Kooinda [2025] QBCCMCmr 469 (24 December 2025)

IMPROVEMENT TO COMMON PROPERTY - where the applicant installed a patio structure on an area of common property allocated for their exclusive use - where the applicant did not obtain body corporate approval in advance - where the body corporate refused retrospective approval - whether approval should be given.

Act, ss 94, 100; Standard Module, ss 192, 193, 201

1. The Body Corporate for Kooinda is deemed to have approved the patio structure installed on the exclusive use area allocated to Lot 5.

• [1] This application is about a patio roof installed on an exclusive use courtyard attached to the applicant's Lot 5. The structure was initially installed without approval. The applicant's requests for retrospective approval have been refused. The applicant says the body corporate has not acted reasonably in doing so. They acknowledge their oversight in failing to obtain approval initially, but do not believe it is a valid reason for the ongoing rejection.
• [2] The issue to decide is whether the body corporate has failed to act reasonably in refusing to grant retrospective approval for the structure and whether approval should be given.

• [3] Kooinda community titles scheme 38626 (Kooinda) is a 10-lot scheme at Urangan. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as survey plan 191565.
• [4] The application seeks approval of the patio structure erected in the exclusive use area of Lot 5.

• [5] 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]

• [6] The applicant initially applied for conciliation in July 2025.[3] The parties agreed on how to progress the dispute. When that did not resolve the dispute, this application was lodged on 15 September 2025.
• [7] The Commissioner invited submissions from the committee and all owners.[4] Four submissions were received. The applicant obtained and responded to the submissions.[5]
• [8] The application was referred to department adjudication.[6] I have now investigated the dispute, including reviewing the application and submissions.[7]

• [9] In mid-2023 the applicant installed the patio structure. They say it was professionally installed by a reputable company. An invoice shows that the supply and installation cost was $9,500.
• [10] The applicant acknowledges they had no prior approval. In July 2024 they submitted an improvement request form for additional patio roofing to provide improved weather protection. The request was considered at an annual general meeting (AGM) on 28 August 2024, with the motion stating that approval would be subject to council approval and the costs being met by the applicant. The motion was defeated with 2 votes against and 3 abstentions.
• [11] The applicant says they were told there may be a positive vote if council approval was given. In February 2025 building approval was given by a building certifier for the Fraser Coast Regional Council. In August the council confirmed in writing that it had assessed the patio as generally consistent with the original development approval and also that retrospective building approval had been provided through a private building certifier.
• [12] A further request for approval was considered by committee in June but refused. The applicant asked the reason and what action was required to obtain approval. A committee member said the motion was defeated because the construction without consent breached the by-laws. They said they would not overlook the by-laws and the only action was to remove the structure.
• [13] The parties agreed at conciliation to resubmit the request to a general meeting.
• [14] In seeking approval, the applicant noted the circumstances. They said a substantial investment had been made to improve the functionality and value of the property. They also noted that any reasonable insurance required would be obtained. The relevant motion was defeated at an AGM on 27 August 2025, by 3 votes to 2.

• [15] Three submissions oppose the application:
  1. The chairperson says the applicant erected the structure with any approvals or consultation and pleaded ignorance of the by-laws. They acknowledge her expenditure but question whether her ignorance of the CMS now justifies them simply agreeing to the structure. They question the insurance implications and say the lot entitlements for Lot 5 would have to change to cover additional costs. They say it will open the flood gates for any owner to do as they please, and the rules should apply equally to all.
  2. Another submission says the applicant would have received the paperwork when she bought the unit including By-law 8 but did not apply for approval. They note the structure may add value to the property but will deteriorate in years to come. They also question how insurance will be dealt with. And they say that if others think it is ok to build a structure, how they could say no if this one is approved.
  3. A further owner says the applicant constructed a structure without obtaining necessary approvals in breach of By-law 8. While they acknowledge this was an oversight, they say it suggests a disregard for the established processes. They say the by-laws exist because unapproved changes can affect the visual consistency and overall presentation of the complex. They say retrospective approval would establish a precedent which may encourage similar actions by others, undermining the integrity of the CMS and its by-laws. They want the by-law upheld and applied consistently.
• [16] One owner supports the application and is concerned by the body corporate's intransigence. They say there were concerns at the 2024 AGM that the structure could be a hazard in severe whether or not comply with council rules, so the majority agreed the applicant should seek council approval before any further consideration. They say the applicant has gone to expense and trouble to obtain council approval in the genuine expectation of retrospective approval. However, they say the person who proposed obtaining council approval still voted against approval at the 2025 AGM. The submitter notes the structure is at the back of the lot, in the exclusive use courtyard. They say it does not affect the amenity of the area or of any other owner or resident. They agree the applicant should have sought approval before installing the structure, but say she has subsequently complied with everything expected of her.
• [17] In response, the applicant notes the issues raised in the opposing submissions and comments on them. I will note those responses in my discussion below.

• [18] In deciding this dispute, I will first note the relevant legislation and by-laws. I will then consider the apparent reasons for the refusal of approval for the patio structure.

• [19] Kooinda is registered as a building format plan of subdivision. It is evident from survey plan that the applicant's Lot 5 (along with some other lots) has a patio that is part of the lot on Level A of the scheme. The area adjacent to that patio, where the disputed structure has apparently been installed, is common property.
• [20] Under By-law 24 in the current Kooinda CMS,[8] the owners of Lots 5 to 10 are given exclusive use of a courtyard. Pursuant to schedule E and an attached drawing, the area 5A allocated to Lot 5 extends along the eastern side of the lot to the eastern boundary of the scheme and then partway towards the southern boundary. The disputed structure is in the courtyard.
• [21] The installation of the structure in this area constitutes an improvement to the common property. The Act defines an 'improvement' as including the erection of a building, a structural change, and a non-structural change.[9] It refers to the Acts Interpretation Act 1954 definition of 'change' in which "includes change by addition, exception, omission or substitution."[10]
• [22] The regulations provide for a body corporate to authorise an owner to make an improvement to common property for the benefit of their lot.[11] If an improvement is proposed to an area of common property that has been allocated to a lot for their exclusive use, and the exclusive use by-law authorises the stated improvements to the area, no further approval is required.[12] But if the exclusive use by-law does not authorise the improvement, the improvement can only be made if the body corporate specifically authorises it.[13] Moreover, an ordinary resolution at a general meeting is required for an improvement with a value of over $3,000.[14]
• [23] In this case, By-law 24 does not authorise improvements and the value of the structure clearly exceeded $3,000. Accordingly, approval by ordinary resolution was always required.
• [24] The submissions refer to the by-laws, specifically By-laws 8. It provides as follows:

8. (1) An owner or occupier of a lot must not, without the Body Corporate's written approval -

(a) perform any works or erect any structure in, on or to his lot which will in any way alter the external appearance of the building, unless the change is minor and does not detract from the amenity of the lot and its surrounds;

(b) alter or vary in any way the external appearance, structure, layer, wall format or texture or colour of the lot. All such requests shall be lodged with or at the direction of the Committee of the Body Corporate;

(c) make any structural alterations (including any alteration to gas, water, electrical installations);

(d) enclose, either partially or fully, any balcony attached to the lot.

(e) erect external blinds, awnings or the like;

(f) erect outside wireless and television aerials and then only in such manner as the Committee directs;

(g) hang washing, bedding, or other cloth article if the article is visible from another lot or the common property, or from outside the scheme land; or

(h) display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible from another lot or the common property, or from outside the scheme land.

• [25] The submitters appear to assume that approval for the patio structure is required under By-law 8(1)(a) and (b). I am not convinced.
• [26] By-law 8(1)(a) refers to works and structures "in, on or to" a lot. But this structure was installed on common property and not on, in or to the lot. Accordingly, that by-law does not apply.
• [27] I consider the meaning and coverage of By-law 8(1)(b) to be somewhat unclear. It could potentially be interpreted as extending to any change outside the boundaries of a lot that alter the external appearance of the lot, albeit that the exterior of the lot is common property rather than part of the lot. But where there is an existing patio as part of the lot, and given the apparent location of the structure, it is not clear to me from the submitted material the extent to which the installation alters the external appearance of Lot 5. It is not necessary to reach a settled conclusion on that matter given approval is required under the regulations.
• [28] If approval for the disputed structure is required under By-law 8(1)(b), the relevant consideration for the body corporate in deciding a request for approval under that by-law would arguably just be directed to the appearance, and any impact on the body corporate and other owners and occupiers from the appearance, of the alteration. But I note the submissions do not indicate any concern with the appearance of this structure.

• [29] A body corporate must act reasonably in undertaking its general functions, including in making or not making a decision.[15] A committee must similarly act reasonably in making a decision.[16]
• [30] There is considerable case law about the obligation to act reasonably. It has been said that reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[17] I note the view that a "...legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong."[18]
• [31] An applicant bears the onus of establishing that a decision or action was unreasonable.
• [32] If a body corporate or its committee acts unreasonably, an adjudicator may intervene to make an order that is just and equitable to resolve the dispute including overturning a decision. However, it is not for an adjudicator to supplant the body corporate's decision-making role or impose their own views on the body corporate. A decision should only be set aside if an adjudicator is satisfied the decision was objectively unreasonable.
• [33] Before building approval was given, it was understandable for owners to have concerns about the structure. On that point alone I consider there is no basis to find the decision at the 2024 AGM unreasonable. The committee had no authority to approve the improvement, so there is similarly no basis to overturn the committee decision in June 2025. The substantive issue is whether the body corporate failed to act reasonably in refusing approval at the 2025 AGM.

• [34] I will consider the identified concerns of owners in determining the question of whether the body corporate failed to act reasonably in refusing approval at the 2025 AGM.

• [35] It is evident that a primary concern has been that the applicant did not obtain approval before installing the patio structure. The submitters say this breached the by-laws. Although the submissions appear to accept this as a genuine oversight, they also contend that the applicant should have known approval was required. It seems some owners do not wish to condone the applicant's conduct or the by-law breach. They want the by-laws enforced for all.
• [36] The applicant accepts the oversight and says she has done her best to correct it. She says this is not a legitimate basis for refusal and does not understand why it is still being raised.
• [37] All owners and occupiers must comply with the by-laws,[19] and the body corporate must enforce the by-laws.[20] However, I do not accept the applicant should have known that approval was required from the by-laws. I have explained that approval was not required under By-law 8(1)(a) and it is debateable whether it was required under the clumsily worded By-law 8(1)(b).
• [38] But to the extent that approval was required under the by-laws, if approval is given for the installation any breach of the by-law would be immediately remedied.
• [39] Under the regulations, the applicant should have submitted a motion to a general meeting seeking approval for the structure before installing it. But adjudicators have consistently accepted that bodies corporate can resolve to give retrospective approval. Moreover, adjudicators have consistently found that it would not be reasonable to refuse approval simply because there was a procedural defect in the way approval was sought, including that it was not sought in advance. Rather, a reasonable body corporate should only consider the substance of the particular proposal and whether there is any impact from it.
• [40] Given the circumstances, I do not consider it was reasonable for the body corporate to refuse approval for the patio structure simply because approval was not sought in advance.

• [41] A related concern is that giving retrospective approval for this installation will 'open the floodgates', enabling others to disregard the by-laws, install whatever they want without approval, and preventing the body corporate from refusing other installations.
• [42] The applicant says there are existing inconsistencies at the property that could be presented by owners in future. They say these involve committee members, so the precedent concerns seem hypocritical. The applicant also says her exclusive use area is much larger than other units so more space is available for the structure. She says a precedent would only apply for lots with a similarly sized exclusive use area, of which there are none.
• [43] The concern about creating a precedent is an issue for many bodies corporate when deciding to approve something. The future consequences of a decision, including any precedent that it might set, is a relevant consideration for a body corporate.[21] However, body corporate decisions should be based on the specific circumstances. While acting reasonably may include acting consistently in similar circumstances, granting approval for one improvement or alteration does not mean all others must be approved. The body corporate would retain the obligation to consider each request on its merits.
• [44] There is no suggestion that any other owner is seeking to install a similar structure on their lot. If they sought approval to do so, the body corporate would need to consider the nature and impacts of that structure in the different location.
• [45] I do not accept that granting this approval would lead others to believe they could install anything. The process the applicant has had to go through should caution all owners against that. All owners and occupiers must comply with the regulations and the by-laws and obtain approval when required. If they do not do so in advance, they risk needing to remove an installation or alteration if body corporate approval is not sought or is reasonably refused.

• [46] Two submissions refer to insurance issues. The applicant says the insurance broker for the scheme has advised that the current level of insurance coverage is more than adequate to cover the structure and no additional cost would be incurred. However she says, as previously stated in her proposals for approval, that she is prepared to take out any reasonable independent insurance required so as not to burden other owners.
• [47] The regulations specifically provide for insurance of improvements to common property, including those made under a right of exclusive use.[22] The body corporate may adjust the contribution payable by an owner for building reinstatement insurance in a way that 'fairly reflects' the extent to which the premium relates to improvements made to the common property that benefit the lot.[23]
• [48] At this stage there is no evidence that the installation of the structure has or will affect the body corporate's insurance. If it did, the body corporate could recover any increase cost in its insurance premium that could be directly attributed to the installation. I do not consider it is reasonable for the body corporate to refuse approval for this improvement because of potential insurance impacts when the legislation provides for the management of any impacts.

• [49] One submission suggests the structure will deteriorate over time, rusting due to its location. The applicant says the structure was erected by a reputable company using high grade materials including colourbond sheeting. They say it is largely protected from the salt air. They further note they would be responsible for any maintenance required over time.
• [50] The default position in the legislation is that the owner of a lot who is given exclusive use of common property is generally responsible for the maintenance of that area.[24] That would include responsibility for maintaining any improvements to the exclusive use area. Nothing in By-law 24 displaces that obligation; the by-law specifies the owner is responsible for the performance of the body corporate's maintenance responsibilities for the common property.
• [51] If the roofing was to rust or otherwise deteriorate overtime, the applicant would have an obligation to maintain it in good condition. I do not consider it is reasonable for the body corporate to refuse approval for this improvement because of the general potential it may deteriorate over time, when the legislation provides for its ongoing maintenance.

• [52] The chairperson suggests the lot entitlements should be changed to cover any additional costs from the installation. This is not explained. The applicant does not respond to it.
• [53] Although providing for improvements to common property by owners, the legislation does not generally contemplate such improvements as being a basis for adjusting the lot entitlements. Such improvements would not appear to fall within the definition of a 'material change' that could enable an application for an order to adjust the contribution schedule lot entitlements.[25]
• [54] In any event, where the applicant is responsible for any required maintenance of the installation, and for any additional insurance costs arising from the installation, I am at a loss to understand what increased costs there could be to the body corporate. I do not consider this could be a reasonable basis for refusing approval.

• [55] Nothing in the submissions or other submitted material indicates the body corporate or any owner or occupier has been or will be adversely affected by the disputed structure on Lot 5's exclusive use courtyard. I consider the view that retrospective approval cannot or should not be given is misconceived. The other identified concerns are addressed by the legislation or are otherwise unfounded. On the submitted material, I find that the body corporate failed to act reasonably in refusing approval for the structure at the AGM in August 2025. I will make an order deeming approval to have been given.

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

[8] Recorded 11 August 2008, Titles dealing number 711851739

[10] Schedule 1 of the Acts Interpretation Act 1954

[11] Sections 187 and 193 of the Standard Module

[12] Section 193(1) of the Standard Module

[13] Section 193(3) of the Standard Module

[14] Section 193(4) of the Standard Module

[17] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 43, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[18] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 47

[21] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 100

[22] Sections 201 and 202 of the Standard Module

[23] Section 201(2)(a)(b) of the Standard Module

[24] Section 192 of the Standard Module

[25] Noting section 47B and the definition of 'material change' in schedule 6 of the Act