Beachpoint [2025] QBCCMCmr 155 | Case summary

Beachpoint [2025] QBCCMCmr 155

John Robert Facer & Shey Anne Facer (respondent)

IMPROVEMENT TO LOT - where a structure constructed on the balcony terrace of a lot encroaches into common property airspace

DISPOSITION OF COMMON PROPERTY - where permission for works purportedly given by committee when authorisation by a resolution without dissent was required.

ADJUDICATOR POWERS - whether it is just and equitable in the circumstances to make orders that the respondents remove the Improvements in their entirety.

Act, s 94; 170-177, Sch 5 Item 10; Standard Module, ss 184

The respondents may submit a motion to next annual general meeting (or any earlier general meeting), to retrospectively approve the Works that they have undertaken to the lot 14 terrace area, in accordance with section 184 of the Standard Module.
Unless such a motion is submitted, and carried by a resolution without dissent at the next annual general meeting (or any earlier general meeting), the owners of lot 14 must restore the balcony terrace of lot 14 and affected areas of common property, to their condition prior to the installation of the Works, within 3 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator.
If the Respondents do not obtain approval for the works, and do not within 3 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator, restore the balcony terrace of lot 14 and affected areas of common property to their condition prior to the installation of the Works, the Body Corporate is empowered to carry out the removal of the Works and any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Works, and recover the costs of such work from the Respondents as a debt.

[1] The applicant is the body corporate for Beachpoint, a 142 lot scheme registered on a building format plan, located at Surfers Paradise.
[2] John Robert Facer and Shey Anne Facer, the Respondents, are the registered owners of Lot 14 (Unit 2G) in the Scheme.
[3] The Applicant says the respondents have carried out unauthorised works and improvements to the balcony terrace of Lot 14 and common property of the Scheme.
[4] The applicant Body Corporate seeks the following outcomes:

(a) Within 3 months, the Respondents must:

(i) remove the Unauthorised Works from the balcony terrace of Lot 14 and adjoining common property structures and airspace; and

(ii) carry out any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Unauthorised Works.

(b) Without limiting the Body Corporate's other rights, if the Respondents do not comply with order (a) above within 3 months, the Body Corporate is empowered to carry out the removal of the Unauthorised Works and any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Unauthorised Works, and recover the costs of such work from the Respondents as a debt.

[5] Lot 14 is situated on 'Level D' of the registered survey plan for the Scheme, being the second level of the building (above ground floor). It is located above the indoor recreational / pool facilities on the ground floor of the Scheme building and was constructed with an outdoor balcony / terrace area forming part of the lot (Terrace).
[6] Attached to the application[1] is a copy of the relevant page of the Survey Plan showing lot 14, including the Terrace - identified by the broken line delineating the internal area, and external (Terrace) area, of the lot. The Survey Plan includes a notation which states: It is stipulated that the uncovered parts of Units 13 and 14 extend only to ceiling height.

[7] The by-laws for the scheme include the following:

(1) The owner of a lot must not, and must not permit an occupier to, without the body corporate's written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds, and is in accordance with this by-law and by-law 10.

(2) The owner of a lot must not, and must not permit an occupier to, without the body corporate's written approval:

(a) hang curtains visible from outside the lot unless those curtains have a backing of a neutral cream colour or otherwise as is approved in writing by the body corporate (in giving such approval the body corporate shall ensure so far as practicable that curtain backing used in all lots presents uniform appearance when viewed from the outside of the building).

(b) make any structural alteration of a lot (including any alterations to utility infrastructure) or alter the wiring, plumbing or any other fixture or fitting which provides services in or to a lot.

(c) build any structure on, or enclose, a balcony.

[8] As at early 2011, the Terrace contained an open timber pergola structure which partially covered the Terrace (Original Pergola).
[9] On 5 May 2011, the Respondents wrote to the then chairperson of the Body Corporate committee:

(a) Outlining an alleged problem with occupants in the lots above Lot 14, dropping 'beer cans, glass and cigarette butts' onto Lot 14; and

(b) Seeking the Applicant's approval to 'extend the existing pergola over the entire terrace and cover in the gaps between the roofing material' (Concept).

[10] On 26 May 2011, the Respondents' architects, DPA Architects Pty Ltd, wrote to the Body Corporate about the concept, advising that the existing balustrading around the perimeter of the Terrace did not comply with the Building Code of Australia (Code) and:

(a) suggesting replacement of the existing balustrading with new glass balustrading (and a wind break) which complied with the Code; and

(b) advising that recommendation had been made to the owners to replace the Pergola with an 'extended contemporary structure'.

[11] The letter from DPA Architects also included photographic depictions of the existing Terrace area showing how the Proposed Works would appear. The applicant says the depiction of the Proposed Works clearly shows the Terrace remaining as an open area, with glass balustrading and a fabricated 'Solarspan' pergola structure covering the Terrace.
[12] The applicant says it is clear that the nature of the Proposed Works was for the Terrace to remain an open outdoor area covered only by a roofing structure, and not enclosed by walls on the perimeter.
[13] On the basis of the Proposed Works, the Committee purported to approve them at a meeting held on 31 May 2011. The minutes of that meeting record (in part):

A copy of a proposal received from the owners of Lot 14, Mr and Mrs J. Facer, seeking Body Corporate permission to replace the existing non-compliant balcony balustrading with new, compliant glass balustrading was provided to all Committee members for consideration... This proposal also includes the installation of an insulated colourbond pergola to cover the entire balcony for safety purposes, etc."

[14] The above works are referred to as the "Approved Works".
[15] On 9 June 2011, the Body Corporate wrote to the Respondents advising of the Committee's decision in relation to the Approved Works, stating:

I refer to our telephone conversation today and confirm that the Body Corporate Committee has approved your request to replace your existing noncompliant balcony balustrading with new, compliant glass balustrading and the installation of an insulated, colourbond pergola in accordance with your proposal as previously submitted to the Committee for their consideration."

[16] The Respondents carried out works to the Terrace a few months after receiving notice of approval by the committee. However, the applicant says that what was actually constructed by the Respondents was different to the Approved Works. The Terrace was fully enclosed with glass wall panels, which effectively transformed the Terrace into an additional indoor room (Unauthorised 2011 Works).
[17] In 2018, the Respondents undertook further works to Lot 14, including the Terrace. The works to the Terrace involved removal of the planter boxes, tiling, painting, and installation of wall partitioning, wardrobe and shelving (Unauthorised 2018 Works).
[18] The applicant says the unauthorised 2018 Works facilitated the conversion of the Terrace into further typical indoor living areas for Lot 14, including a bedroom and lounge area. However the applicant body corporate says the Respondents have never sought or obtained consent from the Body Corporate to the Unauthorised 2018 Works.
[19] The applicant subsequently engaged a surveyor to undertake a survey of lot 14 . It says that their Survey[2] demonstrated that several aspects of the Unauthorised 2011 Works encroach beyond the boundaries of Lot 14, and are located within the common property airspace.
[20] In particular, the applicant says the metal roof extends beyond both the vertical and horizontal boundaries of Lot 14 (as defined by the LTA), and the gutter and downpipe system is mostly, or wholly, outside of the boundaries of Lot 14 and situated in common property airspace.
[21] Given the permanent nature of the 2011 Works, they say that their encroachment into common property amounts to a disposition of the relevant parts of the common property in which the Respondents' improvement is situated.2
[22] The applicant body corporate therefore seeks orders that the respondents remove the "Unauthorised Works" from the balcony terrace of Lot 14 and adjoining common property airspace.

[23] Pursuant to section 243 of the Act, all lot owners including the respondents were invited to make submissions regarding the final outcomes sought by the applicant. Submissions were received from the respondents and from two other lot owners.
[24] One lot owner states that they were a member of the committee when the respondents sought permission to erect a carport style structure to protect them from random objects like cigarettes being thrown from above. Permission was granted only for the erection of an open sided roof. However the respondents decided they would disregard what was approved and built an additional bedroom. Numerous attempts have been made to have the respondents remove this non-conforming structure.
[25] Another owner made a submission supporting the application. They say that they have owned an apartment in the complex since 1991 and was a member of the body corporate committee which approved the respondents' request for permission to build a roof their courtyard to protect their grandchildren when using the courtyard, from cigarette butts and debris thrown from the apartments above. They did not approve, and were never asked to approve an enclosed structure on the respondents' courtyard, or additional bedrooms.

[26] The respondents say that on 5th May 2011, they wrote to the Chairman of the Body Corporate committee raising safety concerns in relation to objects falling from the above balconies onto the terrace, and stated that they wanted to keep this area safe for their young grandchildren who played in the area. The committee suggested that a solution may be to provide overhead protection of the terrace, at their own cost, and asked them to consider this solution.
[27] They further state that on 26th May 2011, DPA Architects sent correspondence to the Body Corporate regarding the need for overhead protection.
[28] Mr Parker from DPA Architects advised after a site inspection, that the existing balustrade to the terrace was not compliant, did not meet the BCA requirements and should be attended to immediately. He suggested the best solution would be to install a modern semi frameless glass balustrade mounted on top of the brick planter box, which was on the boundary of the terrace.
[29] He recommended a Solar Span roof which would provide adequate protection to the occupants on the terrace. To expedite these works, the costs would be borne by the owner. He attached images of both the existing and the proposed safety structures for review and consideration.
[30] The installation of the overhead protection and the new glass balustrade were carried out in late 2011 by a licenced builder in accordance with DPA Architects proposal/ letter dated 26th May 2011, which was approved at the Body Corporate Committee Meeting on the 31st May 2011.
[31] They say that the previous body corporate manager, Ms Robb, subsequently carried out an inspection of the roof and new balustrade, and did not raise any concerns with the completed structure. She stated she was happy with the works overall and said she would advise the Body Corporate accordingly. She requested all the "as constructed" documents, engineers plans and approvals to be hand delivered to her oﬃce on Chevron Island, for the Body Corporates information and records.
[32] The respondents say that between late 2011 and May 2019, there was no correspondence or other communication from the Body Corporate/ Members or Building Manager in relation to the works. They further state that during this 8 year period, the Body Corporate/ Members/Building Manager carried out regular inspections of the external building and grounds and had ample opportunity to raise any concerns/ objections to the completed works to the terrace.
[33] On 3 May 2019, they received a letter from the Body Corporate alleging that unapproved renovations and building works had taken place to Lot 14 (Unit 2G) without Body Corporate approval. This gave rise to a large amount of correspondence between the respondents, the body corporate and the body corporate's lawyers. I have referred to some of this correspondence below.
[34] On 7 June 2019 they received further correspondence from the Body Corporate requesting access to Lot 14 for the Body Corporate's engineer to inspect the works to ensure they complied with the relevant building codes.
[35] On 19th July 2019 they replied to the Body Corporate's correspondence, advising that all the works had been carried out as per the approval issued by the Body Corporate in 2011, and requesting a copy of the Body Corporate's file copy of the approval.
[36] In correspondence from the Body Corporate dated 22nd July 2019, they confirmed that the scope of works carried out to Lot 14 during the second half of 2011 had been approved. However, they alleged that the balcony had been enclosed without approval of the Body Corporate, for the purpose of letting the room for Airbnb guests. The respondents say that requests for a meeting with the body corporate were refused
[37] On 16th August 2019 the respondents again requested a meeting with the Body Corporate and advised them that all the appropriate documentation was lodged with Kalegro Accounting and Strata Professionals when the works were completed in 2011. They requested the Body Corporate to contact the previous managers, Kalegro Accounting and Strata Professionals, to see if they could assist in locating the documents. They also reminded the Body Corporate that they had had 8 years to raise any concerns or objections they had with the structure.
[38] On 18th September 2019, the respondents again wrote to the Body Corporate asking why they had not responded to their emails dated 16th August 2019 and 26th August 2019, reminding the Body Corporate that all approvals and documents were hand delivered to Sharon Robb's oﬃce in 2011. In an eﬀort to satisfy the Body Corporates concerns they also provided a report from Senior Town planner, Jake Storey of Storey and Castle Planning dated the 23rd August 2019, for their information. They again requested a meeting and oﬀered to pay costs.
[39] The respondents subsequently emailed the Body Corporate requesting a correction of the minutes dated 31st October 2019, Item 13, where they state the respondents requested a further meeting with a member of the committee, when in fact there had never been a meeting with the Body Corporate Committee to discuss this matter despite numerous requests.
[40] On 30 April 2021, the respondents received a Form 10 - Notice of Continuing Contravention of a Body Corporate By-Law, stating that the respondents had contravened By-Law 9 titled "Appearance of/ Alteration to lot". The Notice went on to state that the respondents had proceeded without body corporate approval to enclose their balcony in its entirety, without the Body Corporate's approval and now utilise the area as a habitable space for the purpose of renting to short term clients / Airbnb guests. The Notice states that the works undertaken have had a significant impact on the exterior appearance of Beachpoint and detracts from the rest of the building.[3]
[41] On 15 July 2021 they responded to the minutes of a meeting held on the 17th June 2021, confirming that all the components of the roof and balustrade were compliant with building regulations and standards. However the body corporate decided to proceed with the matter and on 21 October 2022, the respondents became aware that the Body Corporate had requested Small Meyers Hughes Lawyers to proceed with an application for conciliation.
[42] Various communications and meetings between the body corporate and the respondents ensued without resolution of the matter. On 21 November 2022 the respondents wrote to the Chairman of the Body Corporate, Rodney Davis via the building manager, Nicki Blackley, advising that the Body Corporate had approved the constructed roof, support and accessories, and it would be unlawful to demolish the existing compliant balustrade. However the building manager replied that they would "let the lawyers sort it out".
[43] Subsequently, on 24th November 2022, the committee resolved to issue to the respondents another Form 10 - Notice of Continuing Contravention of a Body Corporate By-Law, stating that the respondents had contravened By-Law 9 titled "Appearance of/ Alteration to lot" by enclosing their balcony in its entirety without the Body Corporate's approval.
[44] On 6 December 2022 they received an email from Small Myers Hughes with an attached notice that included a Form 10 Notice of Continuing Contravention of a Body Corporate By- Law, dated the 18th November 2022, alleging that the respondents had contravened By-Laws 9(1) and 9(2)(b) &(c). The notice stated that the works that were carried out were not in accordance with the Body Corporate approval dated the 9th June 2011. The body corporate had approved the roofing structure and balustrade but not additional works that were undertaken in 2018.
[45] The respondents responded to Small Myers Hughes and made particular reference to the internal works that were carried out inside the unit in 2018/2019. They stated that the works were not structural and did not require Body Corporate approval.
[46] Further correspondence ensued between the respondents and Small Myers Hughes.
[47] On 17 January 2023 they replied to a Small Myers Hughes email dated 9th January 2023, highlighting that the balustrade to the terrace was 1200mm high and was constructed on top of the original (outer wall) of the planter box. They also noted that the roof, once installed with all its components, left an air space of 400mm between the top of the balustrade and the underside of the roof.
[48] On 29 May 2023, they emailed Small Myers Hughes, stating that they did not believe they required Body Corporate approval for the works carried out in 2018. However, as a gesture of good-will, they intended to submit a formal application/motion for approval, outlining the works undertaken, with a view to finalise the issue prior to conciliation.[4]
[49] They say they submitted a formal application/ motion via email to the Body Corporate Committee for their review, consideration and approval, suggesting a "flying minute" or equivalent notice of motion to be voted on outside a committee meeting. However they say this request was rejected and they were advised by Small Myers Hughes that:

(a) The request was not in the form of a motion

(b) It was addressed to the committee when approval by a general meeting was required

(c) It did not address the encroachment into common property.

[50] The respondents say the Body Corporate had misplaced/ lost the original approvals/ documents, and they were unable to obtain copies from their engineer, Geoff Wright from Nerantec Group Pty Ltd, who designed the overhead protection. He had passed away and his company was defunct. Similarly, they were unable to obtain copies of the approved building plans from either AM Strata or the Gold Coast City Council.
[51] The respondents say they believed that the only way forward was to convince the Body Corporate that all the works complied with building regulations and local authority requirements, by engaging the following specialist consultants to carry out site inspections and provide the appropriate certification :

(a) Protest Engineering - Structural engineers, overhead roof protection

(b) Blackwell Consultants - Engineer balustrade

(c) Fire Systems Australia - Miles Kirkpatrick

(d) Queensland Fire Services - Fire/ Electrical/ Alarm Safely

(e) Toohey's Surveys

(f) A Private Certifier - Thomas Sear Certification

[52] In conclusion the Respondents say the alleged "unauthorised work" carried out in 2011, was the construction of the "compliant glass balustrade" 1.2m high, mounted on top of the 230mm brickwork, installed in accordance with BCA requirements. As noted in earlier correspondence, the roof and the balustrade were installed in the space available.
[53] The respondents also say they:

(a) did not contravene by-law 9.1 because they had Body Corporate approval to construct the roof and balustrade.

(b) did not contravene by-law 9.2(b) because they had approval from the Body Corporate to carry out structural alterations in 2011.

(c) did not contravene by-law 9.2(c) because they have not enclosed the terrace.

[54] The respondents believe the Body Corporate was happy with the completed works that were approved by the committee in 2011. It wasn't until they decided to upgrade their unit and join the Airbnb platform that the Body Corporate raised concerns stating that the works were unauthorised.

[55] This is a dispute between a body corporate and lot owner. This fits within the meaning of a dispute under section 227(1)(b) of the Act.
[56] For the purposes of section 228 of the Act, this dispute involves:

(a) Alleged contraventions of the Act and by-laws; and

(b) the exercise of rights or powers, or the performance of duties, under the Act Accordingly, an adjudicator has jurisdiction to resolve this dispute under section 229.

[57] This case concerns works purported authorised by the body corporate committee some 14 years ago as well as some minor works which were undertaken more recently. However it is argued that the works were such as to require approval by resolution of the body corporate. Further, because the works encroach upon common property, they required approval by a resolution without dissent.
[58] Beachpoint is a 142 lot scheme subdivided by way of a building format plan. In this regard, the Land Title Act 1994 (LTA) provides as follows:

(1) A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.

structural elements, of a building, includes projections of, and references to, structural elements of the building.

Example of projections as structural elements of a building -

Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling."

Except to the extent permitted under a direction given by the registrar under section 10(1)(b), the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling."

[59] The registered Survey Plan shows lot 14 as including an outdoor terrace area, with a broken line delineating the internal area, and external terrace area. The Plan states that _"_the uncovered parts of Units 13 and 14 extend only to ceiling height."
[60] My analysis will firstly consider the following questions:
1. Have the respondents contravened by-law 9 "Appearance of/ Alteration to lot"
2. Could the works be approved by resolution of the body corporate? In particular, are the works structurally sound and constructed in accordance with the NCC & Fire Safety Regulations.
3. Is the body corporate approval required to be by way of resolution without dissent ?

Have the respondents contravened by-law 9 "Appearance of/ Alteration to lot"

[61] The by-laws for the scheme include the following:

(2) The owner of a lot must not, and must not permit an occupier to, without the body corporate's written approval:

(a) hang curtains visible from outside the lot unless those curtains have a backing of a neutral cream colour or otherwise as is approved in writing by the body corporate (in giving such approval the body corporate shall ensure so far as practicable that curtain backing used in all lots presents uniform appearance when viewed from the outside of the building).

(b) make any structural alteration of a lot (including any alterations to utility infrastructure) or alter the wiring, plumbing or any other fixture or fitting which provides services in or to a lot.

(c) build any structure on, or enclose, a balcony.

[62] At a committee meeting held on 31 May 2011, committee members were presented with, and purported to approve, a proposal to replace an existing timber pergola structure partially covering the Terrace with new glass balustrading and a fabricated 'Solarspan' pergola structure covering a larger area of the Terrace, but which would otherwise remain as an open outdoor space. It is evident that before 2011 there was a timber balcony structure over part of the outdoor terrace area forming part of Lot 14.
[63] On 9 June 2011, the Body Corporate committee wrote to the Respondents advising of the Committee's decision in relation to the Approved Works, stating:

"I refer to our telephone conversation today and confirm that the Body Corporate Committee has approved your request to replace your existing non-compliant balcony balustrading with new, compliant glass balustrading and the installation of an insulated, colourbond pergola in accordance with your proposal as previously submitted to the Committee for their consideration."

[64] The proposal from the respondents' architects depicted a retrofitted open-sided pergola and the extended approx. 1.6m high (later increased to 1.8m high, overall) perimeter (hybrid) 110-series masonry/ glass baluster handrail arrangement.[5] The Respondents carried out works to the Terrace a few months after receiving notice of the Approved Works.
[65] The body corporate recently became concerned that the area had been completely enclosed by installation of additional transparent panels and was being used for short term holiday letting. Due to their concerns about the structural integrity of the works as well as their legality, they engaged Structual Dynamics, Structural Engineers, who conducted an inspection on 6 September 2023, and produced an Inspection Report dated 7 September 2023.
[66] Amongst other things they noted at the time of their assessment, was that there was an airgap of 340mm between the underside of the roof framing and the glass baluster panel. They also noted that an approximately 220mm wide polycarbonate (perspex) drop screen was affixed to the underside of the roof framing and this was referred to as a "windbreak". However the applicant states that as referenced in the paragraph 54 of their submissions, and included with Annexure G of the Application (pages 153 - 154), photographs of the Terrace taken prior to the on-site inspection carried out on 6 September 2023 show the Works as including not just the 'balustrading' and 'windbreak', but additional clear polycarbonate sheeting (Middle Sheeting) affixed to the top of the balustrade and extending vertically above the level of the windbreak. With the Middle Sheeting in place, the Terrace becomes a fully enclosed structure which is something different from what was approved by the committee in 2011.
[67] I do not believe that the permission purportedly given by the body corporate committee in 2011 included permission to fully enclose the balcony area. The nature of the Proposed Works was for the Terrace to remain an open outdoor area with a glass balustrade on top of the masonry wall, covered by a roofing structure, and not enclosed by walls on the perimeter.
[68] In addition, I do not believe it was contemplated that this area would be converted into a habitable area. I note that Thomas Sear Certification Pty Ltd reviewed Aspect and Compliance Certificates from QBCC licensees regarding the works. On 18 October 2024, they produced a Form 16 Inspection Certificate[6] confirming that the **"**As Constructed Alterations to Unit - Enclosed Non Habitable Patio Area" was compliant with the building development approval.
[69] Further, I believe that the works require approval by resolution of the body corporate and as the works encroach upon common property, should have been approved by a resolution without dissent.

Encroachment into Common Property Airspace - Is the body corporate approval required to be by way of resolution without dissent ?

[70] Lot 14 is situated on 'Level D' of the registered survey plan and was constructed with an outdoor terrace area forming part of the lot. The Survey Plan[7] includes a broken line delineating the internal area and external Terrace area of lot 14. It contains a notation which states that the uncovered parts of Units 13 and 14 extend only to ceiling height.
[71] The applicant has engaged a surveyor to undertake a survey of lot 14[8] which shows that several aspects of the Works encroach beyond the boundaries of Lot 14, and are located within the common property airspace. It says that this involves a disposition of common property which requires approval by way of a resolution without dissent.
[72] In particular, the applicant says the metal roof extends beyond both the vertical and horizontal boundaries of Lot 14 (as defined by the LTA), and the gutter and downpipe system is mostly, or wholly, outside of the boundaries of Lot 14 and situated in common property airspace.
[73] The survey plan obtained by the applicant body corporate from Stewart McIntyre & Associates shows the height of the concrete slab underside to be RL 11.77[9] (which is the height of the lot 14 ceiling) and the RL for the top of the slab is 11.950. The top of the metal roof is between RL 11.889 and RL 11.800 so it is located in common property airspace.
[74] According to this survey plan, the roof would also appear to extend between 3 and 9 centimetres beyond the vertical boundary of the lot. The gutter is also outside the boundary of the lot and the downpipe is almost wholly outside of the boundaries of Lot 14.
[75] I therefore believe there is substance to the applicants claim that due to the permanent nature of the 2011 works, their encroachment into common property involves a disposition of the relevant parts of the common property in which the Respondents' improvement is situated.
[76] Section 184 of the Standard Module addresses how a body corporate may sell or otherwise dispose of common property. A body corporate may only sell or otherwise dispose of part of the common property if authorised to do so by way of a resolution without dissent. creation of an exclusive use by-law in relation to the parts of common property encroached upon must also be authorised by a resolution without dissent.[10]
[77] Sections 170 to 177 of the Act provide for exclusive use by-laws, which attach to a lot and give the occupier of the lot who benefits from the by-law the exclusive use to the rights and enjoyment of, or other special rights about, common property or a body corporate asset. A body corporate must normally consent to a new CMS by passing a resolution without dissent, including if the new CMS is required because of a change to an exclusive use by-law.[11] An exclusive use by-law may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the CMS which will incorporate the exclusive use by-law or the lot owner votes personally in the resolution.[12]
[78] The common property over which exclusive use is granted must be specifically identified in the by-law,[13] and the Registrar of Titles will normally require a survey plan identifying the area to avoid any doubt over the identification and extent of the area.[14] Exclusive use cannot be granted over utility infrastructure that is common property.[15]
[79] I note that no such resolution without dissent has been submitted by the Respondents for consideration by the Body Corporate in general meeting.
[80] It is noted that the respondents refer to section 115R of the Land Title Act 1994, asserting that the encroachment of the Works into common property, is covered by a statutory easement right. That section provides as follows:

(1) If eaves, guttering, drainpipes, awnings, window sills, or other minor parts of a building within a lot ("lot A" ) project over the boundaries of another lot ( "lot B" ) or common property, an easement exists in favour of lot A and against the part of lot B or common property over which the projection lies, permitting the projection.

(2) The easement entitles the owner of lot A to enter lot B or the common property to maintain or replace the building parts.

[81] However the applicant argues that section 115R of the LTA only applies to existing building structures constructed at the time of registration of the plan creating the Scheme. Further, the applicant argues that even if section 115R of the LTA was relevant, this would only avoid the requirement for the Works to be approved by resolution without dissent, and the works would still require approval by ordinary resolution at general meeting (which the Respondents have never sought or obtained).
[82] It is my view that even if section 115R of the LTA could be relied upon, it would only apply to the guttering and downpipe[16], and perhaps the few centimetres by which the roof projects beyond the vertical boundary of the lot. The fact remains that the upper surface of the roof is located entirely within common property airspace.

[83] The applicant Body Corporate seeks the following outcomes:

(a) Within 3 months, the Respondents must:

(i) remove the Unauthorised Works from the balcony terrace of Lot 14 and adjoining common property structures and airspace; and

(ii) carry out any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Unauthorised Works.

(b) Without limiting the Body Corporate's other rights, if the Respondents do not comply with order (a) above within 3 months, the Body Corporate is empowered to carry out the removal of the Unauthorised Works and any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Unauthorised Works, and recover the costs of such work from the Respondents as a debt.

[84] Although most of the works were purportedly authorisation by a body corporate committee some 14 years ago, I believe that they should have been approved by resolution of the body corporate, and as the works encroach upon property, the works should have been approved by a resolution without dissent.
[85] However in circumstances where the respondents sought prior body corporate approval for most of their works, and where that approval was purportedly given by the committee (although invalidly) and acted upon by the respondents, then challenged by a subsequent committee more than 10 years later, I do not consider it just and equitable to order the respondents to remove the unauthorised improvements without giving them a final opportunity to seek approval in accordance with the legislation.
[86] I have therefore made the following orders:
1. The respondents may submit a motion to next annual general meeting (or any earlier general meeting), to retrospectively approve the Works that they have undertaken to the lot 14 terrace area, in accordance with section 184 of the Standard Module.
2. Unless such a motion is submitted and carried by a resolution without dissent at the next annual general meeting (or any earlier general meeting), the owners of lot 14 must restore the balcony terrace of lot 14 and affected areas of common property, to their condition prior to the installation of the Works, within 3 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator.
3. If the Respondents do not obtain approval for the works, and do not within 3 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator, restore the balcony terrace of lot 14 and affected areas of common property to their condition prior to the installation of the Works, the Body Corporate is empowered to carry out the removal of the Works and any necessary "make good" works to restore the balcony terrace of Lot 14 and affected areas of common property to their condition prior to the installation of the Works, and recover the costs of such work from the Respondents as a debt.
[87] The onus is on the respondents to submit an appropriate motion for the body corporate to consider in general meeting. Failure to do so will require them to remove the unauthorised works.
[88] The body corporate must act reasonably in deciding any motion/s submitted by the respondents.[17]
[89] Item 10 of Schedule 5 of the Act provides that if an adjudicator is satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, they may make an order giving effect to the motion as proposed, or a variation of the motion as proposed.
[90] If the respondents do submit motions to be considered at the AGM that are not passed, and a dispute arises as to the outcome of those motions, it may then be referred to this office for resolution.