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

IMPROVEMENT TO EXCLUSIVE USE AREA - whether body corporate authorisation is required for the installation of solar panels on a roof of a building format subdivision lot, where the roof is subject to an exclusive use by-law

JURISDICTION AND POWER - whether the respondents can seek an order against the applicant - whether a dispute exists in relation to the final order - whether a declaratory order is justified.

Act, ss 284, 276; Accommodation Module, ss 183.

1. The owners of Lot 18, John and Catherine Walsh, must not install solar panels on the exclusive use roof above their lot without the body corporate's authorisation.

• [1] This application follows the body corporate's unsuccessful request for interim relief in Bayside Villas [2025] QBCCMCmr 299.
• [2] The body corporate disputes the respondent lot owners' assertions that they may proceed with installation of solar panels on the roof over their lot without body corporate approval.
• [3] The roof is common property, although the respondents have rights of exclusive use over the roof.
• [4] The respondents previously sought body corporate authorisation to install solar panels on the roof. However, the motion failed to pass.
• [5] The respondents' submissions to this application:

(a) argues I should make an order that the solar panels are approved. That is beyond the scope of this application.

(b) do not adequately argue that body corporate authorisation is not required, which is the crux of this application. Even if I were to accept all of the respondents' arguments, body corporate authorisation is still required.

• [6] I have made an order, worded as a prohibitory injunction unless authorisation is obtained, as:

(a) I am satisfied the installation of solar panels requires body corporate authorisation.

(b) While the respondents' submissions suggest that body corporate authorisation is required (rather, the submissions focused on the reasons for the body corporate's refusal), responses to my enquiries on this point indicate the respondents are somehow of the understanding that their position disputes that authorisation is required.

(c) The body corporate sought an order worded as declaratory relief, which is of little utility and would not normally be justified. However, I have found injunctive relief is warranted as:

1. I do not believe that a declaratory order is reflective of the applicant's aim and the respondents' understanding of the application. A prohibitive order is better reflective of this.
2. I enquired whether the respondents still intended to install the solar panels without authorisation, because if not, intervention is not justified. The response to that question was convoluted. It implied that if I do not make an order on this application, they may install the solar panels without authority.

(a) I have not determined whether the body corporate has acted reasonably in its previous refusal to give authorisation for the panels.

(b) I have not determined whether any sections of the Building Act 1974, or whether a statutory easement under the Land Title Act 1994, should have any impact on the body corporate's decision making.

• [8] I recognise that a substantial part of the body corporate's application discussed the Building Act, which may have caused misperceptions about what I am called to decide. It is the outcome being sought that directs the scope of the dispute I am to determine.
• [9] If the respondent believes the body corporate has acted unreasonably in refusing a request, then it is open to them to bring their own application seeking orders to overturn the body corporate's refusal. If successful in obtaining such an order, the respondents would then have body corporate authority, pursuant to this order.

• [10] 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.
• [11] 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.
• [12] 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.

• [13] The applicant wants to install solar panels on the roof above their lot. As the scheme is a BFP, at least part of the roof is common property, as the lot boundaries run to the centre of the ceiling.[1]
• [14] However, the CMS shows the applicants have exclusive use rights over the common property rooftop. That by-law also assigns maintenance of the common property roof to the benefitting lot owner, including structural maintenance. Whether the by-law is effective in assigning maintenance obligations goes beyond the scope of this application.[2]
• [15] The applicants sought body corporate approval, via a motion at a general meeting, to install solar panels on their exclusive use roof area. The motion did not pass.
• [16] The applicant, via their legal representatives, put the body corporate on notice that they would continue with the installation regardless.

• [17] The body corporate sought interim orders that the applicant could not proceed with the installation of the solar panels until the request for final orders was determined.

While I found the body corporate raised a prima facie case for the final order, I dismissed the interim application as there was no suggestion that the body corporate would suffer loss or harm if the interim orders were not made but the final orders were.

• [18] However, the respondents have not since installed the solar panels.

• [19] The applicant now seeks the following final order:

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.

• [20] I will first discuss the respondents' request for relief and the scope of this application, before considering if the relief the applicant seeks is justified.

• [21] The respondent says I should make an order to allow the installation of the solar panels, and submits that they have challenged the body corporate's refusal to approve it.
• [22] I will not be making such an order, in relation to this application.
• [23] This is not an application against the body corporate. I am only called to consider whether the order sought is justified. Namely, whether the respondents should have body corporate authorisation before installing the solar panels.
• [24] The Act only provides that I may make another order that contains ancillary or consequential provisions.[3] I do not consider that the intervention sought by the respondent would fall into this category. As such, the Act requires the respondents to follow the processes set out in Chapter 6 before the commissioner can refer their matter to an adjudicator.
• [25] Questions as to whether the body corporate has acted reasonably in any decision around the solar panels are distinct and separate. They go beyond the scope of the application. While those issues may have been discussed by the body corporate in the grounds of the application, it is the order sought that is the crucial element that directs me to what I must (and must not) determine.

• [26] I am satisfied the installation of solar panels on the roof would be an improvement to it. The legislation defines an improvement as the erection of a building, a structural change or a non-structural change,[4] and the installation of air conditioning is given as an example of a non-structural change. The Acts Interpretation Act 1954 defines 'change' to include change by addition, exception, omission or substitution.[5]
• [27] The District Court considered the context of the provision dealing with improvements within the legislation. The section is placed amongst provisions concerning disposal of common property, easements and leases. It was said:

The context is clearly one of permanency and attachment to the land or the building, rather than some merely ephemeral addition or adornment... The mere placing of tables and chairs, which can be moved or removed at will and at any rime does not constitute an improvement.[6]

• [28] The solar panels will need to be affixed to the roof, so I am satisfied they would be considered an improvement.
• [29] I am satisfied that body corporate authorisation is required for the installation pursuant to section 183 of the Accommodation Module, as the area is common property,[7] is subject to exclusive use, and the relevant exclusive use by-law does not authorise the lot owner to make an improvement.

3.2.2. By-laws, statutory easements and other matters

• [30] I will not make any determination as to whether authorisation may be required pursuant to any other section of the Act, Accommodation Module or CMS. It is not necessary for me to determine these matters any further to justify the order sought in this application, and I believe it is important I leave such questions to be determined in a different and more appropriate application (if one is made) for reasons that I will explain below.
• [31] I will however note that statutory easements under the Land Title Act 1974 (Land Title Act) can have impacts on requests for solar panel installation. To the extent that those provisions may apply, I note that those provisions generally do not eliminate the need for body corporate authorisation where the legislation or CMS require it.[8]

• [32] While I am satisfied that the solar panels require body corporate authorisation, that does not automatically mean an order is justified. I have considered this further.

• [33] The respondents oppose the application, and they argue:

(a) Their request for body corporate authorisation of the solar panels was refused for aesthetic reasons.

(b) Section 246S of the Building Act 1974 (Qld) (Building Act) applies to the request, as the requirement for approval is due to By-law 3.1.1 and not any section of the Accommodation Module. While the Accommodation Module is not a 'relevant instrument' for the purposes of s 246S, the CMS, which contains the by-laws, is.

(c) A member of the committee has held meetings when other members who support the applicant's request can not attend.

• [34] I understand that much of the body corporate's application was similarly focused on the Building Act, but for the purposes of the final order sought in this application, the arguments are unmoving.
• [35] Even if I was to accept the respondents' argument at (b), body corporate authorisation would still be required, pursuant to the by-law. As I indicated in the interim decision,[9] section 246S of the Building Act is concerned with reasons for withholding authorisation. The section does not do away with the need to obtain authorisation. If the respondents believe authorisation was withheld in contravention of the Building Act they would need to seek relief in relation to that claim, to obtain authorisation.
• [36] Ultimately, the respondents' arguments go to the reasonableness of the body corporate's refusal and whether it was entitled to withhold or otherwise refuse the request - which is a separate and distinct issue. Again, I am only deciding if authorisation is required.
• [37] My powers extend to making orders to resolve disputes. As the respondents' submissions do not adequately argue that body corporate authorisation is not required, I held concerns that there may not be a dispute regarding the final order sought in this application.
• [38] I wrote to the respondents (via their solicitors). I advised them that:

My role is to consider whether the orders the applicant seeks are justified, which is limited to whether authorisation by the body corporate is required. Whether the body corporate should or must approve the proposed installation beyond the scope of the application.

• [39] I then required further information from the respondents, via their solicitors, pursuant to section 271 of the Act. Particularly, clarification as to whether the respondents' position was that:

(a) they believe body corporate authorisation is not required for the proposed installation of solar panels, or

(b) they agree body corporate authorisation is required for the proposed installation of solar panels, but disagree with the body corporate's refusal to give authorisation.

• [40] The response to the above simply replicated the submissions around section 246S and how the respondents should be entitled to relief.
• [41] The response included the following words:

Our client's position is that consent would be required under the CMS... > > On this basis, consent is required under the CMS...

• [42] To the extent that the respondents contend their submissions disclose any basis for opposing the order that body corporate authorisation is required, I am unable to discern it.
• [43] However, the response demonstrates that the respondents labour misconceptions around the practical impact of their argument, or at least a misconception of the orders being sought. I am therefore satisfied that a dispute exists in relation to the final order sought.

• [44] I am also mindful that the relief the body corporate seeks is worded as a declaratory order.
• [45] Adjudicators have the power to make declaratory orders in the context of a dispute.[10] Although, that does not mean that all declaratory orders sought in a dispute are justified.
• [46] The ability to make a declaratory order is conditioned upon the existence of a real controversy, and the order having practical utility. The High Court in Ainsworth v Criminal Justice Commission[11] made it clear that declaratory relief should not be granted where it relates to hypothetical situations, is of an advisory nature, or is devoid of consequence.
• [47] The wording of the order simply restates the obligation section 183 Accommodation Module confers. I would typically not make such an order, as it has little utility.
• [48] However, I do not believe that the nature of a declaratory order is reflective of the applicant's aim. It appears both parties believe that the order sought would have the effect of stopping the respondent from installing the solar panels without authorisation. That type of order would be a prohibitory order, worded slightly differently.
• [49] Again, due to the nature of the respondents' submissions, I was concerned that even a prohibitory order may not be necessary as it was not apparent that the respondents still planned to proceed with the installation without body corporate authorisation, as they seemed to acknowledge authorisation was required.
• [50] To put it another way, while I am at least satisfied that the respondents have some misconceptions about the practical impact of their submitted argument in the context of this application, that does not necessarily mean they were still going to install the solar panels without authority. If they did not continue to hold such intentions, this again brings into question the existence of a dispute or whether an order would be justified.
• [51] Therefore, when I wrote to the respondents requiring further information (via their solicitors) I also required a response to the following:

(a) Whether the solar panels are already installed, or

(b) Whether the respondents still intend to install the solar panels without body corporate authorisation.

• [52] Unfortunately, the response on this point was convoluted. The correspondence stated:

Our client had... made arrangements to install the solar panels... however, has delayed doing so until this matter is resolved...

• [53] The above seems to imply that if I do not make orders on this matter, the respondents will install the solar panels. On this basis, coupled with the respondents' previous letter to the body corporate putting it on notice that they would proceed with the installation, I am satisfied an order is justified.

• [54] I am satisfied that the respondents should obtain body corporate authorisation for the solar panels they wish to install on the roof, which is an area of common property subject to exclusive use, and the exclusive use by-law does not authorise such improvements. I am satisfied there is a dispute in relation to whether authorisation is required and a prohibitory injunction is justified where the respondents have indicated they will proceed with authority.
• [55] This application does not call for me to determine whether any body corporate authorisation should be granted. As such, I have not made any determination as to whether the body corporate should approve the solar panels, whether the body corporate acted reasonably in any past refusals, nor whether any section of the Building Act or Land Title Act should have any impact on the body corporate's decision making.
• [56] It is open to the respondents to again seek authorisation.[12] The body corporate must act reasonably in its decisions,[13] which includes considering all relevant, and disregarding irrelevant, factors.[14] This may include considering any relevant sections of the Building Act or Land Title Act.
• [57] If the body corporate refuses and the respondents believe that is an unreasonable act or otherwise invalid, then it is open to the respondents to seek to overturn that decision.

[1] Land Title Act 1994 (Qld), s 49C.

[2] See Accommodation Module, s 192.

[4] Act, Sch 6 Dictionary - definition of improvement.

[5] Acts Interpretation Act 1954 (Qld) Sch 1.

[6] Body Corporate for the Phoenician v Herme Pty Ltd & anor (QDC, unreported, Durward, 2346-05, 22 December 2006) at [44].

[7] Noting Land Title Act 1994 (Qld), s 49C.

[8] Ralborg No 2 Pty Ltd atf Ralston Property Trust v The Body Corporate for The Regent Apartments CTS 9573 [2020] QCATA 117 at [62-65].

[9] Bayside Villas [2025] QBCCMCmr 299 at [34].

[11] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

[12] There is a time limit on requests for certain types of orders. See Act, s 242(2).

[14] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42].