Carlisle [2025] QBCCMCmr 204 (12 June 2025)

Act, ss 94(2), 100(5), 167; Standard Module, s 187

1. I declare that to comply with the Act and the body corporate's conditions of approval for improvements to common property for the benefit of Lots 33 and 34, the owners of those lots must:

a) remove the expanded polystyrene type of combustible cladding (EPS Cladding also known as Type I Cladding) that is installed as the uppermost component of the roof-like structures (Pergolas) installed on the balconies of Lots 33 and 34, and > > b) install new gutters for the Pergolas, properly affixed to the common property wall.

2. I declare that, in order to facilitate the above works, the owners of Lots 33 and 34 are entitled to use the common property, including:

a) common property elevators, subject to reasonable conditions relating to times of use, protection from and indemnification for damage (which conditions are to be consistent with those imposed previously by the body corporate on other owners), and > > b) other areas of common property as described and for the periods indicated in the Safer Building Group (SBG) document titled "site lay-out and exclusion zone" (included as attachment 7b to the application).

• [1] This is the second application involving a dispute about historical improvements made to common property for the benefit of the owners of Lots 33 and 34.
• [2] The improvements at issue are structures (Pergolas) that were installed by previous owners of the lots in around 2016 to provide roof-like coverage for balconies on the 9th floor of a high rise building. In 2017, the body corporate retrospectively approved the Pergolas subject to certain conditions being met.
• [3] More recently, the parties realised that there was combustible cladding on the building, including on the Pergolas. Under new legislation, this meant the body corporate was obligated to complete a combustible cladding checklist. The body corporate engaged a fire engineer to conduct a building fire safety risk assessment and produce a report (BFSRA Report). The BFSRA Report identified the Pergolas as having two types of combustible cladding which, in combination, were predicted to have the potential to defeat certain aspects of the fire safety strategy for the building. This meant the body corporate had to register the building as one affected by combustible cladding (AB Register).
• [4] The fire engineer recommended three different options for mitigating the physical fire safety hazard. Option A was to replace both types of combustible claddings, and Option C was to remove and replace only the expanded polystyrene type of combustible cladding (EPS Cladding) on the top of the Pergolas, leaving the second type of cladding (ACP Cladding) in place as the soffit.
• [5] In addition to the cladding issue, the body corporate viewed the Pergolas as a source of water ingress at the scheme and the body corporate also became aware that some of the conditions of the 2017 Approval for the Pergolas had not been met. At the scheme's 2023 annual general meeting (2023 AGM), the committee proposed two new motions relating to the Pergolas. The body corporate then sought an adjudicator's order that the lot owners completely remove the Pergolas. In June 2024, a final order was made dismissing that application (First Order).[1]
• [6] The applicants, who purchased the lot understanding the Pergolas were approved and unaware the conditions had not been met, have been taking steps to try to comply. They have offered, at their own expense, to undertake rectification works to remove and replace the EPS combustible cladding and add new gutters (Rectification Works), plus obtain council and building approvals, to ensure that the Pergolas comply with the conditions of approval.
• [7] The committee does not dispute that the Rectification Works are required. However, following the First Order, the committee has made a series of decisions purporting to require the applicants undertake or commit to take additional actions before it will permit the Rectification Works to proceed. The applicants claim that the committee has not acted reasonably in making those more recent decisions. The committee refutes these claims. It submits it is acting reasonably and professionally in the circumstances.
• [8] The applicants now seek 3 orders. The first would require the applicants to commence the Rectification Works and complete the other steps in their rectification plan. For that order, the applicants are (somewhat unusually) effectively seeking an order against themselves. The second order sought is for access and use of the common property to facilitate the Rectification Works. Finally, the applicants seek an order that the body corporate call a general meeting to consider a motion for the recording of a new community management statement (CMS) for the scheme that includes an exclusive use by-law relating to the Pergolas.
• [9] Although I have not made the orders on the terms sought, where I am satisfied for the reasons that follow that the committee has not acted reasonably in making decisions about the Pergolas, I consider it just and equitable to make the orders in the form above.

• [10] Carlisle community titles scheme 9233 (Carlisle) is a 35-lot scheme and common property at Kangaroo Point. It was established in 1984 by registration of Building Units Plan 5980 (BUP 5980), a building format plan of subdivision. The CMS shows the Standard Module applies.
• [11] The applicants are the owners of Lot 33.[2]
• [12] The respondent is the Body Corporate for Carlisle.
• [13] The owners of Lot 34 are directly affected persons because the Pergolas also extend over their balconies.

• [14] The applicants engaged in self-resolution by communicating over an extended time period with the committee, the body corporate manager (BCM), and the body corporate's consultants. The Commissioner's delegate was satisfied the issues in dispute were not suitable for conciliation. The application then proceeded according to the legislation, with the Commissioner inviting the respondent and all owners to make a submission on the application.[3] The committee and the owners of other lots made submissions. The applicant inspected the submissions and provided a reply submission. A dispute resolution recommendation was made to refer the application to department adjudication.[4]
• [15] This is a dispute about decisions made by the committee on behalf of the body corporate relating to improvements to common property. The dispute involves claims about contraventions of the Act. I am satisfied it falls within the dispute resolution provisions of the Act and that I have jurisdiction and powers to make orders to resolve the dispute.
• [16] I investigated the dispute, including reviewing the application, the submissions, the reply, BUP 5980, and the CMS.[5] As part of my investigation, I wrote to the body corporate requiring responses about certain of the decisions it made about the Pergolas. In the interests of natural justice, I also invited both parties to comment on two orders I considered might be appropriate.

• [17] After the First Order was made in June 2024, the applicants say that they and their building professionals (SBG) have been engaging with the committee, the BCM, and the body corporate's consultant (Diverse FMX) so that Rectification Works can proceed in accordance with their Rectification Plan. The applicants provide a timeline of and attach some of the correspondence between those parties.
• [18] In summary, the applicants say that:
  1. they have been responsive to all body corporate requests over the past two years and have taken steps to make sure all the necessary building approvals are in place and qualified contractors had been appointed
  2. each time the applicants meet the committee and its consultants' demands, further demands are added, for example, in addition to the Rectification Works, the committee is now insisting that the applicants also (i) remove the ACP Cladding, which would mean additional costs of approximately $250,000, and (ii) take the steps necessary for the building to be removed from the AB Register
  3. they have incurred significant legal fees in this dispute
  4. the committee refuses to permit the applicants to use the common property lift to transport materials for the Pergola works
  5. the committee's refusal to allow the Rectification Works to commence hinders progress leaves the critical issue of the EPS Cladding and its potential for fire risk unresolved
  6. the refusal to allow the works to proceed also means continued water ingress into Lots 33 and 34, which poses health and safety concerns to occupiers, and
  7. additional delays will mean further increased costs for the applicants, which is unreasonable and unconscionable.
• [19] The applicants say the committee has breached its duty to act reasonably in making decisions about the Pergolas by, among other things, preventing the applicants from maintaining and complying with the conditions of approval for the Pergolas.

• [20] The committee and the owners of 4 lots made submissions about the application.
• [21] The Pergolas extend over Lot 34's balcony. The owner of Lot 34, who also purchased the lot with the Pergolas in place, provided a submission. She echoes the applicants and says:

The owners of Lots 33 and 34 have accepted the cost of the replacement of the Type 1 cladding is their responsibility from the outset. They have also offered to pay the cost of the replacement gutter to expedite the commencement of the work. They have been trying to commence the rectification works for the replacement of the Type 1 cladding for almost 2 years, but the Body Corporate Committee continuously blocks this request. Every time the Body Corporate Committee's current requests are completed, the Committee alter their position as to the requirements needing to be satisfied with new requests. On numerous occasions, the owners of Lots 33 and 34 have requested meetings to discuss the matter, but they do not receive a reply from the Committee or even acknowledgement of the meeting request. The Committee has failed to act reasonably in dealing with this matter.

• [22] In addition, the owner of Lot 34 adds that she has been trying to no avail since 2023 to obtain approval for exclusive use of the common property associated with the Pergolas. She notes that this can be dealt with after the Pergolas have been rectified.
• [23] The owner of another lot made a submission questioning if the body corporate intervened when the prior owners of Lots 33 and 34 constructed the Pergolas and whether appropriate action at an earlier point may have avoided the current situation. He also says he understands that Queensland legislation does not currently require removal of combustible cladding but only requires listing of the building on the AB Register and a notice be displayed. In his view, combustible cladding issues are generally body corporate issues and not the responsibility of an individual. He also considers it harsh to make the owners of Lot 33 and 34 liable for alterations made by previous owners and permitted by the body corporate. Finally, he notes the Pergolas provide coverage and enhance the waterproofing. As such, complete removal would likely create new water ingress issues.
• [24] The owner of Lot 29, which is located directly under Lot 33, provided photos to illustrate water ingress into his lot.
• [25] The committee also provided a lengthy submission opposing the application. In summary, it says that:

1. the First Order did not provide exemption from other necessary approvals for the rectification works and the committee "requires all aspects of the specification and approval of the works to be finalised before works commence" 2. the body corporate engaged Diverse FMX to oversee and ensure the Pergola works met certain requirements, including that the proposed works met the applicable planning and building legislation 3. the committee and/or Diverse FMX:

(i) are not satisfied that the proposed scope of works satisfies the conditions of the 2023 Re-Approval of the Pergolas > > (ii) are of the view that the development approval (DA) issued by the council was based on an application that was not properly made because the body corporate has not consented to the improvements > > (iii) are not satisfied that the applicants' nominated builder SBG and its subcontractors hold the appropriate QBCC licenses > > (iv) are concerned the works only propose to remove the EPS Cladding but do not include removal of the ACP Cladding and the Glazings on level 9 > > (v) require the applicants to deal with the ACP Cladding either by removing it or, if it is to be retained then the applicants must have the retention certified as a performance solution so that the building can be removed from the AB Register > > (vi) require the applicants' building certifier to undertake to provide a Form 29 upon completion of the works and confirm that, if the ACP Cladding is to remain, that option is a performance solution endorsed by the Queensland fire services > > (vii) are not satisfied that the structural issues with the Pergolas can be properly inspected, rectified, and certified without complete removal of all cladding, and > > (viii) require hydraulic calculations for and detailed drawings of the proposed guttering and downpipe works so owners know what is proposed and to alleviate concerns about the impact on common property storm water systems

1. is concerned the works will not resolve long-standing issues of water ingress for Lots 29 and 30 which are located under Lots 33 and 34 2. it considers the impact of the works on common property is excessive and the proposed works impact heavily on the use and enjoyment of Lots 1 and 35. It says it has not required use of a crane. However, the committee says it requires written evidence of an agreement with the owner of Lot 35 for access through that lot to facilitate the Pergola works, if not, the applicants may need to use a crane, and 3. the works proposed by the applicants include new drainage works on common property that are not sufficiently specified and, as an improvement to common property, would require approval at a general meeting

• [26] In addition, the committee says the Pergolas have an impact on the common property, other lots, and all owners. It says the conditions are reasonable and that it "cannot and will not accept a piecemeal delivery of the solution." The committee generally denies it is moving the goal posts, says its position and requests have been the same from the outset, and says its volunteer members have been responding to the applicants as quickly as possible. The BCM also denies it has breached the code of conduct for body corporate managers.
• [27] In sum, the committee says it has acted reasonably, honestly, fairly and professionally, in making decisions about the Pergolas. It says it stands by, and still requires, the applicants to address the 7 outstanding items it listed in its 29 October 2024 to all owners.

• [28] In their reply to the submissions, the applicants say relevantly that:
  1. Their contractor SBG is appropriately qualified and licensed to perform the works, and indeed, the person in charge of the Pergola works was recently appointed as the Technical Director for the Queensland Government's Non-Conforming Building Products Audit Taskforce, which laid the foundations for assessing the level of combustible cladding used on Queensland's buildings.
  2. The BFSRA Report makes clear that only removal of the EPS Cladding on the Pergola is required to address the building's fire safety risk and that, provided that is done, the ACP Cladding can remain because, by itself, it poses an acceptably low fire risk.
  3. SBG has provided detailed plans and has outlined the procedures to be followed to cause minimal impact. The applicants have been communicating with the owners of Lot 35 who have given conditional approval to access through their lot. Given Lot 35 are themselves planning renovations, it is preferred the timing of the Pergola works be coordinated with those works to minimise impacts on Lot 35.
  4. They have tried twice to propose motions at general meetings for exclusive use of common property for the Pergolas. Their motion at the May 2024 AGM failed to pass.
  5. They have been trying for over 2 years to organise and proceed with the Rectification Works. At the May 2024 AGM, the applicants proposed a motion for body corporate approval to proceed with the works as described. Although the motion received 10 Yes, 8 No, and 4 Abstain votes, it failed to pass because it was conditioned on their exclusive use motion passing.
• [29] In summary, the applicants say: the works are rectification and maintenance of the existing structure not a new installation. All works proposed by SBG to address the fire risk will be completed satisfactorily in accordance with relevant legislation and standards. The completed work will be inspected and approved by a QBCC licenced Level 1 building certifier, and the appropriate documentation issued.
• [30] The applicants seek three orders:

1. An order that the Owners of Lots 33 and 34 (Owners) comply with the 2023 approval conditions for the Improvements (2023 Re-Approval) and immediately commence the Rectification Works to the Improvements pursuant to the Rectification Plan, and in accordance with the "Deemed-to-Satisfy Solution" in compliance with the NCC Governing and Performance Requirements, at the cost of the Owners.[6]

Order 2 - Access to Common Property to facilitate Rectification Works

1. An order that the ancillary approvals relating to mobilisation and staging of the Rectification Works and the use of Common Property (including elevators and/or car parks) is granted to the Owners and all tradespersons engaged to carry out the Rectification Works.

1. An order that the Body Corporate must within fourteen (14) days of the completion of the Rectification Works, call a general meeting to vote on a resolution without dissent for the recording of a new CMS containing the exclusive use by-law relating to the Owners Improvements.

• [31] The committee has made a series of decisions that have the effect of preventing the applicants from proceeding with the proposed Rectification Works and Rectification Plan.[7] The committee's reasons can be grouped into two broad categories.
• [32] Firstly, although it appears the committee accepts the Rectification Works and Plan are necessary, it is not satisfied the applicants have provided sufficient information and details for those specified works to proceed.
• [33] Secondly, the committee contends that in addition to the Rectification Works, further works and actions (Disputed Works) are required to comply with the conditions of approval and non-BCCM legislation applicable to the Pergolas. The applicants disagree that the Disputed Works are required. The committee has made decisions to effectively prevent the applicants from proceeding with the Rectification Works and Plan until the committee is satisfied there is an agreement between the parties about the Disputed Works.
• [34] In my view, there are thus two main disputes to be resolved by this application. I will first provide some background to put the dispute in context. I will then proceed to consider and make determinations about the two groups of reasons that were the basis for the committee's decisions.

• [35] The following is a summary of the background, with further details found in the First Order.

• [36] In the First Order, I described the history of the Pergolas, including my findings that they were installed in or around 2016-2017 to replace pre-existing Vergolas, and that they were approved by the body corporate at its 2017 AGM, retrospectively and subject to conditions, as improvements to common property.[8] Relevantly, three of those conditions were that:
  1. .... any infrastructure (including associated electrical work if applicable) be installed by a qualified and registered tradesperson, using proper materials and in accordance with any legislative requirements;

1. The lot owner or occupier in all cases will be responsible for the future maintenance and repair of the Improvement; and
2. That the Improvement not cause a nuisance to any lot owner or otherwise contravene the scheme's by-laws or Body Corporate legislation.

• [37] In or around 2022, the parties became aware that the Pergolas included certain combustible cladding materials. The owners of Lots 33 and 34 paid for the cladding to be tested and, as required by legislation, the body corporate completed a combustible cladding checklist. The body corporate also complied with its legislative obligation to engage a fire engineer to perform a building fire safety risk assessment.[9]
• [38] Relevantly, I am satisfied that the fire engineer's report, the BFSRA Report dated 3 January 2023, prepared for, and issued to the body corporate, stated or found:

1. The assessment was made for the "as-built state" of the building and is concerned primarily with the life safety of the occupants. (p10 at 3.3) 2. The fire engineer's assessment "does not consider compliance with the National Construction Code." (p7) 3. The building includes two types of combustible cladding, Type I (the EPS Cladding) "applied as awnings" and forming the top of the roof to the Pergolas and Type II (the ACP Cladding) as a soffit on the underside of the roof of the Pergolas. (pp5-6) 4. Samples of the ACP Cladding materials were tested and found to have an inert component (∼71-72%%) and a combustible polymer component (∼28-29%), which are classed as Category B type combustible cladding, referred to as fire-retardant grade. It was noted that, while combustible, the ACP Cladding contained no insulation material and "it requires a significant heat source to continue propagation." (pp26-28) 5. In the fire engineer's opinion, the current combination of the EPS Cladding and the ACP Cladding on the Pergolas defeats some aspects of the fire safety strategy for the building. (p6) As explained in more detail, this is because:

(i) a furniture fire on level 9 could ignite the ACP Cladding and may spread to the EPS Cladding above and then to level 10 above, which defeats one aspect of the fire safety strategy - capacity for fire growth - for the building (p52-56 at 4), and > > (ii) even though the ACP Cladding is not expected to propagate fire beyond the source, it may ignite the EPS Cladding above. A fire involving both types of cladding is likely to contribute to vertical fire spread to the lot on level 10, which also defeats the "compartmentation" aspect of the building's fire safety strategy. (p56-57 at 6)

• [39] The findings in the BFSRA Report mean that, in accordance with the QBCC guidelines, the building is currently classified as a Category C building. (p6) As a result of that classification, the body corporate must include its building on the AB Register.
• [40] The fire engineer presented 3 options to address the physical risk to the building fire safety strategy it had determined was posed by the combination of cladding on the Pergolas:
  1. Option A - remove both the EPS and ACP Cladding and/or replace with non-combustible materials, or
  2. Option B - undertake works to add fire safety strategies to level 10, including new balustrades and provide interconnected fire alarms on the balconies of level 9, or
  3. Option C - remove the EPS Cladding on the top layer of the Pergolas on Level 9 and replace with non-combustible materials. (p62 at Section 6.4.1)[10]
• [41] Upon completion of the suggested physical works (i.e., one of the options above), it was "expected that the overall building fire safety strategy would be upheld to the degree necessary for occupant life safety and fire service access." (p6)
• [42] For each of the 3 recommended options for remedial works described above, the BFSRA Report also included the steps it considered would be required to certify the remedial works, update the BFSRA Report, and enable the building to be re-classified as a Category A building (collectively, Reclassification Steps). Such a reclassification would mean the building could be removed from the AB Register.

• [43] In addition to the issues with the combustible cladding, the committee considered other conditions of the 2017 Approval were not met, including that the Pergolas were a source of water ingress due to inadequate guttering thereby causing a nuisance to other lot owners.[11]
• [44] At its 2023 AGM, the body corporate passed Motion 13 revoking the 2017 Approval.
• [45] However, it also passed Motion 14 re-approving the "Improvement" for the benefit of Lots 33 and 34 subject to an added condition (2023 Re-Approval). The "Improvement" was described in Motion 14 as: "Re-roofing and glazing on level 9 for lots 33 and 34 (except for the awnings installed as identified in the report by Safer Buildings Group dated 3 January 2023 (Awnings) as previously supplied to all Lot Owners via Dropbox)." The body corporate resolved to re-approve the Improvements with the added condition that:
  1. f. That the Awnings presently installed are removed from the building.
• [46] After the 2023 AGM, however, the parties could not agree on what was necessary for the applicants to be able to proceed to comply with the conditions of approval. The body corporate, claiming that it had revoked the 2017 Approval, made an application seeking a final order that the owners of Lots 33 and 34 remove the Pergolas within 30 days. For the reasons given in the First Order, the body corporate's application was dismissed.
• [47] I made several findings in the First Order that are relevant and material to this application. Those findings include that I was satisfied that:

[85] ... the 2023 Re-Approval had the effect of re-authorising the Improvements with the added condition the respondents were also required to remove the Cladding (aka the "Awning") that was posing a fire risk. (emphasis added)

[93] ... an expert provided the parties with 3 options to rectify the [fire safety] issues with the Cladding, and a detailed scope of works for each. The [owners of Lots 33 and 34] advised the committee they preferred Option C, to remove and replace the Cladding with an alternative material.

[99] ... I do not agree with the body corporate that ... the Rectification Works [to the Pergolas] required a new authorisation under section 187 of the Standard Module or otherwise.

[103] ... no new authorisation was required for the works [to the Pergolas] because the replacement of the Cladding (with a safer material) and new guttering (to restore the gutters to a functional state) were maintenance works.

• [48] In my concluding comments in the First Order, I remarked that: "the body corporate also remains entitled to satisfy itself the conditions of its 2023 Re-Approval have been met."[12] To further clarify what was meant, I stated "[f]ollowing completion of the works or stages of work, in my view the committee may validly ask to inspect plans, certificates, and DA and BA approvals" (emphasis added).
• [49] Apart from ancillary issues about mobilisation and staging the works, and proof of compliance after completion, there were no findings in the First Order nor any suggestion that the committee was empowered to impose pre-conditions on the applicants' Rectification Works.[13]

1. At the May 2024 AGM, the applicants proposed Motion 18 for approval by ordinary resolution of the body corporate for its authorisation to proceed with the Rectification Works and new downpipes as described in an attached statement of works. However, Motion 18 was made contingent on the body corporate also passing Motion 17, which sought the exclusive use the part of common property affected by the Pergolas and Glazings.[14]

• [51] Owners voted 10 in favour, 8 against, and with 4 abstaining on Motion 18. Such a vote would have been sufficient for Motion 18 to pass by ordinary resolution however, due to the contingent condition, when Motion 17 failed to pass, Motion 18 also failed to pass.

Part 2 - Decisions about the Rectification Works

• [52] The applicants have been proposing the Rectification Works from at least August 2023 (if not before) to comply with the body corporate's conditions of approval for the Pergolas. The proposed Rectification Works included 3 primary components:
  1. removal and replacement of the EPS Cladding (in accordance with Option C recommended by the BFSRA Report), to address the combustible cladding element that caused the Pergolas to defeat two aspects of the buildings fire safety strategy,
  2. rectification of possible structural issues to the Pergolas (to be certified after completion by an engineer), and
  3. installation of new guttering for the Pergolas.
• [53] To comply with other conditions of the approval, the applicants also committed to engaging appropriately qualified and insured tradespersons, and to obtaining the necessary certifications, council and building approvals relating to the Rectification Works. Those steps form part of the applicants' Rectification Plan.
• [54] In the First Order, the parties did not dispute, and I was satisfied that the Rectification Works were necessary for compliance with the conditions of approval for the Pergolas. The First Order:

1. confirmed that, in my view, in order to comply with both the Act (including section 167) and the conditions of approval for the Pergolas, the applicants are required to remove the cladding that was a fire safety hazard (namely, the EPS Cladding) and install new guttering;

1. rejected the body corporate's arguments that aspects of the works needed new approvals and determined that the Rectification Works were maintenance works, not new improvements, and therefore did not need any new authorisation from the body corporate,[15] and 2. did not make any findings nor require that the applicants' Rectification Works and Plan had to provide a performance solution to the ACP Cladding nor that they had to address the classification of the building.[16]

• [55] I have not been made aware of any formal committee resolutions made after the First Order about the Pergolas. Although the body corporate does not appear to dispute that the works themselves are necessary, it appears from the correspondence provided that the committee has made several informal decisions about when and on what conditions it will permit the applicants to proceed the Rectification Works and Plan.
• [56] For the following reasons, I am satisfied the applicants have demonstrated that the committee has not acted reasonably in making the following decisions relating to the Rectification Works and Plan:
  1. Contractor licenses and insurance. While I do consider the committee is entitled to assurances that the applicants' contractors are licensed and insured, I am satisfied that those assurances have been provided. Although the committee has expressed a preference that the applicants engage different contractors for the Rectification Works to avoid a potential conflict if a new BFSRA Report is required, I am satisfied that this is a hypothetical concern and that any conflict relating to a new BFSRA Report can be managed if it actually arises. In terms of the committee's concerns about the potential for financial risks relating to a sub-contractor, I consider this is an irrelevant factor for the committee to consider. As the committee itself acknowledges, the financial risk of the engagement of contractors lies with the applicants, not the body corporate.
  2. Ancillary use of common property. As part of its general functions, the committee plays a role in administering the common property. I consider it is entitled to put reasonable conditions on the applicants' use of the lift and other areas of common property to facilitate the Rectification Works. In response to my investigations, the committee acknowledges it routinely permits use of the lift and common property for renovation purposes subject to conditions it sets for timing, protection, cleaning, and rectification of damage. In this case, however, the committee says the Rectification Works will require use of a large portion of the visitor carpark for up to 2 months and potentially impact other areas of common property, including an area of exclusive use allocated to Lot 1. It says it "did not permit access to the common property and lift until the conditions of the approval were met."

In my view, the committee has not acted reasonably in making this decision. I am satisfied that the committee did not adequately consider the inherent rights of the owners of Lots 33 and 34 to use the common property and the fact the committee has routinely permitted others to use the common property for transporting and storing renovation materials. Nor did it adequately consider that the Scope of Works Plan provided by the applicants' builder on 3 September 2024, and supplemented on 4 October 2024, included a picture showing exclusion and staging areas, a detailed plan of access requirements, a projected time line for various aspects of the works, and expressly offered to be flexible in timing and to co-ordinate with the committee.[17] Finally, I am not satisfied the committee considered the additional expense to the applicants that would be incurred if the committee denied permission to use the lift.

1. Access through Lot 35. The committee also expresses concerns about the need for the applicants' contractors to have access to the Pergolas via Lot 35 to undertake Rectification Works. Although the applicants will need to obtain the permission of the owners for access through and use of parts of Lot 35 to complete the Rectification Works, that is a matter for the owners of Lots 33, 34 and 35. I do not consider this is a relevant factor for the committee to consider.

1. Certifications. To the extent structural elements of the Pergola frame are compromised, the applicants are obligated to rectify those issues. Although the body corporate may wish to seek proof - via an engineer's certificate - that this has been completed, I do not consider the committee can require, or that it would be acting reasonably if it did require, the applicants to produce such a certificate before the works commence.

• [57] For the above reasons, where I am satisfied the committee has contravened the Act by failing to act reasonably in making ancillary decisions about the Rectification Works and use of common property, I consider it just and equitable to make declaratory orders in the form above.

• [58] More recently, the committee raised concerns about water draining from the proposed new gutters. Although the applicants pointed to deficiencies in the original drainage design for the building (including inadequacies in the spitters on the 10th floor above the Pergolas) and did not accept that they were entirely responsible for drainage from both the 9th and 10th levels, they agreed to install new downpipes at their own cost.
• [59] The committee, however, claimed such downpipes are a new improvement requiring a new body corporate authorisation. As such, it took the position that the Rectification Works could not proceed until the downpipes were approved at a general meeting.
• [60] Recent developments, however, mean this part of the dispute can be dealt with summarily. The committee's response to my letter seeking further information strongly suggests the downpipe issue will likely be resolved at the next AGM. The committee represented that:

At its budget committee meeting of 1 May 2025, a proposed budget included an item to undertake the design, specification, tendering and delivery of new downpipes including connection into the existing basement infrastructure.

Should this budget and expenditure motion be approved at the AGM the matter of the downpipes can be removed from the dispute.

• [61] I am satisfied that the committee has accepted that improved rainwater drainage and installing new downpipes is part of the body corporate's own responsibility to maintain common property. In those circumstances, and where the body corporate is about to consider a motion about the issue, I consider it would be premature to make orders about the downpipes.

Part 3 - Decisions relating to the Disputed Works

• [62] The crux of the dispute, and the major sticking point for the committee, relates to matters outside the Rectification Works and the Rectification Plan.
• [63] The committee takes the position that the works and plan proposed by the applicants are not by themselves sufficient for complete compliance with the body corporate's conditions of approval for the Pergolas, the body corporate legislation, or council and building legislation. Rather, the committee's view is that the applicants need to undertake additional works or steps relating to the ACP Cladding and the AB Register (collectively, the Disputed Works).
• [64] Based on the committee's preference that all the issues concerning the Pergolas are resolved to its satisfaction before any works relating to the Pergolas proceed, it has decided and is insisting that the applicants are not permitted to proceed with any of the Rectification works until the applicants first agree to meet the committee's demands about the Disputed Works.

• [65] The committee's position that the Rectification Works are necessary but not sufficient to comply with the conditions of approval is based on its interpretation of condition b) of the 2023 Re-Approval (reinstating condition 2 of the 2017 Approval). The committee says that condition requires the owners of Lots 33 and 34 to ensure:

b) That any infrastructure (including associated electrical work if applicable) be installed by a qualified and registered tradesperson, using proper materials and in accordance with any legislative requirements. (emphasis added)

• [66] The committee claims that the Improvements (including the Pergolas) did not have any lawful statutory approvals when they were first installed in or around 2016.[18] Accordingly, although the Pergolas exist physically, the committee holds the view that the applicants must comply with the processes and applicable requirements of non-BCCM legislation as if the Pergolas (and Glazings) were new installations being assessed now.
• [67] On that basis, the committee contends that condition b) of the approval means that:
  1. if the applicants wish to retain the ACP Cladding on the Pergolas, they are required to comply with the QBCC Regulations and Cladding Regulations
  2. in turn, those building regulations currently require the applicants to obtain certain documentation to demonstrate that retention of the ACP Cladding meets the criteria for either a "deemed to satisfy" (DTS) or a "performance solution" under that legislation
  3. the applicants (and not the body corporate) must complete the Reclassification Steps described in Option 3 of the BFSRA Report to enable the scheme's building to be removed from the AB Register
  4. if an order is made permitting the applicants to retain the ACP Cladding but the order does not require the applicants to take the Reclassification Steps, the building cannot be removed from the AB Register, and
  5. in such a scenario, the body corporate would need to escalate the matter to QCAT or a court to fully resolve the matter.
• [68] In summary, the committee believes that, in order to fully comply with the conditions of approval for the Pergolas and all applicable legislation, the applicants must complete the Rectification Works and they must also comply with current building regulations as if the Pergolas were being installed as a new structure now, and the applicants must take (at their cost) the Reclassification Steps for the building to be removed from the AB Register.
• [69] The committee says it does not want to deal with issues about the Pergolas in a piecemeal fashion. It prefers instead that all disputes are resolved at once. For this reason, the committee has decided to insist that the applicants must commit to performing the above Disputed Works before they can commence the Rectification Works.

• [70] Regarding the conditions of approval, as an initial matter, I consider there are several issues with the committee's interpretation of those conditions. For example:
  1. New condition (f) added to the 2023 Re-Approval requires that the "Awnings presently installed are removed from the building." The motion for the 2023 Re-Approval was drafted by the lawyers for the body corporate. The use of the word "Awnings" is ambiguous at best. The word was defined in the motion by reference to the BFSRA Report. However, that report uses the word to mean different things, including to refer to the EPS Cladding. Moreover, the applicants have previously represented that neither the committee nor the BCM were able to clarify at the meeting how the new approval was to apply in practice.[19] I am also satisfied that the BFSRA Report also clearly opines that removal of the EPS Cladding on the top of the Pergolas will mitigate the physical fire safety risk to an acceptable level. In my view it is arguable that the word "Awning" should be construed to mean the EPS Cladding.
  2. Condition (b) of the body corporate's Pergola approval is also relevant (condition 2 of the former 2017 Approval). Interpreting the condition that the Pergolas "be installed ... in accordance with any legislative requirements" according to the ordinary and natural meaning of the words, my view is that the phrase "be installed" informs the temporal "legislative requirements." In other words, the applicable legislation is likely to be the legislation in force at the time the Pergolas were installed, which was 2016.
  3. Moreover, I see no condition in the 2023 Re-Approval that would, on its face, require the applicants to have the scheme removed from the AB Register. Indeed, one owner suggested in his submission that Queensland legislation does not currently require removal of combustible cladding but only requires listing of the building on the AB Register and a notice be displayed.[20]
• [71] Regardless how the above conditions of approval are to be interpreted, I acknowledge that the applicants may be independently and separately required by the planning and/or building legislation to comply with those cognate regulations. I consider potential issues about non-BCCM legislation are likely beyond the jurisdiction of an adjudicator. Questions about whether the applicants are required and/or are in fact complying with other legislation are for the administrators, regulators, and decision makers of the relevant non-BCCM legislation.
• [72] In any event, to resolve the dispute in this application, I do not consider I need to make final determinations about whether the Disputed Works are required by the conditions or by legislation. At its core, this is an application brought by the owners of Lot 33 concerning whether the committee acted reasonably in making decisions to preclude them from proceeding with the Rectification Works. Although the parties' disagreements about the Disputed Works may be relevant to the evaluation of the committee's decision making the committee has not made an application for orders about the Disputed Works and the applicants are not directly seeking orders about the Disputed Works.
• [73] In my opinion, therefore, this application can be resolved without finally determining whether the Disputed Works are required. I also consider there are at least three reasons that it should be:
  1. As noted above, some questions about the Disputed Works may be beyond my jurisdiction.
  2. In the chain of reasoning, the questions raised about the Rectification Works precede and therefore can be resolved separately before, and are not dependent on, the resolution of subsequent questions concerning the Disputed Works.
  3. Finally, where the applicants do not directly seek orders about the Disputed Works it may offend the principles of natural justice to make final determinations about whether those works are required.
• [74] In view of the fire hazard and water ingress issues, and the already extensive delay in having those issues addressed, I am of the view that any unresolved questions about the Disputed Works can and should be addressed at a later time.

Did the committee act reasonably in making decisions?

• [75] In the First Order, I outlined what is meant by acting reasonably for the purposes of committee decision making in a body corporate.[21] To reiterate, a committee is subject to the statutory duty to act reasonably[22] and is also subject to other mandatory general law duties.[23]
• [76] In the Act, the word "reasonably" is used in its ordinary sense which means that acting reasonably in decision making must be both rational and evidence-based.[24] In practice, acting reasonably requires a committee to evaluate relevant and evidence-based factors that have a bearing on the issue and to ignore irrelevant factors.[25] Depending on the circumstances, a range of factors may be relevant to a committee's decision.[26]
• [77] When a committee's actions in making decisions are challenged as unreasonable, the role of the adjudicator is to assess the decision-making process. An adjudicator may find a committee failed to properly consider a relevant factor where it significantly undervalues or does not genuinely consider a materially relevant factor.[27]
• [78] In the present case, I am satisfied that the committee failed to consider a highly relevant factor when it decided to insist that the applicants agree to the Disputed Works before it would permit them to proceed with the Rectification Works.
• [79] In my view, a primary factor to be considered in making that decision was whether the Disputed Works were in fact required by the conditions of approval, the Act, or other legislation. I do not consider the committee has the power, no matter how well informed or experienced in the field, to make self-determinations on the final answers to those questions. To the extent the committee believes the applicants will be contravening the conditions of approval or applicable legislation if they do not complete the Disputed Works, I consider the committee would in the circumstances need to take steps to apply to the appropriate external body (the BCCM Office, the council or the QBCC) to seek determinations and/or to compel compliance with those conditions or regulations. As far as I am aware, the committee has not done so.
• [80] Even if the committee holds genuine views about the conditions of approval and compliance with applicable legislation, and intends to pursue those issues further, the committee remains obligated to act reasonably in making decisions about whether it can and should permit the Rectification Works to proceed in the interim. In that regard, for the reasons that follow, I am satisfied that the applicants have demonstrated the committee has not acted reasonably in making decisions about the (necessary) Rectification Works that are based on the (potentially required but not yet determined) Disputed Works.
• [81] In deciding to insist that all issues about the Disputed Works were resolved to its satisfaction before it will allow the Rectification Works to proceed, I am satisfied that the committee failed to consider the following relevant factors:
  1. the First Order determined that the applicants were required to undertake the Rectification Works in order to comply with the Act and the conditions of approval
  2. the First Order contained findings that the applicants did not require any further body corporate authorisation to proceed with the Rectification Works
  3. the BFSRA Report identifies the EPS Cladding as the element of the Pergolas that would defeat 2 aspects of the building fire safety strategy, in other words, removal of the EPS Cladding would mitigate the physical fire safety risk to an acceptable level
  4. there is evidence that the insurer has agreed to extend the scheme's insurance subject to removal of the EPS Cladding
  5. to also require removal of the ACP Cladding would come at a further cost for the owners of Lots 33 and 34, estimated to be additional costs of over $200,000
  6. the applicants have obtained a development approval (DA) from council
  7. in claiming that the applicants' DA was not properly made, the committee did not adequately consider that, regardless of any outstanding issues about exclusive use by-laws, the body corporate had in fact consented to and approved the Pergolas in 2017 and again in 2023 as improvements to common property
  8. the applicant has engaged a certifier, whom the applicants represent can certify after removal of the EPS Cladding that the ACP Cladding in its present location as it does not pose a fire hazard and the "certification can be achieved by a Deemed to Satisfy solution which is acceptable by the Building Code of Australia (BCA)"
  9. installation of a new gutter for the Pergolas, properly affixed to the building, would likely eliminate that aspect of the Pergolas as a cause of water ingress at the scheme
  10. requiring additional information from the applicants, refusing to permit use of the lift and common property, or otherwise delaying the works would have the likely effect of increasing costs and builder availability for the Rectification Works,
  11. the Rectification Works have already been significantly delayed, and
  12. the Disputed Works involving questions about the conditions of approval and/or building regulations need to be resolved by a competent decision-maker, may not be resolved in the body corporate's favour, and it make take a protracted period of time to obtain a decision, during which time the EPS Cladding would continue to pose a fire safety risk and the Pergolas would potentially continue to contribute to water ingress at the scheme.
• [82] By failing to adequately consider the above relevant factors, I am satisfied that the committee did not act reasonably in its decision-making when it purported to require the applicants to agree to its position on the Disputed Works before it would permit them to proceed with the Rectification Works.

• [83] I am not prepared to make the first order requested in the form sought by the applicants. The requested order would require the applicants to perform certain works, and I do not consider it appropriate to make an order against the applicants. However, where I am satisfied the Rectification Works are required by the conditions of approval and the Act, and no further body corporate authorisation is needed for the works, I have made declaratory orders to that effect.
• [84] Although I contemplated also making an order declaring that the applicants were not required by the conditions of approval to remove the ACP Cladding, for the reasons given above, I concluded it was not necessary nor appropriate to do so.
• [85] In response to the second order requested, I consider it just and equitable in the circumstances to make an order about the applicants' rights to use of common property for the purposes of facilitating the Rectification Works. To be clear, I am not making any orders about the applicants' access to Lot 35. To the extent such access is required, the applicants will need to come to an agreement with the owner of that lot for access.
• [86] Finally, the applicants also request an order requiring the body corporate call a general meeting to consider the applicants' motion for the allocation, by resolution without dissent, for the exclusive use by occupiers of their lot of the part of common property that relates to the Improvements and record a new CMS including an exclusive use by-law. I have not made this third order sought by the applicants. I do not consider such an order is necessary in the circumstances because the applicants already have the right to propose such a motion to be considered by the body corporate at its next general meeting.

• [87] I have made the above orders for the reasons given herein.
• [88] I note that, to the extent the committee believes the Pergolas will not fully comply with the conditions of approval or applicable legislation even after the Rectification Works/Plan are complete, provided it complies with the Act, it is at liberty to pursue those concerns in an appropriate forum.
• [89] Alternatively, where regulatory compliance can be complex and the outcomes uncertain, after the applicants have completed the Rectification Works and Plan and have provided the body corporate with the relevant certifications for those works, the parties may wish to consider reaching a mutually acceptable compromise to resolve their disagreements about the Disputed Works relating to the ACP Cladding, the timing and responsibility for covering the costs of the Reclassification Steps, and if and when the building is to be removed from the AB Register and at the cost of which party.

[1] See Carlisle [2024] QBCCMCmr 209. For ease of reference and consistency, I have endeavoured to use the capitalised terms from that First Order. I will also use common abbreviations for the Queensland Building and Construction Commission (QBCC) and the National Construction Code (NCC).

[2] Lot 33 can be described as a sub-penthouse lot, with Lot 35 above, the penthouse lot. I will refer herein to Lot 33 as being on level 9.

[6] The sub-parts of the first order sought defines what is and is not meant by the "Rectification Plan" and the "Rectification Works." As an alternative to the first order sought, the applicants seek an order that the Rectification Works are carried out in accordance with a "Performance Solution" complying with the National Construction Code Governing and Performance Requirements at the body corporate's cost.

[7] I have only seen evidence of informal committee decisions. I do not believe copies of post-First Order minutes of formal resolutions made by the committee about the Rectification Works have been provided.

[8] See First Order at [61] - [69]

[9] See BFSRA Report at 3.1 describing the legislative amendments and obligation to "assess the materials used on the external walls of their buildings in accordance with the QBCC guidelines."

[10] The BFSRA Report, however, concluded that no additional immediate action is required until remedial works and/or a further fire engineering assessment were completed. (p64 at 6.5.1)

[11] There were also questions raised whether the Pergolas were effectively an exclusive use of part of common property requiring body corporate approval for an exclusive use by-law to attach to the lot.

[12] See First Order at [135]. I note that the concluding remarks are commentary to the First Order.

[13] I also commented that the owners of Lots 33 and 34 remained obligated to maintain the Pergolas and comply with the conditions of approval notwithstanding the current lack of an exclusive use by-law. See First Order at [136] - [137]

1. [14] It is unclear why Motion 18 was made contingent on Motion 17.
2. [15] I consider disputes about the EPS Cladding and new gutters are res judicata, which means "a matter judged." Where the body corporate did not appeal the First Order, the committee is estopped from re-arguing issues of fact or law that were decided therein.
3. [16] The committee's suggestion in its 29 October 2024 letter to owners to the contrary, was misconceived.

[17] SBG Scope of Work Plan for Awning Replacement at "Access Requirements"

[18] See Committee response to Adjudicator dated 8 May 2025, at 11

[20] See also https://www.housing.qld.gov.au/initiatives/safer-buildings/managing-combustible-cladding-in-queensland at 3 (Although it is strongly recommended that buildings are rectified, "[t]here is currently no deadline for private buildings owners in Queensland to rectify their buildings.")

[23] See Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 (Beaches) at [34]

[24] Id. at [23] citing Acts Interpretation Act 1954 (Qld) s 32 and SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at [15] - [16]

[27] Id. at [45] citing Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J)