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

BY-LAWS; IMPROVEMENT TO LOT - whether the respondents breached by-laws by repainting their front door and window frames, parking on common property, storing their property in a shed on the common property, and leaving various items on the common property; whether they must remedy those contraventions; whether they must reinstate a garage door replaced with sliding doors by a previous owner to comply with a general meeting resolution.

Act, ss 35(1), 59(2)(b), 94(1)(a), 170, 185; Standard Module, s 184(2)(a); Land Title Act 1994, s 48B.

1. The respondents must cease parking their vehicle on common property to the south of and in between lots 16 and 17 without the approval of the body corporate.
2. Within 30 days, the respondents must remove their property from the shed on common property to the west of lot 16 and remove their padlock from the door of the shed.
3. The application is otherwise dismissed.

• [1] The body corporate accuses Ms and Mr Gibens of lot 16 of several by-law contraventions and failure to comply with a 2012 resolution requiring the reinstatement of a garage door that was replaced with sliding doors sometime before 2009.
• [2] The by-law contraventions are said to consist of the following:
  1. they painted their front door red and window frames black without the approval of the body corporate contrary to by-law 9.1
  2. they park on common property without body corporate permission contrary to by-laws 3.1 and 4
  3. they have refused to remove their personal items and a padlock from a shed on common property contrary to by-law 4, and
  4. they have left "personal items, including a bench seat, pavers, wheelbarrow, loose bricks, and a board on the common property" contrary to by-laws 5.1 and 9.1.
• [3] The body corporate seeks orders in the following terms:

In order to resolve the dispute, the Applicant respectfully requests an adjudicator make orders that the Respondents:

(a) remedy all by-law contraventions detailed in the Contravention Notices within a reasonable time (suggested no longer than thirty (30) days from the date of the order); and

(b) reinstate the Garage Door within a reasonable time (suggested no longer than thirty (30) days from the date of the order).

• [4] By-law 9.1 prohibits an occupier from changing the external appearance of their lot without the body corporate's written approval unless the change is minor and does not detract from the amenity of the lot and its surrounds. However, the by-law "does not apply to a lot created under a standard format plan of subdivision".
• [5] Lot 16 was created by group titles plan (GTP) 70114. Group titles plans are now known as standard format plans, being plans of survey that define land using a horizontal plane and references to marks on the ground, as GTP 70114 does.[1]
• [6] By-law 9 does not apply to lot 16 and Ms and Mr Gibens did not require body corporate approval to change the appearance of their lot by repainting the door and window frames.

• [7] By-law 3.1(b) prohibits an occupier from parking on the common property without the approval of the body corporate. By-law 4 prohibits an occupier from obstructing the lawful use of the common property by someone else.
• [8] Photographs submitted by the body corporate show Ms and Mr Gibens' vehicle parked on common property to the south of and in between lots 16 and 17, near the southern boundary of scheme land. It is not evident that the vehicle is obstructing any lawful use of that part of the common property, but the vehicle is parked there without body corporate approval contrary to by-law 3.
• [9] Ms and Mr Gibens explain that their vehicle does not fit on their driveway without protruding onto common property (their garage has apparently been converted into a habitable part of their home), and that it causes less of an obstruction where they park it than it would if parked on their driveway. They also submitted a photograph showing several other cars protruding beyond the end of their driveways onto common property, and they claim that the body corporate is taking no action in relation to those contraventions.
• [10] I know little of these other alleged contraventions, nor why the body corporate might deem them acceptable (if it does). Ms and Mr Gibens are not parking in a similar manner though. They are parking wholly on common property, not just exceeding their driveway to a small extent like the cars in their photograph. There may be reasonable grounds for treating these different cases differently.
• [11] Ultimately, this application has been brought in relation to Ms and Mr Gibens' conduct. They are obliged to comply with the by-laws,[2] and clearly they are not when it comes to parking. I will order them to stop parking on that area of common property without body corporate approval. If Ms and Mr Gibens believe the body corporate should be taking similar action with respect to other owners' parking, they may issue the body corporate with a notice asking it to enforce the by-laws, and seek orders against the body corporate if it refuses.[3]

• [12] Ms and Mr Gibens have property stored in a shed on common property to the west of their lot. The body corporate committee asked them to remove it so the shed can be removed or relocated. They refused and padlocked the shed door.
• [13] Ms and Mr Gibens believe the shed is theirs. They say it was there when they purchased their lot. The body corporate claims it owns the shed. No evidence has been submitted either way.
• [14] However, Ms and Mr Gibens could only have sole and indefinite use of part of the common property if an exclusive use by-law had been recorded in favour of lot 16,[4] or if the body corporate had otherwise passed a resolution without dissent to dispose of the common property in their favour.[5] But there is no exclusive use by-law recorded in favour of lot 16, no evidence of a resolution without dissent, and no suggestion Ms and Mr Gibens have a lease or licence over that part of the common property. In the absence of those formalities, the area by default is unallocated common property that all owners are entitled to make use of as tenants in common.[6]
• [15] The body corporate is responsible for the administration of the common property.[7] That means it is generally able to make decisions such as to demolish or relocate a structure on the common property.
• [16] By refusing to remove their personal items and padlocking the shed, Ms and Mr Gibens are making it difficult for the body corporate to exercise its lawful function of administering the common property. In other words, they are obstructing the body corporate's lawful use of the common property contrary to by-law 4. I will order them to remove their padlock and personal items so the shed may be relocated.

• [17] As already noted, by-law 9 does not apply to lot 16. Even if it did, the items of concern to the body corporate are on common property to the west of lot 16 and do not affect the appearance of the lot.
• [18] By-law 5.1 prohibits an occupier from damaging "a lawn, garden, tree, shrub, plant or flower on the common property", or using part of the common property as a garden, without the written approval of the body corporate. Ms and Mr Gibens are said to have breached this by-law by leaving a bench seat, pavers, wheelbarrow, loose bricks, and a board on the common property, but it is not evident that any of these items have damaged the lawn or any plants.
• [19] The pavers would likely have damaged the lawn if laid atop it. However, Ms and Mr Gibens say the paving bricks were there when they purchased their lot.
• [20] The committee disputes that claim. It submitted a photograph of that area it says was taken in 2022, after Ms and Mr Gibens purchased in 2019, and the paving bricks cannot be seen. But the image is fuzzy, the photograph was taken from a low angle some distance from the location of the pavers, and there are items on the ground around where the pavers now lie. I cannot confidently say the pavers were not there then.
• [21] It has not been established that Ms and Mr Gibens installed the pavers. If they did not, they cannot have breached the by-law.

• [22] The body corporate says a previous owner of lot 16 changed the garage door to sliding doors sometime before 2009. The body corporate subsequently learned the change was not compliant with planning regulations and resolved that the door should be changed back before the lot was sold. Specifically, the body corporate resolved at an extraordinary general meeting on 12 August 2012:

That the existing three units, being 13, 15 and 16 be allowed to maintain their sliding glass doors, until prior to the sale of the unit or in unit 15's case the vacating of the units tennant.

• [23] While the body corporate accepts that the "new" door is now compliant with planning requirements, it nevertheless argues that Ms and Mr Gibens must comply with the 2012 resolution.
• [24] But I do not see what power the body corporate has to compel Ms and Mr Gibens to reinstate a garage door. The door is within their lot. They did not require body corporate approval to change it. The by-laws at schedule 3 of the Building Units and Group Titles Act 1980 were in effect from the inception of the scheme until the present community management statement was recorded in 2022, and they did not regulate the appearance of lots (except with respect to laundry or signs hung in visible locations in building format plan lots). There was no equivalent of by-law 9, which does not apply to lot 16 anyway.

[1] Land Title Act 1994, s 48B.

[2] Act, s 59(2)(b).

[3] Act, s 185.

[4] Act, s 170.

[5] Standard Module, s 184(2)(a).

[6] Act, s 35(1); Platt v Ciriello [1997] QCA 33.

[7] Act, s 94(1)(a).