Nevile v Owners Units Plan 3107 (Unit Titles) - [2014] ACAT 36

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NEVILE v OWNERS UNITS PLAN 3107 (Unit Titles) [2014] ACAT 36
UT 14/8
Catchwords: UNIT TITLES – PETS – refusal to consent to keep dog in unit – whether consent unreasonably withheld – reliance on generalised information from websites and guidelines compared to specific expert evidence – consent unreasonably withheld – decision set aside and decision to give consent substituted with conditions
Legislation:Unit Titles (Management) Act 2011 ss 32, 126, 129

Cases:Lanfranchi and Owners of Units Plan 806 [2011] ACAT 7
Curragh Coal Co Pty Ltd v Wilcox [1984] FCA 168

Tribunal:                  Ms E. Symons   - Presidential Member
Date of Orders:           27 June 2014
Date of Reasons for Decision:       27 June 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL UT 14/8
BETWEEN: ANN NEVILE

Applicant

AND: THE OWNERS UNITS PLAN 3107

Respondent

TRIBUNAL: Ms E. Symons - Presidential Member
DATE:27 June 2014
ORDER

Having found that the Respondent’s consent to the Applicant’s application to keep Tombi at her unit in The Waterfront Apartments was unreasonably withheld,
the Respondent’s decision not to consent is set aside and the following decision is substituted:
The Applicant, Dr Ann Nevile may keep the Irish Wolfhound Tombi, at her unit in The Waterfront Apartments subject to the following conditions:
(a)     Dr Nevile is responsible for any damage or soiling of any Common Property caused by Tombi; and
(b)     Tombi is to be kept on a leash while on Common Property; and
(c)     Tombi is not allowed, at any time, on any of the complex gardens other than when moving on a leash through the complex gardens to access the lake foreshore.

........………………………………..

Ms L. Crebbin – General President

For and on behalf of
Ms E. Symons – Presidential Member

REASONS FOR DECISION
1.The Applicant is the owner of a unit in Units Plan 3107 (“the unit”).
2.The Applicant purchased the unit in 2011 and rented it for three years.
3.In 2014, as the tenant was vacating the unit, the Applicant decided to sell her then home in Downer, ACT and to move into the unit.
4.On 23 April 2014 the Applicant applied to the Executive Committee of the Owners Corporation of Units Plan 3107 (“the Respondent”) to keep her Irish wolfhound, “Tombi”, at the unit. She provided a letter from Dr Michael Archinal, Tombi’s veterinarian, dated 26 March 2014 with her application.
5.Tombi who was born on 27 October 2008, was then aged five and a half years. The Applicant has owned her since December 2008, when she was 8 weeks of age. Tombi resided with the Applicant in her Downer property.
6.By letter dated 6 May 2014 the Respondent advised the Applicant that the Committee had decided that it was unable to approve the application to keep Tombi in the apartment complex.
7.By letter dated 10 May 2014 the Applicant responded to the matters set out in the Respondent’s letter. With this letter she provided the Respondent with a letter in support from Rhiannon Beach, Founder…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ACAT 36
Decision Date: 27 June 2014

CaseChat Overview and Summary

In the case of Nevile v Owners Units Plan 3107, the applicant, Dr Ann Nevile, sought to keep her Irish Wolfhound, Tombi, in her unit within the Waterfront Apartments complex. The owners corporation, the respondent, refused the application, and Dr Nevile sought a review by the ACT Civil and Administrative Tribunal (ACAT). The central issue was whether the respondent's refusal to grant consent was unreasonable, in contravention of the Unit Titles (Management) Act 2011. The ACAT found that the respondent unreasonably withheld consent by relying on generalised information from websites and guidelines rather than specific expert evidence provided by Dr Nevile and Pups4Fun, a dog training business. The ACAT determined that the respondent's decision-making process was flawed and set aside the decision, substituting it with a decision allowing Dr Nevile to keep Tombi, subject to certain conditions to protect other residents and common property.

The ACAT's decision emphasised that the respondent must not unreasonably withhold consent, as required by section 32(3) of the UTM. The Tribunal found that the respondent's reliance on generalised breed-specific information from websites and guidelines, without adequately considering the specific evidence provided by Dr Nevile's veterinarian and Pups4Fun, was unreasonable. The Tribunal also noted that the respondent failed to properly inform itself and did not consider relevant matters, leading to an unreasonable decision. The ACAT's decision underscores the importance of considering individual animal behaviour and expert opinions over generalised breed characteristics when assessing pet applications. The Tribunal's ruling sets a precedent that each case must be determined on its merits, highlighting the need for a balanced and evidence-based approach to pet approval decisions.

Orders