TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Siger Super Services Pty Ltd, the owners of lot 1

I hereby order that the application by Siger Super Services Pty Ltd, the owners of lot 1, for orders that it shall, quote:

1. be permitted to have two small dogs within its lot provided that the dogs do not create a nuisance;

2. that the dogs shall only be allowed on common property for the purpose of prompt access to and from the lot and only if the dogs are in a vehicle or walking on a lead held by a person capable of controlling the dogs; and

3. be permitted to install a sliding window / door in its lot in accordance with plans drawn by Tod Engineering and submitted to the body corporate,

STATEMENT OF ADJUDICATOR'S REASONS FOR DECISION - REF 0321-2005

The applicant, Siger Super Services Pty Ltd, the owners of lot 1, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Keeping Pets

An order that the applicant, Siger Super Services Pty Ltd, shall be permitted to have two small dogs within its lot provided that the dogs do not create a nuisance.

An order that the dogs shall only be allowed on common property for the purpose of prompt access to and from the lot and only if the dogs are in a vehicle or walking on a lead held by a person capable of controlling the dogs.

Renovations

An order that the applicant, Siger Super Services Pty Ltd, shall be permitted to install a sliding window / door in its lot in accordance with plans drawn by Tod Engineering and submitted to the body corporate.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme is a subdivision of 21 lots recorded under a building unit plan of subdivision. The regulation module applying to the scheme is the accommodation module.

This is a dispute regarding two issues; authorisation for the keeping of animals upon a lot and authorisation for the making of certain improvements to a lot. In relation to the application, this office sought submissions from the body corporate committee and all owners. 10 of 20 (excluding the applicant) owners have made submissions opposing the application, or at least opposing the keeping of animals on the lot. The applicant has replied to those submissions. I consider that the disputes evidenced by the application are particularly acrimonious. It appears reasonably clear, based on submissions, that for whatever reason since the purchase of the lot, the applicant (or at least the individuals behind the corporate owner) has not enjoyed good relations with the committee or several other owners.

I intend to dismiss this application in respect of both aspects sought, for the reason that I consider the proper forum, and in the case of the proposed improvement, the necessary forum for the determination to be made is the body corporate in general meeting. I will deal with the two issues in turn.

The requested authorisation for animals (2 dogs)

The applicant has been refused permission to keep 2 dogs upon the lot. The applicant relies on claims of acquiescence and discrimination as its basis for seeking that an adjudicator overturn the committee's refusal. With the publication of Adjudicator's Orders on the Internet, it is clear there is growing knowledge of the basis on which disputes of this nature might be considered. That is, as a general observation, essentially the only basis on which an owner or occupier might successfully overturn a body corporate determination not to allow animals, when the same is contrary to the by-laws, is to establish that the body corporate has acted inconsistently vis-à-vis owners / occupiers, and has allowed, or at least acquiesced, to the keeping of an animal by one or more owners but not others. It is a requirement of the legislation that the body corporate must act reasonably; reasonableness required that the body corporate must act consistently and fairly towards all owners.

Situations of acquiescence or discrimination by the body corporate are often clear cut. However, I do not consider this to be the case here. It is reasonably clear to me from submissions received that the policy of this body corporate is not to allow animals, and that generally owners do not support the keeping of animals at the lot. However this position is complicated in this instance by the keeping of a dog by the resident manager for the complex, and allegations that another owner brings a dog to the lot from time to time. I refuse to get into the semantics of these allegations.

I consider that the applicant is hoping that I find discrimination or at least acquiescence on the part of the body corporate regarding the issue of animals, and for this reason, will order in terms as sought by them. However, I decline to do so. As mentioned above, I consider that the position of the body corporate and for that matter, the several owners who chose to make submissions to be reasonably clear on the issue of animals. In these circumstances, I consider it would be improper to impose on this body corporate an order contrary to this position. However in saying this, this body corporate has, via its actions or lack thereof regarding the keeping of animals, certainly exposed itself to the clear possibility of such an order, and unless it takes immediate steps to rectify this position, might very well have such an order made against it in the future.

My resolution of the dispute so far as it relates to animals is therefore to send a very clear message to this body corporate to immediately take steps to clarify and rectify its position on this issue. Perhaps due to certain naivety on the part of committee members, the resident manager appears to have been allowed to keep a dog, notwithstanding not having authorisation for this. This situation needs to be rectified immediately. That is, if the position of the body corporate is to prohibit animals, then this prohibition applies equally to the resident manager as it does to any other owner or occupier. There is no basis (including security) on which the resident manager is entitled to have an animal when other owners or occupiers are not.

Consequently, this body corporate should take immediately steps to enforce its stated prohibition on animals. If an owner or occupier of a lot is keeping an animal contrary to the by-laws, then this must be acted upon by the committee or the body corporate generally. If the body corporate fails in this regard, then the next order made by an adjudicator might be that animals are permitted. I cannot send a more clear message to the body corporate on this aspect.

In so ordering, I am electing to resolve this dispute in a manner which serves the stated interests of what appears to be a considerable number of owners. If I were to order in terms sought by the applicant, than rather than resolving this dispute, I consider that the keeping of the animals would in fact lead to further disputation. Moreover, it would lead to other animals possibly being kept in the complex. Consequently, I am telling this body corporate to get its house in order on this issue, or risk loosing control over this issue. This order is consistent I believe with my authority to make orders which are just and equitable for the resolution of the dispute.

The applicant has been refused permission by the committee to "install a sliding window / door in the wall side facing the eastern fence to increase the light". The applicant sought permission pursuant to by-law 8 headed "Appearance of building". The applicant alleges other owners have been permitted to carry out works on common property without consent of the committee under by-law 12. The applicant states that the effect of by-law 12 is similar to that of by-law 8.

Certain matters related to improvements need to be clarified. One might get the impression from the terms of by-law 8 that committee consent is sufficient in respect of aspects related to improvements. However this is not the case. Further, there are two scenarios which need to be contrasted, although the requirement for approval or authorisation is effectively the same.

The first situation is where an owner seeks to make improvements to common property for the benefit of a lot. Whilst it has not been specifically acknowledged, this is in fact the case here. I have checked the plan for the scheme and note that the wall of the applicant's lot in respect of which the improvement is proposed is in fact a boundary wall separating the lot from common property. This is so notwithstanding that the adjoining common property has been allocated to the lot by way of exclusive use. The boundary of a lot with common property is the centre of the floor, wall or ceiling which lies on, or for practical purposes is, the boundary structure.

Consequently, the proposed improvement is an improvement to the common property for the benefit of a lot. Section 113 of the Accommodation Module provides:

113 Improvements to common property by lot owner--Act, s 159 [SM, s 114]

(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner's lot.

(2) The improvement must be authorised by special resolution of the body corporate unless--

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner's duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section41--

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Clearly the proposal is not a "minor improvement" (an improvement with an installed value of less than $250) and consequently, requires the approval of the body corporate in general meeting by special resolution. Approval cannot be given by the committee under by-law 8. The applicants will need to submit their proposal by the inclusion of a motion on the agenda of a general meeting of the body corporate.

The second situation to be contrasted with this is where an owner seeks to make improvements to common property which has been allocated for the benefit of the lot by way of exclusive use. Section 123 of the Accommodation Module covers this scenario.

123 Improvements--Act, s 173 [SM, s 124]

(1) An exclusive use by-law may authorise the lot owner who has the benefit of the by-law to make stated improvements to the part of the common property to which the by-law applies.

(2) Without limiting subsection (1), improvements stated in the by-law may include the installation of fixtures on the common property and the making of changes to the common property.

(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.

(4) However, the making of the improvement mentioned in subsection (3) must be authorised by a special resolution of the body corporate if the value of the improvement is more than $250.

The requirement of a special resolution of the body corporate in general meeting is the same in either scenario. What differs is the relevant section under which the proposed improvement should be considered by the body corporate.

In the circumstances, I intend to dismiss this second aspect of the application also, since the applicant did not apply correctly under section 123 for authorisation of the proposed improvement, and the body corporate committee did not properly consider the proposal. The resolution of the committee regarding the proposal is invalid. The applicant will need to submit a motion for inclusion on the agenda of a general meeting of the body corporate.