Fusion [2025] QBCCMCmr 441 (8 December 2025)

Act, ss 94(2), 100(5), 184; Accommodation Module, ss 177, 191, 192

• [1] The body corporate brings this application against the occupier of lot 56, A Y Qld Pty Ltd, in relation to an unauthorised installation of shutters on common property.
• [2] It seeks final orders that:
  • The occupiers of lot 56 be ordered to remove the unauthorised shutters currently installed on the common property and restore the affected area of common property to its original condition, at their own expense and to the satisfaction of the body corporate.
  • A declaration that the current installation of the shutters by the occupiers of lot 56 was carried out without body corporate approval and constitutes an unauthorised use of common property in breach of the by-laws and the Act.
  • The occupiers of lot 56 be prohibited from undertaking any further works or installing any structures, fixtures or fittings on common property without first obtaining written approval from the body corporate in accordance with the applicable by-laws and approval processes.
  • Nothing in these orders prevents the occupiers or the lot owner from submitting a formal application to the body corporate to install alternative shutters wholly within the boundaries of the lot, provided the application includes sufficient details (eg plans and specifications), and complies with the by-laws, any applicable architectural or aesthetic standards or guidelines and the body corporate's formal approval process.
• [3] The body corporate had also sought an interim order restraining the occupier from making any further alterations to the common property, pending final determination of the application. I dismissed the interim order application on 28 July 2025.
• [4] This is the determination of the application for final orders.

• [5] Fusion was established in July 2005 with the registration of Survey Plan 158213 (lots 1 - 53), a building format plan of subdivision. Lot 51 was later (in February 2007) subdivided into lots 54-56, with the registration of Survey Plan 172788, a building format plan of subdivision. All lots in the scheme are used for residential purposes, except for 5 lots. There are 4 commercial lots (52, 54, 55 and 56) in the scheme used for retail and one lot is used as an office to run a caretaking and letting business for the scheme.
• [6] Lot 56 is the largest of the commercial lots and comprises 222m2 on the ground floor, fronting Commercial Road. It appears the respondent occupies part of lot 56, closest to the common property walkway, referred to as 'Shop 1B' and operates a tobacco shop from it.
• [7] Submissions in response to the application for final orders were sought from all owners, and specifically from the owner and occupier of lot 56. 2 submissions were received: 1 from the owner of lot 56, Zaluki Pty Ltd (represented by Dr Anne Lencioni) and 1 from a co-owner of lot 41, Mr Jicheng Zhu. The body corporate inspected those submissions and provided a reply.

• [8] The owner of lot 56 submits that both they and the occupier acknowledge that the shutters were installed without approval. However, once made aware that approval was required, a formal request for retrospective approval was submitted and refused by the committee. It is argued that the committee's refusal was unreasonable in the circumstances. The owner of lot 56 says the shutters were not installed for aesthetic reasons, but in direct response to real and ongoing threats faced by the business. The premises are a tobacco retail store, a type of business frequently targeted for theft and arson. The shutters provide a critical layer of protection.
• [9] The owner of lot 56 argues that the committee failed to give appropriate weight to the overriding security imperative in their decision-making process. There is some suggestion that one committee member has a view that a tobacco store was not suitable for the area, which has health businesses and gyms, and that the committee decision may have been based on personal bias or a subjective view of the tenant's lawful business, rather than objective criteria relating to community appearance or regulation.
• [10] In an email dated 11 December 2024 to all committee members and the body corporate manager, Craig Waterhouse refers to the tenant's business as a 'weed shop', suggesting a degree of prejudice and misinformation on the part of the committee.
• [11] The business has also been subject to surveillance and reporting by some occupiers in the residential units above, including complaints to Queensland Health alleging illegal activity. After inspection, Queensland Health confirmed that the business is not operating illegally. Such conduct from neighbours and the body corporate has created a hostile and unsupportive environment for the tenant and the owner of lot 56. This raises serious questions about the fairness and transparency of the decision-making process surrounding the refusal to approve the shutters.
• [12] Given the tenant's proactive submission of a post-installation application, the critical need for business security, and the suggestive evidence of prejudicial treatment, the owner of lot 56 asks that the shutters be allowed to remain, subject to any reasonable conditions regarding appearance and maintenance to balance community aesthetics and business security needs, noting:
  • Although initially installed without approval, formal retrospective approval for the shutters was sought.
  • The tenant's need for enhanced security is both reasonable and necessary for the continued lawful operation of their business.
  • The body corporate may be biased against a tobacco store and this may have tarnished the committee's refusal of the request for retrospective approval.
• [13] The owner of lot 41 submits that they fully respect and agree with the application and first order sought. The occupiers should strictly comply with the decision and, if any, relevant instructions issued by the body corporate.
• [14] In response to the submissions, the committee replies as follows:
  • The owner of lot 56 acknowledges the shutter was installed without the body corporate's approval. This constitutes a breach of by-law 14 (Alterations and improvements to common property) and section 172 of the Accommodation Module, which prohibits any improvement to common property without prior written authorisation of the body corporate. Approval cannot be assumed or retrospectively legitimised simply because an owner later becomes aware of the requirement.
  • The committee's decision to refuse retrospective approval was made properly and reasonably under the legislative framework. The committee considered:
    • The shutter was installed on the external façade (common property) without consent;
    • It materially alters the building's external appearance and architectural consistency;
    • Approval would set a precedent for other occupiers to alter the external presentation of the complex; and
    • Adequate security measures already exist within the scheme's design.

The committee's decision was based solely on compliance and visual uniformity considerations, consistent with the body corporate's statutory duties under sections 94 and 180 of the Act.

• The body corporate acknowledges the owner's stated concerns about security. However, such concerns do not override the obligation to obtain prior approval or justify unilateral alteration to common property. Numerous adjudicator decisions confirm that personal or business security concerns cannot retrospectively validate unauthorised improvements. (see Tait v Body Corporate for Admiralty Towers [2005] QBCCMCmr 243 and Buchanan v Body Corporate for Beach Lodge [2019] QBCCMCmr 410).
• The body corporate rejects any suggestion that the decision was influenced by personal bias, the nature of the tenant's business, or any individual comment. The committee's deliberations were conducted formally and confined to the merits of the application and the scheme's obligations under the Act. Any informal or off-hand comment by an individual owner or occupier is irrelevant to the committee's official decision and does not form part of the body corporate's reasoning or record.
• The body corporate takes no position and expresses no judgement regarding the type of business operated within lot 56, provided it complies with all lawful requirements and zoning permissions. The only issue under consideration is the unauthorised alteration of common property, not the nature of the commercial activity.
• The shutter represents a permanent external fixture affixed to the building's façade and affects the scheme's external appearance, common property maintenance obligations, and insurance coverage. To ensure consistency and protect the scheme's collective interests, the body corporate maintains that the shutter must be removed and the affected area restored to its original condition. Allowing unauthorised structures to remain would create a precedent inconsistent with the Act and established adjudicator decisions (Harrison v Body corporate for Parkview [2017] QBCCMCmr 189).

• [15] The committee concludes by saying:
  • The installation of the shutters was unauthorised and unlawful under the Act and the by-laws.
  • The committee acted properly, reasonably, and in good faith in refusing retrospective approval.
  • No evidence of bias or unfair treatment exists.
  • The appropriate outcome is for lot 56 to remove the unauthorised shutters and reinstate the common property to its previous condition at the owner's expense.

• [16] The body corporate alleges that shutters have been installed on common property in contravention of the by-laws and the Act.

• [17] Section 94 of the Act imposes a duty on the body corporate to enforce the CMS, including the by-laws. Sections 182 to 188 of the Act then set out the process for pursuing an alleged by-law breach. A body corporate must act reasonably in undertaking its functions, including in making decisions and enforcing the by-laws.[1]
• [18] If a body corporate reasonably believes a by-law has been breached and that, in the circumstances, the breach is likely to be repeated or continue, the first formal step is to issue a contravention notice.[2] A contravention notice must state:
  • that the body corporate believes the person is contravening a provision of the by-law
  • the provision that the body corporate believes is being contravened
  • details sufficient to identify the contravention
  • the reasonable period within which the person must remedy or not repeat the contravention, and
  • if the person does not comply with the notice, the body corporate may, without further notice, start proceedings in the Magistrates Court for the failure to comply with the notice or lodge an application under chapter 6 of the Act.
• [19] A body corporate can usually only bring a dispute resolution application in this office if it has issued a contravention notice to the owner or occupier for the specific breach.[3]
• [20] The contravention notice dated 13 February 2025, naming the occupier of lot 56 as the respondent, cited breaches of by-laws 3.1 (General appearance of lots) and 10.1 (Window covers) in relation to the shutters, as follows:

3.1 No structural alterations may be made by Owners or Occupiers to any lot (including any alteration to gas, water or electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony, if any, of any lot). An Owner or Occupier must not in any way alter the exterior appearance of a Lot, nor cause to be constructed or placed upon any part of a Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.

10.1 No window will be covered with aluminium or similar reflective material or tinted and no shutters, awnings or other window cover shall be affixed externally to any building or visible from the exterior of the building. This by-law will not prevent security screens being installed over windows but only after the written consent of the Committee as to the type, quality, colour and style of security screens has been obtained. Such consent may be withheld in the absolute discretion of the Committee.

On 11 December 2024 the Body Corporate became aware of exterior shutters installed at Lot 56 and on the same date, 11 December 2024, the appointed body corporate manager emailed you to draw your attention to the applicable by-law 3 General Appearance of Lots and by-law 10 Window Covers and provided you with an Improvement to Lot request form as the installation of the shutters were installed without the knowledge and consent of the Body Corporate.

On 12 December 2024, a Voting Outside of Committee motion considered the written Improvement to lot request for the installed exterior shutters. On 13 December 2024 the Committee resolution unanimously voted not to approve the installation of shutters in accordance with the applicable scheme by-laws, cited above.

Subsequently, written correspondence was sent on 18 December 2024, 10 January 2025, 28 January 2025 and 07 February 2025 requiring the shutters to be removed as they were not approved by the Committee and contravene the scheme by-laws.

• [21] I am satisfied the body corporate complied with the preliminary procedures required by the legislation regarding the alleged breaches of by-laws 3.1 and 10.1. However, whether by-laws 3.1 and 10.1 have been breached by the installation of the shutters by the respondent is a different and separate question.

• [22] I have some doubts about whether by-laws 3.1 and 10.1 are applicable to the installation of the shutters. By-law 3.1 relates to lots, not common property; and by-law 10 governs 'windows'.
• [23] It is therefore necessary to determine whether the shutters have been installed on common property or within the lot, and whether they can be described as "window covers".
• [24] From my perusal of Survey Plan 172788 and photos of the scheme available on-line, it appears to me as though the shutters have been installed on the outside of the glass wall (within which there presumably is a door to access lot 56 from Commercial Road) forming the Northern boundary of part of lot 56 (referred to as Shop 1B) and facing Commercial Road.
• [25] The boundaries of lots in building format plans of subdivision are determined by reference to the Land Title Act 1994 (LTA). A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.[4] 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.[5]
• [26] I am satisfied that the relevant boundary of lot 56 is the centre of the glass wall fronting Commercial Road and that each shutter was therefore an improvement/alteration to common property, rather than an alteration to a lot, although I concede that the effect of the installation does alter the external appearance of lot 56 and common property, likely in contravention of by-law 12.1.
• [27] By-law 12 (No variation to appearance) may have been more specifically relevant. It provides:

12.1 Subject to By-laws 38 and 49, an Owner or Occupier must not do anything to vary the external appearance of the Lot or vary the Common Property without the prior written consent of the Committee.[6]

• [28] However, the body corporate has not claimed a breach of by-law 12.1. The stated basis of the application is an alleged breach of by-laws 3.1 (General appearance of lots) and 10.1 (Window covers) only.
• [29] By-law 3.1 applies to lots, whereas the body corporate alleges (and I agree) that the shutters have been installed on common property. Accordingly, I cannot make a finding that the respondent has breached by-law 3.1. Arguably, by-law 10 does not apply either, because there is no evidence of any 'window' having been covered, as opposed to the glass wall and perhaps a door in the Northern boundary wall of lot 65 and the common property. I am not satisfied that by-law 10.1 has been breached either.
• [30] As such, I am not persuaded to make any of the orders sought based on an alleged breach of by-laws 3.1 or 10.1. Based on the material before me, I am not satisfied that either of those by-laws has been breached.

• [31] Although not mentioned in its application, in its reply to the submissions, the body corporate alleges a breach of by-law 14 (Alterations and improvements to common property) and section 172 of the Accommodation Module, which the body corporate manager says prohibits any improvement to common property without prior written authorisation of the body corporate.
• [32] When receiving requested copies of submissions and before making a reply to them, applicants are advised by this office that the reply must be limited strictly to matters raised in the submissions. New material or issues should not be raised. If an Adjudicator determines that the reply does raise new issues, applicants are warned that the new material may be disregarded. Communication from this office to the body corporate to this effect was dated 10 October 2025.
• [33] Because the allegations of a breach of by-law 14 and section 172 of the Accommodation Module were only made in the reply to the submissions (which has not been seen by the respondent), they cannot be the basis for any of the orders sought against the respondent.
• [34] However, for the benefit of the parties, I make the following comments regarding the recently raised allegations.
• [35] By-law 14 of the scheme's currently registered CMS[7] is titled 'Security of Lots' and does not appear to me to have anything to do with alterations or improvements to common property, contrary to the claim by the body corporate manager. Further, section 172 of the Accommodation Module concerns voluntary defect assessment plans and has nothing to do with improvements to common property, contrary to the statement by the body corporate manager.
• [36] Section 177 of the Accommodation Module governs the approval process for body corporate authorisation of improvements to common property for the benefit of a lot. A committee can authorise 'minor improvements'[8] that do not detract from the appearance of any lot or common property; otherwise, improvements must be authorised by ordinary resolution of the body corporate.
• [37] I have not been provided with any information as to the installed value of the shutters, so am unable to say whether it is a 'minor improvement'. However, given the body corporate's assertions that the shutters detract from the appearance of the lot and/or common property for the scheme, by virtue of section 177(2) of the Accommodation Module, the improvement (regardless of its installed value) was required to be authorised by ordinary resolution of the body corporate, not the committee. Yet the committee purported to decide the improvement application and now defends its refusal.
• [38] I cannot make any orders based on upholding the committee's purported refusal of the improvement when the committee did not have authority to decide the application.

Reasonableness of refusal of improvement application

• [39] Although the question of whether the committee's refusal of the improvement request was reasonable is moot, given it had no authority to decide it, I make the following comments for the benefit of the parties regarding the substance of the dispute.
• [40] Regarding the body corporate's primary concern - the appearance - I note the occupier of lot 56's interim submission that the shutter door is a white unit that retracts completely when not in use and its colour matches the building's façade. It's effect on the building's overall appearance is minimal. Further the shutters are stated to only be lowered after close of trade, around midnight, and raised before start of trade, generally by 7am. During this period, there is significantly less public foot traffic, which further reduces any perceived visual impact during active business hours. The respondents genuinely believe it does not look unappealing. Furthermore, they state the installation process was non-invasive and did not cause any structural damage to the building.
• [41] The occupier states that the existing security measures, though appreciated, were clearly not enough to address the specific vulnerabilities their business faced. They note an attempted break-in as the reason for the installation of the shutters and security cameras (which the body corporate does not now appear to object to, after having raised it in the application for interim orders).
• [42] The body corporate mentions other concerns including common property maintenance obligations, insurance coverage and setting a precedent for other occupiers to alter the external presentation of the complex. I do not consider these relevant concerns given that an owner who is given authority under section 177 must maintain the improvement in good condition[9], insurance coverage for improvements that affect the premium for the body corporate's building reinstatement insurance is addressed in sections 192 and 191(2)(b) of the Accommodation Module and each improvement application must be considered on its individual merits, obviating any precedent concerns.

• [43] This application was brought on the stated basis of an alleged breach of by-laws 3.1 and 10.1. Based on the material before me, I am not satisfied that those by-laws have been breached or that there is any alternative basis upon which the orders sought can be made.
• [44] A retrospective application for approval for the shutters should be made and considered by the body corporate in general meeting. The body corporate has a legislative obligation to act reasonably in considering any such application.

[1] Sections 94(2) and 100(5) of the Act

[3] Section 184 of the Act

[4] Section 48C(1), LTA

[5] Section 49C(4), LTA

[6] By-law 38 is titled 'Recovery of monies' and by-law 49 relates to the commercial lots. By-law 49.3 entitles the owners and/or occupiers of the commercial lots to carry out internal fit out and alteration works. It appears the body corporate's by-laws may need review to ensure cross-referencing is correct.

[8] 'Minor improvement' is defined in section 177(5) of the Accommodation Module to mean an improvement with an installed value of $3,000 or less.

[9] Section 177(4)(b), Accommodation Module