Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

BY-LAWS - whether the respondents have breached the by-laws by allowing their tenant to store items in the car bay.

Act, ss 182, 183, 184 -188

• [1] This application is about the storage of items in the car bay that is part of Lot 15.
• [2] The body corporate says the respondents, the owners of Lot 15, are breaching By-law 12 by allowing items other than a motor vehicle to be stored in the Lot 15 car bay. The application indicates that it is a tenant in Lot 15 (the affected person) whose property is in the car bay.
• [3] The body corporate says it wrote to all owners and occupiers about By-law 12 in November 2024 and January 2025, asking them to remove all items from their car bays. It sent a by-law contravention notice to the respondents in January 2025 seeking the same. Further correspondence ensued. The body corporate says some items have been removed or moved around, but the appearance of the car bay remains 'unacceptable'.
• [4] In March 2025 one of the respondents said the tenant was moving out. However, the applicant says the affected person was a resident when the application was lodged, and that the respondents' position has changed. It says items remain in the car bay and are an eyesore.
• [5] The body corporate seeks orders that the respondents remove all items stored in their car bay, other than a motor vehicle. The issue then is whether the respondents have breached By-law 12 and, if so, whether orders are warranted.

• [6] Kennigo Place community titles scheme 14820 (Kennigo Place) is an 18-lot scheme at Spring Hill. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 236.
• [7] The application seeks the following order:

The outcome sought is that the Respondent should have all the items currently stored in their Car Bay, other than a motor vehicle, removed to comply with By Law 12.

• [8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [9] The applicant applied for conciliation of this dispute in February 2025.[3] The respondents did not participate in conciliation.
• [10] This application was lodged on 14 April 2025, pursuant to a resolution passed outside a committee meeting on 4 April 2025. The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[4] The application was subsequently amended.[5]
• [11] The Commissioner invited submissions from the respondents, the affected person, and all owners.[6] No submissions were received.
• [12] The application was referred to department adjudication.[7] I have now investigated the dispute, including reviewing the submitted material.[8]
• [13] I note that notice of the application was initially sent to the respondent and the affected person via email addresses provided by the applicant. The respondent did not acknowledge receipt of it. Attempts to telephone the respondent were unsuccessful. The affected person acknowledged receipt of the notice of application and indicated he intended to make a submission. He did not subsequently do so. Although no submissions were made, I am satisfied that reasonable attempts were made to put the respondents and affected person on notice of the application and to provide them with an opportunity to respond to it.

• [14] The issue to determine in this application is whether the respondents are breaching By-law 12. This question turns upon an examination of the requirements of By-law 12, and not the body corporate's general preferences about the use and amenity of the scheme.

• [15] The By-law 12 in the current CMS for Kennigo Place says:[9]

Each Owner must ensure that his Lot is kept and maintained so as not to allow infestation by vermin or insects or be offensive in appearance to other Occupiers.

• [16] By-law 12 has two elements. It requires a lot to be kept and maintained so as not to:
  1. allow infestation by vermin or insects, or
  2. be offensive in appearance to other occupiers.
• [17] By-law 12 places the responsibility in the by-law on the owner of the lot, and not an occupier.

• [18] All owners and occupiers are bound by the by-laws.[10] The Act imposes a duty on the body corporate to enforce the CMS, including the by-laws,[11] and must act reasonably in doing so.[12]
• [19] The Act sets out processes for enforcing alleged by-law breaches.[13] The first formal step for a body corporate in pursuing an alleged breach is to issue a contravention notice. The body corporate issued a continuing contravention notice to the respondents regarding this issue on 29 January 2025.[14] I am satisfied from the submitted material that the body corporate complied with the legislative process for enforcing the by-laws.

• [20] The application includes photographs of the Lot 15 apparently taken on 28 January 2023, 21 January 2024, 6 and 13 March 2024, 10 December 2024, 17 February 2025, and 8 May 2025. In each photograph a variety of different items are evident in what is apparently the Lot 15 car bay. These items variously include stacks of chairs, a table, white goods, bicycles, ladders and other equipment. In some photographs a car is also present.
• [21] The body corporate acknowledges it is the tenant's property stored in the car bay. However, this application is brought against the respondents as the owners of Lot 15. That is consistent with the obligation in By-law 12.

• [22] The application does not include any evidence suggesting there are vermin or insects in the Lot 15 car bay, or that there are likely to be due to the items stored in the car bay. The body corporate does not appear to suggest there has been a breach of By-law 12 because an infestation of vermin or insects has been allowed.

• [23] The body corporate's contention that the respondents are breaching By-law 12 turns upon the second element of the by-law.
• [24] The order sought in this application, for the removal of all items from the car bay (other than a motor vehicle), indicates the body corporate's interpretation of By-law 12 is misconceived. The body corporate says the outcome sought is for the 'amenity of all building residents'. It appears to believe no items can be stored in the Lot 15 car bay other than a motor vehicle. However, By-law 12 only requires that lots are not offensive in appearance to other occupiers. There is nothing in the by-law that requires car bays only to be used to house vehicles or that prohibits the storage of other items in the car bays that are a part of the lots.
• [25] To establish that the storage of items in a car bay breaches this element of By-law 12, the body corporate must demonstrate that the items are inherently offensive in appearance or are stored or maintained in a way that is offensive in appearance. The mere act of storing items in a car bay is not in itself a breach of By-law 12.
• [26] Also, the body corporate must establish that the appearance of the car bay is offensive to other occupiers. It is not really relevant that the appearance of the car bay might be 'offensive' to the body corporate manager, or a non-resident committee member, or an adjudicator. Moreover, 'offensive' is arguably more repugnant that merely untidy or unappealing.
• [27] The application notes the car bays at Kennigo Place are not enclosed. Rather, they are said to be open and visible from the footpath and street and that people walking around the common property can see into them. Accordingly, the items stored in the Lot 15 car bay are clearly visible from outside the car bay. But that does not evidence that the nature of the items or the manner of their storage is offensive in appearance to other occupiers.
• [28] The application refers to the items in the car bay of Lot 15 as 'unsightly' and an 'eyesore'. The photographs indicate the car bay is often full of items that may be 'jammed in' and the car bay might be cluttered. However, arguably the items are stored in an ordered manner. Chairs, for example, are in stacks. There are plastic containers of stored items. The application does not explain why that is visually offensive.
• [29] The application includes a photograph of car bays which are empty. Empty car bays, or car bays that only house a vehicle, may be more visually appealing than Lot 15's car bay. However, this does not of itself mean that Lot 15's car bay is offensive in appearance.
• [30] Ultimately, the body corporate has not provided sufficient evidence or argument to satisfy me that the items stored in the car bay of Lot 15 are offensive in appearance to other occupiers.

• [31] For the reasons outlined, the applicant has not established that the respondents have breached By-law 12. I have dismissed the application.
• [32] I note that, particularly having regard to tenancy laws, there may be a question about the extent to which an owner can regulate the use of their lot by their tenant and the appearance of a tenant's possessions kept within their lot, to comply with By-law 12. The body corporate's expectations of owners may need to be tempered in that regard. However, in addition to the by-laws, the regulations require occupiers to keep in a clean and tidy condition the parts of the lot readily observable from another lot or common property.[15] If the body corporate considers that the observable parts of a lot are not being kept in a clean or tidy condition, it could pursue the matter directly with the occupier of the lot.
• [33] If the body corporate wishes to more specifically regulate the storage of items in the car bays, it could take steps to amend its by-laws. Any such change would need to have regard to the purpose and limitation for by-laws in the Act.[16]

[2] Sections 227, 228, 276 and schedule 5 of the Act

[9] Contained in the CMS recorded on 19 December 2000, titles dealing number 704492913

[12] Section 94(2) and 100(5) of the Act

[15] Section 211 of the Standard Module