COGAN and WEYMOUTH
[2005] WASAT 242
•9 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: COGAN and WEYMOUTH [2005] WASAT 242
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 9 SEPTEMBER 2005
FILE NO/S: CC 2144 of 2005
BETWEEN: PETER COGAN
Applicant
AND
ROSE WEYMOUTH
Respondent
Catchwords:
Real property Strata titles Application for removal of animals
Legislation:
State Administrative Tribunal Act 2004 (WA), s 95
Strata Titles Act 1985 (WA), s 12, s 42, s 42(15), s 91, s 92, s 92(a), Sch 1, Sch 2 bylaw 12(c)
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought an order for the removal of animals from "the complex" in reliance upon s 91 and 92 of the Strata Titles Act 1985 (WA) (the Act) and Sch 2 by‑law 12 thereof.
The complex referred to was the lots and common property comprised in strata plan 15373.
The respondent did not resist the application and wrote advising that she had removed the dogs from the unit as of Saturday, 11 June 2005.
The applicant responded to that advice by advising the Tribunal that the respondent had previously advised the strata manager that she was selling her property as a result of which action to have the dogs in question removed had been discontinued, only to find that no sale transaction occurred. Further, that there was no commitment given for the dogs to be removed permanently.
In the circumstances, the applicant stated that he wished to persist for an order that the dogs be removed and that they not be allowed to return. The Tribunal made orders to that effect.
Issue
The issue for determination in the application is whether under s 91 and s 92 of the Strata Titles Act 1985 and/or the by‑law 12(c) contained in Sch 2 thereunder, the applicant is entitled to an order for the removal of dogs from the lot and common property and that they be kept away from the parcel thereafter.
Strata plan and parcel
The land comprised in strata plan 15373 registered on 12 October 1987 constitutes the parcel. The strata plan describes the parcel and building as a single storey brick and tile residential quadruplex erected on that portion of Swan location 2039 shown as lot 305 on plan 2610(3).
The parcel is known by its postal address of 12 Fogerthorpe Crescent, Maylands, 6051.
The applicant is the owner of lot 3 and the respondent the owner of lot 2 comprised within the said parcel.
There is no notification on the register of any amendment, repeal or additional by‑laws and pursuant to s 42 of the Strata Titles Act 1985, the provisions set out in Sch 1 and Sch 2 of the Act are deemed to be the by‑laws of the strata company.
The application
The application is made by Peter Cogan, who in later correspondence is described as the "Chair Body Corporate" an obvious reference to the strata company known as the Owners of 12 Fogerthorpe Crescent, Maylands, strata plan 15373. In the application, the applicant's name is given as Peter Hogan, but that is obviously an error.
The order sought was:
"That Ms Weymouth cause all animals to be removed from the complex within seven days, as this has been an ongoing battle for a very long time."
The grounds for the application rely firstly on strata Sch 2, s 12, which is taken to be a reference to Sch 2 to the Strata Titles Act 1985 by‑law 12. The grounds reflect that:
"Section 12 states that a proprietor shall not keep any animals on the lot that they own after notice in that behalf given to them from the council.
Ms Weymouth received letters on 16 Feb 04 and 10 Jan 05 advising her of the councils [sic] decision to a 'no tolerance towards animals' attitude and that she should remove the animals from the premises.
Also, according to Strata Titles Act 1985 s 92 – as they cause a constant nuisance by barking.
Strata Titles Act 1985 s 91 contravention of by-laws."
It is apparent that the animals sought to be removed are dogs and that they have allegedly caused a nuisance by barking.
The law and by‑law
The standard by‑law 12(c) set out in Sch 2 to the Act provides relevantly that a proprietor shall not keep any animals on the lot that he owns, occupies or resides in or the common property after notice in that behalf given to him by the council. The by‑law is qualified by a reference to it being subject to s 42(15) of the Act which is not applicable as it refers to the keeping of guide dogs.
The effect of the by‑law is therefore that an owner keeping any animals on the lot that he owns, occupies or resides in or the common property is not in breach of the by‑laws until notice is given to him by the council.
Section 91 of the Act provides that the Tribunal may order a person keeping an animal on a lot or common property in contravention of the by‑laws to remove the animal from the parcel within a specified time and thereafter keep it away from the parcel. Thus, s 91 will have operation once an owner, in the above circumstances, has received notice under by‑law 12(c) to remove an animal.
Section 92 applies where an animal is permitted pursuant to the by‑law but causes a nuisance or hazard to the proprietor, occupier or resident of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property, in which event, the Tribunal may make orders for the animal to be removed and kept away from the parcel.
The facts established
On 16 February 2004, Lyndon Rodgers & Associates addressed a letter to the respondent on behalf of the council of owners. The letter was signed by Claire Glatz – strata manager. The letter gave notice under by‑law 12(c) and by‑law 12(d), which relates to undue noise, and required the respondent to remove "the animals" from the property by 15 March 2004 failing which action would be taken under s 92(a) of the Act.
On 10 January 2005, Lyndon Rodgers & Associates again wrote to the respondent on behalf of the council of owners. Reference was made to a letter having being issued to the respondent on 19 February 2004 providing 28 days notice to remove the animals and that it was believed that no response was received. The letter proceeded to refer to an inspection of the complex on 10 January 2005, during which the animals were observed still being kept on the premises and to be creating a nuisance by barking at visitors and residents entering the complex. Once again the respondent was advised that the animals were to be removed from the property and on this occasion, if the respondent did not respond within 7 days it was stated that action would be taken under s 92(a) of the Act.
On 30 June 2005, the respondent wrote to the Tribunal advising that she had removed the dogs from the unit as of Saturday, 11 June 2005.
The applicant received a note of similar effect to the above advice from the respondent. The applicant wrote to the Tribunal attaching a copy of the advice received and advising as follows:
"I have discussed the matter with the other members of the Body Corporate and we still wish to have the matter determined by the Tribunal. We feel that the letter does not state that the dogs will be removed permanently and there is no guarantee that the dogs will not be returned to the unit some time in the future.
In the past Ms Weymouth informed our strata manager that she was selling her unit however, no such sale transaction took place, and as a result we discontinued our efforts to have the dogs removed. As a consequence we now have no alternative but to take this current action in the Tribunal.
We have exhausted all processes to have the matter resolved with her. We therefore seek a formal order that the dogs be removed from the premises and that they are not allowed to return."
Considerations
By the letters of 16 February 2004 and 10 January 2005, the respondent's right to keep animals on the lot or the common property was terminated. The continued keeping of the animals was therefore in breach of s 91 of the Act.
While the evidence of nuisance is limited, the assertion in the correspondence and in the application that the dogs create a nuisance by barking has not been rebutted. In the circumstances a breach of s 92 of the Act has also been established.
The form of order contemplated under either s 91 or s 92 of the Act is essentially the same, namely that the order require the animals to be removed and kept away from the parcel thereafter.
There is some suggestion that the respondent might return the dogs at a later stage. The Tribunal makes no findings in that regard but points out that should such conduct occur it would be open to the applicant to apply for an appropriate order to be made under s 95 of the State Administrative Tribunal Act 2004 (WA) which would have the effect that a continued failure to comply with the order could result in the respondent committing an offence for which a penalty of up to $10 000 may be imposed.
Orders
For the above reasons, the Tribunal orders as follows:
(1)The respondent is ordered to remove any dogs kept by her on lot 2/unit 2, 12 Fogerthorpe Crescent, Maylands in the State of Western Australia and to keep such dogs, or any other animals, away from the parcel.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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