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

IMPROVEMENT TO LOT; REASONABLENESS - whether it was unreasonable for the body corporate committee to refuse to allow the applicants to construct a roof over their balcony when other lot balconies have roofs or shutters; whether the committee could reasonably have regard to the impact of the proposed balcony roof on the appearance of the building's façade despite not mentioning it when asked for permission to install a retractable awning some years earlier; whether the body corporate should reimburse the applicants' expenditure on an engineer if it will not permit the installation of the balcony roof.

• [1] Unlike most balconies at Brighton on Broadwater Shores, Mr and Ms Hawkins' east-facing balcony has no roof. Ms Hawkins complains of "extreme heat and glare" from the balcony.
• [2] In 2022 she sought body corporate approval to install shutters and a retractable awning. The body corporate committee approved the shutters, but withheld approval for the awning and requested further information about "a failsafe option should a power outage occur" and "specifications for wind rating, colour and compliance with Gold Coast City Council regulations".[1]
• [3] In 2024 Ms Hawkins sought approval to install a roof over the balcony. She says a wind-rating could only be obtained from an engineer, so she had plans prepared by an engineer. The committee refused approval on 16 July 2024 "on the grounds that it doesn't meet the criteria outlined in the relevant By-laws". When Ms Hawkins pressed the committee for further details, it passed a further resolution noting:

...the installation of the roof over the balcony...would alter the very prominent façade of the building and if installed on one balcony in isolation, it would be inconsistent with the external appearance of the building which the Committee feel strongly needs to be maintained. This decision was supported also by the contravention of the By-laws.[2]

• [4] Ms Hawkins objects that:
  1. many lots have been permitted shutters on their balconies, changing the appearance of the building's façade
  2. some lot balconies on the western side of the building have roofs, and
  3. the committee did not mention the building's façade when considering the retractable awning in 2022, so it cannot now refuse approval for the roof on that basis.
• [5] She seeks orders in the following terms:

The outcome I seek is to have my balcony roof approved.

If it is not approved I would expect my Engineers costs reimbursed by the Brighton Shores Body Corporate.

• [6] Ms Hawkins requires body corporate approval to install the balcony roof pursuant to by-laws 3.3 and 16.2:

3.3 No structural alterations shall be made to any Lot (including...work for the purpose of enclosing in any manner whatsoever the balcony...) without the prior written approval of the Committee.

16.2 A Lot Owner or Occupier of a Lot shall not effect any alteration to the Lot which would impact on or alter the external appearance of the Building, unless the Lot Owner or Occupier first obtains the prior written approval of the Body Corporate, which approval may be given on conditions which the Body Corporate acting reasonably deems fit.

• [7] The proposed roof would involve fixing a new steel frame to the balcony slab and therefore seems to comfortably qualify as a "structural alteration" per by-law 3.3. It would also be a visible change to the external appearance of the building covered by by-law 16.2.
• [8] The body corporate committee must act reasonably when making decisions under these by-laws.

The word "reasonably" is used in its ordinary sense and "act reasonably" has a corresponding meaning. Reasonable action is evidence-based and rational.[3]

• [9] I do not accept that it was unreasonable for the committee to have regard to the impact of the proposed roof on the appearance of the building's façade, notwithstanding that it may not have mentioned it in 2022. The information the committee requested in 2022 related to the awning, not the roof, and even then the committee gave no guarantee of approval if only those concerns were addressed. In fact, the committee was obliged to consider the roof's impact on the appearance of the building if it was to make a reasonable decision under by-law 16.2.
• [10] Contrary to the committee minutes of 21 August 2024, by-law 16.2 was not a barrier to granting approval though. The committee said its refusal was "supported by the contravention of the by-laws". But there would have been no contravention if approval had been granted. Changes to the building's appearance are permissible with the approval of the body corporate. Denying approval because of a potential breach of by-law 16.2 is circular and nonsensical.
• [11] Ms Hawkins says some lots on the other side of the building have roofs over their balconies, implying inconsistency in the committee's approach. But no details of those roofs or how they compare with the roof proposed by Ms Hawkins were given. The committee says the other roofs were installed by the original owner around the time of construction and never required body corporate approval.
• [12] It is not evident that the other roofs are so similar to Ms Hawkins' proposed roof that the committee could not reasonably refuse hers. Ms Hawkins says the other roofs are on the western side of the building. That alone might allow reasonable scope to object to the impact of Ms Hawkins' roof on the building's appearance even though there are balcony roofs elsewhere. Perhaps the eastern side gives the building its signature appearance. Maybe it is the side that is most viewed by passers-by. Mr and Ms Hawkins' lot is in a unique position, sitting at the top of a column of lots with triangular balconies jutting from the building, with each balcony covered by the one above and Ms Hawkins' balcony exposed at the top. There is only one other balcony in a similar (though mirror imaged) position on the eastern side. Those circumstances might all be quite different to what exists on the other side of the building.
• [13] Ms Hawkins questions how the committee can sensibly claim to wish to preserve the appearance of the façade while allowing some lots to install balcony shutters, including on the eastern side. I put that to the committee and it distinguished the shutters from the balcony roof as follows:

• Are typically retractable and considered minor, semi-permanent additions with minimal fixings
• Are generally uniform in design and finish, under a Committee-approved standard of materials/colour with sufficient documentation being provided
• Are lightweight, non-structural elements that attach to the balcony frame or façade with minimal fixings
• Are integrated with existing vertical glass balcony panels
• Are consistent throughout the building
• Do not extend beyond the footprint or profile of the building façade.

• Is a substantial, permanent structural addition
• Alters the silhouette and architectural integrity of the building when viewed externally
• Has the potential to obstruct or restrict views from other Lots
• Requires penetrations through the waterproofing membrane, creating potential for water ingress and consequential damage to common property and other Lots
• Permanently alters the building envelope and the street/complex elevation
• Would create inconsistency throughout the building.

• [14] While I do not understand all of these points, and some do not appear to have any bearing on the appearance of the façade, I take the broad point that the balcony shutters and proposed balcony roof look different to one another and attach to the building in different ways. Moreover, there are many balconies with shutters on the eastern side, while no other lot would look quite like Mr and Ms Hawkins' lot if the balcony roof was permitted.
• [15] Aesthetic judgements are inherently subjective and inscrutable. If two things look different to one another, there is reasonable scope for a person to like the appearance of one and not the other. The balcony roof proposed by Ms Hawkins would not look like anything else on the eastern façade of the building. It would not be so similar to the balcony shutters in other lots that the committee could not reasonably distinguish between them. I am not satisfied that the committee acted unreasonably by refusing to allow Ms Hawkins to install a balcony roof while allowing shutters on other (and Mr and Ms Hawkins' own) lot balconies.
• [16] I am not persuaded that the committee's decision on the balcony roof should be reversed. In that case, Ms Hawkins asks that the body corporate be ordered to reimburse her expenditure on the engineer who designed the roof. She clearly feels misled into engaging an engineer when there was no hope of approval given the committee's concerns about the appearance of the façade.
• [17] But I have seen no evidence that the committee directed Ms Hawkins to engage an engineer in relation to the balcony roof or promised to approve the roof if satisfied of its wind rating. The committee requested details of the wind rating of the retractable awning proposed in 2022. Ms Hawkins assumed she would need to provide that information in relation to the roof too, so she had it designed by an engineer. It is understandable that she regrets the unnecessary expense now that approval has been withheld for reasons unrelated to engineering. But I do not see any legal basis for holding the committee liable for expenditure Ms Hawkins voluntarily undertook in the hope of gaining approval to make an improvement to her lot. It only stood to benefit her.

[3] Carmody J, Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23].