As a Strata Community Manager, one of the most regular application forms received from owners, occupants or property managers is for the keeping of a pet within a lot.
This can then also flow down into complaints received if the animal is not being kept within the lot, or is barking or causing nuisance to other owners and occupants within the scheme.
From reviewing adjudicators orders, it is clear that pets are also a very common application submitted for review – whether it be an applicant requesting a committee’s decision be overturned or a Body Corporate requesting an order that a nuisance pet be removed – if anyone is interesting in hunting and conducting research – the adjudicators orders can be found http://www6.austlii.edu.au/cgi-bin/viewdb/au/cases/qld/QBCCMCmr/
In the adjudicators order that we reviewed this month the applicant, being an owner within the scheme, sought an order that the decision of both the Committee & the Body Corporate be overturned and that they be permitted to keep a dog within the lot based on the view that the decision to decline the application was unreasonable.
And there lies the magic word – unreasonable…….
The adjudicator assigned to review this application and make the final ruling noted in the order that “the standard of reasonableness is objective and it is to be applied at the time of the decision, taking into account all relevant factors and excluding irrelevant factors” and also “there is no onus on a body corporate to satisfy an adjudicator that it or its committee acted reasonably. Rather, if the adjudicator is to validate an action or decision, the adjudicator must be satisfied that it acted unreasonably” and the onus is on the applicant to prove this is the case.
Now, you may have noted, that further up in my notes, I mentioned both the Committee & the Body Corporate. Usually the committee have the ability to consider pet applications, however in this particular instance the committee, being divided on the issue decided to call an extraordinary general meeting allowing all owners the opportunity to vote on the application – which was also declined.
The issue that was raised in respect to the application was the fact that the owner applying for the pet did not disclose the breed / size of the dog as they were planning on adopting from a rescue shelter – but had indicated that it would be a medium size, 8-14 weeks of age, 20-30kg in weight. Concerns were raised on the suitability of the complex for dogs in general and while not expressed as such, there was concern that approving an application where the applied-for dog is unknown leaves the Body Corporate open to a greater risk that the dog eventually chosen will prove to be unsuitable.
The adjudicator found that because of not knowing the breed / size of the proposed dog it was reasonable for the body corporate and its committee to refuse to authorise a pet and as such, dismissed the order.
Read the full order – http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr//2021/103.html