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

ANIMAL BY-LAW; REASONABLENESS - whether the body corporate acted unreasonably by offering to approve the applicant's cats subject to conditions that would:

• prevent them from entering her poolside terraces, and
• require her to "show cause" as to why approval should not be rescinded and the cats removed in the event of a breach.

Act, ss 100(5), 169B(4)(a)&(6)(f); Accommodation Module, ss 50A(4), 50B; Land Title Act 1994, s 115L(3).

Within 21 days, the respondent must reconsider Ms Thomas' pet application of 21 January 2025 bearing in mind that the pool terraces for lots 128 and 129 are part of those lots, not common property.

• [1] Ms Thomas objects to conditions the body corporate committee wishes to impose on the keeping of her two new kittens at Mitre Street - Port Douglas. She seeks orders in the following terms:

I want the Body Corporate to approve my request for my 2 kittens on my Lots 128 and 129, > > I want the Body Corporate to remove the unreasonable additional rules they want to impose on my keeping of pets > > I want the Body Corporate to allow me to maintain my pets inline with the existing BC ByLaw for keeping of pets within our Complex. > > I want the Body Corporate to allow me to have my pet kittens on my exclusive use pool deck, (inline with the existing ByLaw), which cannot be accessed by any other lot owner, as it is surrounded by garden. > > I want the Body Corporate to cease any other further formal legal action, as continually threatened via email communications to me

• [2] Ms Thomas brought the kittens to the scheme last December without body corporate approval in contravention of by-law 8. A committee meeting on 17 December noted they had been observed "roaming on common property", which was said to be contrary to the conditions of approval for Ms Thomas' former cat. The committee resolved that the cats should not be permitted to roam on common property, and that if Ms Thomas now had a second cat she should seek approval for it.
• [3] A by-law contravention notice was issued to Ms Thomas on 5 January 2025 (though with an incorrect surname).
• [4] Ms Thomas applied for committee approval for the two new kittens on 21 January. The body corporate manager responded:

For the committee to consider your application please provide your written undertaking to comply with the conditions set out below: > > The following conditions are an essential component of the permit approval and will require your written agreement: > > 1. The cats are to remain indoors at all times or, if on their balcony, must be tethered and provided with access to shade and water at all times. > > 2. The cats are to be contained in a commercially approved pet carrier for any transportation to or from the lot. > > 3. Under no circumstances are the cats allowed to roam or be allowed on any area beyond the lot's balcony pool fence including but not limited to the external terrace or external corridors. > > 4. No area of the balcony is to be used for the toilets for the cats and any "kitty litter" receptacles are to be maintained internally > > 5. Any breach will result in the immediate revocation of the pet permit. > > 6. The applicants must provide written signed undertakings to comply with these conditions and moreover that in the event of any breach to agree to the immediate removal of the animals upon written notification authorisation of the Chairman of the Committee.

• [5] After some negotiation between Ms Thomas and the committee, the conditions were revised to:

1. For the removal of any doubt, under no circumstances are the cats allowed to be on, roam or be allowed on any area beyond your lot's balcony pool fence and on any common property including, but not limited to the external use terrace, gardens, pools or external corridors. The prohibition extends to being held in arms, pet enclosures, pool chairs etc on common property or otherwise being on any common property in any manner. > > 2. Notwithstanding the preference by the Body Corporate is for the cats to remain indoors at all times and if on the external balcony caged or tethered, the consent provided shall allow the cats to be uncaged and untethered on the external balcony on the strict conditions the owners; > > • the cats are under direct supervision at all times > > • ensure the cats never roam or escape beyond the lot's balcony pool fence > > • acknowledge any breach of this condition shall result in the forfeiture of the privilege to have the cats untethered or unrestrained on the external balcony > > • and the cats are provided with access to shade and water at all times. > > 3. The cats are to be contained in a commercially approved pet carrier for any transportation to or from the lot. > > 4. No area of the balcony is to be used for the toilets for the cats and any "kitty litter" receptacles are to be maintained internally. > > 5. In the event of any breach and upon written notification of the breach and authorisation of either the Chair of the Committee and or the resort manager, both applicants must show cause in writing within 48 hours (2 business days) as to why the consent for the two cats and/or the cat in breach should not be revoked forthwith and give effect to the immediate removal of the animal(s). > > 6. The applicants (Ben and yourself) must provide written signed undertakings to comply with these conditions (1 to 6 inclusive)

• [6] Ms Thomas once agreed with conditions 1-4 but did not agree that approval should be revoked and the cats removed in the event of a breach. She says:

The punishment significantly outweighs the issue, and I feel this is unreasonable.

• [7] She now also contests condition 1 to the extent that it would prevent her from allowing the cats on poolside terraces beyond the balcony fences.

8 Keeping of animals > > 8.1 Subject to section 181 of the Act, an Owner or occupier of a Lot must not, without the prior written consent of the committee of the Body Corporate, keep an animal upon their Lot of the Common Property, which consent may be withheld at any time by the committee. > > 8.2 An Owner or occupier of a Lot must not keep or take an animal upon the Common Property unless it is kept physically restrained or leashed. > > 8.3 Upon approval, the Owner or occupier of the Lot must ensure that noise from the animal must be kept to a minimum so as not to interfere with the peaceful enjoyment of the other occupants of Lots.

• [9] An amendment to 8.2 was authorised at an extraordinary general meeting on 15 October 2025 but has not yet been recorded by the Registrar of Titles and therefore is not in effect.[1] The amended version will read:

8.2. An Owner or occupier of a Lot must not keep or take an animal upon the Common Property. Dispensations shall be given for the purpose of ingress and egress to and from the Scheme on a case by case basis as part of the conditions for approval where appropriate and including but not limited to the domesticated animal is leashed and or in an approved pet carrier.

• [10] As a preliminary issue, the committee does not seem to have passed a resolution to grant or refuse Ms Thomas' application of 21 January. If the body corporate does not decide pet requests within 21 days they are automatically approved.[2]
• [11] However, the committee clearly considered the request, took a position on it, and communicated that to Ms Thomas within the statutory period, notwithstanding that it neglected the formal step of passing a resolution to that effect. I will proceed on the understanding that the committee refused the request because "the occupier does not agree to reasonable conditions proposed by the body corporate for keeping the animal", as permitted by the Act.[3]
• [12] The committee must act reasonably when making decisions under its by-laws.[4] Ms Thomas argues with respect to condition 5:

To agree to immediate removal and revoking of agreement if there is a breach, is unreasonable. Follow the normal breach process. We also have constant breaches of parking within the resort which the Committee notify with a note on the windscreen of a parking bylaw breach. To agree to removel of the kittens would be akin to selling a car and promising to never drive it again in the event of a parking bylaw breach.

• [13] But the present version of condition 5 only requires Ms Thomas to write within 48 hours of the chairperson or resort manager alleging a breach to say why approval should not be rescinded. It does not automatically revoke the committee's approval or require the removal of the kittens. A further resolution of the committee would be required for that, which would be subject to the committee's usual obligation to act reasonably.
• [14] Even without this condition, the committee has the power to pass a resolution to rescind its earlier approval for the cats. Ms Thomas would only be freed from the requirement to explain why the kittens should be permitted to remain, though I expect she would like to tell the committee her side of the story before it made that decision.
• [15] Ms Thomas' argument seems misconceived.
• [16] Nevertheless, an error is evident in the committee's reasoning with respect to Ms Thomas' kittens. That is the misconception that the pool terraces are common property. The pool terraces for lots 128 and 129 are part of those lots. They are marked as courtyards of 9m2 each on registered plan SP 189708 and are clearly within the boundaries of the lots.
• [17] I brought that to the committee's attention and asked how it influenced the committee's position with respect to whether the kittens might be permitted in those areas. The committee maintained that the pool terraces are common property subject to an exclusive use by-law in favour of lots 128 and 129. It referred me to by-law 27 and the exclusive use plan at page 34 of the community management statement.
• [18] By-law 27 grants the lots at Schedule E exclusive use of the courtyards shown as Y147-Y176 in attached sketch plans. But Schedule E does not grant lots 128 and 129 exclusive use of any courtyards. The plan at page 34 is unintelligible.
• [19] The notion that the pool terraces were common property clearly figured prominently in the committee's reasoning. The committee chairperson claimed in an email of 11 February that the proposed conditions of approval "only sought to keep the two cats confined to the private lot boundary" and all Ms Thomas needed to do to comply was to keep them within those boundaries and not on the "exclusive use terrace". The committee earlier contested whether a cat being held on the pool terrace by Ms Thomas was being "restrained or leashed" as required by by-law 8.2. The committee often referred to Ms Thomas' alleged previous breaches of the by-law, which seemed to include allowing her cats to roam on the common property when they were observed on her pool terrace.
• [20] To the extent that the committee based its decision on the mistaken premise that the pool terraces are common property, it acted unreasonably. They are not common property owned by all lot owners and administered by the body corporate. They are Ms Thomas' property. An unrestrained cat in that location is not in breach of by-law 8.2. The committee should have approached its decision with that in mind.
• [21] But that is not to say that body corporate approval should be deemed given on Ms Thomas' preferred terms; that is, stripped back to the bare terms of by-law 8. By-law 8 does not prevent the committee from approving pets subject to conditions not mentioned in the by-law. Failure to agree to reasonable conditions proposed by the body corporate is specifically recognised in the Act as grounds for refusing a pet application.
• [22] It was not necessarily unreasonable for the committee to seek to regulate the cats' presence on the pool terraces. It only acted unreasonably because its position on this issue, and possibly on the question of whether Ms Thomas was likely to breach the conditions of approval in future, was influenced by a misapprehension about ownership of the pool terraces.
• [23] Had that not occurred, I cannot say what decision the committee might reasonably have made. It might have been willing to permit the cats on the terrace if it realised that would not breach by-law 8.2. Or it may have felt they posed too great a risk to wildlife in that location. Or it might have permitted the cats on the terrace but with some additional measures in place to ensure they did not stray.
• [24] That decision belongs to the body corporate. I see no reason it should be divested of it. The committee was responsive to Ms Thomas' application, consultative, and flexible in response to her concerns. It appears to have genuinely attempted to balance her interests with its responsibility for the common property and by-laws. I expect it is capable of making a reasonable decision in compliance with this order.
• [25] For that reason, I will order the committee to reconsider Ms Thomas' pet application, but bearing in mind that the pool terraces are within lots 128 and 129. I will allow the usual 21 days for a decision of this sort.
• [26] The new version of by-law 8.2 should not disrupt matters if it comes into effect before the committee's decision is made. It will not have any bearing on the issues in dispute. The pool terraces are not common property, so they are unaffected by the change. Ms Thomas had no objection to the committee's condition 3 requiring the cats to be contained in a commercially approved pet carrier for any transportation to or from the lot. That would be a "dispensation" consistent with new by-law 8.2.

[1] Land Title Act 1994, s 115L(3).

[2] Act, s 169B(4)(a); Accommodation Module, ss 50A(4) & 50B.

[4] Act, s 100(5).