Pet Checklist (QLD)
Recently the former Chief Justice of the Supreme Court of Queensland, Justice Carmody, handed down an important decision of the Queensland Civil and Administrative Tribunal in relation to pets within bodies corporate; Body Corporate for Beaches Surfers Paradise V Backshell [2016] QCATA 177.
Even better Justice Carmody provided a pet decision making checklist, for when bodies corporate are deciding whether to allow pets.
In His Honour’s opinion, when making a decision whether to allow a pet, a reasonable committee would consider:
- Its proper legal requirements and its functions;
- The sources, purposes and limits of its discretion;
- All the relevant circumstantial considerations;
- Arguments for and against permitting (the pet) as distinct from other pets of the same type, or pets in general;
- The likely future consequences or gravity of refusing or granting permission on both the applicant and the CTS including any precedent value of its decision either way;
- The nature and extent of any infringement on the applicant’s rights, interests and reasonable expectations of the other pet loving residents;
- The majority view;
- The assessed magnitude and frequency of the risk that the adverse effects relating to that particular pet would adversely impact on the enjoyment rights of others;
- Whether the objections could be ameliorated (e.g. whether the perceived risks to rights and reasonable expectations of other CTS users could be reduced to the level of acceptability by affordable, practical measures via imposition of conditions); and
- Practical ways of resolving the tension between the rival positions rather than reasons not to do so.
While the relevant pet by-law (or lack of one!) will be important, more important in justifying and defending a decision on whether to approve a pet or not, will be following a rational and logical process, grounded in a proper appreciation of the applicable laws and principles leading to a decision which is reasonable on its face, even though reasonable persons could disagree with it.
If you would like help on how to apply the checklist then please contact Stratum Legal.
This article was contributed by Michael Kleinschmidt from Stratum Legal.
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My god, are we bogged down in legal molasses? Yes, and what about 10.00 pm noise limits. This is necessary as some inconsiderate idiots party all night with no regard what so ever for families with young children and other owners and guests. A little leeway at the weekends okay but for the majority who are considerate of others the minority should not rule. What ever happened to common sense before political correctness and catering to the lowest common denominator!
What effect does this ruling have on leasehold properties (i.e. sub-lessee of Crown land)? Essentially there is no strata title and no body corporate: The rule is absolutely no pets. Apparently, the developer did grant some exemptions to some pets initially – although the situation remains unclear.
Hi Tim, you are right – the case has no direct impact on leasehold. If however there was a by-law in leasehold (i.e. sublease term) in the same terms as the by-law in this case (unlikely!) then the case may have some relevance to the body corporate company decision maker.
Hi Joan, even though it would mean I get less pet dispute work, I would love to see some legislative reform in this area. Absent that, the best way to minimise disputes (and therefore more legal molasses!) is to make sure everyone is aware of how the courts will treat these types of disputes, should they ever get to court. Informed committees are less likely to make silly decisions and well made decisions are less likely to be appealed by disgruntled owners.
Hi,
The body corporate manager informs me that the building has different pet agreements
applying to where you are situated in the building. My question is, because there are different pet agreements are any of them worth the paper they are written on. I don’t believe you can have one rule for one owner and another rule for another owner.
Kind regards,
Anthony
Hi Anthony,
That’s a tricky one.
There is a rule that by-laws cannot discriminate between types of occupiers.
Likewise a by-law can regulate an activity, but not prohibit it; unless there are very good reasons (for example safety).
Finally, a by-law cannot be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots (and the use of the common property)..
It may well be that the different pet by-laws fall foul of one of those rules.
It is something you should take legal advice on.
regards
Michael