Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

INTERIM ORDER - whether an interim order that the respondents not install solar panels on the roof of their lot, which is common property subject to exclusive use, is warranted.

1. The application for interim orders is dismissed.

• [1] This decision considers an application for an interim order, brought by the body corporate against the owners of Lot 18 within the scheme.
• [2] The body corporate disputes the respondents' assertions (made to it in writing via legal representatives) that they may proceed with installation of solar panels on a roof above their lot without body corporate approval. The roof is common property, although the respondents have rights of exclusive use of the roof and are responsible for maintenance of the area, including maintaining the roofing structure in a structurally sound condition.
• [3] The respondents had previously sought body corporate approval to install the solar panels on the roof via a motion at a general meeting. However, the motion failed to pass.
• [4] The respondents subsequently put the body corporate on notice that they would be proceeding with the installation of the solar panels, and referenced various sections of the Building Act 1975 (Qld) (sometimes referred to as the "ban the banners" provisions), as well as some arguments regarding the reasonableness of the body corporate's refusal, as justification for doing so without body corporate approval.
• [5] The body corporate seeks final orders that would confirm the respondents require body corporate approval for the installation. The body corporate currently seeks interim orders that would have the effect of stopping the respondents from installing the solar panels without approval of the body corporate, or until the matter has been finally determined.
• [6] I have not made the interim order sought. In doing so, I have found:
  1. A prima facie case has been established, in that the installation in question possibly requires approval pursuant to section 183(3) of the Accommodation Module. Further, it is arguable that the provisions commonly referred to as the 'ban the banners' provisions do not preclude this requirement.
  2. The applicant argues that the harm that would be incurred, if the solar panels are installed but ultimately found to require body corporate approval, is the loss and inconvenience which would be suffered by the respondent having to remove them. Based on these arguments, I am not satisfied the balance of convenience favours making interim orders as there is no suggestion that the body corporate would suffer loss, which is what I am called upon to consider in deciding to make an interim order in the applicant's favour.
• [7] Importantly, this application does not require me to determine whether the body corporate should have approved, or should approve in the future, the proposed installation of the solar panels. I note that issue is presently the subject of an application by these respondents, but still in the case management stage.

• [8] The scheme comprises 19 lots at the current time. The community management statement (CMS) indicates that this is a staged development. Presently, there are 18 lots which have been developed and registered as building format plan subdivisions (BFP), and one lot (Lot 27) which is registered as a standard format plan of subdivision, marked for further development into BFP lots.
• [9] The developed lots registered as BFP (Lots 1-18) are best described as two-story units that share walls. The balconies and verandas of the building form part of the lots.
• [10] The CMS shows the Accommodation Module applies to the scheme. The CMS also shows that there are several exclusive use areas allocated throughout the scheme for various purposes.

• [11] The respondents' lot, Lot 18, has exclusive use over four areas. Two of the areas are described as courtyards, and one as parking. The other exclusive use area is over 'external surfaces and structural elements'. It appears to be over the roof above the lot.
• [12] The relevant exclusive use by-law provides that the benefitting lot owner is responsible for maintenance of the area, including maintaining the roof in a structurally sound condition.
• [13] In August 2024, the respondents submitted a motion to a general meeting,[1] seeking approval for them to install solar panels on the roof above their lot, which forms part of their exclusive use grant (Motion). A second motion relevant to the proposed installation was also proposed by the committee, which would have seen a smaller sized solar panel system approved.
• [14] The Motion was considered and did not pass at the annual general meeting held on 7 November 2024 (2024 AGM) with 2 votes in favour, 11 against and 3 abstentions. The committee's motion dealing with the same issue also failed to pass.
• [15] On 30 July and 20 August 2025, the respondent wrote to the body corporate advising that, inter alia, it was their position that section 246O and 246S of the Building Act 1975 (Qld) (Building Act) is relevant to the issue. Further, that as the body corporate's refusal to approve the installation of the solar panels is unreasonable and is 'not as a result of any attempt to preserve the structural integrity of the roof' then the respondents are 'at liberty to install solar panels without consent, in their preferred location, and intends to do so in the coming weeks.

• [16] The body corporate is on notice that the respondents may install the solar panels without consent. The body corporate therefore seeks the following interim order:

That the owners of lot 18, John and Catherine Walsh, not install solar panels on the exclusive use roof above their lot until this application has been finally determined.

• [17] The final order the body corporate seeks, which is not being determined at this time, reads as follows:

That the owners of Lot 18, John and Catherine Walsh, are not entitled to install solar panels on the exclusive use roof above their lot without first obtaining the body corporate's consent.

• [18] The body corporate argues that interim relief should be granted as:
  1. Section 246O of the Building Act does not apply as there is no by-law in the CMS that prohibits solar panels.
  2. Section 246S of the Building Act does not apply as it is not a by-law that requires the respondents to seek approval from the body corporate for the installation. Rather, it is section 183(3) of the Accommodation Module that requires the approval.
  3. The matter is urgent, as the respondents have communicated intention to instal the solar panels without approval in coming weeks.
  4. The balance of convenience favours the granting of the interim order as removal and reinstatement works may be costly. The applicant is also concerned the installation and then removal might damage the respondent's relationship with their preferred installer.

• [19] An adjudicator may make an interim order without seeking submissions from the respondent or any affected parties.[2] However, where appropriate, I may seek comment from parties the order may negatively impact. I sought an undertaking from the applicants that they would not take steps to install the solar panels until the interim decision is determined. If such an undertaking was given, I would have given the respondents opportunity to give comment on the interim application.
• [20] No undertaking was received, and in circumstances where the 20 August 2025 letter indicates installation was imminent, I have proceeded to determine the interim order without submissions from the respondent.

• [21] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interest until the matter can be finally determined, usually by stopping a party from taking certain actions.
• [22] The ability for an adjudicator to make an interim order is provided for in the legislation. An adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[3] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[4]
• [23] Therefore, to be successful in their application for interim orders, the applicant must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief.

• [24] While I am not determining the final orders sought, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders.
• [25] The onus is on the applicant to show there is a prima facie case to justify the relief they seek. The applicant does not need to show that it is more probable than not that they will succeed. Rather, they need to show a sufficient likelihood of success to justify the interim orders pending a final determination of the matter.[5] How strong the possibility of success that is needed depends upon the nature of the rights the applicant asserts, and the consequences of the order sought.[6]

• [26] Based on the material currently in front of me, and noting that I do not have submissions from the respondent, there appears to be no disagreement that the proposed installation of solar panels would be an improvement to a common property exclusive use area. Nevertheless, I will note that the fixing of solar panels and other infrastructure to the roof is likely to be an improvement. An improvement is defined in the Act as including a non-structural change, and the installation of air-conditioning is given as an example.[7]

3.1.2. Section 183 of the Accommodation Module relevantly states:

**_(3) If the exclusive use by-law does not authorise the owner of a lot to make an improvement, the owner may make the improvement only if the body corporate authorises it to be made.

(4) If the value of the improvement mentioned in subsection (3) is more than $3,000, the body corporate's authorisation must be by ordinary resolution.

_**

• [27] There appears to be no dispute that the relevant by-law does not authorise improvements to the exclusive use area. Therefore, I am satisfied there is a strong prima facie case that authorisation of the body corporate is required pursuant to section 183 of the Accommodation Module.

• [28] The material in front of me suggests that the respondents believe sections 246O and 246S of the Building Act apply to the issue, and form a basis to justify the installation of the solar panels without body corporate approval on the basis that 'consent can not be withheld'.
• [29] Section 246O reads as follows, with emphasis added:

(1)This section applies to a relevant instrument that, but for this section**, would have the effect of**... > > (d**) prohibiting the installation** of a solar hot water system or photovoltaic cells on the roof or other external surface of a prescribed building... > > (3) For a prohibition mentioned in subsection (1)(d), the relevant instrument has force or effect only to the extent - > > (a)the prohibition applies to the roof or other external surface that is common property of the prescribed building; and > > (b)the prohibition - > > (i)is necessary to preserve the building's structural integrity; or > > (ii)if there is insufficient space on the roof or other external surface for a solar hot water system or photovoltaic cells to be installed by the owner of each lot in the building - prohibits an owner of a lot in the building from installing a solar hot water system or photovoltaic cells on the roof or other external surface; or > > (iii)if the prohibition relates to a solar hot water system - is necessary to prevent noise from piping associated with the system causing unreasonable interference with a person's use or enjoyment of the building.

• [30] Section 246S reads as follows, with emphasis added:

(1) This section applies if, under a relevant instrument, the consent of an entity is required to install a solar hot water system or photovoltaic cells on the roof or other external surface of a prescribed building. > > (2) The entity can not withhold the consent for an activity mentioned in subsection (1) unless the consent is withheld - > > (a) in relation to the roof or other external surface that is common property of the prescribed building; and > > (b) only - > > (i) to the extent necessary to preserve the building's structural integrity; or > > (ii) if there is insufficient space on the roof or other external surface for a solar hot water system or photovoltaic cells to be installed by the owner of each lot in the building - to prohibit an owner of a lot in the building from installing a solar hot water system or photovoltaic cells on the roof or other external surface; or > > (iii) if the consent relates to a solar hot water system - to the extent necessary to prevent noise from piping associated with the system causing unreasonable interference with a person's use or enjoyment of the building. > > (3) A requirement under this section to not withhold consent - > > (a) is taken to be a requirement under the relevant instrument; and > > (b) applies to the relevant instrument despite any other provision of the instrument.

• [31] Importantly, this is a dispute about whether approval is required - it is not a dispute about whether the solar panels should receive approval, or what should be considered when deciding to grant or not grant approval.
• [32] The body corporate argues that sections 246O and 246S have no bearing on the current dispute. The body corporate submits that these provisions only apply to 'relevant instruments'. Relevant instrument is a defined term in the Building Act and includes the community management statement,[8] which contains by-laws. The body corporate argues that the requirement for approval is subject to the Accommodation Module, rather than the by-laws, and the Accommodation Module is not a 'relevant instrument'. Therefore, it is argued these sections are irrelevant. The body corporate directs me to a relevant order of an adjudicator on this point, Manly Views II.[9]
• [33] My preliminary view is that I agree with the body corporate insofar as that the Accommodation Module does not fall into the definition of 'relevant instrument', and as such, the impact these sections have on the proposed installation is certainly questionable.
• [34] Even if I were to find that the Accommodation Module is a relevant instrument, which is unlikely:
  1. Section 246O is concerned with instruments that prohibit the installation. The term prohibit in these sections has been interpreted as to 'stop from happening', and situations where there is discretion in decision making fall outside this meaning.[10] Section 183 of the Accommodation Module simply requires approval, and I am currently satisfied it does not act to strictly prohibit.
  2. Section 246S is concerned with reasons for withholding consent, where consent is required. My preliminary view is that this provision does not do away with the requirement to obtain consent altogether.
• [35] For these reasons, I am currently satisfied the body corporate raises a prima facie case for the final orders, which relates to whether body corporate consent is required.

• [36] The body corporate has not submitted arguments regarding reasonableness. However, the material in front of me, being the correspondence between the parties when they engaged in internal dispute resolution, suggests the respondents also believe consent is not required as the body corporate has acted unreasonably in its refusal to give consent by not passing the Motion. For completeness, I will consider whether this argument is likely to defeat the final order sought by the body corporate.
• [37] It is true to say that the body corporate has an obligation to act reasonably, including when making decisions.[11] Acting reasonably in decision-making involves adequate consideration of all relevant facts and circumstances, and the disregarding of irrelevant ones.[12] Further, the outcome should be a legally reasonable one, which means it should not be absurd or plainly unjust.[13]
• [38] Again, this dispute is solely about whether approval is required, and not about whether the body corporate acted unreasonably in refusing to give consent. My current view is that consent is required pursuant to the Accommodation Module, and arguments about reasonableness do not change this requirement. If the respondents believe that the body corporate has acted unreasonably, then they may proceed with their application to challenge that decision and obtain the necessary approval via an order of an adjudicator.
• [39] On my preliminary review, I agree with the body corporate that approval is required and a prima facie case for this has been established.
• [40] However, while this dispute does not call for me to consider the reasonableness of the body corporate's refusal, and such considerations do not form part of my current decision, I would encourage the body corporate to consider whether it is reasonable to disregard the apparent policy intent of the 'ban the banners' provisions, merely on the technicality that the requirement for approval is not strictly being applied under a by-law, where those provisions might otherwise apply.

• [41] I am currently satisfied the body corporate has raised a prima facie case for the final order sought. However, before granting an interim order, I must balance the inconvenience to the respondent lot owners if I were to grant the interim relief now, in the knowledge that final orders might ultimately be refused, against the inconvenience to the applicant body corporate if I were to not grant relief now, in the knowledge that final orders might ultimately be granted.[14]
• [42] The arguments the body corporate raises in relation to the balance of convenience are that, if the respondent installs the solar panels and the final order is made:
  1. The costs to the respondents in installing the panels, then removing them, and reinstating the roof may be significant.

1. Removal of the panels after installation may damage the contractual relationship between the respondent and their installer.

• [43] I am not satisfied these arguments justify the interim relief sought. These losses or inconveniences appear to be for the respondents to bear, if they choose to proceed without approval. These are not arguments in line with the balance of convenience test, where I am called to consider the impacts to the applicant if the interim orders are not made, but the final orders are. There is no argument or evidence in front of me regarding harm the body corporate would suffer.

• [44] The final orders in this application turn on whether the respondent is required to obtain body corporate approval for the installation of solar panels on a common property roof. The area is subject to exclusive use, to the respondents' benefit, and the respondents are responsible for maintenance of the area. However, section 183 of the Accommodation Module likely applies to the proposed installation of solar panels which requires approval by the body corporate.
• [45] The information in front of me suggests that the respondent believes they do not require body corporate approval, due to sections 246O and 246S of the Building Act, and that the body corporate acted unreasonably in previously refusing to give its consent. My preliminary view is that the body corporate has raised a prima facie case that these sections do not strictly apply or otherwise override the requirement for body corporate approval under s183 of the Accommodation Module.
• [46] While I am satisfied the body corporate has raised a prima facie case that approval may be required, I am not satisfied the interim relief is warranted. The body corporate has not provided evidence or arguments that would support a finding that the body corporate would suffer loss if the order is not made.
• [47] The respondents would be well-advised to take heed of my observations in this decision and carefully consider their future course. Nevertheless, the application for interim relief is not made out and must be refused.

[1] Owners are able to submit motions for consideration at general meetings pursuant to Accommodation Module, s 76.

[4] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[5] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[6] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[9] Manly Views II [2024] QBCCMCmr 134

[10] Bettson Properties Pty Ltd & Anor v Tyler [2019] QCA 176. Notably, there were legislative amendments to the 'ban the banner' provisions following this decision. The discussion regarding the definition of prohibits still appears relevant.

[12] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42] citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at 430.

[13] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [34].

[14] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [5].