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  • #60003
    amber2121
    Flatchatter

    Hoping you can help. We live in a large complex and when the adjoining unit sold a young couple and a small yappy chihuahua moved in. We have dealt with this small dog barking for months, I finally spoke to the resident in August and she advised that they were “doing their best” to help the dog settle in.

    I finally had enough went nothing changed and submitted a complaint to strata, and at the October meeting they stated their intention to issue a Notice to Comply after the November meeting. Got the November meeting minutes today where they resolved not to issue a Notice.

    I called the strata manager and she said after the warning letter sent to the dog owner they replied saying that seeing as no one else had made a complaint it shouldn’t be an issue, and also said that we had apparently made some noise and it was probably us setting off the dog.

    I know this to be untrue. This dog barks 200+ times per day, whether the tenants are home or not, they NEVER admonish or do any kind of training, when they leave their apartment the dog barks literally 50 or 60 times in quick succession until they are out of sight, and the majority of our time at home we are working on computers. We’ve never had any noise complaints even in our old place.

    When the dog barks it disturbs us from what we are doing and prompts me to see why it might be barking (barks at EVERYONE and EVERYTHING and we are in a very busy complex) and they don’t care how long it barks. It seems to be getting worse, today the tenant is home all day (occasionally hear her say “shush”) but the dog is barking incessantly inside.

    How do we deal with this?? please help.

    • This topic was modified 7 months, 2 weeks ago by .
Viewing 12 replies - 16 through 27 (of 27 total)
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  • #61466
    86_strata
    Flatchatter

    I have always said there is really no such thing as a bad dog – bad behaviour in dogs is the product of bad owners or human behaviour or neglect.  It’s my animal welfare streak coming out sorry.  I don’t think that the dog deserves any punishment, its barking is instinctive and because of its surroundings and threats it perceives.  It’s owners’ choice of dwelling is inappropriate for it so it seems, but that is not the dog’s fault.  Bark collars are painful and cruel and banned in many states and territories in Australia (see https://kb.rspca.org.au/knowledge-base/is-the-use-of-electronic-dog-collars-legal/).  Training is a possible answer – how this can be compelled I am not 100% sure as I’m no legal expert – however it is up to the owner to get off their backside and do it already.  Training clubs near me are $2 per week for an hour, it is not expensive.  I feel for you, I really do, but bark collars and treatments like that are simply cruel.  Focus your energy on the owners, and please not to punish the dog.

    #61470
    Jimmy-T
    Keymaster

    Bark collars are painful and cruel and banned in many states and territories in Australia .

    Isn’t there a collar that issues citronella spray, rather than an electric shock, when the dog barks.  But you’re right, this is all about the bad owners rather than a bad dog, but if they don’t give a damn about their human neighbours, can we really expect them to care much about their pet.

    Training is a possible answer – how this can be compelled I am not 100% sure as I’m no legal expert – however it is up to the owner to get off their backside and do it already.

    Section 158 of the Act (below) refers to animals that have been allowed into a strata scheme but which then prove to be a nuisance or disturb neighbours.  It allows the Tribunal to order the owners to take the pet out of the apartment or “take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference”.

    Just as a side note, this section of the Act is overlooked in all the huffing and puffing as schemes try to create by-laws that would pre-empt nuisance pets from being brought into schemes.

    158   Order for removal of an animal permitted under by-laws

    (1)  The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.

    (2)  The Tribunal may order that the person—

    (a)  cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or

    (b)  within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

    • This reply was modified 4 months, 1 week ago by .
    #61591
    amber2121
    Flatchatter
    Chat-starter

    I’ve never suggested any punishment against the dog (though I’ve thought it on horrendous barking days!), it was the SM who floated several ideas. It is absolutely the dog owners at fault – the dog is treated like an accessory, and they are not the most considerate of neighbours in other ways either.

    Meeting last night, SM insisted action be taken given the evidence I provided. The SM did speak with the owner before the meeting and pointed out that if they don’t deal with it then the dog could be ordered to leave, as the evidence we have would be a slam dunk case. SM and OC decided the owners have the option to provide evidence of training or whatever is required to stop the barking (I need to provide an acceptable timeframe – maybe before next meeting, 1 month, to see improvement?) and if not NCAT. There was some mention that we could take them to NCAT, but I’ll be insisting the OC does.

    It’s not exactly the swiftest outcome I was hoping for, but I figure it makes us look reasonable and compromising, and if it does work then problem solved. I am a little concerned about retaliation (they’ve already made false allegations in trying to deflect from this issue) but we will deal with that if it happens. Really appreciate all the advice here, and I’ll keep you posted.

    #63453
    The Hood
    Flatchatter

    Not sure why one would take the committee (the OC in fact) to mediation or NCAT on this.

    The OC’s ‘duty’ in this matter is where in the Act?
    I think you might find there is no express obligation to act on this complaint.
    Just as an aside: there is case law (Supreme Court) that says the OC is not mandated to Act on by-law breaches.

    Noise nuisance by an animal is in Regulation 36A
    36A Keeping of animals—circumstances of unreasonable interference

    For the purposes of the Act, section 137B(3), the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are—

    (a) the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or
    (b) ….

    The problem here is what constitutes ‘persistent’ and at what point is the degree of unreasonableness a trigger to make an order.
    Here we will see noise (member dependent deviation in judgement) as these things are not part of a clear objective test. Different Members would hold different views, i.e. set the bar at different points.

    It seems to me to be that the issue for the owner is with the dogs owner, not the OC, as I think it is the case that it is discretionary for the OC to act in such matters. Take the legislation surrounding the breach of a by-law for example, even if the OC is satisfied there is a breach the OC “may” (a discretionary term) act by sending a NTC; there is no obligation to take action.

    Jimmy says: “Having it on the agenda is essential so it can be discussed and voted on for the NTC to be legal.”
    One would think so but that is not the case.

    Many a NTC has been sent absent an agenda item and it has made no difference once the matter landed in NCAT.
    In fact the absence of an agenda item for two NTCs was of no concern to a Member who was being asked to removed a few SC members for failure to follow the Act (s 238(2)) (Jones v SP36965 unreported).
    The Tribunal’s best effort was to complain about  the size of the application which went to lengths to evidence the facts. The Member described the claims as narrative even though there were months of agendas (absent any item relating to the NTCs) and minutes.
    It was easy enough to see the NTCs were issued but there was no agenda item for them.
    Owners were effectively disenfranchised from Sch 2 cl 9(3) – another matter the judiciary seems to care little about.

    #63455
    Jimmy-T
    Keymaster

    Not sure why one would take the committee (the OC in fact) to mediation or NCAT on this. The OC’s ‘duty’ in this matter is where in the Act? I think you might find there is no express obligation to act on this complaint.

    Not so. Just because the obligation is not spelled out in the Act doesn’t mean it doesn’t exist. Former Fair Trading Minister Victor Dominello told me himself that he made this clear in his second reading of the Act back in 2015.

    If you care to check Hansard you will find, he said, in reference to Section 232: “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.”  That is why section 232(2) exists, to compel committee members to fulfil their obligations under the Act.  This is what it says:

    The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—

    (e)  an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme.

    It could not be any clearer.  The strata committee has obligations and they can be compelled to fulfil them. If this is not the case, please quote an instance where such an action has failed because it was incompetent in that regard.

    Just as an aside: there is case law (Supreme Court) that says the OC is not mandated to Act on by-law breaches.

    By “not mandated” do you mean not empowered to or not compelled to? Either way, please quote the case and its relevance to this issue, as it would undermine the whole premise of strata laws and by-laws if strata committees had neither the power nor obligation to enforce their by-laws.

     

    #63456
    Austman
    Flatchatter

    The strata committee has obligations and they can be compelled to fulfil them.

    But how are they actually “compelled”?

    Has a Committee itself ever been individually fined or otherwise penalised by a Tribunal or a Court?

    If so, I think I’ll be resigning from all the Committees that I’m a member of and my Chair role too.  It’s all done voluntarily with my best intentions, due care and diligence.   And that seems to be the limit of what I am actually compelled to do.

    Having a statutory duty is all very well but failing to actually give an OC/BC or a Committee any authority to actually enforce that statutory duty makes it a moot point.   Issue a breach notice?  That’s just a warning.  Not much enforcement authority there.

    There is a recent QLD case where the Adjudicator made a comment on this:

    http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2021/596.html

    In the last paragraph (47) the Adjudicator noted that: “The body corporate is not obliged to enforce section 167 of the Act, but it does have a statutory obligation to enforce the by-laws”.

    That’s because the QLD Body Corporate and Community Management Act 1997 at s.94 states that a Body Corporate must enforce its by-laws (or at least try to).   That’s what makes it a statutory obligation.   But there’s no such requirement in the same Act for Body Corporate to enforce actual laws.

    To me that makes some sense.  The BC didn’t make the actual laws – the government did. If the government wants the BC to enforce them, it should give the BC some genuine authority to actually do so.   But a BC can make its own by-laws,  so it really should at least attempt to enforce those before a Tribunal or Court gets involved.

    Regardless, if an OC/BC Committee doesn’t attempt enforce its by-laws/rules or actual laws what’s going to happen to the Committee?  Not much in reality.  So it’s not really “compelled”.

     

     

     

     

     

    #63458
    Jimmy-T
    Keymaster

    The strata committee has obligations and they can be compelled to fulfil them.

    But how are they actually “compelled”?

    It depends what you mean by compelled.  Nobody is going to come and hold a gun to their heads.  But if orders to fulfil a function are issued by NCAT and the committee ignores them, they are straying into murky waters, at the deep end of which lies the appointment of  a statutory manager.  That means the removal of all owners corp  powers from owners and their committee and a world of pain for two or more years.

    Has a Committee itself ever been individually fined or otherwise penalised by a Tribunal or a Court?

    Penalties would be against the whole owners corp, not just the committe or individual members. The committee represents the owners, for better or worse.  And those penalties include the option for the tribunal to sack individual members, the whole committee or remove officer bearers from their roles on the committee.

    If so, I think I’ll be resigning from all the Committees that I’m a member of and my Chair role too. It’s all done voluntarily with my best intentions, due care and diligence. And that seems to be the limit of what I am actually compelled to do.

    Are you saying that you wouldn’t enforce by-law breaches if it didn’t suit you? In that case, maybe you should consider your role on the committee.

    Owners elect committees to represent them and part of that is to run the building according to strata law and by-laws.  Notices to comply don’t even require mediation.  It’s a simple process.  I don’t see what the problem is. If the by-laws are wrong, change them at a general meeting.  Otherwise, surely you should be expected to do what you were elected to do.

    Having a statutory duty is all very well but failing to actually give an OC/BC or a Committee any authority to actually enforce that statutory duty makes it a moot point. Issue a breach notice? That’s just a warning. Not much enforcement authority there.

    In NSW, a Notice to Comply is as much of a threat as it is a warning. NTCs basically say “stop breaching by-law X or you will be subject to fines”.

    There is a recent QLD case where the Adjudicator made a comment on this …

    But we are specifically talking about the NSW Act and just because the Qld Act specifies that bodies corporate have an obligation to enforce by-laws, and NSW doesn’t spell that out, it doesn’t mean the obligation doesn’t exist.

    See my previous comment about the Second Reading of the Act. It’s crystal clear that the obligation exists and there are remedies  should committees choose not to fulfil their responsibilities.

    Regardless, if an OC/BC Committee doesn’t attempt enforce its by-laws/rules or actual laws what’s going to happen to the Committee? Not much in reality. So it’s not really “compelled”.

    Perhaps that is the case in Queensland but in NSW if, at any point in a dispute an NCAT member feels a strata committee and its scheme have become dysfunctional, the Member can, by their own volition and not requiring an application by an owner, appoint a strata manager to take the reins. Trust me, that is an outcome no one enjoys. Often, that includes the strata manager, who can become the focus of owners’ anger and frustrations.

    Also, judging from the discussion we had on the recent David Bannerman “lawyer in the hotseat” webinar, when schemes are showing signs of significant dysfunction, rather than pick and choose who’s at fault, the Member will just pull the plug and appoint a strata manager.

    I’m pretty sure a refusal to obey an order to enforce a by-law would be more than enough of a trigger. If that doesn’t create a sense of compulsion among committee members, then they probably deserve to be sacked.

    #63559
    The Hood
    Flatchatter

    Some NCAT level case law that supports the idea the OC must pursue by-law enforcement.

    (redacted)
    Paragraph
    106. The circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management;

    – Fails to exercise power or make a decision to prevent a contravention by lot owners and occupiers of their obligations under the Act, including breaches of by-laws

    107. Section 12 of the Act provides that an Owners Corporation has functions conferred or imposed on it by the Act. Relevant functions include:

    – Serving notices and taking action in respect of breaches of by-laws

    Luong v Owners Corporation SP 87671 and Telmet Ventures Pty Ltd [2015] NSWCATCD 105

    NCAT Member Vrabac, who is actually one of the better strata matters Members, without qualification, puts forward, in paragraph 107, the idea by-laws must be, as a function, enforced.
    Yet where do we find this alleged function?
    In paragraphs 106 and  107 Member Vrabac, in the full text, outlines several functions and I believe all can be expressly found in the Act except the alleged by-law enforcement function.
    The problem with Member Vrabac’s work here is that it does consider that s 146 (s 45 at the time) is discretionary. That is where the power to begin enforcement lies and the power is without question discretionary due to the language of the section.

    #63558
    The Hood
    Flatchatter

    While I search for the case that J S Mueller made reference to without citation I will let you ponder the by-law enforcement provisions.

    By-law Enforcement

    146 Notice by owners corporation to owner or occupier

    (1) An owners corporation for a strata scheme <u>may</u> give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.

    We then drift off to the Interpretation Act and find:
    9   Meaning of may and shall

    (1)  In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

    (2)  In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.

    Applying 9(1) to s 146.
    The power in s 146  to issue a NTC , to pursue enforcement of a by-law, may be exercised <u>or not, at discretion</u>.
    Simply put there is no obligation under s 146 to send a NTC. It follows there is no mandatory obligation, function or duty to enforce the by-laws. The OC can at its discretion, even if satisfied there is a breach, choose not to pursue the matter. The discretionary nature of the power to pursue a by-law breach as found in s 146 means there is no obligation on the SC / OC to enforce the by-laws.
    It is not a function of the OC to enforce the by-laws if s 146 is our guide and there is nothing explicit anywhere else to guide us.

    #63567
    Jimmy-T
    Keymaster

    Th Hood seems to be having a bet each way above.  I would just point out that there is a difference between expecting an owners corporation to enforce its by-laws and demanding that a strata committee or strata manager issue a notice to comply’  The Act possibly uses the word “may” to indicate that this is only one way of many to deal with issues, but there are others, such as negotiation and written warnings.

    #63574
    TrulEConcerned
    Flatchatter

    The Hood wrote

    It seems to me to be that the issue for the owner is with the dogs owner, not the OC, as I think it is the case that it is discretionary for the OC to act in such matters. Take the legislation surrounding the breach of a by-law for example, even if the OC is satisfied there is a breach the OC “may” (a discretionary term) act by sending a NTC; there is no obligation to take action.

    The discretionary aspect is what IMHO dooms this provision to being close to useless.

    Take The Hood’s correct understanding (at least I think so), that even if the OC agrees there is/was a breach a by-law, it can choose not to issue a NTC.

    I have witnessed an even greater insult to owners: a SC member chronically parks on CP, a gross breach of our by-laws, yet (a) the SC refuses to list a complaint about this (by an owner) at a SC or general meetings and (b) the arrogant SC member denies she is in breach, claiming, with a straight face, that she visits the premises for OC matters and hence is not bound by the by-law. Why she visits, how long  she’s on the premises and what she does there on those visits is not only irrelevant to her breaches (plural), but she doesn’t even pony up specific explanations for her visits.

    Surely a better way would be to compel an OC to issue a NTC, which the “recipient” would then have the opportunity to prove why the NTC was wrongly issued.

    #63575
    Flame Tree (Qld)
    Flatchatter

    The owner’s committee volunteered to do stuff in the best interest of all owners. Enforcing by-laws is just one element of that, albeit, a touchy one in many cases. But if they won’t at least attempt to do so you should ask what they are there for. In Qld, an aggrieved owner can route their complaint via the committee and/or go direct to try sort the issue out, or where preferred (or safer) by issuing the relative standard form which then allows involvement of the Commissioner’s Office if thereafter still required (and as I have found, helps informs police in the event the thing might really blow up in the process).

    Annoyingly, what I find that some silly committees do is to name and blame the complaining owner over handling the issue discreetly once they have determined there might well be an issue that reasonable needs be corrected.

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