach the basement with Abby, on the grounds that it was unreasonable to expect him to have to leave the building tower in order to get Abby to and from his vehicle.
• [46] On 20 March 2024, the committee denied the applicant's request and stated that in 2022, an adjudicator had previously found the same by-law to not be unreasonable. It added as follows:

...there is no aspect of discrimination or unfairness to you here; this policy has been in place for a very considerable period of time; and for the record, there is not a single Resident in the building who has been granted the allowance which you seek; namely to be allowed to transit your animal via the ground floor foyer to the lift.

• [47] The applicant states that the wording of By-law 11.4(a) is so ambiguous that it does not allow a pet on the ground floor which includes the residential portion of Lot 13. He states that this is impractical.
• [48] The applicant once again sought to have the by-law amended by way of a motion at the 2024 AGM. This motion was once again defeated with 24 votes in favour, 36 against and 5 abstentions.

• [49] The committee made a submission in response to the application on behalf of the respondent body corporate.
• [50] It states that the intended effect of By-law 11.4(a) is 'to prohibit the entry and movement of animals in the Macleay ground floor foyer'.
• [51] It states that much of the material in the application is exaggerated and disingenuous.
• [52] The respondent body corporate states that the applicant fails to acknowledge certain advantages arising from the residential portion of his lot being located on the ground floor, adjacent to the visitor car park.
• [53] It states that Route 1 is straight forward, safe, practical, timely and less stressful for Abby. It adds that importantly, it obviates any need for the applicant to undertake any entry or exit to the basement car park via the driveway with Abby in tow. The committee states that Route 1 allows the applicant to get his approved animal to his vehicle much quicker than owners residing on upper levels of the building tower.
• [54] The committee states that there are further alternative routes available to the applicant which avoids the basement driveway which does not have a footpath. One such alternative ('Route 5') is the applicant walking Abby on a lead out of the patio of his lot, through the covered walkway by the villas from where they can descend the building stairs to the boardwalk, and enter the basement through the 'door used by the villa lot owners' or the 'western basement entrance door' (Based on my understanding this is a reference to the Boardwalk Door. The applicant states that there are no other pedestrian entrances/exits to the basement saved for locked emergency doors). Accordingly, the committee states that this option does not require the applicant to leave the scheme to get Abby to the basement.
• [55] The committee also states that the applicant can ('Route 6') walk Abby out of his patio into the Boardwalk through a vacant grassed land owned by the respondent body corporate.
• [56] Further, the committee states that it has not received any complaints regarding visiting pets. It adds that there are several ways in which a visiting animal can access the relevant lot, one being for the lot owner to provide the visitor with a fob to access the basement lift. It states that if a visiting animal were to visit the applicant's lot, there is the added benefit that he can take the animal from the visitor car park directly to his patio.

• [57] The applicant states among other things that the additional routes proposed in the submission are nearly impossible to take. For e.g., he states that he is unable to push Abby in a trolley (as required by the by-laws) down a flight of stairs. He adds that he has only been given approval to walk Abby on a leash in the visitor car park, and is prohibited from doing so on other areas of common property. (I note that the respondent body corporate submits otherwise.)
• [58] The applicant also provided photographs (during the replies stage) to demonstrate that access to the Boardwalk from a particular point is blocked with steel gates. However, on 28 May 2025, the applicant indicated that occupiers no longer have to unlock a steel gate to access the Boardwalk Door. (I note that the respondent body corporate maintains that the Boardwalk Door has consistently been accessible.)

• [59] Whilst I have not detailed every element of the application, submissions, reply and further information provided, all such material have been duly considered.
• [60] The question before me for determination is whether By-law 11.4(a) is unreasonable or oppressive which goes hand in hand with the question whether the condition imposed under this by-law is reasonable and appropriate; whether it must accordingly be invalidated; and whether the by-laws ought to be amended.

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

• [61] 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.[6]
• [62] 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.[7] Additionally, a by-law cannot discriminate between types of occupiers;[8] and a by-law (other than an exclusive use by-law) cannot impose a monetary liability on the owner of occupier of a lot.[9] Further, if a by-law is inconsistent with a provision of the legislation, the legislative provision prevails to the extent of the inconsistency.[10] 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.[11]
• [63] 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.[12]
• [64] In 2023, Parliament enacted new 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.

• [65] 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.

• [66] 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.

• [67] 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 -

1. 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.
2. 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

(c) the animal is a regulated dog under the Animal Management (Cats and Dogs) Act 2008;

(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).

• [68] 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.
• [69] 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 on scheme land.
• [70] 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.
• [71] 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 any conditions.

(b) Does By-law 11.4(a) prohibit approved animals in the foyer?

• [72] As stated above, By-law 11.4(a) states as follows:

The Approved Animal must not roam on the Common Property, must enter and leave the buildings only via the basement (not the Ground Floor), and must be carried in a pet cage or be restrained by leash within a pram, stroller, trolley or similar device, when being taken from the lot across the Common Property.

• [73] By-law 11.4(a) does not prohibit the keeping or bringing of an approved animal onto the ground floor (such as level B of the building tower which includes the foyer). It only pertains to the use of the scheme buildings' exterior entrances and exits, in the sense that those on the ground floor cannot be used to enter or exit the scheme. I am confounded by the interpretation adopted by the respondent body corporate of this by-law, which does not upon any reasonable construction prevent an owner such as the applicant (whose lot is mainly situated on the ground floor) from using the internal lifts accessible from the same floor to take his pet to and from the basement to enter and exit the scheme.
• [74] It is worth noting that unlike By-law 46 which states that wheeled recreational devices 'are not to be taken into or through the foyer of the tower', By-law 11.4(a) has no such wording. Even if By-law 11.4(a) had such wording, there would be questions as to its reasonableness in its application to the applicant.
• [75] Accordingly, the applicant is not prevented by the by-laws from taking Abby out of his lot, to the basement car park via the lifts in the foyer, so long as Abby is restrained by a leash and placed within a stroller or trolley or similar device. The applicant is simply prevented from taking Abby through the exterior entrances and exits on the ground floor, including the doors that open into the foyer.
• [76] This settles one aspect of the dispute.

(c) Is By-law 11.4(a) oppressive or unreasonable?

• [77] The condition in By-law 11.4(a) is not in my view inherently unreasonable. It is common for bodies corporate to impose conditions requiring animals to be taken in and out of the scheme through the basement.
• [78] However, I am of the view that By-law 11.4(a) is unreasonable given it does not provide the respondent body corporate or its committee any discretion or room to waive or vary the condition thereunder, when the circumstances warrant it. To that extent, By-law 11.4(a) is invalid.
• [79] The legislation very clearly embodies the principle that conditions for pet approvals ought to be imposed if reasonable and appropriate in the individual circumstances of each case. As stated above in this decision, it is not always reasonable for a set of rigid conditions to apply to all pet approvals at a scheme not accounting for the specific circumstances of the animal concerned, the particular lot where the animal is to be brought to or kept, the circumstances of the occupier keeping or bringing the animal, and more.
• [80] In the case of the applicant, By-law 11.4(a), strictly speaking prevents him from taking Abby out of his patio given the prohibition on using the ground floor exits on the buildings' exterior. Accordingly, this technically precludes all of the six alternative routes identified in this dispute.
• [81] Furthermore, the respondent body corporate states that it has made numerous dispensations for the applicant to facilitate these alternative routes, for e.g., in dispensing with the requirement under the same by-law for Abby to be placed in a trolley when traversing the visitor car park, or certain other walkways and flights of stairs within common property.
• [82] It is pertinent to note that a committee may only dispense with a condition under a by-law if its by-laws expressly provide it with the discretion to do so. In this case, the by-laws afford no such discretion, and any dispensation of the same is strictly speaking unlawful and invalid.
• [83] In these circumstances, I order the respondent body corporate to amend this by-law accordingly and record a new CMS to that effect.

• [84] I will consider the by-law in question, its purpose and impact in the context of visiting pets below.
• [85] The objective of the relevant aspect of By-law 11.4(a) is (subjectively as per the evidence) to keep the foyer animal-free, and due to concerns that in the absence of such a prohibition, the animals would climb onto the foyer furniture and disturb owners and visitors.
• [86] I note that there are already other conditions in place to tackle these concerns. For e.g., the requirement for approved animals to either be carried in a cage or restrained by a leash whilst being placed in a trolley or similar carrier, eliminates the risk of their climbing the furniture or roaming on the common property. Further, there is already a condition under 11.4(f) that the approved animal must not cause an unreasonable nuisance to any person. Moreover, if there is any concern about approved animals 'roaming' in the ground floor foyer, there is already a condition prohibiting the same.
• [87] Any desire to keep the foyer animal-free simply because majority of the owners dislike their presence, is by itself not a reasonable ground for the prohibition.
• [88] The purpose of this by-law objectively however, is for the respondent body corporate to practically control the exterior access points to the building tower and villa building on the ground floor to the exclusion of use by animals. This is not prima facie (at first glance) inherently unreasonable. For e.g., if there are suitable and safe alternative access points for all beings authorised to use the same (including visitors and visiting animals), it may very well be reasonable and appropriate.
• [89] The respondent body corporate appears to hold the view that an owner or occupier who hosts a regular visitor and visiting animal could provide the visitor with a fob to access the basement entrances.
• [90] By-law 41.1(c) prevents visitors from parking in the basement car park. Accordingly, as I understand it, even with a fob, a visitor cannot drive to the basement with the visiting animal and park the vehicle on common property.
• [91] There is some mention in the supporting documents of the application to a visitor entering the basement through the foyer of a different scheme building (described as 'Stradbroke Tower next door'). I note in this regard that it is unreasonable to require visitors to enter through the access points of a different scheme. The series of easements benefiting Macleay Tower & Villas does not extend so far as to make this route through Stradbroke Tower & Villas reasonable and appropriate.
• [92] I also note that the owner of Lot 58 made the following submission:

This by-law also affects those who have pets and shared parenting arrangements, especially those with young children. Instead of being able to picked up [sic] by the non-residing parent from the visitors car park or foyer entry, the children & pet(s) need to be taken to the basement and walked up the non-pedestrian basement driveway in any type of weather. Consider the safety risk in walking two young children with their bags and pushing a pet carrier with pet up the basement driveway at night when it is raining.

• [93] However, the parties note that a visitor can safely bring a visiting animal to the building tower provided the host occupier travels to the visitor car park and accompanies the visitor and visiting animal out of scheme land to the Boardwalk Door. Alternatively, the occupier may provide the visitor with a fob to access the same route alone.[13]
• [94] I am conscious that this approach is inconvenient, but that does not necessarily mean that the respondent body corporate has acted unreasonably in imposing such a condition (section 94(2) of the Act), or that the condition in itself is inappropriate or unreasonable. It depends on the circumstances of each request to bring a visiting animal onto scheme land.
• [95] I have not been provided with sufficient details of any/all of the approved visiting animals, the frequency of their visits, the circumstances of the occupiers hosting them and of the visitor bringing them, the lots they are being brought into etc. As a result, I cannot make an individual assessment as to the reasonableness and appropriateness of the condition with respect to each approval.
• [96] Accordingly, my decision to invalidate By-law 11.4(a) to the extent that it does not provide discretion to the respondent body corporate or its committee to vary or waive the condition where individual circumstances warrant the same stands. This would allow any specific occupier aggrieved by this condition to seek variation or a waiver of this condition based on their circumstances. The respondent body corporate must act reasonably when considering such a request. It cannot deny such a request solely on the grounds that the foyer must be an animal-free area.

• [97] One of the main arguments made by the respondent body corporate is that By-law 11.4(a) having been the subject of a dispute that was adjudicated in 2022, was determined to not be unreasonable. This is the dispute that was the subject of application bearing reference 1359-2022, with a decision being made under the citation Macleay Tower & Villas [2022] QBCCMCmr 237 ('2022 Decision').
• [98] The 2022 Decision concerned an application by a lot owner seeking an order deeming a motion to have passed. This motion proposed the amendment of By-law 11.4(a) (as it then was) essentially removing the requirement to carry an animal in a pet cage when being taken from the lot across common property, and removing the requirement to enter and leave the scheme buildings via the basement as opposed to the ground floor.
• [99] The lot owner had argued that the by-law was almost impossible to comply with, and the difficulty navigating the basement route with her dog.
• [100] The adjudicator made the following findings and observations:

At the outset, I do not consider there is any basis to view these provisions as prohibitory rather than regulatory such that they are beyond the by-law making power of the body corporate. To the extent that they prohibit animals being taken through the ground floor or walking on the ground, that is simply the manner in which the regulation is effected. However, there are questions as to whether the by-law conditions could be viewed as oppressive or unreasonable.

Restrictions on where animals can go on common property are common in bodies corporate. In my experience, it is not unusual for bodies corporate to require animals to enter and exit via the basement or not to traverse the entrance foyer. That is particularly so whether there has been conflict about the presence of pets at the scheme.

Evidently, the need to take animals via the basement is inconvenient and time-consuming for the applicant and her family, and presumably other pet owners. However, the applicant does not substantiate her claim that it is 'almost impossible' to comply with this requirement. She has not shown that she and her family cannot physically take their dogs through the basement or that it would be unsafe to do so. She does not evidence that the driveway cannot be safely used as a pedestrian thoroughfare and, even it [sic] is, there is an alternative pedestrian exit**.** Moreover, I do not consider the applicant has established that the additional time and inconvenience involved in using the basement, when compared with going through the ground floor, is significant. The fact that a by-law condition makes an activity more difficult or onerous does not of itself render the by-law oppressive or unreasonable.

The impost of this condition on pet owners must be balanced against the reasons for its inclusion. Where there are genuine concerns about the impact of various uses of common property on others, regulation can be appropriate to balance the competing interests and minimise the risk of adverse impacts. It appears the body corporate has sought to prevent pets traversing the foyer to maintain its ambiance, protect its high quality surfaces and fittings, and limit interactions with those who do not wish to be exposed to animals. It does not wholly resolve the concerns, as the risks of adverse incidents remain in the lifts and the basement areas. However, it addresses the concerns in respect of the foyer, which would appear to be a focal point for the scheme and the subject of considerable investment. The applicant does not agree with the concerns regarding the potential impacts of animals in the foyer, or considers the risks are low. However, while the applicant may not share the concerns of others, she has not established that they are irrelevant or irrational considerations for the body corporate.

Ultimately, having regard to the circumstances at this scheme, I am not persuaded that the by-law requirement that pets enter and exit via the basement and not the ground floor is oppressive or unreasonable such that it would render that part of By-law 11.4(a) invalid.

• [101] I note that the 2022 Decision predates the 2023 Amendment. It also predates the respondent body corporate's authorisation to keep and bring an animal (Abby) in a lot on the ground floor of the building tower.
• [102] Further, based on my interpretation of the 2022 Decision, it appears that the lot owner did not discharge her onus of proof and demonstrate to the satisfaction of the adjudicator that this by-law was unreasonable or oppressive in the circumstances. Such a finding is not the same as determining the by-law to have been reasonable or not unreasonable whatsoever. The lot owner's application in that instance was simply not probatively successful.
• [103] The 2022 Decision does not prevent another aggrieved owner from challenging the reasonableness of the by-law on the same or different grounds. It also does not preclude the success of such a challenge if the circumstances in question and evidence provided warrants it.
• [104] In this case, the applicant has discharged the onus of proof as to the reasonableness of the relevant by-law. This is a significant point of difference.
• [105] A by-law containing a condition (subject to which approval is granted to keep or bring an animal onto scheme land) may be reasonable for one scheme but unreasonable for another, and reasonable in one context, and unreasonable in another.

• [106] The respondent body corporate claims that if the applicant was permitted to exit and enter the building tower with Abby through the foyer lifts, others too would request to do the same.
• [107] I reiterate that the 2023 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 the 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).
• [108] I agree that maintaining consistency is the norm. In the case of the imposition of a set of conditions on all, 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.
• [109] The respondent body corporate also states that the applicant as the caretaker and letting agent has not modelled appropriate behaviour. There is no evidence that the applicant has failed to comply with the by-law. On the contrary the evidence indicates that the applicant has complied and complained about the by-laws.

• [110] I am disquieted by some of the submissions made, particularly that by the occupiers of Lot 16. Having said so, there is no evidence that the statements made thereunder were expressed to the respondent body corporate, or that it was actually given an opportunity to address them.
• [111] These occupiers submit as follows:

Both my husband, [...] and I live with disabilities. My husband has terminal spinal cancer and is wheelchair bound, requiring wheelchair accessible "maxi taxis" to attend most appointments. I myself have Ehlers Danlos Syndrome, a connective tissue disorder resulting in frequent joint dislocations, severe arthritis and painful mobility requiring either a walker or walking stick to mobilise. I have also had a brain tumour resulting in a stroke and now have permanent balance, perception and thermoregulation issues.

Due to our disabilities we require frequent "maxi taxis" for travel, which must stop at the ground floor portico entrance as they need safe, flat access for the wheelchair ramp.

When we visit family, friends, or attend personal events we quite often take our approved and much loved pet, Milly with us. However, due to this restrictive By-law, we are not allowed to bring our pet from our unit, into the foyer to reach the only safe wheelchair accessible area for the taxi, this is despite her being secured in an approved carrier. When we do need to take Milly out of the building, my husband has to wait in the temperature controlled foyer, while I navigate the exhausting task of getting Milly and myself to the portico area, directly outside of the foyer, where [he] is waiting, so we can leave.

Let me put this in perspective: I have escort [sic] my husband from our unit to the entrance foyer, then I have to leave my wheelchair bound and very ill husband unattended in the foyer entrance; return to our unit to retrieve Milly in her carrier, take the lift to the basement and walk through the carpark; up the steep driveway; navigating oncoming traffic, and manhandling a heavy and awkward pet carrier; all whilst struggling with my mobility aid. Walking amongst traffic or on uneven ground, even with a walking aid places me at higher risk of personal injury or accident. When I finally return to the entrance and my husband, I'm in pain, over-heated and exhausted. [He] has to wait inside the foyer while I have to wait outside for the taxi with Milly in her carrier...

• [112] This adds further to my finding that although the condition under the by-law in question is not inherently unreasonable, there must be room for the respondent body corporate or its committee to make an exception for someone whose circumstances warrant it.

(c) Observations regarding any prohibition on Abby from traversing the ground floor foyer

• [113] Whilst I have found that By-law 11.4(a) does not in fact prohibit the applicant and Abby from accessing the lifts in the foyer of the ground floor of the building tower to reach the basement, this decision does not prevent the respondent body corporate from amending its by-laws to include such a prohibition (with room for itself or its committee to vary or amend the same depending on the circumstances). If that were to happen, this dispute could persist.
• [114] Accordingly, I would like to note some of my observations solely to aid the parties in their efforts at internal dispute resolution if this dispute were to indeed persist, or more optimistically to prevent the dispute from persisting.
• [115] I would like to reiterate my observations further above regarding the purpose of any such prohibition and how there are already conditions in place to tackle the concerns expressed by the respondent body corporate in the email sent with respect to Motion 11 prior to the 2023 AGM .
• [116] In relation to the impact of any such prohibition, I reiterate that all of the alternative routes involve Abby being taken out of the applicant's patio, which strictly speaking is prohibited under By-law 11.4(a). Similarly, the respondent body corporate has indicated that the committee dispensed with the requirement for Abby to be placed within a trolley in order to access multiple routes involving staircases or steps such as Routes 4[14] and 5[15]. I reiterate that the by-laws do not authorise the committee to do so. I will however for the sake of this exercise (under this part of my decision), assume that these dispensations and authorisations will be made lawfully.
• [117] The applicant has provided evidence of the absence of a pedestrian access by the basement driveway, and of the safety and collision risk associated with walking down or up the driveway with an animal. The respondent body corporate states that occupiers habitually walk in and out of the basement driveway with and without their animals, and have done so without incident for the past 25 years. I also note that various mirrors have been installed to tackle the risks posed by the blind spots in this area.
• [118] I observe that the current measures in place in the basement driveway appear insufficient for safe pedestrian access. I note the likelihood that this driveway was not built for pedestrian access, and has seemingly not been modified for the same. There appears to be no appropriate signage of pedestrian use or markings of a pedestrian path. The lack of incident does not necessarily mean it is safe. Accordingly, Route 2 in my view is not a reasonable option for pedestrian access.
• [119] The respondent body corporate describes Route 1 as the ideal option that does not pose any safety risks. Both Routes 1 and 2 involve the applicant parking his vehicle at the visitor car park. In this regard, I note By-law 41.1 which states as follows:

(a) must not park any vehicle anywhere on the scheme land except within the space in the basement car park which forms part of their lot (as indicated by the painted numbers);

(b) is not permitted to park in the Visitor Car Park at any time other than for car washing purposes;

(c) must not permit or allow an invited visitor to park a vehicle on common property in the basement car park;

(d) can provide access to the Visitor Car Park for the vehicles of invited guests and/or services vehicles for parking purposes, for an overall period of up to ten (10) hours between the daylight hours of 6am to 6pm - Vehicles are not to be parked in the car wash bays (other than for that purpose) or in front of the garbage compactor or sliding door or in any area other than marked parking bays;

(e) a bona fide visitor may park in the Visitor Car Park from 6pm to 6am, and subject to the same conditions as in (d); and

(f) a bona fide visitor may not park in the Visitor Car Park for consecutive nights, or for any other extended period of time, without written approval from the Building Manager. The Notice of Approval must be displayed in a visible position on the vehicle dashboard.

• [120] By-laws 41.1(a) and (b) clearly preclude the applicant from parking in the visitor parking spaces. As stated further above, the committee cannot dispense with a requirement under a by-law unless the same expressly provides it with the discretion to do so. In this case, the committee has been vested with no such discretion, and accordingly, cannot lawfully permit the applicant to park in the visitor parking spaces to facilitate any alternative routes for Abby to enter and exit the scheme.
• [121] I cannot meaningfully examine Route 4 given it practically has not been made available to the applicant.
• [122] With respect to Route 3, the applicant provided photographic evidence of an entrance to the Boardwalk being closed. However, the evidence provided on 28 May 2025, indicates that the Boardwalk Door is now accessible. The respondent body corporate maintains that it has always been accessible. In this regard, it notes that it has also proposed Routes 5 and 6. These routes appear to be realistic alternatives for the applicant to (at least now) access the basement, i.e., through the Boardwalk Door.
• [123] I note that the respondent body corporate states that Routes 5 and 6 do not involve the applicant and Abby having to leave scheme land to access the basement. However, both routes involve entry to the boardwalk which does not appear to be part of scheme land.
• [124] I note that the committee expressed to the applicant that the prohibition is not unfair stating that the allowance which he seeks for Abby to traverse the ground floor foyer to access the lift is one that has not been granted to any other occupier. I respectfully disagree with that position. As stated further above, the applicant is the only occupier residing on the ground floor of the building tower. Every other occupier in this tower resides on the upper floors and is allowed to enter and exit the tower through the lifts that can be summoned in the foyers of their respective floors. Any prohibition therefore may indeed be unfair to the applicant, given it may not achieve any 'equality in fact'.
• [125] Equality in law precludes discrimination; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.[16]
• [126] I note that the applicant has the advantage unlike other occupiers to exit the scheme with Abby through his patio on foot, whereas all other occupiers wishing to exit the scheme on foot with their animals must use the Boardwalk Door (or the basement driveway albeit they would voluntarily be assuming the associated safety risk).
• [127] However, this advantage alone must not be used to justify any prohibition on the applicant and Abby from using the foyer lifts.
• [128] I note that the main alternative route proposed by the committee which it notes is safe, simple and practical is Route 1. I have expressed the issues associated with this route above. Even if the respondent body corporate were to amend By-law 41.1 to permit the applicant to lawfully park in the visitor car park, it may have to ascertain whether its development approval allows it to do so. If it does not, the respondent body corporate may or may not be of the view that Routes 5 and 6 are as convenient as Route 1 for the applicant and Abby. And if so, it may hold the view that any such prohibition is unreasonable.
• [129] The respondent body corporate may consider these observations if it intends to impose such a prohibition in the future. It may reasonably anticipate a challenge to any such prohibition, and so it would be prudent to consider the reasonableness and appropriateness of the same prior to its imposition.

• [130] I find that By-law 11.4(a) as it is currently worded does not prevent the applicant from taking Abby through the lifts accessible from the foyer of the ground floor of the scheme's building tower.
• [131] I am satisfied that this by-law is unreasonable due to a lack of discretion afforded to the respondent body corporate or its committee to vary or waive the condition thereunder when the circumstances warrant the same. Accordingly, I order the respondent body corporate to amend this by-law and record a new CMS to that effect.

[1] The applicant is also the scheme's caretaker and letting agent.

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

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

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

[12] 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]

[13] The same route working in reverse when a visiting animal is to leave the scheme

[14] Route 4 involves a step with hydraulic doors closing behind the same

[15] Route 5 involves a flight of stairs

[16] Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64 (Apr. 6) at [63] citing German Settlers in Poland, Advisory Opinion No. 6, 1923 P.C.I.J (Sep. 10)