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

• an AGM motion authorised an improvement to the respondents' rooftop exclusive use area by ordinary resolution
• the applicant claims the improvement will exceed the upper boundary of the exclusive use area and appropriate unallocated common property airspace, which is a disposal of common property requiring authorisation by resolution without dissent
• the applicant seeks a final order that the authorising resolution is void.

Whether the respondents should be prevented from constructing the improvement before the application is decided.

Act, s 279(1); Standard Module, s 184(2)(a)(i).

• [1] The respondents own lot 83 on level P and have an exclusive use area on the rooftop immediately above. They submitted a motion (motion 14) to an annual general meeting on 18 September 2025 seeking approval to construct an improvement within the exclusive use area, described in their explanatory note as "the installation of removable decking panels and an enclosed covered BBQ and amenities area over part of the deck". The motion passed by ordinary resolution, but the applicant claims the improvements will exceed the upper boundary of the exclusive use area and appropriate some unallocated common property airspace. An indefinite disposal of common property such as that requires authorisation by resolution without dissent.[1]
• [2] The applicant seeks a final order that the resolution in favour of motion 14 was always void, and an interim order to prevent the respondents from implementing it before the application is decided. I am only concerned with the interim order at this stage. An interim order is generally intended to prevent an application from being frustrated before it can be decided. But that is only appropriate where an applicant sets out a prima facie case with prospects of success at final orders.
• [3] Neither exclusive use by-law 22 nor the sketch plan of exclusive use area 83E in the community management statement identify an upper boundary to the area.
• [4] The applicant refers to the following from the Registrar of Titles' Directions for the Preparation of Plans:

11.11.9 Exclusive use areas restricted vertically:

• Where an exclusive use area is within a level in a building, it is restricted by the normal limits of that level.
• Where an exclusive use area is within a level in a building and it is to be restricted in either height or depth or both, other than by the normal restriction of floor and ceiling, the vertical restriction of the exclusive use area may be defined by a distance above the floor. A reduced level on Australian Height Datum is not required.
• Where an exclusive use area is on the roof of a building or a podium, it may be restricted by a horizontal plane at a defined distance above the roof. A reduced level on Australian Height Datum is not required.

• [5] The applicant says the exclusive use area is restricted by the normal limits of the rooftop level. The respondents' uncovered balcony on the level below is stated in Building Units Plan 70177 to "extend only to a height of 5.68 metres". That is roughly twice the height of the enclosed parts of that level, meaning the lot includes airspace extending up past the roof alongside the rooftop level in that location. The applicant says the upper limit of this part of lot 83, 5.68 metres above the balcony floor, is a horizontal plane that defines the normal limits of the rooftop level. The respondent's improvements will apparently be a little higher than that plane, so the applicant argues they will appropriate unallocated common property.
• [6] I do not accept that argument. The exclusive use area is not "within a level in a building" as described in the first dot point. It is on the roof of the building as described in the third. While an exclusive use area in that location "may be" restricted by a horizontal plane at a defined distance above the roof, this one is not. No such horizontal plane or distance appears in the sketch plan in the community management statement.
• [7] Even if the rooftop could be described as "within a level in a building", I would not accept that the height of lot 83's balcony establishes the normal limits of the rooftop level, notwithstanding that the balcony's airspace extends up alongside it. Lot 83 is not on the rooftop level. It is on level P of Building Units Plan 70177. The plans show the rooftop as level Q. Level Q's boundaries do not encompass the area above lot 83's balcony, as on level Q that area is just a void.
• [8] I am not satisfied that a sufficiently compelling prima facie case has been established to warrant an interim order.
• [9] Further, I cannot make the final order against the named respondents. The applicant seeks an order that a resolution of the body corporate is void. That would be an order against the body corporate. If there is no chance that I will make the final order, I cannot sensibly make the interim order to keep that possibility alive.

[1] Standard Module, s 184(2)(a)(i).