[x] June 2016

Office of the Commissioner for

Body Corporate and Community Management
GPO Box 1049
BRISBANE QLD 4001
By email: bccm@justice.qld.gov.au

Dear Sir/Madam

The Body Corporate for <Insert Name Here>

Reference: <blah blah blah>
Owners of [Lot x] [address]
We write further to your letter of <insert date here>. You have invited owners of lots
comprising the Centenary Place Community Titles Scheme (Scheme) to make a submission
regarding the adjudication application set out in that letter. We note the adjudication
application seeks to invalidate by-law 10 for the Scheme (By-Law 10).
We support the application to invalidate By-Law 10 on the following grounds:
1. There is clear precedent that laws purporting to ban pets under all circumstances are
invalid. 1 In particular, we note paragraphs [48]-[49] of Body Corporate for River City
Apartments CTS 31622 v McGarvey in which a Queensland Court of Appeal decision2
was applied to rule as invalid, a by-law purporting to ban all pets: 3
[48] In prohibiting the keeping of pets altogether, the by-law in this case is analogous to a
by-law that prohibited altogether a particular manner of using or enjoying a lot by carrying
out building works. In Mineralogy, the Court of Appeal expressed the view that such a bylaw would be invalid. Similarly, a by-law that prohibited altogether the playing of music in
a lot would be invalid, whereas one that prohibited playing music above a certain level of
sound between certain hours would be one regulating the use and enjoyment of lots.
[49] In my view, a by-law that prohibits altogether the keeping of pets in lots is not a bylaw regulating the use or enjoyment of lots, but purports to prohibit a particular use and
type of enjoyment altogether. It therefore goes beyond the scope of a valid by-law
permitted by s 169 and is invalid.
2. Section 180(3) of the Body Corporate and Community Management Scheme 1997
(Qld) (Act) provides:
Ifalotmaylawfullybeusedforresidentialpurposes,thebylawscannotrestrictthetypeof
residentialuse.

1 Liberty [2014] QBCCMCmr 343 (23 September 2014); McKenzie v Body

Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57.
2 Mineralogy Pty Ltd v Body Corporate for the 'The Lakes Coolum' [2002] QCA
550.
3 [2012] QCATA 47 (12 March 2012).

The lot is clearly used for residential purposes and activities within the ambit of residential
use cannot be restricted. Many Australians house pets in their homes. We submit that to
house a pet is an ordinary residential use of ones property and cannot be restricted in all
circumstances as By-Law 10 purports to do. As By-Law 10 is a draconian restriction of
ordinary residential use, it is in breach of section 180(3).
3. Section 180(7) of the Act provides:
Abylawmustnotbeoppressiveorunreasonable,havingregardtotheinterestsofallowners
andoccupiersoflotsincludedintheschemeandtheuseofthecommonpropertyforthescheme.
By-Law 10 is unreasonable on the basis that there are circumstances in which a pet can
live in lot of the Scheme without any adverse effect on other lots of the Scheme or the
rights of other lot owners/residents. To ignore the capacity for harmonious co-existence of
lot owners and pets under some circumstances is repugnant to the interests of owners
who may wish and are able to house pets in a manner which does not interfere with any
other owner/resident.
4. Section 169 of the Act provides that by-laws must regulate. Any by-law that purports
to ban any activity under all circumstances is not regulation, but prohibition. 4
We humbly submit to the Commissioner, that Bi-Law 10 is invalid and must be replaced with
an alterative. We believe it would be consistent with the authorities and the Act to replace BiLaw 10 with that set out in section 11 of Schedule 4 of the Act. 5 We note the Body Corporates
general obligations under the Act to act reasonably.6 However, we suggest that to remove any
doubt, this new bi-law should be qualified that any approval should be given/withheld
reasonably.
We look forward to your response.
Yours Faithfully

[name]

4 Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47.
5 McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57.
6 Body Corporate for River City Apartments CTS 31622 v McGarvey [2012] QCATA 47 (12 March
2012).