Nevile v Owners Units Plan 3107 (Unit Titles)
[2014] ACAT 36
•27 June 2014
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 of Pups4Fun, dated 11 May 2014 who had known Tombi for almost two years.
8.The Respondent considered the Applicant’s letter at a meeting on 12 May 2014. By letter dated 14 May 2014 the Respondent notified the Applicant it had decided not to approve the Applicant’s request.
9.On 23 May 2014 the Applicant filed an Application under the Unit Titles (Management) Act 2011 with the ACT Civil and Administrative Tribunal (“the Tribunal”) seeking an order repealing the resolution of the Executive Committee on the basis that their consent to the Applicant’s application had been unreasonably withheld. The Applicant seeks that she be able to keep Tombi in the apartment complex.
10.The Applicant also filed an Application for interim or other orders on 23 May 2014 seeking that Tombi be allowed to live with her at the complex pending the resolution of her primary application.
11.At a Directions Hearing on 29 May 2014 the parties were directed to file and serve further documents and the matter was listed for a preliminary conference on 3 June 2014 and a hearing on 18 June 2014. The Applicant did not proceed with her application for interim or other orders.
12.At the hearing on 18 June 2014 the Applicant was represented by Ms Helen Swift pursuant to a Power of Attorney filed with the Registry on 12 June 2014. Mr Peter Grills, Chairman of the Respondent’s Executive Committee, represented the Respondent. Ms Marion Powell, a member of the Executive Committee, also attended the hearing on behalf of the Respondent.
13.The Applicant gave sworn evidence and Dr Michael Archinal and Ms Rhiannon Beach gave evidence by affirmation by telephone. Mr Grills gave sworn evidence. After hearing submissions from the parties the Tribunal reserved its decision.
Evidence before the Tribunal
14.In addition to the oral evidence from the Applicant, Dr Archinal, Ms Beach and Mr Grills the parties relied on the following documentation.
15.The Applicant filed the following documents, which were marked Exhibit A1, with her application:
·letter to her from the Executive Committee dated 6 May 2014;
·her letter to the Executive Committee dated 10 May 2014;
·letter to Executive Committee from Rhiannon Beach, Pups4Fun, dated 11 May 2014;
·letter to her from the Executive Committee dated 14 May 2014;
·Extract from EC briefing papers for 6 May 2014;
·Extract from the Respondent’s House Rules - item 4 – Pets;
·Extract from the Respondent’s amended Articles - clause 22 – Keeping Animals;
·‘Guidelines for seeking approval to keep pets’ approved by the Respondent on 25 May 2010;
·her application to the Respondent dated 23 April 2014; and
·letter dated March 26, 2014 from Dr Michael Archinal BVSc PTC (Hons) IVAS (Cert).
16.Pursuant to the Directions the Applicant filed the following documents, which were marked Exhibit A2:
·report from Dr Michael Archinal BVSc PTC (Hons) IVAS (Cert) dated 11 June 2014;
·an RSPCA Policy document titled ‘A02 Acquiring a companion animal’;
·an extract from an RSPCA guide relating to living with dogs in apartments;
·an extract from the same guide relating to whippets;
·six photographs of Tombi.
17.Pursuant to the Directions the Respondent filed the following documents, which were marked Exhibit R1:
·its Response to the ACAT Application and the Applicant’s statement and submissions
·The Waterfront Apartments Guidelines for seeking approval to keep pets;
·RSPCA List of suitable Breeds – Dogs with lower exercise requirements;
·Executive Committee Letter to Dr Nevile of 14 May 2014; and
·A paper titled Owners Corporations are the 4th level of Government.
THE LEGISLATION
18.Sections 32, 126 and 129 of the Units Title (Management) Act 2011 (UTM) relevantly state:
32Animals—owners corporation’s consent
(1)A unit owner may keep an animal, or allow an animal to be kept, within the unit or the common property only with the consent of the owners corporation.
(2)The owners corporation may give consent under this section with or without conditions.
(3)However, the owners corporation’s consent must not be unreasonably withheld.
NoteAn owner or occupier of a unit may apply to the ACAT to resolve a dispute with the owners corporation about keeping an animal, or allowing an animal to be kept (see s 126).
…
126Disputes involving the owners corporation—particular matters
(1)This section applies to the following disputes between the people mentioned in relation to the dispute:
(a)a dispute relating to keeping an animal or allowing an animal to be kept in a unit between—
(i)the owners corporation; and
(ii)an owner or occupier of a unit;
…
(2)A party to the dispute may apply to the ACAT for an order in relation to the other party if the application relates to the dispute.
…
129Kinds of ACAT orders
(1)The ACAT may make the following orders:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)an order requiring a party to exercise a function under this Act;
(c)an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
(d)an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;
(e)a declaration—
(i)that a general meeting or executive committee meeting is void for irregularity; or
(ii)that a resolution of a general meeting or executive committee meeting is void for irregularity; or
(iii)that a rule of the owners corporation is invalid for irregularity;
(f)an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;
(g)an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;
(h)an order requiring stated accounts of an owners corporation to be audited, whether by a stated person or a person of a stated kind;
(i)an order allowing an applicant to examine records of the owners corporation;
(j)an order requiring an owners corporation to make or repeal a rule and register a copy of the resolution making or repealing the rule;
(k)an order appointing an administrator to exercise all or stated functions of the owners corporation, the executive committee or an office-holder in the committee;
(l)if the dispute relates to a matter mentioned in section 126 (1) (a)—an order to remove the animal from the unit if—
(i)a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or
(ii)the animal is causing a nuisance.
(2)The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
(3)This section does not limit the orders the ACAT may make in relation to a dispute under this part.
Issue
19.The issue for determination is whether the Respondent’s consent to the Applicant’s request, as an owner of a unit in Waterfront Apartments complex, to keep Tombi on the complex was unreasonably withheld in contravention of section 32(3) of the UTM.
The Applicant’s evidence
20.The Applicant relied on the material she filed with the Tribunal. In her evidence she said she had owned Tombi since December 2008, a period of five and a half years. During that time she said she had never seen Tombi knock over, run into, or hurt or damage children, adults or objects. While some of the websites apparently relied on by the Respondent had stated that wolfhounds were clumsy dogs, that was not her experience of Tombi. Tombi knew how to use stairs and had no difficulty using the stairs, of five steps, in her Downer home. She added that Tombi did not run or play inside her home; Tombi simply preferred to sit.
21.In relation to the website information relied upon by the Respondent she said that these websites were general guides and not designed to be prescriptive or exhaustive. She referred the Tribunal to the following Notes or Disclaimers on the following RSPCA e-documents:
(A) RSPCA_ACT_Dogs in Apartments.pdf ‘Should I share my apartment with a dog? A guide to apartment living for you and your dog’
Dogs with lower exercise requirements*
...
*The above list should be seen as a general guide only. Many other dogs will happily live in apartments as long as their basic needs are met...The information about dog breed characteristics in this publication offers generalisations about each breed and is no guarantee of particular behaviour for an individual dog.WHIPPET
PLEASE NOTE: ...Whereas this guide sets out circumstances where we believe a dog can live in an apartment successfully it must be remembered that every dog is different. This guide is not designed to be prescriptive or exhaustive; it is designed to simply provide some high level thoughts, ideas and strategies based on our experience. We strongly recommend that this guide be used in conjunction with advice from your veterinarian, dog behaviourist and landlord. Only you truly know your living circumstances and the personality of your dog...
and
(B) RSPCA Policy A02 Acquiring a companion animal –
This website provides general information which must not be relied upon or regarded as a substitute for specific professional advice, including veterinary advice. We make no warranties that the website is accurate or suitable for a person’s unique circumstances and provide the website on the basis that all persons accessing the website responsibly assess the relevance and accuracy of content.
22.The Applicant said, in relation to the Respondent’s assertion that Tombi might suffer from living in an apartment, that the various websites relied on by the Respondent identified that wolfhounds are generally inactive. That has been her experience and the experience of Pups4Fun. Although Tombi had a backyard in Downer, she hardly used it. The Applicant said Tombi would sit with her in that backyard adding that Tombi always wanted to be with her. She said that Tombi often sits in the dog park and watches the other dogs and people. She also said that the Respondent’s reliance on the fact that she will no longer have a backyard in Kingston is no basis to deny her the opportunity to have Tombi live with her. She has ensured that Tombi has had mental stimulation and emotional enrichment by taking her for long walks (for 60 to 90 minutes) each morning. She proposes, if she is able to have Tombi live with her in the complex, to supplement the morning walks by a shorter walk in the late afternoon and another outside walk in the evening. Tombi has also had the weekly Pups4Fun activity and the Applicant proposes this will continue.
23.Next door to her apartment is Bowen Park. The Applicant said she has seen dogs and their owners both there and on the lake foreshore in the three weeks that she has been living in her apartment. She will be able to use the park and foreshore to walk Tombi if she is able to have Tombi live at the complex.
24.In relation to the Respondent’s concerns, as expressed in the Respondent’s letters to her, about the effect of a decision to permit Tombi to reside in the apartment complex on other residents living in the complex and the maintenance of harmonious relations, the Applicant told the Tribunal that she had, in her letter to the Respondent dated 10 May 2014, suggested a number of ways of ameliorating other residents’ concerns. These included her using the stairwell rather than the lift when entering or exiting the building with Tombi, always walking with Tombi next to the railing when passing the lift doors, and by stopping and waiting some distance from the lift doors if she sees people waiting to enter the lift or observe that the lift is about to open. In that letter she also suggested reducing the possibility of unpredictable encounters with other dogs in the stairwell by taking Tombi to Bowen Park at a convenient time and inviting concerned apartment owners with dogs to a ‘meet and greet’ session in the unrestricted space of Bowen Park. She referred to the letter from Ms Beach of Pups4Fun stating that if there was any unpredictable behaviour at such a meeting it would not be coming from Tombi.
25.The Applicant told the Tribunal that in the three weeks she had lived in her apartment she had only been in the lift on two occasions with another person and she had not met any other people when using the stairs. She added that since she moved into the apartment she had ascertained that from her apartment door she has a clear line of sight to the lift. She would be able to wait at her apartment door until the area outside the lift on her floor (the first floor) was empty and would, as previously offered, be able to stand back from the lift door with Tombi to see if anyone was in the lift. The building has a large foyer and the exit door is about 6 to 8 feet from the lift door. She would not need to cross the foyer with Tombi to exit the building.
26.In cross examination the Applicant said that when her tenant decided to move out of her apartment earlier this year she considered her options for her future, including living in her apartment. She was aware that the apartment had a pet policy. Before making her decision, she sought Dr Archinal’s expert advice and opinion on Tombi living in an apartment. He had known Tombi all her life and was her veterinarian. Dr Archinal had advised that Tombi would adjust extremely well to apartment living. Having obtained Dr Archinal’s advice, she then decided to sell her Downer property and move into the apartment.
27.The Applicant agreed that she had had no communication or expectation from the Respondent that her application to have Tombi reside with her in the apartment would be approved.
28.Tombi had lived with her for all but the first 8 weeks of Tombi’s life. Tombi was primarily an indoor dog who had lived in her kitchen, combined lounge/dining room and large bedroom of her Downer home. She estimated that this space was about 76 m². While that home had four bedrooms she said she did not use two of them other than for storage. In the Waterfront apartment, which was 109m², she said Tombi would have access to the whole of the apartment. She did not agree with the Respondent’s assertion that she should compare the total size of the Downer home and not just the rooms accessed by Tombi when making this comparison.
Dr Michael Archinal’s evidence
29.Dr Archinal confirmed that he had the qualifications detailed in his veterinary report dated 11 June 2014. He has been a veterinarian for 27 years and has known Tombi all of her life. He described[1] Tombi as a “medically and behaviourally sound dog who I feel would have no issues transitioning and living in a unit complex.” He said Tombi is a very social and well behaved dog; Tombi does not have any orthopaedic issues and he did not predict that Tombi would have any problems using stairs that were built for people. He said there will be no issue with Tombi’s joints.
[1] Medical Report dated 26 March 2014
30.He told the Tribunal that there was a presumption that large dog breeds needed large backyards which was wrong. These dogs need environmental enrichment and mental stimulation; they usually lie in a yard. He said that providing a dog such as Tombi with a daily walk of 20 to 30 minutes duration was enough to provide the environmental enrichment and mental stimulation she needs.
31.He opined that Tombi had bonded very closely to the Applicant and it was emotionally best if she remained with her current owner. If Tombi was re-homed separation anxiety would be really difficult for a large dog such as Tombi.
32.In his report dated 11 June 2014 Dr Archinal said :
1.I have been asked to make further comment on the suitability of having an Irish Wolfhound (specifically “Tombi” Nevile) living in an apartment.
2.As a background, the requirements for the housing of dogs are as many and varied of the number of different breeds there are. In the light of this (much like the Dangerous Dog Legislation in each State and Territory) each decision must be based entirely on the individual dog, not the breed. It would be foolish to assume that every individual dog of a certain breed would follow the breed standard, and it would establish a very dangerous precedent to assume so. Even the RSPCA’s own website attests to this fact when it states that: ‘[it] provides general information which must not be relied upon or regarded as a substitute for specific professional advice, including veterinary advice.’
3.I have been a veterinarian for over 27 years and regularly lecture around the world on the Human-Animal Bond and have undertaken post-graduate training in the specific field of animal behaviour. I write for national publications and have regularly appeared on National Television for over 10 years providing advice on the welfare of the animals in our care. I have also been canvassed to appear as an expert witness for legal matters.
4.The Irish Wolfhound breed is introverted, intelligent, and reserved in character and quiet by nature. They are not a dog that requires much exercise, and become lazy if owners rely on the dog exercising itself in the backyard. For this reason, wolfhounds are best exercised by being taken on daily walks outside the owners’s house/apartment. Many large breed dogs live very successfully in apartments around the world.
5.It is my expert opinion, based on scientific fact, that Tombi will adjust to apartment living extremely well and will have no impact on other residents nor will this arrangement negatively affect her welfare.
33.As stated in this report, he told the Tribunal that there were lots of overseas precedents for large breed dogs residing in apartments and he was not aware of any studies showing that these dogs suffered any detriment.
34.When asked about the information accessible on websites about breeds of dogs he described this information as very generalised adding that websites can make sweeping statements. As stated in his report referred to above, he drew the Tribunal’s attention to the disclaimer on the RSPCA’s website – “[it] provides general information which must not be relied upon or regarded as a substitute for specific professional advice, including veterinary advice.”
Ms Rhiannon Beach
35.Ms Rhiannon Beach told the Tribunal that she is presently studying for a Bachelor of Laws at the University of Canberra. She founded the business, Pups4Fun seven years ago. In her letter to the Executive Committee she described the services her business provides for dogs as follows:
Pups4Fun was established over 7 years ago and provides services to approximately 80 dogs per week. Our services include Dog Walking and Dog Playgroups, both with an emphasis on group activities and appropriate Dog Behaviour. Pups4Fun provides Behaviour Consultations for people whose dogs have behavioural issues. We regularly deal with; dogs that suffer fear of people and other dogs; dogs that are unable to control their excitement; dogs that don’t walk well on a lead; and dogs that have other issues. Suffice to say, we have a wide range of knowledge about dogs and dog behaviour, stemming from the training that we are constantly undertaking to keep up-to-date on the latest Dog Behaviour and Training worldwide best practise. We also have seven years of experience working with dogs 7 days-a-week and are very familiar with many different breeds and their exercise and space needs.
36.Tombi has been attending Pups4Fun since June 2012 on a weekly basis. This involves her being collected early in the morning and travelling in a van with between 5 and 15 dogs at any one time. Ms Beach said she had observed Tombi for over almost two years travelling in the van, walking on a lead for an hour and having an hour’s free but supervised time in the dog park. She had also seen her when walking with the Applicant. She described Tombi as being ‘more than happy to sleep in the van’ when travelling and in the dog park choosing to play for a short time and then lazing back and observing the interactions in the park. She described Tombi as a low key dog who sleeps most of the time and is more interested in being around people. She said Tombi ignores yapping dogs.
37.In her letter she wrote:
Tombi is not only a pleasure to have as part of our group, but she is a benefit as she is a model for other dogs on how to behave in social situations. In the two years we have known Tombi, we have not heard her bark.
In our experience, Tombi is a very well balanced dog and has never shown any inappropriate behaviour towards any other dog or person. She has many friends in the dog parks that we attend. She is very tolerant to dogs that behave aggressively and otherwise inappropriately that we encounter in the dog parks and on walks. She has been brought up exceptionally well, having been well socialised with both dogs and people, and is one of the most good natured and calmest dogs we have met. We have even used her on several occasions as a calming influence for some dogs with special behavioural issues, to help bring the other dog’s energy and angst level down. She is always the best choice as a walking buddy for over stimulated dogs which may be of any breed or size, as she is unflappable and always composed. Pups4Fun accommodates a number of work experience placements from mainstream and special needs students. Tombi is always our first preference for these students to walk and interact with as she is such a relaxed and tolerant dog, for someone who may have little experience with dogs.
38.Ms Beach told the Tribunal that since she had written the letter to the Executive Committee she had been training new puppies and had deliberately selected Tombi, because of her calm temperament, to accompany her to puppy training so the puppies could be exposed to a large dog. She also told the Tribunal that if any of the other dogs stood on Tombi when travelling in the van, Tombi ignored it. Usually the other dogs snuggled up to Tombi in the van.
Mr Peter Grills
39.Mr Grills told the Tribunal that the Respondent relied on his written submissions. In those submissions Mr Grills said[2] that the Waterfront Apartments complex can reasonably be described as ‘pet friendly’. Currently there are 16 approved pets registered with the Building Manager comprising 12 dogs and 4 cats.
[2] Respondent’s submissions filed 16 June 2014 at 2.1
40.The Respondent provided a copy of the Pet Approval Policy, authorised under the Owners Corporation Rules, entitled “GUIDELINES for seeking to keep pets” to the Tribunal and stated[3] that the relevant dot point in the Guidelines is:
Animals that are uncontrolled and breeds of animals that are known to be inappropriate for medium density living will not receive consent. For suitable dogs please refer to the RSPCA guidelines.
[3] Respondent’s submissions filed 16 June 2014 at 3.2
41.The Respondent’s committee stated[4] that it:
...chose to accept the RSPCA guidelines in respect of suitable dogs because of its well established reputation for expertise in the area of animal welfare; because it had gone to the trouble of considering the issue and issuing a list of suitable dogs for apartment living; and because the Committee wanted an objective source of guidance to assist it in considering individual applications...
The RSPCA guidelines do not specify, and are not interpreted by the Committee as being determinant of, breeds that are unsuitable to apartment living....For dogs not on the [RSPCA] list, the application is referred to the Committee for consideration on its merits.
[4] Respondent’s submissions filed 16 June 2014 at 3.3
42.The Respondent had referred the Applicant’s application to the Committee as Tombi is an Irish Wolfhound and this breed is not included on the RSPCA list of suitable breeds for apartment living. The Committee listed the following websites to which it had regard in considering the application on its merits:
·Dogbreedinfo.com
·Dogtime.com
·Irish Wolfhound Club of America website
·Dog Breed Information Centre website
·Dogs-and-dog-advice.com
·Vetstreet.com and
·Petcare Information & Advisory Service website.
43.Mr Grills said that the four factors which the Committee had regard to both in developing its Pets policy and in assessing the individual merit of the Applicant’s application were set out in the Respondent’s submissions[5]:
1)The perspective of the applicant (i.e. the reasons put forward in support of the application).
2)A duty of care relating to the wellbeing of the animals it approves for residence in the complex.
3)The impact of its decision on other owners/residents; and
4)Maintaining harmonious relationships within the complex itself.
[5] Respondent’s submissions filed 16 June 2014 at 3.1
44.In considering ‘the perspective of the Applicant’ the Committee stated[6] that it considered the letters from the Applicant’s vet and her dog walker and it recognised and accepted the bond between pet and owner. However the Committee said that the breed specific advice [from the websites referred to in paragraph 42 above] was seen as outweighing them [the letters from her vet and the dog walker].
[6] Respondent’s submissions filed 16 June 2014 at 6.1
45.In considering ‘the wellbeing of the animal’ the Committee stated[7]:
The Committee placed considerable weight on the strength of the evidence from a variety of relevant websites (Veterinarian, generalised Dog breed specialists, Irish Wolfhound specialists and a pet advocacy service ) that Irish Wolfhounds are not suited to apartment living. The consistent evidence from those sites is that Irish Wolfhound s need a yard to run freely - being walked on a lead is not enough (...) It noted that Tombi has lived the first 5 years of its life in a 4 bedroom home with a yard, and that neither Dr Nevile, her dog walker, nor her vet have had the opportunity to observe how Tombi will react to apartment living. It is also noted the difficulty the breed has with stairs in assessing the proposal, in Dr Nevile’s request for a re-assessment of its initial decision, that she use the fire stairs rather than the lift when Tombi enters/leaves the complex.
[7] Respondent’s submissions filed 16 June 2014 at 6.2
46.In considering ‘the Impact of its decisions on other Owners/Residents’ the Committee stated[8] that while less weight was put on the adverse reaction (that they had not envisaged the presence of such a large dog in their apartment building when they bought their apartment) from some residents in a specific unit, it was a relevant factor for the Committee to consider.
[8] Respondent’s submissions filed 16 June 2014 at 6.3
47.The Committee also considered the potential for an adverse incident should a small child, or an existing small dog within the complex, respond badly to an unexpected encounter with Tombi entering or leaving the lift or stairwell. The Committee stated[9] that ‘While there is no suggestion that Tombi is likely to be aggressive, Irish Wolfhounds are large and do have a reputation for being clumsy.’ The Committee expressed their concern, while accepting Tombi should not be ‘blamed’ for such a situation if it occurs, that the Committee would be accountable for allowing the situation to occur by approving the application.
[9] Respondent’s submissions filed 16 June 2014 at 6.4, 6.5
48.In considering ‘Maintaining harmonious relationships within the complex’ the Committee identified the relationships as being between individual residents and between the Committee and individual residents. The Committee stated[10]
... one of the reasons the Committee adopted the RSPCA list was to apply an objective guideline and to minimise the subjectivity of assessing pet applications, particularly when the Committee is dealing with an owner/pet moving into the complex and they have no direct knowledge about either. Pet owners wanting to bring a pet into an apartment clearly believe that their animal is suited to apartment living, yet experience shows that this belief is not always well founded. Considering an application on objective grounds minimises the potential for relationships between the owner and the Committee to be soured by an adverse decision.
The Committee has had direct experience of a resident not being objective about issues involving them, and of the difficulties that such a soured relationship can cause. Protecting that objective basis of assessment and avoiding such conflict is a significant factor in the Committee’s view.
In this case, approval of Tombi would be such a dramatic departure from the established policy that the Committee believes it would substantively undermine the objective basis of its policy.
[10] Respondent’s submissions filed 16 June 2014 at 6.6, 6.7, 6.8
49.The Committee summarised[11] the reasons for its decision as follows:
....the committee concluded that the benefits to, and perspective of, Dr Nevile deriving from departing from its established Pet Policy and approving her pet application for Tombi the Irish Wolfhound were outweighed by the demonstrable unsuitability of the breed to apartment living; the impact such an obvious departure from its Pet Policy would have on the viability of a soundly based policy; the potential for adverse impacts on other residents of the complex; and the likely reaction of those residents. Dr Nevile has argued that we did not consider her application on a ‘case by case’ basis but simply applied a ‘blanket’ rule. The evidence is clearly to the contrary and that the Committee clearly made its decision on the merits of the case.
[11] Respondent’s submissions filed 16 June 2014 at 6.9
50.In response to a question from the Tribunal, Mr Grills said that the Committee had not formally sought or canvassed the views of the residents of the complex in relation to the Applicant’s application. He said the reaction to the application referred to in paragraph 46 above came in the form of informal feedback. He told the Tribunal that the views of other owners were real for those owners in forming their conclusions, adding that the intuitive reaction of people was more likely to be problematic in considering a large dog. He conceded that such a reaction was usually an ‘uninformed’ reaction. However, he asserted that the size of the dog being considered did not come into the Committee’s consideration.
51.When the Tribunal asked Mr Grills about Dr Archinal’s evidence that ‘no regard at all should be had to the breed - only to the dog itself’ Mr Grills replied that ‘certain breeds have characteristics’.
SUBMISSIONS
The Applicant
52.The Applicant submitted that the Respondent’s decision making process was flawed and this has led to the Respondent unreasonably withholding its consent to her application to have Tombi live in her apartment within the complex.
53.She submitted that the Respondent had accessed information on websites which provide, at best, guidelines for purchasers of dogs or general statements, such as the RSPCA’s website - A Guide to apartment living for you and your dog - and not paid any, or any sufficient, attention to the notification on the website which cautioned readers that the list was a general guide only, that many other breeds will happily live in apartments as long as their basic needs are met and that the information on the website is no guarantee of particular behaviour for an individual dog.
54.She further submitted that she had provided expert evidence not only from a veterinarian, but from the veterinarian who had looked after Tombi all of her life and who was able to give his expert opinion as to her suitability for apartment living. This was the only expert veterinary evidence considered by the Respondent, it was credible and unchallenged but discounted or discarded by the Respondent in preference to general opinions found in some websites.
55.The Applicant contended[12] that while it might be administratively convenient for the Executive Committee to base its decisions on a set of Guidelines such as the RSPCA’s guidelines, pursuant to section 32(3) of the UTM the owners corporation’s consent must not be unreasonably withheld. The Applicant relied on the ACT Department of Justice and Community Safety’s website, which states that this means that “an owners corporation cannot amend its articles to preclude any right of any unit owner to keep an animal”. She also relied on the website which states that “the owners corporation ... must give or withhold consent on a case-by-case basis.
[12] The Applicant’s letter to the Respondent dated 10 May 2014, page 1, paragraph 2
[13] ACT Department of Justice and Community Safety 2012, ‘Factsheet FS6_Changed rules about keeping animals’,
56.In relation to the matters raised in the Respondent’s refusal decision she said that it was unreasonable for the Respondent to make a decision on Tombi’s suitability for apartment living on information gathered from generalised websites or from the RSPCA’s website without further enquiry in accordance with the notation or disclaimer on their website and especially when she had provided a relevant expert veterinary opinion in Dr Archinal’s letter and evidence from Pups4Fun. She submitted[15] that, in relation to the Respondent relying on the information obtained from some websites,:
A quick search of literature reveals that there is no consensus that large breeds are not suited to apartment living (see for example, Pulley, K. 2013[16]; Campbell Thornton, K. 2012[17]: ASPCA 2014[18]; O’Shea 2014[19]). Indeed Jackson (2010)[20] observes that equating the size of the dog with the size of the space is probably one of the most common misunderstandings in the relationship between breed and housing type. Many experts now argue that the most important consideration in determining whether a dog is suitable for apartment living is their temperament, not their size. “Many small breeds have endless energy and need a lot of attention and exercise. Some dogs - such as Jack Russell Terriers - can also be quite vocal and may not well be suited to apartment living.”[21] “It’s best to have a dog with a good temperament who can pass or meet people and pets without any bad behaviour ... In general, the best apartment dogs have the following in common: they are quiet; they have exercise needs that are easily met; they get along with other people and pets”[22]
[15] Applicant’s letter to Respondent 10 May 2014, page 1 paragraph 3
[16] ‘The 10 Best Apartment Dog Breeds: Why Size doesn’t Matter’,
[17] ’13 Dog Breeds ideal for Apartments’,
[18] ‘Large Dogs Rock! Even Apartment Dwellers Can Adopt Larger Breed Dogs”,
[19] ‘The panel :pets and design’, Radio National,
[20] Jackson, V. 2010, ‘Four Legs//Four Walls Design Guidelines: A comprehensive guide to housing design with pets in mind’, PISA,
[21] PISA 2010, ‘Pets in the city’, Petcare Information and Advisory Service,
[22] Applicant further submitted that the Respondent’s placing “considerable weight”[23] on the evidence from particular websites in relation to the suitability or otherwise of Wolfhounds for apartment living without regard to the websites she referred to in her letter of 10 May 2014, was unbalanced and unreasonable.
[23] Respondent’s submissions 16 June 2014 at 6.2
58.The Applicant noted that the Respondent also relied on the same websites to determine Tombi’s wellbeing and had asserted that because the Applicant, the veterinarian and Ms Beach had not had the opportunity to observe how Tombi will react to apartment living, their opinions should be given little or no weight and the generic information on the websites the Respondent had accessed preferred and relied upon. The Applicant submitted that this approach was unreasonable when there was compelling and uncontested evidence from Dr Archinal and Ms Beach.
59.The Applicant submitted that her evidence and that of Dr Archinal and Ms Beach showed that the Respondent’s reliance on information about dogs of the Wolfhound breed being clumsy and having difficulty with stairs does not apply to Tombi and it was, therefore, unreasonable of the Respondent to attach any weight to that generic information.
60.In relation to the impact of the decision on other owners and residents and maintaining harmonious relationships within the complex, she submitted that the Respondent had credible evidence from Dr Archinal and Ms Beach in relation to Tombi’s temperament, behaviour and suitability for apartment living and, notwithstanding that she had offered[24] the Executive Committee the opportunity to meet with Dr Archinal to discuss any questions they might have, the Respondent had unreasonably not taken up that opportunity, choosing to prefer to base their decision on generalised information gleaned from some websites and, apparently, from unidentified residents who had not been formally canvassed or provided with all of the available information.
The Respondent
[24] Applicant’s letter to Respondent dated 10 May 2014 page 2, paragraph 2
61.Mr Grills submitted[25] that in considering section 32(3) of the UTM Act, the Tribunal should adopt the findings of the tribunal in an earlier decision, Lanfranchi and Owners of Units Plan 806[26] (“Lanfranchi”), that ‘unreasonably’ was to be given its meaning ‘in ordinary parlance’ by referring to the Macquarie Dictionary as defining ‘unreasonable’ as ‘not endowed with reason, not guided by reason or good sense, not based in or in accordance with reason or sound judgement’ and to the Butterworth’s Australian Legal Dictionary which defined ‘Unreasonable: in administrative law, a description of an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.’
[25] Respondent’s submissions filed 16 June 2014 at 9.2, 7.3, 7.4
[26] [2011] ACAT 7
62.He also submitted[27] that the Committee is strongly of the belief that it has established a sensible pet approval policy; in considering the merits of the application it took into account all considerations relevant to the decision it had to make and that it has made a decision that is balanced and based on sound evidence and logical reasoning.
[27] Respondent’s submissions filed 16 June 2014 at 9.3
63.In the Respondent’s written submissions Mr Grills raised two further matters[28]:
[28] Respondent’s submissions filed 16 June 2014 at 9.5
ACAT should recognise all the aspects of its decision that impact on the Executive Committee in making its decision...
given its close involvement with the community it is elected to administer, our Executive Committee is best place to provide advice to ACAT on the factors such as the reaction of other residents, and the maintenance of harmony within the complex that are relevant to maintaining a cogent pet approval policy, and to the approval of an Irish Wolfhound as a pet in The Waterfront Apartments.
and
When exercising the discretion under section 32 of the (UTM), ACAT should be reluctant to replace the Committee’s decision with its own, and to do so only when it is clearly demonstrated that the pet approval decision it is reviewing is inherently unreasonable.
FINDINGS
64.The Tribunal is satisfied that it should adopt the meaning of the word ‘unreasonably’ accepted by Davies J in Curragh Coal Co Pty Ltd v Wilcox [1984] FCA 168 and adopted by the Tribunal in Lanfranchi.
65.Considering the four factors and the decision summary relied on by the respondent, the Tribunal finds:
(a)The perspective of the Applicant – while stating that the Committee fully recognises and accepts the bond between pet and owner and that the Applicant has owned Tombi since birth, it was unreasonable of the Respondent to decide that the “breed specific advice” obtained from generalised information on some websites outweighed the unchallenged, credible Curragh Coal Co Pty Ltd v Wilcox [1984] FCA 168 and relevant evidence from the Applicant’s veterinarian, Dr Archinal, and from Pups4Fun. The unchallenged evidence was highly relevant and specific to Tombi and compelling. The Respondent appears to have, unreasonably given no, or too little, consideration to the expert evidence and to the important disclaimers on the RSPCA website.
(b)A duty of care about the wellbeing of the animals – again, it was unreasonable for the Respondent to place such considerable weight on the strength of evidence from a variety of websites to the effect that Irish Wolfhounds are not suited to apartment living, that they need a yard to run freely, that Tombi had lived the first 5 years of her life in a 4 bedroom home with a yard, that the breed has difficulty with stairs and that neither the Applicant, her dog walker, nor her vet had observed how Tombi would react to apartment living, when the websites provide only generalised information and the Respondent had the unchallenged, credible and relevant evidence from Dr Archinal and Pups4Fun. The Tribunal is satisfied that the expert evidence from Dr Archinal was compelling; it authoritatively debunked a number of the sweeping generalisations in the websites relied on by the Respondent and insufficient weight was given to that expert evidence. The Tribunal is satisfied that the Respondent appears to have, also unreasonably, given no or too little, consideration to the important disclaimers on the RSPCA website.
(c)The impact of its decision on other owners/residents – while the Tribunal is cognisant of the importance of this factor for the Respondent, the evidence before the Tribunal, surprisingly, was that the Committee attached weight, albeit ‘less weight’, to comments from unnamed residents when the Respondent had not formally informed residents of the application, or its contents. In these circumstances, such comments are unreliable. The Tribunal noted the Respondent’s reasonable concerns in relation to potential adverse incidents at the complex, but finds that the Respondent unreasonably ignored or attached too little weight to the expert, unchallenged evidence from Dr Archinal and also ignored the credible and unchallenged evidence from Pups4Fun. The Tribunal repeats its findings in (a) and (b) above. It is unfortunate that the Respondent committee did not take up the opportunity to speak with Dr Archinal, whose veterinary expertise and qualifications, as well as his care of Tombi during her life to date, equipped him very well to be able to answer any queries or concerns that the committee may have had.
(d)Maintaining harmonious relationships within the complex itself – the Respondent said it adopted the RSPCA list in order to apply an objective guideline and to minimise the subjectivity of assessing pet applications. The Respondent has implemented an arrangement whereby the Manager is able to determine applications to approve dogs whose breed is included on this list and the Executive Committee considers applications to keep a dog whose breed is not on this list.
66.While the Respondent said that the Committee did not interpret the RSPCA guidelines as being determinant of breeds that are unsuitable to apartment living, the Tribunal finds that the Respondent’s decision has, in reality, been based on Tombi’s breed, as evidenced by the statement[29] that approving Tombi would be such an obvious departure from the approved pet policy that the Committee feels that it would have the potential to undermine that policy. At the hearing, the Respondent justified its decision by referring to ‘the demonstrable unsuitability of the breed to apartment living’.[30] The Tribunal has already found, above, that this information was obtained from general websites and was convincingly overruled by the expert, and unchallenged evidence from Dr Archinal.
[29] Respondent’s letter dated 14 May 2014 page 2, paragraph 1
[30] Respondent’s submissions 16 June 2014 page 5 paragraph 1
67.The Tribunal is also satisfied and finds that the Respondent Committee relied on intuitive, but uniformed opinions from unnamed residents and ignored or gave insufficient weight to the Applicant’s reasonable proposals to allow residents to meet Tombi, which could have taken place before a decision was finalised.
68.The Tribunal is satisfied that the committee failed to consider relevant matters and took into account irrelevant matters. The decision was not supported by all of the evidence. The Respondent’s decision was, in the circumstances, unreasonable.
CONCLUSION
69.Having considered all of the evidence before the Tribunal, for the reasons set out above, the Tribunal is satisfied and finds that the Respondent failed to properly inform itself prior to making the decision to refuse the Applicant permission to keep Tombi at the complex. The following tribunal findings in Lanfranchi are particularly apt in the present matter:
….the executive committee has failed to consider relevant matters and taken into account irrelevant matters. The decision was not based on a reasonable consideration of the issues, but was based on erroneous assumptions, not supported by [all of] the evidence or information. It was thus a decision that was not based on sound judgement and was unreasonable.
70.The Tribunal finds that the Respondent’s consent to the Applicant’s application to keep Tombi at her unit in the Waterfront Apartments was unreasonably withheld in contravention of section 32(3) of the UTM.
71.The Tribunal will make Orders pursuant to section 129(2) of the UTM setting aside the Respondent’s decision not to consent to the Applicant’s application and substituting a decision that the Applicant, Dr Ann Nevile, may keep her Irish Wolfhound, Tombi, at her unit in the Waterfront Apartments subject to the conditions set out in the Order.
OTHER MATTERS
72.The Tribunal’s decision has been made solely on the evidence in this case and is specific to this matter only. It is not intended to be a precedent for applications by owners of large dogs to owners corporations in general. Each case will need to be determined on its own merits.
........………………………………..
Ms L. Crebbin – General President
For and on behalf of
Ms E. Symons – Presidential Member[14] Tenants ACT 2011. ‘Pets’
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