Kroy Gate [2025] QBCCMCmr 248 (15 July 2025)

IMPROVEMENTS TO COMMON PROPERTY - EXCLUSIVE USE BY-LAW - whether placing non-fixtures on the common property requires body corporate authorisation as improvements to common property - whether the respondents require special rights to common property to exclude other occupiers from areas of common property.

Act, ss 35, 62, 185, 227; Standard Module, s 187.

1. I declare that the garden bed caused to be installed on the common property by Andrew & Natasha Martin is an improvement to common property within the meaning of section 187 of the Body Corporate and Community Management (Standard Module) Regulation 2020.
2. Within 12 months of the date of this order, Andrew & Natasha Martin must remove the garden bed and restore the common property to its original condition, unless the body corporate provides retrospective authorisation for the improvement to common property.
3. The owner and the occupiers of Lot 2, being Andrew & Natasha Martin, must not prevent or obstruct other occupiers and their invitees from accessing:
   1. the common property enclosed by a fence between the boundary of Lot 2 and the boundary of the scheme, or
   2. the shed situated within that area of the common property,

unless a relevant special right to the common property is granted by the body corporate.

• [1] Many of those involved in this dispute believe this application is about who is on the committee and why, who spoke ill of whom, and who is using other areas of common property appropriately. Yet, this application is really only about whether the occupiers of Lot 2 are excluding others from a narrow strip of common property near their lot without body corporate approval, and whether they have made other unapproved improvements to the area or are otherwise breaching the by-laws.
• [2] The applicant, who is a lot owner, makes this application against the owner and occupiers of Lot 2 in the scheme. The applicant takes issue with the respondents not having body corporate consent for a barbeque, garden beds, a shed, and other items on common property. One particular area of common property is enclosed by a fence and gates that the applicant also says are not approved, and takes issue with items being left under some common property stairs. The applicant argues the respondents are breaching the by-laws and require a grant of exclusive use over these areas if the items and gates are to remain on the common property.
• [3] The respondents submit that the fence was in place when they first moved into the lot in 2008, and offer evidence that there has been a shed in place since at least 1989. They also say that they installed a garden bed on common property after getting verbal approval from other occupiers some years ago.
• [4] I have not made several of the orders sought as:
  1. The only by-law the applicant conveyed in their Form 1 notice to the body corporate of a by-law contravention related to parking, which I do not find relevant to the issues.
  2. I am not satisfied that items secured to the ground only by their own weight, such as the barbeque, are improvements to common property that require approval under the legislation.
  3. There is evidence that a shed has been in situ since at least 1989, and the fence since at least 2008. I am not satisfied those elements were not part of the original building, or otherwise did not receive body corporate approval as improvements to common property.
  4. I am not satisfied the respondents are excluding others from the common property under the stairwell.
• [5] I have made some orders in relation to the dispute as:
  1. I am satisfied the fence, gates and garden shed have been used by the respondents in a way that excludes other occupiers from those areas of common property. The respondents have not been granted a special right over common property (such as exclusive use) by the body corporate that would allow them to exclude other occupiers.
  2. The respondents have made an improvement to common property by installing a garden bed without the required authorisation of the body corporate. However, I have allowed a reasonable timeframe for removal that would enable the respondents to seek the required authorisation retrospectively.
• [6] It is open to the respondents to seek relevant authorisation for the garden bed, as well as grants of exclusive use to the common property, if they so wish.

• [7] The scheme is a 3-level building in Labrador on the Gold Coast. The survey plans show it is a building units plan, now referred to as a building format plan (BFP) of 8 lots and common property. The scheme was registered in February 1981.
• [8] Relatives of the respondents purchased Lot 2 on or around 1989. The respondents moved into Lot 2 on or around 2008, while it was owned by the relative, and one of the respondents became the registered owner of the lot in 2018. Both respondents occupy Lot 2.
• [9] The applicant purchased Lot 8 in 2023, and occupies that lot.

• [10] The dispute is borne out of the deterioration in the relationship between the applicant and at least one of the respondents. In or around December 2023, the applicant noticed the respondents had placed items beneath the stairs located on the common property and formed the view that such conduct was inappropriate or unfair, culminating in an unfriendly exchange of words between the applicant and at least one of the respondents. This incident appears to have been the beginning of escalating tensions and disputes on multiple fronts.
• [11] The applicant now challenges the respondents' use of the common property, including alleged improvements made to the common property, largely involving a narrow passageway of common property between the scheme's boundary fence and Lot 2 (the lot the respondents own and occupy). The applicant also says the respondents are excluding others from an area at the bottom of the common property stairwell, by placing items there.
• [12] Conciliation has taken place. Much of the submissions focus on matters discussed and agreed (or not) at the conciliation. Though, anything said or done in a conciliation is inadmissible in an adjudication application.[1] For the avoidance of any doubt, I have not had regard to those matters.

• [13] The applicant, who is the owner of Lot 8, seeks the following final orders:

1 - The immediate removal of all personal items from the common areas. > > 2 - The dismantling and removal of all fences and sheds that have been erected on common property without proper authorisation. > > 3 - A directive to enforce the relevant by-laws to prevent future unauthorised use of common property. > > 4 - Unit 2 will be responsible for all costs related to the removal and dismantling of personal items on common areas.

• [14] The applicant takes issue with several items they say the applicant has placed or installed on common property, being:
  1. a barbeque
  2. a garden shed
  3. a compost bin
  4. garden beds
  5. fences with gates
  6. other items the applicant has simply referred to as 'personal items' under some common property stairs. Photos depict a bicycle, surfboard and other similar items.
• [15] In the applicant's reply to submissions, complaint is also made about a concrete slab and an awning, with the applicant saying they were not on the original survey plans. These items were not discussed in the application. The respondents have not had opportunity to respond to this claim, but ultimately, I am not convinced by the applicant's evidence. Survey plans generally do not include such items.
• [16] To advance their argument in relation to the other items, the applicant has referenced non-compliance with by-laws. Yet, the applicant has not identified a particular by-law that applies to the matters complained of, other than a parking by-law referenced in a Form 1. The applicant has also not expressly identified a particular section of the legislation they believe the respondents are breaching.
• [17] Nevertheless, their position is clear - they do not believe the respondents can enclose the common property without an exclusive use grant, or otherwise place items on or make changes to the common property.

• [18] The respondents say the shed has been in place in the area for at least 36 years, and fences and gates enclosing the garden area have been in place for at least 17 years, with no objections until the applicant moved into the scheme some 2 years ago. The respondents also say they have been maintaining the area at no cost to the body corporate.
• [19] The respondents do not dispute that they have made changes to garden beds in the area, and have placed items like a barbeque on the common property. The respondents do not dispute that the shed contains their lawn mower and other items. They said they were not aware that the fenced area was common property or that there was any issue until August 2024.
• [20] The respondents say they have since removed their items from the area except for a sole pot plant, have removed the southern gate from the fence, and have been leaving the gate to the north open. However, the applicants indicate that, ideally, they would like to use that section of common property exclusively.

• [21] Two other lot owners also made submissions in support of the application, generally taking issue with the idea of the occupiers of Lot 2 excluding others from common property.

• [22] First, I will consider the applicant's argument that the final orders are justified due to a breach of the scheme's by-laws by the respondents. Second, I will consider whether the final orders are justified due to a breach of relevant legislative provisions, including whether a grant of exclusive use or other special right to common property may be necessary.

• [23] Insofar as the applicant wishes to rely on the by-laws to secure the final orders they seek, they are required to comply with preliminary procedures under section 185 of the Act, unless a relative exemption applies. Section 185 requires the applicant to have provided the body corporate with a Form 1 requesting that it issue a contravention notice subject of the dispute, amongst other things.
• [24] The applicant has submitted a copy of a Form 1 notice purportedly provided to the body corporate. However, the Form 1 identifies only one of the respondents and merely recites the wording of by-law 5, which pertains to the regulation of parking on common property. While the notice makes passing reference to the requirement for exclusive use of common property, it does not identify or rely upon any additional by-laws that may be relevant to the present dispute. In these circumstances, I am not satisfied that by-law 5 has any material bearing on the issues the subject of the final orders sought.
• [25] The applicant seeks a 'directive' that by-laws be enforced, which is generally the body corporate's responsibility.[2] The applicant has not established that the body corporate has failed to enforce by-laws, particularly where By-law 5 appears largely irrelevant. In any event an order could not be made to require the body corporate to enforce the by-laws when it is not named as a respondent to the dispute.

• [26] While the applicant has not satisfied me that by-law 5 is applicable to the dispute, there are provisions of the legislation that may be relevant.
• [27] The legislation contemplates owners making improvements to the common property, with authorisation of the body corporate. Pursuant to section 187 of the Standard Module, the authorisation must come in the form of an ordinary resolution unless the improvement:
  1. has an installed value of $3,000 or less,[3]
  2. does not detract from the appearance of any lot of common property,[4] and
  3. the use an enjoyment is not likely to promote a breach of the owner's duties as an occupier.[5]
• [28] Although, if the improvement is to an exclusive use area and the relevant by-law permits the installation or change, no further authorisation is required.[6]

• [29] The question becomes whether the items placed or installed on common property by the current or former owners and occupiers of Lot 2 would be considered improvements, and therefore fall into the ambit of section 187 of the Standard Module.
• [30] The legislation defines an improvement as the erection of a building, a structural change or a non-structural change,[7] and the installation of air conditioning is given as an example of a non-structural change. The Acts Interpretation Act 1954 defines 'change' to include change by addition, exception, omission or substitution.[8]
• [31] Some of the items the applicant take issue with include readily moveable items, like the barbeque, compost bin and the other 'personal items'. These are items that are not affixed to the common property, rather, are held in place by their own weight. The former Queensland Commercial and Consumer Tribunal expressed "...doubt as to whether non-fixtures can, in most occasions at least, be seen to be an improvement on land...".[9] Further, that an improvement ought to have the effect of "..."adding" to the quality and/or usefulness of the common property in a sense of enhancement whether in value or utility...".[10]
• [32] The District Court considered the context of the provision dealing with improvements within the legislation. The section is placed amongst provisions concerning disposal of common property, easements and leases. It was said:

The context is clearly one of permanency and attachment to the land or the building, rather than some merely ephemeral addition or adornment... The mere placing of tables and chairs, which can be moved or removed at will and at any rime does not constitute an improvement.[11]

• [33] It follows that adjudicators have held that the placement of non-fixtures such as pot plants, tables and chairs and temporary barriers do not fall into the definition of an improvement.[12]
• [34] Likewise, I am not convinced that items only held down by their own weight, such as the barbeque, compost bin and other similar items, are improvements to common property.
• [35] On the other hand, based on the photos provided and nature of the items, I am satisfied that the garden bed, garden shed, and fences can be considered improvements to common property as they are affixed. The question then becomes whether the required consent was obtained for those improvements to common property.

3.2.2 Authorisation for fence, gates and shed

• [36] The material in front of me suggests a garden shed has been in the area for at least 36 years without dispute, and the fence with a gate at least 17 years. The respondents say that the shed and fences (which includes gates) existed when they moved into the property in around 2008. Further, they have a provided a statement from the granddaughter of the relatives of the respondent that purchased the lot in 1989, which confirms that a shed was in situ when the property was purchased in 1989.
• [37] The applicant says that the claim fence and gates have been in place for many years is untrue. They contend that there is a Colorbond fence that appears new, as well as a structure described as a 'wood wall'. However, the photographs and submissions provided are vague, unclear and lacking in sufficient detail. It appears as though the Colorbond section of fence is the scheme's boundary fence, rather than the fence and gates in dispute. Further, there is no evidence that the respondents are responsible for such a change, if there has been one.
• [38] Ultimately, the onus is on the applicant to satisfy me that they are entitled to the relief they are seeking. In the circumstances and based on the material in front of me, I cannot be satisfied that the installation of a shed and fence was either not part of the original construction or alternatively was something that a previous owner or occupier of Lot 2 installed without body corporate approval, particularly where there is evidence those fixtures have been in place for decades without dispute.

• [39] In relation to the garden beds, the submissions from the respondents seem to indicate a garden bed formed part of the original construction. One garden bed, retained by wooden sleepers, could certainly be part of the original construction. However, there is a second garden bed, with metal sides, that the respondents say they installed. The respondents say they had spoken to committee members and occupiers at the time who agreed the respondents could proceed with those works. The respondents have not provided evidence of this claim.
• [40] As the respondents have acknowledged they have installed a garden bed on the common property, and have not provided evidence of body corporate authorisation to do so, I am satisfied the owner of Lot 2 is required to obtain body corporate approval pursuant to section 187 of the Standard Module. If the owner of Lot 2 seeks such approval, the body corporate (including its committee) must act reasonably in its decision.[13] If the owner of Lot 2 feels the body corporate has acted unreasonably in any decision it may make, and is unable to resolve the matter directly with the body corporate, then it is open to them to apply for resolution of the dispute.

3.3 The exclusion of other occupiers from common property

• [41] The applicant makes complaint against three areas of common property being used exclusively by the respondents:
  1. An area under the common property stairwell, outside of the entry to Lot 2 (stairwell area).
  2. A narrow area of outdoor common property space between the building (namely, the boundary walls of the respondents' Lot 2), and the boundary fence for the scheme. The applicant submits there are fences and gates installed at each end of this narrow strip, one to the north and one to the south (garden area).
  3. A garden shed, which is within the garden area (garden shed).
• [42] While I have not been satisfied that the respondents need to take any further action to comply with section 187 of the Standard Module in relation to the shed, fence and gates installed on common property, there remains a question about whether body corporate consent, via a grant of exclusive use, is required for the practice of excluding other occupiers from the stairwell area, garden area and garden shed.

• [43] Section 35 of the Act provides that all owners own common property as tenants in common. It follows that no occupier has greater rights to access common property over another occupier, unless some special right has been conveyed.
• [44] Special rights to common property may be achieved through a grant of a lease, licence or exclusive use over the area of common property. Leases and licences are grants of special use that typically have an end date.
• [45] Alternatively, a grant of exclusive use permits the exclusive enjoyment of an area of common property for the benefit of a lot and its occupiers, and is not subject to time limits. The exclusive use right remains and cannot be taken away without the benefitting lot owner's consent.[14] Exclusive use rights are achieved via an 'exclusive use by-law' (which must specifically identify the relevant area, usually with an accompanying plan) being recorded in the scheme's CMS, which is registered with Titles Queensland. To evoke such a change to the CMS, a resolution without dissent is required.[15]
• [46] It is important that the rights to common property are not removed inadvertently and to the detriment of members. The requirement for a resolution without dissent is evidence of the importance placed on this principle. Even where an infringement on those rights to common property is trivial, the principle itself is significant and still applies.[16]

• [47] The applicant suggests that the respondents' practice of placing bicycles and similar items in the stairwell area excludes others as there is no room for other occupiers to do the same.
• [48] While I acknowledge that the applicant may find the respondents' conduct frustrating, I am not satisfied that the routine placement of moveable items on the common property constitutes a subversion of the common property in the circumstances. The respondents are entitled to use the common property, subject to any applicable by-laws and legislative provisions. Equally, other owners or occupiers may use the same area for similar purposes, provided such use does not contravene the by-laws or relevant legislative provisions. Ultimately, there is no evidence before me to suggest that the respondents are permanently excluding others from accessing or using the common property or that this practice amounts to using the area exclusively.

• [49] It is not disputed that the respondents have, in the past, excluded others from the common property area behind the fence and gates.
• [50] The respondents' submission includes a statement from another owner, who says it must be the case that Lot 2 would have been granted exclusive use over the area of common property at some stage since 1981. However, the legislation, even back in 1981, required grants of exclusive use to be registered with Titles Queensland (the difference is that the grant would be recorded in a document that is not a CMS).[17] I have conducted relevant searches and no such grant is recorded. There appears to only be exclusive use granted over car parking spaces.
• [51] However, the respondents say since being alerted to the situation they recognise all occupiers may access the garden area. They say they have removed the fence and gate to the south of the garden area, and have left the north gate either open or unlocked.
• [52] I am satisfied the respondents have excluded other occupiers from the garden area in the past and therefore subverted occupier rights to common property. While the respondents may not be excluding others presently, the respondents have submitted that they ideally would like to exclusively use the area. I will therefore make orders clarifying that the respondents may not exclude others from the garden area, unless a grant of exclusive use or other special right is obtained.
• [53] For the avoidance of any doubt, this does not necessarily mean that the gate and fence need to be removed. However, any gate should remain unlocked or, if locked, all occupiers should have access to a key.

• [54] It is not disputed that the respondents are keeping their lawnmower and some other equipment in the shed, and that the shed has previously been locked with the respondents holding the key. Although, it not clear if the shed is presently locked.
• [55] As previously mentioned, I have run relevant searches with Titles Queensland and there is no evidence of an exclusive use grant over the garden shed area. The respondents say that they received approval at a general meeting to hold a lock to the shed to contain their gardening equipment, but the minutes have not been provided for me to verify or ascertain the nature of the approval and resolution type.
• [56] Again, I am satisfied the applicants have excluded other occupiers from the garden shed and therefore subverted occupier rights to common property. I will therefore make orders clarifying that the applicants may not exclude others from the garden shed, unless a grant of exclusive use is obtained.
• [57] Again, to be clear this does not mean the shed must be removed. However, it should remain unlocked or, if locked, all occupiers should have access to a key.

• [58] The applicant has not satisfied me that by-law 5, relating to parking, is relevant to the final orders sought. I am also not satisfied that the respondents' placement of non-fixtures on common property requires body corporate consent under section 187 of the Standard Module. I have also not been satisfied that the placement of non-fixtures under the stairs amounts to excluding others from common property.
• [59] For the items which are fixtures, I have not been satisfied that the fences, gates and garden shed were not part of the original construction, or alternatively, were installed by previous owners of Lot 2 without body corporate consent where they have remained in place without dispute for some decades.
• [60] However, I have been satisfied that the installation of a garden bed by the respondents is an improvement to common property that requires body corporate consent, which there is no evidence of.
• [61] I am also satisfied that the respondents have (at least previously) subverted common property by excluding other occupiers from the garden shed and garden area, and that a grant of exclusive use or other special right over common property is required for this practice to continue. This does not mean that the shed and fences need to be removed, only that the respondents need to ensure other occupiers have access to the area.
• [62] It is open to the owner of Lot 2 to seek relevant body corporate approval for the improvements and relevant grants of exclusive use, if they so wish. If the body corporate refuses the improvements, and the respondents believe the body corporate has acted unreasonably in its refusal, they may choose to seek to have that decision overturned by an adjudicator. Similarly, if a grant of exclusive use is sought and refused and the respondents believe the opposition to the request was unreasonable, then it is open to them to seek a relevant order of an adjudicator overturning the refusal.
• [63] It appears that both the applicant and the respondents have a genuine interest in the scheme and share a common desire to see it operate successfully. Unfortunately, the tone of communications and emails have been quarrelsome. In that light, I encourage all parties to reflect on whether continued disharmony between neighbours is desirable, and to consider whether a more conciliatory and cooperative approach, which would encourage harmony and neighbourly coexistence, might better serve the interests of the scheme.

[3] Standard Module, s 187(2)(a) and (5).

[7] Act, Sch 6 Dictionary - definition of improvement.

[8] Acts Interpretation Act 1954 (Qld) Sch 1.

[9] O'Neill v Perrins & Body Corporate for Bayview Mansions CTS 9302 [2008] CCT KA003-08 at [32].

[10] O'Neill v Perrins & Body Corporate for Bayview Mansions CTS 9302 [2008] CCT KA003-08 at [33].

[11] Body Corporate for the Phoenician v Herme Pty Ltd & anor (QDC, unreported, Durward, 2346-05, 22 December 2006) at [44].

[12] Rivage Royale [2011] QBCCMCmr 541 at [47]; Rhode Island [2016] QBCCMCmr 220 at [25]; Panorama on Buderim [2023] QBCCMCmr 357 at [13].

[16] Katsikalis v Body Corporate for "The Centre" [ 2009] QCA 77 at [32].

[17] Building Units and Group Title Act 1980 (Qld), s 30, including the version in force in 1981 when the scheme was built. At that time, changes to the by-laws were not registered in CMS documents but in 'dealings'.