Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

INTERIM ORDER - whether an interim order is warranted.

1. Pending the determination of the final orders sought, the Body Corporate for Bridgewater Crest must not take any steps to enforce any current or future by-law against the applicant in respect of the fan currently installed on the balcony of Lot 62.
2. The above interim order has effect until 12 months have elapsed from the date of this order, an adjudicator issues a further interim or final order for the application, or until the application is withdrawn or is otherwise ended (whichever comes first).
3. The application for interim orders is otherwise dismissed.

• [1] This application is about a change made to the balcony ceiling of Lot 62.
• [2] The applicant replaced an existing light fitting on their balcony with a white 3-bladed ceiling fan. The applicant was later advised in February 2025 that the installation was contrary to the by-laws, as they did not obtain body corporate approval.
• [3] The body corporate issued a by-law contravention notice to the applicant in May 2025 and subsequently lodged a conciliation application. Following the conciliation session held in October 2025, the applicant sought the retrospective approval of the body corporate for the white 3-bladed ceiling fan. Retrospective approval was declined in November 2025 on the basis that approved external ceiling fans for the scheme are black and 4-bladed.
• [4] The applicant is seeking a variety of final orders, including an order that the body corporate's decision not to grant retrospective approval is set aside. The applicant asserts that the body corporate's decision was unreasonable.
• [5] Pending the determination of final orders, the applicant is seeking interim orders to restrain the body corporate from pursuing by-law enforcement regarding their balcony fan.
• [6] At this stage, I will only consider whether interim orders are warranted in the circumstances.

• [7] The application seeks the following interim outcomes:
  1. The Body Corporate must not issue any breach or enforcement notice regarding the balcony fan.
  2. The Body Corporate must not require removal or alteration of the fan.
  3. Any new CMS amendments relating to balcony ceilings or colour schemes must not be applied to Lot 62 until final determination.
• [8] The application then seeks the following final outcomes:
  1. ORDER 1 - Validate that the balcony ceiling of Lot 62 is part of the Lot and not common property

A declaration that under the current registered Community Management Statement (CMS) for CTS 24675, the balcony ceiling of Lot 62 is not common property and is part of the Lot; and that the Body Corporate is not entitled to regulate fixtures attached to that ceiling as if they were alterations to common property.

1. ORDER 2 - Set aside the decision dated 27 November 2025 refusing retrospective approval

A declaration that the Body Corporate's decision dated 27 November 2025 to refuse retrospective approval for the Applicant's three-bladed white balcony ceiling fan is unreasonable and invalid under s 94 and s 276 of the Act. There is no correspondence or advice provided to suggest that a decision was made at any meeting, either General Meeting or Voting Out of Committee. Decision was only provided through written correspondence attached to an email dated 27th November 2025. (Refer Annexure D)

1. ORDER 3 - Require the Body Corporate to give approval

An order that the Body Corporate must approve the installation of the Applicant's existing balcony ceiling fan, subject only to reasonable conditions relating to electrical safety.

1. ORDER 4 - Declare that the "Preferred Colour Scheme Table" is not a valid by-law

A declaration that the "Preferred Colour Scheme Table" relied upon by the Body Corporate is not part of the registered CMS or any valid by-law, has no binding legal effect, and cannot be used to regulate lot improvements.

1. ORDER 5 - Declare the committee acted with procedural unfairness and predetermination

A declaration that the committee failed to act reasonably under s 94 by:

(a) predetermining the outcome of the approval application before receiving it,

(b) applying a non-existent aesthetic requirement, and

(c) not providing proper consideration to the merits of the Applicant's submission.

1. ORDER 6 - Invalidate any EGM motion purporting to retrospectively apply new rules to the Applicant's fan

A declaration that any CMS amendments made after installation - particularly those defining balcony ceilings as common property or imposing new colour scheme requirements - cannot be applied retrospectively to the Applicant's fan or relied upon to require removal.

An order that each party bear their own costs in relation to this application and adjudication.

• [9] Bridgewater Crest community titles scheme 24675 (Bridgewater Crest) is a 103-lot scheme in Kangaroo Point. The community management statement (CMS) indicates the Accommodation Module applies. The scheme is registered as building units plan 106857.

• [10] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or the performance of duties under the Act or CMS.[1] Relevantly, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary due to the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions in the Act.[3]

• [11] This application was lodged on 9 December 2025. The Commissioner sought further clarification from the applicant about the application.[4] The application was then amended.[5]
• [12] I have been tasked with deciding whether the circumstances warrant interim orders.[6] There is no legislative requirement to give notice of an interim order application to a respondent or affected party.[7] In the circumstances, I gave the committee a limited opportunity to respond to the interim order application. The committee opted not to provide interim submissions and has indicated that it did not intend to seek removal of the fan until final orders. It will only provide submissions in relation to the final orders sought.

• [13] The sole issue for me to determine at this stage is whether an interim order is warranted. However, to make this determination, I must consider the substantive issues in dispute.

• [14] An interim order is intended to protect rights and interests temporarily, or maintain the status quo, until the substantive issues in dispute are finally determined.
• [15] The Act stipulates that an adjudicator may make an interim order if they are satisfied, on reasonable grounds, that an interim order is necessary due to the nature or urgency of the circumstances.[8]
• [16] In determining whether it is just and equitable to make an interim order, an adjudicator must consider whether the application raises serious legal questions. Although I am not making any final decisions as to the merit of the substantive issues at this time, I must consider whether the applicant has made a prima facie case on genuine legal issues.
• [17] An adjudicator must also weigh the impact of refusing to make an interim order if the final orders are ultimately granted, against the impact of granting the interim order if the final orders are ultimately refused (referred to as the 'balance of convenience'). It is particularly important to consider whether an interim order is necessary to prevent serious or irreparable harm.

• [18] I will turn now to consider the legal basis for the application and whether there is an arguable case.

• [19] Ostensibly the body corporate required (and refused) approval for the applicant's fan pursuant to By-laws 18 and 19. By-law 18 requires that an owner or occupier must not make an improvement to a lot without body corporate approval, other than for minor cosmetic work that does not affect, alter or impact the common property. By-law 19 says an owner or occupier must not do anything that changes the external appearance of the lot if it would change the appearance being visible from another lot or the common property, or from outside scheme land, without body corporate approval.
• [20] The applicant claims that the replacement of the existing light fitting with the white 3-bladed fan constituted minor cosmetic work under By-law 18. The applicant further submits that there was no structural, waterproofing, or common property impact and that the fan is not visible from any other lot. The applicant says that under By-law 18, minor cosmetic work includes replacing a light fitting. In the submitted material, I note that the applicant refers the body corporate to page 19 of the "Community Co Information Pack" which allegedly states that examples of cosmetic renovations include "smaller jobs, such as painting or changing a light fixture".
• [21] In a previous adjudicator's decision, it was held that replacing light fittings on a balcony with different light fittings constituted a minor change.[9].
• [22] There is a question to consider in this matter as to whether the applicant's replacement of the existing light with a fan was minor cosmetic work, or does not change the external appearance of the lot, such that there was no requirement for body corporate approval. However, that will require a thorough consideration of the circumstances.

Declaration that the balcony ceiling is part of Lot 62 (order 1)

• [23] There appear to be 2 parts to the order sought: first, that the balcony ceiling is part of Lot 62 and not common property, and second, that the body corporate cannot regulate ceiling fixtures as if they are common property alterations.
• [24] The survey plan for Bridgewater Crest shows that Lot 62 (located on Level J) includes the balcony.
• [25] Bridgewater Crest is created under a building units plan, now known as a building format plan (BFP) of subdivision. A BFP defines land using the structural elements of a building.[10] The boundary of a lot is the centre of the floor, wall, or ceiling where the lot is separated from another lot or common property by a floor, wall, or ceiling.[11] Therefore, the balcony ceiling on which the applicant has installed the fan is part of Lot 62 and not common property.
• [26] For clarity, I also note that it is not possible to reclassify part of the lot as common property (for instance, by changing the by-laws in the CMS) without recording a new survey plan.
• [27] From a preliminary review of the application material, it appears that there was an initial misconception that the balcony ceiling was common property. However, in the contravention notice issued to the applicant in May 2025, the body corporate identified By-law 18 (about lot improvements). I also note that in the body corporate's correspondence refusing retrospective approval, both By-law 18 and By-law 19 (about the external appearance of a lot) are referenced. But then in the applicant's grounds they submit that the body corporate is proposing alterations to the by-laws at an upcoming extraordinary general meeting (EGM) in December 2025 which purport to redefine the meaning of "common property" to include balcony ceilings.
• [28] Regarding the second part of the order sought, I note that there is no legislative requirement for an owner to obtain body corporate approval to make an alteration to their lot. However, the Act enables a body corporate to create by-laws regulating the use and enjoyment of lots in the scheme.[12] It follows that a body corporate can adopt by-laws regulating lot improvements. An owner does not necessarily have unfettered rights to make improvements to their own lot.
• [29] Given the submitted material, there may be some question to decide about whether the body corporate has treated or is planning to treat the balcony ceiling as common property.

Set aside decision not to grant retrospective approval (order 2)

• [30] In a letter dated 27 November 2025, the body corporate advised the applicant that their request for retrospective approval was declined based on By-laws 18 and 19. The body corporate noted that for several years previous approvals for external ceiling fans have been given on the condition that a black 4-bladed fan is installed to maintain a consistent appearance.
• [31] The applicant contends that the decision to deny retrospective approval was unreasonable under section 94 of the Act, as the "Preferred Colour Scheme Table for Renovations" (preferred colour scheme table) relied on by the body corporate which refers to black 4-bladed fans is not registered as a by-law and is therefore not binding. The applicant also argues that the committee's decision was predetermined and that it failed to consider the merits or evidence of the applicant's request. The applicant also submits that the body corporate relied on factual errors by claiming that the balcony ceiling was common property.
• [32] Although the preferred colour scheme table is not currently in the scheme's registered by-laws, arguably the committee is entitled to consider it. But it is also arguable that treating the preferred colour scheme table as mandatory instead of a preference could lead to a decision that that was not reasonable in the circumstances.
• [33] The applicant has also claimed that the decision to refuse retrospective approval is invalid because nothing was provided to suggest that the decision was made at a meeting or by a vote outside a committee meeting. It is not clear whether the applicant means that there is no evidence of a decision in the body corporate's records or that the letter of refusal sent to the applicant did not include a record of the decision. There is no further explanation about this in the grounds of the application. This may require further investigation.
• [34] In my preliminary view, the applicant has raised a genuine legal issue about whether the body corporate has made a valid decision to refuse approval for the fan (if approval was required).

• [35] Whether the applicant's request for retrospective approval should be deemed as approved, and what conditions might be appropriate if it was, largely depends on whether the body corporate's decision is set aside (as per order 2).

Declaration that the preferred colour scheme table is not a valid by-law (order 4)

• [36] As I have outlined above, the preferred colour scheme table is not currently registered as a by-law in the scheme's CMS and is therefore not mandatory at this stage. Indeed, I note that the title of the document itself uses the word "preferred". However, this does not preclude the committee from considering the preferred colour scheme table when making decisions.

If the body corporate is purporting to rely on the colour scheme as mandatory (rather than simply preferable), there may be a genuine issue of whether it can reasonably do so where it is not currently recorded in the by-laws. Where it appears the body corporate may be contemplating incorporating this colour scheme into the by-laws, any question about the validity of such a by-law amendment would be a separate dispute

Declaration that the committee acted with procedural unfairness and predetermination (order 5)

• [37] The applicant has asked for a declaration that the committee failed to act reasonably under section 94 of the Act by predetermining the outcome, applying a non-existent aesthetic requirement, and not considering the merits of the request.
• [38] I note that the question of reasonableness under section 94 of the Act raised by this order would be part of the consideration of whether order 2 is warranted.

Retrospective application of any CMS amendments (order 6)

• [39] The applicant is asking for a declaration that any CMS amendments defining balcony ceilings as common property or imposing new colour scheme requirements cannot be applied retrospectively to their balcony fan.
• [40] While I appreciate that by-law changes may have been proposed, I have not been advised as to whether they have passed and any changes to the CMS have not yet been registered. I am not in a position to consider any question of the validity and applicability of any by-law amendments to the fan installed on Lot 62 until those amendments have been approved.

• [41] The applicant asserts that interim orders are urgently required because the body corporate may issue breach notices or compel the removal of the fan before the determination of the substantive issues in dispute, which would cause financial loss, loss of amenity and interrupt their use of the lot.
• [42] The applicant further contends that the balance of convenience overwhelmingly supports preserving the status quo, as the fan poses no safety risk or nuisance.
• [43] In response to the invitation for interim submissions, the body corporate indicated in writing that it does not intend to take any steps to remove or require the removal of the fan within the lot until a final order is made and only if the final orders require removal of the fan. This correspondence from the body corporate casts some doubt over the necessity of granting the interim orders sought.
• [44] However, I consider the balance of convenience in this matter favours granting interim relief. Where the body corporate does not currently intend to seek removal of the fan, it cannot be adversely affected by the interim order being made. However, granting the interim order will give the applicant assurance that they will not be put to the inconvenience of defending enforcement action or removing the fan if circumstances at the scheme (including the by-laws) change.
• [45] The fact that the body corporate does not contest the interim orders sought is also significant.

• [46] I am satisfied that the applicant has raised genuine legal issues, including about whether the body corporate's decision to refuse retrospective approval was reasonable in the circumstances. Given the nature of the circumstances, and for the avoidance of any doubt, I am satisfied that an interim order is warranted to prevent the body corporate from taking any steps to enforce the by-laws against the applicant for their balcony fan pending the determination of the final orders.
• [47] The application for final orders remains to be determined. Pursuant to the Act, I will refer the application back to the Commissioner to progress.[13]
• [48] If the application is not withdrawn, the applicant may wish to review the basis for the application in light of the matters outlined above.
• [49] I encourage the parties to make use of the ample resources available on the website of the Office of the Commissioner for Body Corporate and Community Management to learn more about defining lots and common property under a BFP.

[3] Sections 227, 228, 276 and Schedule 5 of the Act

[9] Windsong Caloundra [2025] QBCCMCmr 273 at 32-36

[10] Section 48C of the Land Title Act 1994

[11] Section 49C(4) of the Land Title Act 1994

[12] Section 169 of the Act