Pet applications are one of the most common requests put before a body corporate committee. Most bodies corporate/committees would be aware that for a scheme which falls into the Body Corporate and Community Management Act 1997 (Qld) (The Act) jurisdiction, there should not be a blanket-ban on pets. Nevertheless, pets can be regulated – so long as it is a reasonable regulation. But like everything in strata title, it begs the question of what is reasonable?

The Importance of Well-Drafted By-Laws

It is important for schemes to ensure they have a by-law relating to animals within the scheme. A well drafted by-law should impose:

  1. An approval process; and
  2. Reasonable grounds for approval.

Without such a by-law in place, the Committee does not have the power or ability to reasonably challenge an occupier keeping their pet on the lot, or object to how the pet is being kept on the lot or common property.

Importantly, pending the proper drafting of the pet by-law, a pet owner should not bring a pet onto scheme land or on a lot unless prior written approval has been obtained from the committee.

Should your scheme not have a by-law in place, our office is happy to assist in bringing your by-laws up to industry standard. Contact us for a fee proposal.

The Application Process

Where a scheme has a by-law directing that an occupier must seek prior written approval of the committee prior to being granted consent to bring a pet onto scheme land, a reasonable application process could look like the following:

The Steps

  1. Check that there is a by-law requiring committee approval.
  2. If so, the occupier (presumably pet owner) should submit an application in writing;
    1. If the pet owner is an occupier and not an owner, it should come with consent from the owner;
  3. An application should be supported with the following documents:
    1. A brief description of the pet (e.g. the type of animal, breed, size, temperament, age, description on its appearance).
    2. A photo of the pet.
    3. Current veterinary certificate and checks.
    4. Micro-chip confirmation and details.
    5. Council registration (if applicable).
  4. The application can then be considered by committee and decided either via:
    1. voting outcome committee member (VOCM); or
    2. Place the application on the agenda for the next committee meeting.

While the committee is not under an obligation to consent to a VOCM, it is under an obligation to act reasonably. Where there is not a scheduled committee meeting in the near future, we would suggest that it would be reasonable to vote on the matter via VOCM, especially where the applicant may be a prospective tenant of a lot.

Once a decision is made, more likely than not, to approve the pet then it is time to consider what the reasonable conditions are that attach to the approval.

Reasonable Conditions

It is best practise to have the conditions of approval written into your by-laws. As by-laws must not be unreasonable or oppressive pursuant to section 180 of the Act, a lawyer that specialises in body corporate law is the best person to draft these conditions. Conditions that are reasonable should outline:

  1. That the animal should not cause a nuisance;
  2. That the animal should be registered with local council;
  3. That the animal should be microchipped;
  4. That the animal should be vaccinated and free from vermin or disease;
  5. How excrement should be managed; and
  6. How the animal is to traverse common property, including rules around lifts.

Each and every body corporate is different and accordingly, it is a matter of finding what is right for each Scheme. If your scheme’s by-laws do not provide for written approval on pet applications or perhaps do not provide for what would be considered reasonable conditions, please feel free to contact our office to discuss same.

Weight Limits on Pets

Our office regularly vets (no pun intended) questions on whether weight limits, especially for dogs, are reasonable.

It is common, particularly in schemes with older by-laws, that there is a weight limit on pet applications. By-laws of this nature have been ruled to be invalid. In Regatta Riverside Tower 1 [2013] QBCCMCmr 332, the Adjudicator considered the following quote from the RSPCA:

Ironically dogs such as greyhounds, Great Danes, St Bernards etc are much more suited to apartment living than many of the smaller breeds such as Jack Russel’s who need A LOT of stimulation.

As a result, the weight limit was considered arbitrary and struck out.

If your by-law has a weight limit, it is an indicator that your by-laws are out of date and would benefit from a review by a body corporate specialist.

Blanket Bans on Breeds

Following the reasoning in Regatta Riverside Tower 1, it would be unreasonable for a committee to blanket-ban a particular breed for fear of potential aggression. However, there are exceptions. Restricted Dogs under the Customs Act 1901 (Cth) include:

  1. Dogo Argentino;
  2. Fila Brasileiro;
  3. Japanese Tosa;
  4. American pit bull terrier or pit bull terrier; and
  5. Perro de Presa Canario or Presa Canario.

These breeds are recognised as dangerous in nature and can only be kept with a permit in certain conditions. Although, some Local Councils prohibit those breeds (and any cross breeds) entirely. Accordingly, it may be reasonable for a committee to impose a condition in its by-laws which gives the committee the ability to refuse consent for breeds considered restricted breeds by their local council.

Reasonable Grounds to Refuse Consent

First and foremost, the committee will have the ability to refuse consent if the pet owner does not agree to be bound by the reasonable conditions of approval (as per the above). However, there are also various other grounds for refusal that we have come across over the years and we will address the common myths as follows.

Dangerous, Menacing Dogs

One of the key reasons why a committee should check for current Council registration details is to ensure that the animal has not been declared dangerous or menacing under the Animal Management (Cats and Dogs) Act 2008 (Qld) or is not one of the above listed Restricted Dog breeds under Commonwealth Legislation. In these circumstances, is may be in the best interests of all owners to refuse the application.

Where the dog is not declared dangerous or menacing, but there is a concern about a history of aggression, the committee should seek evidence of this before refusing. This should be evidenced by a formal attack complaint made to the Local Council in the past. Previous complaints that have not resulted in a declaration will not show up in registration documents, and an RTI request would need to be made.

Fear of Animal

A genuine wish to not be confronted by dogs is also unreasonable, as those wishes can generally be managed through conditions about transit on common property. However, the Caretaker’s medically diagnosed and evidenced phobia to dogs were reasonable grounds for refusal in Bayview Rainbow Bay [2015] QBCCMCmr 48.

Animal Welfare

A committee should not impose their personal views about animal welfare when considering the application. In Cascade Gardens Apartments [2018] QBCCMCmr 32 at [63] the Adjudicator stated that:

…It is a matter for the applicant to determine whether her dog can be adequately accommodated within her lot. If others genuinely believed the dog’s welfare was at risk, the appropriate avenue for pursuing those concerns would be the local council or RSPCA

Accordingly, it is likely that reasons for refusal or conditions around animal welfare would be considered unreasonable.

Concerns about Noise

The concern about a scheme allowing pets resulting in a greater amount of noise has not been deemed a reasonable ground for refusal as simply put, the pet is yet to cause a nuisance or noise. A well-drafted by-law will impose a condition that the pet will not cause a nuisance/noise. The preferable approach is for committees to approve the pet on this condition, and if the condition is breached, then the approval should be revoked. A suspicion or concern that a pet will cause noise, or a nuisance is not a valid ground.

More than One Pet

It has been deemed unreasonable for committees to put a one-pet-per-Lot policy in place. However, it might be reasonable for the Committee to refuse the request where the owner does not have the required permit to keep a certain number of animals. Generally, Local Councils would require a permit for more than two animals to be kept on the Lot.

Allergies

Commonly, Committees seek to refuse pets based on another occupant’s allergy. However, this can be a complicated issue and the Committee should seek legal advice from a body corporate specialist lawyer.

The allergy should be medically diagnosed and the diagnosis will largely dictate whether it is reasonable to refuse consent.

The recent decision of Kirra Wave [2020] QBCCMCmr 163, goes to this very point. Here, an occupant provided the adjudicator with medial certificates evidencing that if he had contact with a dog he would have an allergic reaction. When faced with an application for another occupant to keep a dog, the committee had the difficult task of balancing an occupier’s right to keep an animal against an occupier’s medical condition. The committee ended up refusing consent, and the pet owner sought to overturn that decision in the Commissioner’s Office. The Adjudicator found that the occupant’s medical condition only arose when ‘contact’ with a dog occurred. Accordingly, if contact can be avoided then so could the medical effects. Nevertheless, The Adjudicator ended up providing what we consider to be quite stringent conditions on the pet owner in terms of how the animal was to be transported on common property and also providing notification to the occupier who had the medical condition when the animal would be onsite.

However, in Cascade Gardens Apartments [2018] QBCCMCmr 32, the resident caretaker had asthma and provided medical certificates indicating that airborne dog fur/skin might cause problems if inhaled. Given that the caretaker maintained all areas of common property, there was risk they would be impacted by the dog through the airborne allergens. The committee refused consent for the pet. It was noted that the applicant (pet owner) did not provide possible conditions that could negate the airborne allergen issue. Accordingly, the Adjudicator upheld that the committee acted reasonably in refusing consent.

As the circumstances for each case is different, it is best practice to obtain legal advice around grounds for refusal/conditions of approval to ensure the Committee is in the best position if a dispute is raised.

Exceptions to Body Corporate Approval

There are some very narrow, but necessary and important, circumstances where the Body Corporate does not have the ability to seek approval for an animal to come into the scheme, even if the by-laws stipulate this. See our fact sheet on exemptions to pet approvals in bodies corporate here.