27 Apr By Laws – Cannot be Oppressive or Unreasonable
By Laws – Cannot be Oppressive or Unreasonable
Section 180(7) of the Body Corporate and Community Management Act 1997 (the Act) states:
A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme
This section applies when a Community Management Statement (CMS) contains a by-law that prohibits any owners or occupants from keeping a pet within their lot. A by-law such as this is considered oppressive and unreasonable and would be inconsistent with the Act
In the Adjudicators Order that we review this month a ruling was made that the by-law contained within the CMS for the scheme, which prohibited animals from the scheme, was invalid and therefore the Body Corporate was required to lodge a new CMS with a new by-law.
The application, made by an owner in the scheme, came about due to the failure of a motion proposed at a General Meeting to remove the existing by-law prohibiting pets and replacing with a new by-law that allowed pets with the consent in writing of the Body Corporate. Owners who provided submissions against the application noted that they had purchased into the scheme because of the by law prohibiting pets and that they wished for this by law to remain in place.
It was also argued that the scheme was home to abundant wildlife including a range of bird and the allowance of cats and dogs would be detrimental to this, however the applicant noted that there were already a number of dogs and cats being kept within the scheme (albeit without approval) and there was no evidence that the wildlife or birds had been affected by their presence.
It was noted by the Adjudicator that “The Queensland Civil and Administrative Tribunal has determined that a by-law that imposes a blanket prohibition on a normal domestic activity such as keeping a pet goes beyond the statutory role of regulating and is beyond the power of a body corporate to record. It is now accepted that a body corporate does not have the authority under the Act to pass a by-law that entirely prohibits an ordinary domestic activity such as keeping a dog or cat”
Along with the order made, the Adjudicator added a reminder that the Committee, in considering any future pet applications, is under a legislative obligation to act reasonably in decision making and that great care needs to be given to refusing an animal-based on hypothetical concerns about potential impacts.
Are the by-laws contained in your CMS oppressive or unreasonable?
The full order can be read – http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2020/161.html
And more information can be obtained by visiting the Commissioners Office Website –https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/animals