A Qld lot owner would like to know if, due to their asthma and allergies, they can stop their neighbour from having a dog. Todd Garsden, Hynes Legal provides the following response.
Table of Contents:
- QUESTION: In our small block, we have an owner demanding we do not use weed killer on Body Corporate property as his wife is allergic. They insist we hand weed at a much higher cost. What can we do?
- QUESTION: Our neighbour is getting a small, furry dog. I’ve informed our body corporate of my asthma and allergy to dogs. Can I stop the neighbour from having a dog?
Question: In our small block, we have an owner demanding we do not use weed killer on Body Corporate property as his wife is allergic. They insist we hand weed at a much higher cost. What can we do?
We are a block of 12 lots and have an owner (also a member of the Committee) demanding we do not use Glyphosate weed killer on Body Corporate property.
He says his partner is allergic to it. Prior to buying into the premises several years ago, they did not seek information as to what product we use.
When they moved in they instructed the gardener to not use the product.
As a compromise, we have tried several other weed killers, which are not as effective (do not kill the roots and the weeds spring up again).
This owner wants us to hand weed, mulch, change our irrigation and use non-glyphosate weed killer on the rest of the property (at a much higher cost).
We are at an impasse and they are intent on going down the path to conciliation and arbitration if we use glyphosate and also throwing threats of discrimination towards someone who has a disability into the mix.
Meanwhile, the garden is looking terrible due to our restraint although the BC would prefer to go back to glyphosate.
Does someone with a medical issue have other rights than other lot owners?
Answer: If it went to adjudication, it would be a harder argument to win that the opposing argument.
I think if it went to adjudication, the insistence on the use a singular type of weed killer, which was potentially detrimental to the health an owner (which would need to be evidenced), would be a harder argument to win that the opposing argument.
My gut feel would be that there has to be an alternative to glyphosate that could work – perhaps in combination with something else, like a bit of hand weeding?
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #611.
Question: Our neighbour is getting a small, furry dog. I’ve informed our body corporate of my asthma and allergy to dogs. Can I stop the neighbour from having a dog?
We have found out that we are getting a new neighbour who has received approval from the committee to have a small, furry dog in their unit.
I am an asthmatic and have an allergy to dogs.
The committee has been sent a copy of the medical certificate from my doctor but they have chosen to ignore it.
Can I appeal the Body Corporate Committee’s decision?
If so, how?
Answer: It is not as simple as if there is an asthmatic then a dog cannot be approved.
For the committee’s decision to be successfully challenged the owner needs to show that the decision to approve the pet is objectively unreasonable. That would need to be demonstrated by showing that the:
- interference to the asthmatic is unreasonable; and
- unreasonable interference cannot be managed by the imposition of any reasonable conditions such as restrictions around the dog’s access through the common property, grooming and cleanliness of the areas the dog inhabits – this all needs to be tied back to how it would affect the asthmatic’s use of their lot and common property.
It is not as simple as if there is an asthmatic then a dog cannot be approved.
Assuming the interference can be shown and conditions cannot assist, we would suggest writing to the committee setting out these issues and asking for the decision to be revoked. If that doesn’t work the asthmatic could then make a dispute resolution application.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #248.
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A quick note to the bodycorp with the weeding issue – try flame weeding. They are not expensive, available from bunnings and mitre 10. It’s safe, enviro friendly and a lot of fun! The more frequently it’s done the easier the job is, as small weeds disintegrate, but larger ones will need to be raked up.
* Common sense* is it should be used by a responsible person, not in windy or dry conditions etc.
As a person who suffered very severe chemical damage at my workplace and had to go and live in the rainforest in Far North Queensland for 12 years while my immune system rebuilt itself, I can sympathise with the person who is allergic to Glyphosate Weed killer. I had to avoid all long chain hydrocarbons; perfume, synthetic clothes, car exhaust fumes, etc. Australia is very far behind the rest of the world in its use of dangerous chemicals that are banned everywhere else.
I am applying for our dog to be allowed. Must I apply on the form provided by our Body Corporate Managers?
Are there particular requirements the Committee must be provided, under Qld Strata Title by-laws?
Thank you so much for this opportunity to ask questions.
Sincerely,
Leigh Petersen.
Hi Leigh
We’ve received this response from Frank Higginson, Hynes Legal:
No matter what the form says, the committee has to be reasonable. So my suggestion would be to see if what the form asks isn’t too oppressive, and assuming it isn’t, use that and see whether approval is forthcoming.
The committee of our strata refused to have the security lights repaired. They have been out of service for ten years.
Two months ago whilst bringing in my bin , i t was pitch black and i tripped on a section of raised concrete roadway.
I injured my back and i still have problems with it.
Are the committee members liable for not maintaining the upkeep of such lighting ?
Hi Charles
We’ve received the following comment from Todd Garsden, Hynes Legal:
The body corporate has an obligation to maintain common property, such as the lighting, in good condition (which would not include it needing repair). However, there are a number of complicated hurdles before a committee member is going to be held liable for that.