Baradel v Body Corporate for Skyring (No 2) [2019] QCATA 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Baradel v The Body Corporate for Skyring No.[2] [2019] QCATA 16 PARTIES: MARA BARADEL (applicant/appellant) v THE BODY CORPORATE FOR SKYRING (respondent) APPLICATION NO/S: APL075-18 ORIGINATING APPLICATION NO/S: MCD0935-2017 MATTER TYPE: Appeals DELIVERED ON: 19 February 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Roney QC ORDERS: The Appeal is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Body Corporate and Community Management – appeal from order of adjudicator – by-law of the Body Corporate concerning use of balconies to cause minimum disturbance to other occupiers – by-law of the Body Corporate concerning disturbance by animals of other occupiers – whether to stay an Adjudicator’s order pending determination of the appeal LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – Body Corporate and Community Management – appeal from order of adjudicator – by-law of the Body Corporate concerning use of balconies to cause minimum disturbance to other occupiers – by-law of the Body Corporate concerning disturbance by animals of other occupiers – whether urinating dog caused a breach of s 167 of the Body Corporate and Community Management Act 1997 (Qld) – whether a nuisance or interference with peaceful enjoyment of another lot -- 1 of 7 -- 2 Body Corporate and Community Management Act 1997 (Qld), s 167 Arila Lodge [2016] QBCCMCmr 556 Baradel v The Body Corporate for Skyring [2018] QCATA 135 Re Skyring [2018] QBCCMCmr 115 REPRESENTATION: Applicant: Self-represented Respondent: Hynes Legal APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] In 2017, the Respondent to this appeal, the Body Corporate for Skyring, which is a multilevel high-rise in Newstead, Brisbane, brought an application before the Office of the Commissioner for Body Corporate and Community Management alleging that the Applicant, Ms Baradel had, in the way that she had kept her dog in the unit, caused a nuisance to other owners, and breached s 167 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’). On 1 March 2018 an order was made by an Adjudicator, that within a period of six weeks from the date of the order, the Applicant was required to remove the dog named ‘Lulu’, which she was keeping within her lot, and thereafter keep the dog removed.1 The Applicant has appealed that order and these reasons concern and dispose of that appeal. [2] On 17 September 2018 I heard and determined an application that the Applicant had brought, that the order of an Adjudicator be stayed pending the determination of this appeal. I dismissed the application2 because I was not satisfied, having regard to the history of the matter, and the numerous attempts that the Applicant had previously had to demonstrate an ability to end the problem of her urinating dog, that this was a case where there were good reasons to stay the Adjudicator’s orders. [3] The events which were the subject of that application resulted from the fact that the Applicant was keeping a dog in her unit, and that dog was being permitted to urinate, or not being prevented from urinating on the balcony of the unit, and that urine was running off the balcony onto the lot below the Applicant’s unit. [4] In the course of attempted resolution of the dispute, in May 2017 the Body Corporate entered into an agreement which was the result of conciliation between the parties. By the terms of that agreement: 1 Re Skyring [2018] QBCCMCmr 115. 2 Baradel v The Body Corporate for Skyring [2018] QCATA 135. -- 2 of 7 -- 3 (a) The Applicant acknowledged that she had taken responsibility and stopped the dog urinating on the balcony; (b) The Applicant would be permitted to keep her dog in her lot provided she complied with her acknowledged responsibility and also the conditions in the by-laws relating to the keeping of animals; (c) If she failed to comply with those conditions she would be given one more opportunity to comply but if she did not, the committee would withdraw approval for her to keep the dog; and (d) The committee would lodge an adjudication application seeking the removal of the dog, but providing she complied with the conditions of approval, the committee would withdraw the application prior to any order being made. The parties undertook to act in good faith to carry out the terms of the agreement. [5] The Body Corporate contended that she did not comply with the terms of the agreement and that the dog continued to urinate on the Applicant’s balcony, which then dripped onto the balconies below. It sought the order which the Adjudicator made, requiring the removal of the dog Lulu within six weeks of the date of the order. By application filed in the Tribunal on 28 March 2018, the Applicant appealed that decision. [6] The Body Corporate sought an order that the Applicant here was in contravention of section 167 of the Act. [7] Section 167 of the Act provides: (a) causes a nuisance or hazard; or (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or (c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property. [8] The Adjudicator referred to discussion about the meaning of section 167 and the concept of a nuisance in this Tribunal in Norbury v Hogan [2010] QCATA 27. There President Wilson (as he then was) favoured an objective test and said at paragraphs 13 – 15: In the absence of a statutory definition it is useful to consider how the common law has construed the phrase ‘interferes unreasonably’. Under the common law, a private nuisance is an unlawful and unreasonable interference with an occupier’s use and enjoyment of land or of some right over, or in connection with it... What is considered unreasonable depends on the prevailing circumstances in each case but the nuisance, these decisions show, needs to be an inconvenience that materially interferes with the ordinary notions of a ‘plain and sober’ person, and not merely the ‘elegant or dainty’ habits of the complainant.... The nuisance must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises... -- 3 of 7 -- 4 [9] Care must be taken with the language adopted in Norbury v Hogan3 because the discussion in that passage concerns the common law position rather than the rather different language to be found in section 167 of the Act. In Norbury, the activity causing the alleged nuisance was smoking. President Wilson found that, in that case, the smoking would need to be of such volume or frequency that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity. [10] The Applicant had submitted before the Adjudicator that although the dog had on occasion earlier in 2017, caused urine to drip from the balcony of the respondent’s lot to Lot 1905, the volume and frequency of that was insufficient to constitute a nuisance. Further she submitted, the design of the building makes it inevitable that water and other liquids will regularly affect Lot 1905 (and all lots other than those located on the top level) and she had taken reasonable steps to address the issue. [11] The Adjudicator made the following findings: Based on the material before me, I am satisfied that, as a matter of fact, the respondent is keeping a dog “Lulu” within her lot and that the dog is urinating on the balcony of that lot. The dog’s urine has in the past, and continues to, drip onto the balcony below, despite the actions taken by the respondent in placing on her balcony an absorbent pad for Lulu to urinate on and allegedly training her to urinate on it, and installing a rubber lip to the balcony edge to prevent any urine or other liquids from escaping from the balcony of Lot 2005. I am further satisfied that the dripping of the dog’s urine from the balcony of Lot 2005 to the balcony of Lot 1905 below (and any other liquids used in cleaning up the urine on the balcony of Lot 2005) constitutes a breach of by-laws 7(a) and 9(b) and also section 167 of the Act, for the following reasons. The by-laws are part of a scheme’s CMS, which is binding on the body corporate, each member of the body corporate (each owner) and each person who is otherwise the occupier of a lot in the scheme (s 59 and 66, Act). A function of the body corporate is to enforce the CMS, including the by-laws (s 94(1)(b), Act). The body corporate must act reasonably when doing so (s 94(2), Act). The Act provides a framework for dealing with by-law contraventions. Section 182 provides that if a body corporate reasonably believes that an owner or an occupier is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention. The notice must state the by-law the body corporate believes is being contravened and details sufficient to identify the contravention. The person must comply with the notice. The notice must state that if the person does not comply, the body corporate may start proceedings in the Magistrates Court or make a dispute resolution application (s 182(4)(e), Act). A Magistrates Court may impose a maximum penalty of 20 penalty units for failure to comply with the notice (s 182(5), Act). Unless special circumstances exist, a body corporate may make a dispute resolution application only if it has given the owner or occupier a contravention notice.(S184 Act) 3 [2010] QCATA 27. -- 4 of 7 -- 5 Rather than starting proceedings in the Magistrates Court, the body corporate has made this dispute resolution application and has named the respondent as the person against whom an order is sought. The body corporate has demonstrated that before making this application, it gave the respondent notice of the alleged by-law breaches. On the basis of the material before me I am satisfied that the by-laws have been breached and that Ms Baradel has been given notice of this and also ample opportunity to remedy the by-law breaches. [12] In addition to a breach of by-laws 7(a) and 9(b), I am also satisfied that the dripping of the dog’s urine from the balcony of Lot 2005 to the balcony of Lot 1905 constitutes a breach of section 167 of the Act, based on the decision of Arila Lodge.4 [13] It was held in Arila Lodge that throwing liquids and other substances onto other lots, or allowing such substances to fall or drip onto other lots, would clearly constitute a breach of a by-law that provided as follows: An Occupier must not cause a nuisance or act in such a way so as to interfere with the peaceful enjoyment of a person lawfully on another Lot or using Common Property. [14] The Adjudicator observed that an owner who is affected by such substances is affected by the substance itself and is put to the inconvenience of having to clean the substances up. [15] In that case, the respondent’s conduct in throwing substances onto other lots, or allowing substances to fall onto other lots (including animal waste), which was found to constitute a by-law breach, was also found to constitute a nuisance and to unreasonably interfere with the affected owners’ use of their lots. [16] In my view, the body corporate has acted reasonably with respect to the enforcement of by-laws against the respondent and has sought to resolve by-law issues with her before making application with this Office. A body corporate should be entitled to proceed under the legislation to ensure its by-laws are enforceable against an owner and/or occupier. I am further satisfied that the urination of the respondent’s dog on the balcony of Lot 2005, such that it drips onto the balcony of the lot below, constitutes a breach of section 167 of the Act. [17] As may be seen from the reasons, one of the bases for the Adjudicator’s order was that the Applicant had conceded that the dog’s urine had dripped over the balcony previously and caused a disturbance to the occupiers of the lot below, but despite the conciliation agreement which gave her ample opportunity to act to prevent further disturbance resulting from her dog’s activities, it continued to urinate on the balcony of the lot. That urine had in the past and continued to drop onto the balcony below, notwithstanding the actions taken by the Respondent to prevent that occurring. It was concluded that the dripping of the dog’s urine onto the lot below as well as liquids used in cleaning it up constituted a breach of by-law 7 in the CMS, and also a breach of by-law 9 which required that animals not disturb other occupiers. The Adjudicator also found that the dripping urine constituted a breach of s 167 of the BCCM Act 4 Arila Lodge [2016] QBCCMCmr 556. -- 5 of 7 -- 6 because it was found to constitute a nuisance and to unreasonably interfere with another owner’s use of their lot. [18] The Applicant contends that she has now acted in a way to prevent any ongoing problems with the dog’s urinary activity and otherwise the decision is harsh because there could have been alternative orders that could have been made that did not require here to remove that particular dog. [19] On or about 19 July the Applicant served what she described as an Appeal Book. The appeal book comprised documents that went to factual issues that related to the original application, and potentially to seek to substantiate the grounds of appeal. [20] Her grounds of appeal from the decision are that: (a) The decision made was unnecessarily harsh and extreme; (b) There is very little, even no analysis of reasons given for the decision made for the removal of the dog; (c) The dog is kept indoors at all times; (d) The balcony does not have a drain or spitter therefore any liquid being from weather, accidental spillage has to run off; and (e) Wildlife e.g. birds perch on balustrades leaving droppings on balconies below. [21] Doing the best one can with the grounds which have been cited above, they seem to fall into three contentions, namely: (a) That the decision was unnecessarily harsh; (b) That there were inadequate reasons given for the Adjudicator’s decision; and (c) The evidence that the urine belonged to the Applicant’s dog was unreliable or inadequate. [22] Under the heading ‘Orders Sought’ (although as shall be seen, they are not in fact referable to any orders sought), the Applicant has set out what seem to be further grounds of appeal in the following terms: Considering the steps I have taken since the matter first aroused (sic) • Walk the dog between 3-5 times daily • It weighs under 5kg • Rubber barrier approx 5cm in diameter has been glued to the entire length of the balcony to contain all liquid • A dog loo is been (sic) used if required by dog • As the owner of lot 2005 I would request to keep the family pet as she is a companion dog -- 6 of 7 -- 7 [23] The application goes on to refer to the fact that the matter had been resolved pursuant to the terms of the conciliation agreement referred to above, and she contends that all appropriate steps have been carried out on her behalf ‘to prevent the dog from being a nuisance’. Clearly that is not the case, as the Adjudicator’s findings make clear that: By s 289(2) of the BCCM Act, the Applicant may only appeal the Adjudicator’s order on a question of law. [24] As I said in my earlier reasons dismissing the stay application, it is not easy to tease out any substantive basis on the evidence which was before the Adjudicator or indeed on any of the further material which has been contained in the appeal book, as to how it is that these propositions can be sustained. Even less apparent, with the exception of the contention that there are inadequate reasons, is how any of them constitute an appeal on a question of law. [25] In this case, the Adjudicator set out in detailed reasons why it was that the history of the matter dictated that after having been given many opportunities to remedy the situation, the appropriate outcome was that the Applicant be no longer permitted to have the dog on the premises. She was given six weeks in which to remove the dog but did not do so. There is no substance to the contention that there were inadequate reasons given for the Adjudicator’s decision. [26] Nor is there any substance to the contention that the decision was unnecessarily harsh. The Adjudicator’s decision does not preclude her from having any dog on the premises. It affects only the particular dog that has been causing the problem. It does not therefore seem to me inherently unreasonable or harsh to require, that, in effect, the offending dog no longer be present. [27] The challenges to the factual findings of the Adjudicator that the urine belonged to the Applicant’s dog are unsustainable, do not constitute an appeal from the Adjudicator’s order on a question of law. Even if one takes the Applicant’s assertions about the evidence at face value. A concession was made on behalf of the Applicant to the Adjudicator that it had been her dog whose urine had dripped over the balcony and caused the disturbance below. The contention that there might now be an appeal about a finding of fact made below based upon a challenge to that very proposition that had been conceded below does not raise a question of law is without merit. [28] In the result the appeal must be dismissed. -- 7 of 7 --