IMPROVEMENTS TO LOT - whether works were authorised by body corporate.

DISPOSITION OF COMMON PROPERTY- whether a structure constructed on the roof terrace of a lot encroaches into common property airspace - whether permission for encroachment is required - whether authorisation by a resolution without dissent is required - whether body corporate may impose reasonable conditions on such authorisation.

ADJUDICATOR POWERS - whether it is just and equitable in the circumstances to make orders that the respondent remove the Improvement

1. Within 6 months of the date of this order, the respondent is to submit a motion to a general meeting of the body corporate to obtain, by resolution without dissent, ownership, a lease, or exclusive use of the common property encroached upon by the current rooftop structure, in accordance with either section 184 or section 192 of the Standard Module.
2. In conferring a legal basis for the respondent to occupy the common property airspace, the body corporate may confer such approval on reasonable conditions.
3. Unless such a motion is submitted, and carried by a resolution of a general meeting, the respondent must restore the roof terrace of lot 16 so that it does not protrude into common property airspace. This is to be done within 6 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator.

• [1] Kapalua Sun Court community titles scheme 11952 (Kapalua Sun Court) is a 17-lot scheme at Broadbeach Waters. The community management statement (CMS) shows the Standard Regulation Module applies. The scheme is registered as building unit plan 3205.
• [2] This application was lodged by the owner of lot 2 on 26 July 2025. This office sought clarification of the application in certain respects, and it was subsequently amended on 20 August 2025.
• [3] The applicant is in dispute with the owner of lot 16 who are alleged to have breached building and planning regulations and ignored key provisions of the BCCM Act during a total renovation of their second-floor unit and rooftop terrace.
• [4] The application seeks three specific orders requiring the respondent to obtain the following approvals regarding works carried out since January 2025:

1. Building Approval: Obtain retrospective Body Corporate approval (by ordinary resolution) and subsequent Gold Coast City Council (GCCC) certification for structural works carried out after January 8, 2025. The applicant believes the works are structural in nature or affect common building services.

2. Approval to Occupy Common Property: Obtain, by special resolution or motion without dissent, ownership, a lease, or a licence for the common property encroached upon by the current rooftop structure, or else reinstate the rooftop terrace to its original approved configuration.

3**. Planning Approval (Material Change of Use)**: Subject to the satisfactory resolution of the common property encroachment issue, the applicant believes the respondent should submit a motion for Body Corporate approval (by ordinary resolution) for a retrospective Development Application (D.A.) concerning a "material change of use" to create bedroom accommodation at rooftop level and establish a dual occupancy arrangement. Following Body Corporate approval, the respondent must apply to the GCCC for retrospective development approval.

• [5] The applicant says that the respondent gutted and fully renovated their unit and the enclosed rooftop terrace over a period of six months starting in January 2025.

• [6] The applicant says the respondent carried out structural modifications, including widening entrance doors in the dividing fire wall, core drilling of the roof slab and structural walls, and removal of concrete blocks. It is also alleged that utility infrastructure such as drainage, plumbing, and electrical wiring have been modified and extended, without Body Corporate approval.
• [7] The applicant believes the respondent has failed to comply with section 187 of the Standard Module Regulation, which requires the owner of a lot to obtain Body Corporate approval to make an improvement to common property.
• [8] The applicant believes that no modifications were reported to the insurer, potentially jeopardizing the Body Corporate's insurance coverage due to non-compliance with policy disclosure provisions.

• [9] The applicant says BUP 3205 is subject to a legal covenant which restricts the overall height of rooftop developments in this scheme to 2.5 meters. Airspace above this limit is common property.
• [10] The applicant believes that the current rooftop structure on lot 16 (and three other units) protrudes approximately 500 millimetres into common property airspace, aligning with the 3-metre height of the stairwell roof.
• [11] Further, it is alleged that the respondent proceeded to take advantage of this additional ceiling height to create a self-contained unit despite knowing they had no right or licence to occupy the upper extremities of that space.
• [12] In 2023, four units (Lots 12, 14 15 and 16) were confirmed to have been built into the common property airspace. The high point of their rooftop structures aligns with the height of the stairwell roof that is approximately 3 metres above the finished floor level of the rooftop slabs. These structures protrude approximately 500 millimetres into common property. These results were recorded in a disclosure document that the Applicant received from his when purchasing Lot 2 in 2022.
• [13] The previous Body Corporate Committee went to great lengths to correct this anomaly by encouraging the owners of offending units to apply for conditional short-term leases over the encroached common property or to acquire the encroached property. However, three of the owners refused to co-operate.
• [14] The respondent purchased lot 16 in January 2025 and took advantage of the additional ceiling height to create additional bedroom accommodation. The applicant also believes that the respondent is creating a completely self-contained unit at rooftop level knowing that they had no right or licence to occupy the upper extremities of that space.

• [15] It is alleged that the rooftop terrace, originally approved as a rumpus area for recreational purposes only, has been converted into a two-bedroom unit and separated from the lower unit to create an additional self-contained duplex unit. Council inspectors found two bedrooms and a bathroom being created at rooftop level.
• [16] The applicant says this conversion and separation constitute a "material change of use" because it involves a "material increase in the intensity or scale of use of the premises," requiring a development permit and a Development Application (D.A.) from the Council.
• [17] He says the creation of dual occupancy affects the rights of other owners who are now sharing the operating costs of two units on one title. This action also affects living density, operating costs, and amenity.
• [18] Further, the applicant says that no Council approvals have been obtained, and the works are currently under investigation by the Council. Council issued a verbal stop work order, and later a written order. However, both orders were ignored, and the rooftop unit was occupied around April 16, 2025. The access refusal for a follow-up inspection is currently before the Gold Coast Magistrates Court.
• [19] The Queensland Planning Act provides that a development permit is required if there is a material change of use. A material change of use occurs when there is "a material increase in the intensity or scale of use of the premises". This has happened with Lot 16's rooftop modifications and a Development Application was required.
• [20] Under Section 51 of the Planning Act, the Body Corporate must, as owners of the building, endorse all Development Applications. Once again, the rights and obligations of the respondent and other owners are involved. Living density, operating costs and amenity are all affected, so it is a restricted issue for decision by ordinary resolution at a general meeting.
• [21] The applicant emphasizes that rules and regulations are vital in community title schemes to protect the safety and amenity of residents, and breaches can affect the lives of many people.

• [22] Pursuant to section 243 of the Act, the body corporate and all lot owners were invited to make submissions regarding the outcomes sought by the applicant. Seven submissions were received from lot owners including the respondent. Four submissions supported the application, and three submissions opposed the application.
• [23] Detailed submissions were made by the owner of lot 6 who has resided in the scheme for 31 years. She states that she resides near the Western stairwell adjacent to lot 16 and has witnessed extensive renovations over six months.
• [24] She says owners were not notified before the noise of demolition works commenced, starting January 13, 2025, at 8:00 am, nor was information provided for owners to approve the changes to the lot's appearance. The demolition was extensive, confirmed by observing masonry blocks, plumbing, internal stairwell removal, kitchen, bathrooms, and flooring placed in over ten skips located in the boat ramp common property area.
• [25] The works involved structural modifications, including bathroom/kitchen slab penetrations and wall modifications, confirmed by the presence of concrete cutter's, electrician's, and plumber's vans often blocking owner's access to garages.
• [26] The previous owner of lot 16, Mr. Townsend, acknowledged that the structure was over of 2.5m height limit and obtained body corporate approval for a short-term lease for the roof terrace rumpus room. However, she believes the recent renovations converted the once open rumpus room into a separate two-bedroom apartment with bathrooms, kitchen, and new flooring throughout. The lower floor, original two-bedroom unit, was also totally renovated.
• [27] These works resulted in a dual occupancy setup, with two persons occupying the top apartment, and two persons occupying the lower unit.
• [28] The owner of lot 6 contrasts the Lot 16 renovations with past projects and highlights several compliance failures listed below.
• [29] Failure to Disclose Improvements: She says lot 16 modifications, certifications (or floor plans), have not been presented to the Body Corporate for the Disclosure of Improvements to Lots of Register, despite a Structural Diagnostics Report having identified modifications requiring RPEQ certification.
• [30] Disregard for Procedure: Further, she says that a guide booklet titled "A Guide to Lot Improvements, Renovations and Maintenance" was approved by 12 owners to assist in following the correct process. Lot 16 was provided with this booklet but has not complied with it.
• [31] In the past 31 years, all renovation motions were presented and approved at general meetings before works commenced, and owners were notified of planned noise or water shut offs, showing respect; this respect was not shown for lot 16's works.
• [32] The owner of lot 6 also says the situation was compounded when the Lot 16 owners purchased Lot 5 (located below Lot 16). On 12 August 2025 works began on Lot 5. A skip bin was placed on Council land on August 15, and concrete cutting commenced on 20 August.
• [33] However, no application for major renovations to Lot 5 has been presented to the Body Corporate. She informed the Body Corporate Manager about the issues regarding Lot 5, and the manager forwarded the correspondence to the committee but there was no reply.
• [34] Further, the owner of lot 6 says that when the Manager and committee were asked to address the damage and mess to the western stairwell following six months of renovations (Lot 16), the Committee stated on July 24, 2025: "The Committee would ask, once more, that you cease pestering MCS and the committee. Please do not forward further correspondence regarding this matter to the committee."
• [35] The owner of lot 3 also supports the application. They say they have personally observed the following activities which were undertaken without Body Corporate consent or lawful authority:
  • Delivery of substantial building materials to the premises.
  • Multiple skip trucks arriving and removing demolition waste from the site over a period of 6 months.
  • Tradespeople, including plasterers, electricians, plumbers, and concrete -cutting contractors actively carrying out building works.
  • Significant structural changes consistent with conversion of a single unit into multiple separate dwellings.
• [36] They believe these activities involve a breach of the body corporate by-laws, as no building consent or formal approval has been sought or granted. In conclusion, they say that given the scale of the construction and the nature of the modifications, it is evident that these works exceed ordinary maintenance or permissible improvements and instead amount to major alterations requiring proper authorization.
• [37] The owner of lot 9 also supports the application. He says that part of the appeal of Kapalua Sun Court is that it is a small complex of 17 units. He believes the works on Lot 16 have resulted into two separate 2-bedroom units being created without Body Corporate or Gold Coast City Council approval. The Gold Coast City Council (GCCC) has been denied access to this unit which reinforces his belief that the works have not been approved by the Council and obviously have not been approved by Body Corporate.
• [38] Over the years, other unit owners have sought Body Corporate approval to have their units converted into two separate 2 -bedroom units, having noted the serious implications of unapproved development. However, owners have voted against these proposals, which prevented applications to GCCC for development approval and hence those owners' plans were abandoned.
• [39] He believes the owner of Lot 16 has sought to bypass all legal processes, relying on the assumption that after having spent an enormous amount of money developing lot 16 into 2 units, nothing will be done to correct the situation.
• [40] In conclusion, he says that had the legal process been followed, the development of unit 16 would not have been approved and this unit would not have been developed. He is concerned that the Body Corporate committee has not sought to have the owner of lot 16 follow the proper legal processes for development. He is also concerned that if nothing is done to have lot 16 follow the correct legal process, this will create a dangerous precedent for other unauthorised developments.

• [41] The owner of lot 16 made submissions opposing the application. He disputes the claim that structural alterations were made without approval, asserting that all work was approved by the Council and involved only internal, non-structural partitions. He argues that the applicant's allegations are based on speculation**,** citing past unsuccessful complaints by the applicant and another owner, which the CGCC previously rejected.
• [42] The owner of Lot 16 asserts that there have been no structural building works and no material change of use. He says the claim that he made structural alterations is "factually false" and based on speculation. He says the subject works merely involved adding dividing partitions between existing walls to create two separate bedroom spaces for the owner's children, who reside in the unit as their principal abode. He states that the height, width, or length of the structural part of the habitable space has not changed.
• [43] They further state that all building works completed on Lot 16 have been approved by Council. He says the CGCC has investigated complaints concerning the premises in 2020 but the complaint was rejected as the premises were compliant with the Council approval given in 1983. A "Compliance Certificate" for Lot 16, dated 22 October 2024, and signed by the body corporate secretary and body corporate manager, is cited as supporting documentation.
• [44] The respondent also states:

In accordance with our Body Corporate Managers, a member owner of any lot has a right to refuse the approval of the height of the top unit's airspace for up to 3 months from when the application was put in to get approved.

• [45] The Lot 16 owner suggests the application is motivated by a personal vendetta stemming from prior Body Corporate conflicts. Both the applicant and the former Secretary were voted off the committee. The respondent says they were asked to help the other lot owners remove these persons from the committee when they bought into the building in January 2025.
• [46] The respondent says the applicant referenced seven individual complaints, implying they were from seven different people; however, he says these complaints lodged on seven different occasions by only two owners (Lot 2 and Lot 6).
• [47] The other two lot owners who oppose the application, made similar submissions, denying that walls were being removed or that other major structural work was being undertaken.

• [48] The Applicant responded to submissions include concerns about unauthorized building activities and that the respondents were circumventing established building and planning rules.
• [49] They note that four submissions support the application: 3, 4, 6 & 8. He says that each of these are long-term lot owners who prioritize the protection of their homes and the management of Kapalua Sun Court.
• [50] On the other hand, he notes that his application is opposed by two newer owners (lot 3 & lot 12) who hold key Body Corporate Committee positions, along with the Respondent. The Applicant notes that these owners instigated the removal of all five previous Body Corporate Committee members over the past year.
• [51] The Applicant believes the owners of lot 3 & lot 12 were initially "stonewalling" legitimate complaints about the redevelopment of Lot 16. Further, he states that their submissions reveal they are supportive of the unauthorized building activities that form the basis of this dispute.
• [52] The Applicant had limited discussions with the previous owner of Lot 16, Mr. Patrick Townsend, regarding a short-term lease for encroached common property so that the unit could be sold as "fully compliant". The Applicant encouraged owners to support Mr. Townsend's motion, while the owners of lot 3 & lot 12 canvassed owners to vote against it. The Applicant suspects that they sought to stop the motion to satisfy their own objective of having the rooftop height covenant removed or ignored.
• [53] This suspicion is supported by the fact that the lot 12 rooftop unit is also over-height and contains two rooms used as unauthorized bedroom accommodation.
• [54] The owner of lot 13 reportedly purchased his unit intending to build a second story unit on the rooftop terrace and plans of his original scheme were circulated to owners.
• [55] The Applicant prepared an information sheet[1] detailing concerns about the Committee's handling of insurance compliance. The Applicant believes the Committee did not act in the interests of all Body Corporate members. He believes that they favour the interests of three Committee members who have refused to rectify or obtain professional certification for structural issues involving their Lots, and thereby penalized all owners.

• [56] A "Planning Report",[2] commissioned by the Body Corporate Committee from a firm named "City Plan Planning", states at page 6, that under the Planning Act, a material change of use includes:

(c) a material increases in the intensity or scale of use of the premises."

A proposal to create an additional self-contained apartment would amount to a material increase to the intensity or scale of the use, and be subject to regulation under the PA."

Where there is a proposal to reconfigure the layout of an existing unit to create an additional self-contained unit, Council will decide whether the additional density can be suitably serviced.

• [59] The report also noted that the enclosed room addition on Unit 16 would require building approval to be lawful.
• [60] There is also a statement on page 13 that: The 2.5 metre height referenced in Building Unit Plan would not have a bearing on Council's assessment of building height.
• [61] The applicant also says that the GCCC and the Body Corporate lawyers have both advised that administration of the 2.5 metre height covenant is a matter for the Body Corporate, and not Council.

• [62] The Respondent's "Annexure B" Body Corporate Compliance Certificate, issued to the previous owner, stated that Unit 16 was "Fully compliant with the exception of encroachment into common property airspace". However, the Applicant says this certificate relates to the original approved configuration, not the dual occupancy arrangement created by the Respondent.

• [63] The Applicant disputes the Respondent's claim that all building works have been approved by the City of Gold Coast Council (GCCC). He says that Council is still investigating planning and building anomalies with Lot 16, was denied access, and is seeking a warrant from the Magistrate's Court to gain entry. No GCCC applications, approvals, or certification documents have been presented to the Body Corporate.
• [64] The Applicant counters the Respondent's claim of merely adding "dividing partitions," asserting that a bathroom, full kitchen and two bedrooms have been built on the roof terrace level.

• [65] The applicant notes that until May 2025, insurance for Kapalua Sun Court was arranged by the Body Corporate Manager through BCB Insurance Brokers, a subsidiary of the Steadfast Group. The insurance was arranged with CHU Insurance as the only mainstream insurer prepared to offer cover on the complex. The underwriter was QBE Insurance.
• [66] In May 2025, the Body Corporate Committee cancelled the CHU policy after engaging a broker in country NSW to arrange alternative cover. The alternative cover was arranged via Lloyds of London and underwritten by an "unknown" syndicate.
• [67] The applicant believes that alternative insurance cover had to be obtained because three members of the Committee refused to have unauthorised/ unapproved structural works rectified and/or certified like the other fourteen owners in this building. He says they refused to acknowledge the findings of the 2024 Structural Diagnostics report and refused to co-operate with CHU who gave them twelve months to have their units certified by an appropriately qualified structural engineer.

• [68] The Applicant corrects the respondent's reference to a "1983 complaint," clarifying it was actually an application to the Albert Shire Council for approval of a roof terrace conversion. Approval was granted, but with the specific condition that no bedrooms or kitchen were to be installed on level D.
• [69] The applicant says the "2020 complaint" was lodged by a former owner, and the compliance certificate shows the rooftop development was over-height.
• [70] The habitable space referred to in Council's letter of 23 April 2020 refers to the rooftop rumpus room, and the way it was being used by the owner. The Applicant does not dispute the owners right to use the rumpus room as approved by Council, but that rumpus room no longer exists.

• [71] The Applicant refutes the inference that all Council complaints came from only two people. He says that Ms. Wright of lot 6 was appointed as the liaison person representing numerous complainants, including the owners of lots 2, 3, 4 and 5.

• [72] The application seeks three specific orders requiring the respondent to obtain approvals regarding works carried out to lot 16 since January 2025[3]:

1. Approval to Occupy Common Property: That the respondent is to obtain body corporate approval for the encroachment of their rooftop structure into common property airspace, or else reinstate the rooftop terrace to its original approved configuration.

2. Approval of Building Work: That the respondent obtains retrospective Body Corporate approval (by ordinary resolution) and subsequent Gold Coast City Council (GCCC) certification for structural works carried out after January 8, 2025.

1. Planning Approval: That subject to the satisfactory resolution of the common property encroachment issue, the applicant should submit a motion for Body Corporate approval (by ordinary resolution) for a retrospective Development Application (D.A.) concerning a "material change of use". Following Body Corporate approval, the respondent must apply to the GCCC for retrospective development approval.

• [73] Kapalua Sun Court was constructed in 1978 and contains 17 lots:
  • five x 2-bedroom townhouses,
  • six x 2-bedroom apartments on the ground floor, and
  • six x 2-bedroom apartments on the second storey.
• [74] The five townhouses and six apartments on the second storey each have access to a terrace area on the rooftop of the building i.e., on level D. Therefore, there are 11 rooftop terraces, which are of varying sizes.
• [75] As the scheme is subdivided by way of a building format plan, sections 48C and 49C of the _Land Title Act 1994 (_LTA) are relevant, and provide as follows:

(1) A building format plan of survey defines land using the structural elements of a building, including, for example, floors, walls and ceilings.

structural elements, of a building, includes projections of, and references to, structural elements of the building.

Example of projections as structural elements of a building -

Projections might be used to define a lot that includes a balcony, courtyard, roof garden or other area not bounded, or completely bounded, by a floor, walls and a ceiling."

Except to the extent permitted under a direction given by the registrar under section 10(1)(b), 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."

• [76] It should also be noted that the two-dimensional plan of Level D in Building Unit Plan 3205 (BUP 3205) states:

The units on this level are for residential purposes only and are limited to a height of 2.5 metres.

• [77] BUP 3205 was created in 1979. This was before the Land Title Act 1994 introduced volumetric plans which provide the legal framework for recording three-dimensional property boundaries in terms of height, width and depth rather than just two dimensions. Before 1994, height restrictions were typically recorded in textual form within the survey plan as they have been in this instance.
• [78] The 2.5 metre height limitation in Level D of BUP 3205 defines the upper boundary[4] of the relevant lots.[5] Airspace below the height limitation is within the relevant lots and airspace above the 2.5 height limitation, but within the building envelope, is common property that belongs to all Body Corporate members as tenants in common.
• [79] As stated, rooftop structures were constructed in lots 12, 14, 15 and 16 and were physically measured by past committee members in 2023. Each of the structures were confirmed to have been built into the common property airspace. The high point of the rooftop structures aligns with the height of the stairwell roof, which is approximately 3 metres above the finished floor level of the rooftop slabs. Therefore, these structures protrude approximately 500 millimetres into common property airspace.
• [80] To the extent that the structures protrude or encroach into common property, they may be described as improvements to common property for the benefit of the lots. Where such improvements encroach upon common property, it is necessary for the lot owner to obtain either ownership, a lease or exclusive use of that area of common property[6] in order to legally occupy that space.
• [81] Section 184 of the Standard Module addresses how a body corporate may sell or otherwise dispose of common property. A body corporate may only sell or otherwise dispose of part of the common property if authorised to do so by way of a resolution without dissent. Creation of an exclusive use by-law in relation to the parts of common property encroached upon, must also be authorised by a resolution without dissent. [7] [8] [9]
• [82] Sections 170 to 177 of the Act and provide for exclusive use by-laws, which attach to a lot and give the occupier of the lot who benefits from the by-law the exclusive use to the rights and enjoyment of, or other special rights about, common property or a body corporate asset. A body corporate must normally consent to a new CMS by passing a resolution without dissent, including if the new CMS is required because of a change to an exclusive use by-law.[10] An exclusive use by-law may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the CMS which will incorporate the exclusive use by-law or the lot owner votes personally in the resolution.[11]
  • [83] The common property over which exclusive use is granted must be specifically identified in the by-law,[12] and the Registrar of Titles will normally require a survey plan identifying the area to avoid any doubt over the identification and extent of the area.[13] I note that no such resolution without dissent has previously been submitted by the Respondent for consideration by the Body Corporate in general meeting.
  • [84] I can see no legal basis for the respondent's claim in the 5th paragraph of the first page of their submission that:

a member owner of any lot has a right to refuse the approval of the height of the top unit's airspace for up to 3 months from when the application was put in to get approved.

• [85] Secondly, I am of the view that irrespective of whether relevant Council planning and building approval has been, or will be obtained, enforcement of the 2.5 metre height covenant is a matter for the Body Corporate, and not Council.[14]
• [86] The City Plan Planning advice dated 9 May 2024, states at paragraph 4.2, titled "Body Corporate Approval", that: [15]

In addition to approval for the structural alterations, where rooftop additions exceed the 2.5 metre height limitation nominated in the Building Unit Plan, they will be encroaching common property airspace. The relevant owners would need to have a legal basis to occupy the common property airspace.

• [87] In the present circumstances I believe it is appropriate to insist that the respondent has a legal basis to occupy the common property. I am also of the view that it is appropriate for the body corporate to regulate unapproved improvements to common property, by either- conferring an approval on appropriate conditions or, if that is not possible or appropriate, by seeking the removal of unapproved improvements. However, it should also be noted that the body corporate must act reasonably in the actions it takes in this regard,

• [88] For the above reasons I believe it is appropriate to make the following orders:
  1. Within 6 months of the date of this order, the respondent is to submit a motion to a general meeting of the body corporate to obtain, by resolution without dissent, ownership, a lease, or exclusive use of the common property encroached upon by the current rooftop structure in accordance with either section 184 or section 192 of the Standard Module.
  2. In conferring a legal basis for the respondent to occupy the common property airspace, the body corporate may confer such approval on reasonable conditions.
  3. Unless such a motion is submitted, and carried by a resolution of a general meeting, the respondent must restore the roof terrace of lot 16 so that it does not protrude into common property airspace. This is to be done within 6 months of the general meeting or such further time as may be allowed by the body corporate or an order of an adjudicator.
• [89] The onus is on the respondents to submit an appropriate motion for the body corporate to consider in general meeting.
• [90] The body corporate must act reasonably in deciding any motion/s submitted by the respondents.[16]
• [91] Item 10 of Schedule 5 of the Act provides that if an adjudicator is satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, they may make an order giving effect to the motion as proposed, or a variation of the motion as proposed.

Approval of Building Work & Development Approval for Material Change of Use

• [92] The second order sought by the applicant is that the respondent obtain retrospective Body Corporate approval (by resolution of the body corporate) and Gold Coast City Council (GCCC) certification for structural works carried out after January 8, 2025.
• [93] At the outset, it should be noted that in 1983, the previous owner of lot 16 was given approval by the Albert Shire Council to create a structure on the lot 16 roof deck. A building permit[17] was approved for the construction of a rumpus room, and apparently, also a laundry and balcony on the rooftop terrace above unit 16.[18]
• [94] I also note that in 2020, a complaint was made to the City of Gold Coast Council that people were living in the roof terrace of lot 16. However, on 23 April 2020 a compliance officer advised that:

Approval was sought back in 1983 for the conversion of the roof terrace into a habitable area, therefore the works are legal.[19]

• [95] The applicant says that more extensive alterations have been carried out during 2025, and that the rumpus room renovation includes provision for two bedrooms, a bathroom, living area and kitchen. The applicant believes that the roof terrace has been converted into a fully self- contained two-bedroom unit.
• [96] I note that following a complaint to the Councillor for Gold Coast Division 10, a site inspection was conducted by GCCC Building Compliance Officers 10 February 2025.[20] The inspection was carried out to assess the works conducted at Unit 16 and the rooftop terrace.
• [97] The Councillor (GCCC Division 10) has advised of the following inspection findings:[21]
  • Construction of internal non-load bearing walls within the rooftop rumpus room were not classified as "assessable development" under the Building Regulation 2021, Schedule 1, Section 7(2), and therefore did not require, building approval.
  • There was no evidence that any load-bearing internal walls had been removed from the structure.
  • It was confirmed at the time of inspection that the construction of internal load bearing (sic) walls was for a proposed 2 bedrooms, bathroom and kitchen addition to the structure. However, the addition of non-load-bearing internal walls is not assessable development.
  • Should the rooftop rumpus room conversion become occupied without development approval once the proposed work has been completed, the City are able to take enforcement action under section 115 of the Building Act.
• [98] However, in the absence of any by-laws which specifically deal with this subject matter I do not believe that as an adjudicator under the Body Corporate and Community Management Act, I have jurisdiction to compel the respondent to obtain body corporate approval for internal building work, including installation of additional utility services within the boundaries of their lot.
• [99] Similarly, I do not believe I have jurisdiction to determine whether there has been a "material change of use" or order that the respondent lodge a Development Approval application with the GCCC.
• [100] A community management statement for a scheme sometimes contains specific by-laws regarding structural alterations or may provide that no space can be used as a habitable space if that is not permitted by Council. However, that is not the case in this instance. I have perused the most recent community management statement for the scheme executed on 27 July 2005 and cannot see any by-laws which would govern internal renovations. [22]
• [101] As the parties would be aware, on 6 September 2023, the body corporate committee obtained advice about this issue from ABKJ Lawyers[23] who are experienced in body corporate law. Paragraph 5 of that advice reads as follows:

Generally, the regulation of whether a space can be used as "'habitable bedroom accommodation"' would be a matter for Council rather than the body corporate. The body corporate might adopt the position that no space can be used as a habitable space if that is not permitted by Council, rather than a complete standalone ban. We do note that the registered plan does seem to permit the use of the rooftop portion of the relevant lots for residential purposes.

• [102] The Body Corporate's "Guide to lot Improvements, Renovations and Maintenance" dated June 2024[24] acknowledges this, where it states at page 10:

Because there are no by-laws governing roof-top improvements in Kapalua Sun Court, what can and cannot be done on roof terraces is governed by the Queensland Planning Act 2016, the Gold Coast City Plan, related regulations and by-laws and the 2.5 metre height limitation included in the Building Unit Plan.

• [103] I have perused the Report prepared by City Plan Planning, dated 9 May 2024 and note that it states at page 6, that the Planning Act (PA) provides that a material change of use includes:

(c) a material increases in the intensity or scale of use of the premises."

A proposal to create an additional self-contained apartment would amount to a material increase to the intensity or scale of the use, and be subject to regulation under the PA."

• [105] Further, the advice received by the applicant from the Division 10 Councillor on 17 April 2025 indicates that should the rumpus room be converted into an independent living area, development approval will be required before it can be occupied.
• [106] This indicates a strong possibility that a development approval will be required if it is proposed to convert the subject area into a self-contained unit. However, it is not a matter which comes within my jurisdiction as an adjudicator under the Body Corporate and Community Management Act.
• [107] For the above reasons I am unable to make an order to compel the respondent to obtain body corporate approval for internal building work within the boundaries of their lot.
• [108] Nor am I able to make an order that the respondent apply to the GCCC for Development Approval.

[3] I will deal with the Occupation of Common Property first.

[6] See sections 154 & 173 of the Act, sections 184 & 192 of the Standard Module.

[8] See for example Ainsworth v Albrecht [2016] HCA 40

[14] Although it may have some relevance to the "reasonableness" of any body corporate decision in this regard.

[15] Annexure C to respondent's submission (at page 14 of annexure C).

[18] See attachment "KSC 14" p41 of attachments to application.

[19] Annexure D to respondent's submission

[20] See pages 41 & 42 of attachments to application

[21] Email dated 17 April 2025, see pages 41 & 42 of attachments

[22] However, there are by-laws relating to noise, obstruction and damage to common property. These by-laws may be enforced by the body corporate. If the body corporate will not enforce these by-laws, an owner may seek their enforcement by order of an adjudicator.

[23] A copy of this advice is attached to the application and therefore has been provided to the respondent and all other lot owners.

[24] Attachment KSC 24 to application, page 85.