Markham Court [2025] QBCCMCmr 194 (9 June 2025)

Stephanie Adele Bracher & Roy James Bracher (applicants)

The Body Corporate for Markham Court (respondent)

BY-LAW regarding alterations - whether breached; whether change to external appearance of lot was minor and did not detract from amenity of the lot or the scheme.

Act, ss 94, 100(5), 182

The decision of the committee to not approve Stephanie and Roy Bracher's lot 38 improvement application dated 2 September 2024 for a refrigerator on their front patio, communicated to them by letter dated 5 September 2024 from Archers Body Corporate Management, was at all times void.
The BCCM Form 10 Notice of continuing contravention of a body corporate by-law, dated 21 October 2024 and issued to the applicants, alleging a breach of by-law 16.1(b) is void and of no effect.

[1] Stephanie and Roy Bracher, owners and occupiers of lot 38 since August 2024, bring this application against the body corporate, challenging a decision of the committee communicated to them on 5 September 2024 to not approve a refrigerator being kept on their front patio.[1]

[2] Markham Court was established on 23 March 1989, with the registration of building units plan 8984. The scheme contains 68 lots in 2 separate, 3-storey buildings. Lot 38 is on the ground floor of building that faces Surf Parade.
[3] Submissions in response to the application were sought from the committee and all owners. The committee and several owners made submissions. The applicants inspected the submissions and provided a written reply.

[4] The applicants say that they were advised by the resident manager that they required approval to have a refrigerator on their front balcony and to submit an 'Improvement Request Form', which the applicants did on 2 September 2024, although they questioned why this was required.
[5] 'Improvement' is defined in the Act to include the erection of a building; a structural change; and a non-structural change, including, for example, the installation of air-conditioning. The legislation requires that owners who are wanting to make improvements to common property for the benefit of their lots, seek appropriate authorisation from the body corporate.[2] In the case of the refrigerator on the front balcony of lot 38, I question whether it is an 'improvement' within the meaning of that term in the legislation. Even if it was, it is not to common property, but to a lot. Building units plan 8984 clearly depicts the front balcony of lot 38 as being within the boundaries of the lot.
[6] In terms of making improvements to their own lot, owners need only comply with any applicable by-laws.

[7] The by-laws are part of the scheme's community management statement (CMS), which is binding on the body corporate, each member of the body corporate and each person who is otherwise the occupier of a lot in the scheme[3]. Section 94 of the Act requires the body corporate to enforce the CMS, including the by-laws and to act reasonably in doing so. The committee specifically is also required to at reasonably in making a decision[4].
[8] If the body corporate reasonably believes that an owner or occupier of a lot in the scheme is contravening a provision of the by-laws and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person, requiring them to remedy the contravention.[5]

[9] According to a BCCM Form 10 Notice of continuing contravention of a body corporate by-law, dated 21 October 2024 and issued to the applicants, the committee alleges a breach of by-law 16.1(b), which provides as follows:

16.1 Without the prior written approval of the Committee or the Body Corporate, an Owner or Occupier must not:

b) Make a change to the external appearance of a Lot, unless the change is minor and does not detract from the amenity of the Lot and the Scheme;

An unapproved refrigerator has been placed on the balcony of unit 38 which is detracting from the amenity of the Lot and the Scheme. Owners of unit 38 have been requested to remove the refrigerator from the balcony but remain uncompliant.

[10] The Form 10 stated that the applicants had 7 days to cease the contravention. The applicants then applied for conciliation through this Office. A conciliation session was held on 22 November 2024, but no agreement was reached. The applicants then lodged this adjudication application.
[11] The applicants say that they don't believe using an existing external power point for a freestanding appliance constitutes an alteration and as such, by-law 16 does not apply. They also believe that what constitutes a minor change in appearance is subjective. They believe the refrigerator is no more unsightly than items stored under tarpaulins on other patios which are more visible across common property and from the street.
[12] The applicants believe the committee's suggestion that they relocate the refrigerator to the rear patio, and offers of extensions of time to do this, are disingenuous. They say it is not feasible due to weather, safety and power supply.
[13] The applicants believe they are being treated unfairly and penalised, as not all by-laws are being enforced equally.
[14] In an email to Roy Bracher on 15 October 2024, the body corporate manager states that The Committee considers that the placement of a refrigerator on your balcony does not constitute a minor change to your lot and that the refrigerator does detract from the amenity of the lot and the scheme.
[15] By-law 16 is headed Alterations to Lots and the Common Property. Apart from by-law 16.1(b), by-law 16 is not specifically concerned with the exterior appearance of lots (unlike by-law 8 Appearance of Lots and the Common Property) but appears directed at maintaining the integrity of the structure of the building, utility infrastructure and enclosing balconies. By-law 16.1(b), which the applicants are accused of breaching, prohibits owners and occupiers, without prior permission, from making a change to the external appearance of a Lot, unless the change is minor and does not detract from the amenity of the Lot and the Scheme. By-law 16.1(b) is a common body corporate by-law, but it is usually under a heading that relates to altering the appearance of a lot.
[16] Alteration is not defined in the by-laws. It is defined in the Oxford Dictionary as the action or process of altering or being altered; a change; modification or adjustment. I agree with the applicants that placing a refrigerator on the balcony of a lot does not alter the lot itself or the common property. Arguably, by-law 16 has no application and cannot be relied upon by the committee to require the applicants to remove their refrigerator from their front balcony.
[17] However, I concede that it does change the external appearance of the lot, such that by-law 16.1(b) may have some application, even though the 'alteration' heading suggests otherwise.

[18] If by-law 16.1(b) is applicable, it becomes necessary to consider whether the change in external appearance is 'minor' and whether it detracts from the amenity of the lot and the scheme, such that it falls within the exception in section 16.1(b). A very similarly worded by-law was considered in Peak Practice[6] in which the adjudicator said:

Body corporate approval is required to make a change to the external appearance of a lot unless the change is minor and does not detract from the amenity of the lot and its surrounds. The word 'minor' is not defined in the CMS. Accordingly, it is appropriate to consider its ordinary meaning. The Cambridge Dictionary defines minor as "having little importance, influence or effect, especially when compared with other things of the same type". Previous adjudication applications have determined a minor change to include such things as painting a lot in a colour closely matching the colour scheme of the building,[7] painting the inside of a white balcony railing black,[8] and installing security screens that were consistent with the colour, style and materials of the building.[9]

[19] The Oxford Dictionary definition of 'minor' as 'not very large, important or serious' has also been cited more recently in Harbour Side Marina Apartments[10].
[20] The application materials include photographs of the refrigerator on the lot 38 front balcony. Lot 38's balcony is recessed between the adjacent lot and common property stairwell and the balcony is largely screened from view by plants, trees and shrubs in common property garden beds in front of the building. From most vantage points on common property, the photographs appear to me to depict the refrigerator as hardly distinguishable, having little importance, influence or effect, especially when compared with photographs of other items on other balconies, including the tarpaulin-covered fridge on the rear balcony of lot 55. I am satisfied that the change to the external appearance of lot 38 by the placement of a refrigerator on the balcony is minor.

Does it detract from the amenity of the lot or scheme?

[21] The next question is whether the change to the external appearance of lot 38 detracts from the amenity of the lot or the scheme.
[22] In Harbour Side Marina Apartments[11], it was held that:

Further, whether an alteration to a lot detracts from the amenity of the lot and its surrounds, is a rather subjective matter, with views differing from person to person. The respondent claims that it enhances the amenity of her lot, whilst the applicant body corporate and the owner of Lot 414 claims that it does the opposite.

The term 'amenity' has also not been defined in the by-laws. The Cambridge Dictionary defines it as 'something intended to make life more pleasant or comfortable for people'. The Oxford Dictionary defines it as 'a feature or service that makes a place pleasant, comfortable or easy to live in'.

The legal definition of 'amenity' was discussed in River Park View[12]:

Amenity is defined in Butterworths Australian Legal Dictionary as, "the features and advantages of a locality or neighbourhood which it is considered desirable to preserve or encourage such as beauty and tranquility. The concept of amenity has been interpreted as embracing wide and flexible notions of the residents' subjective perception of a locality: Broad v Brisbane City Council [1986] 2 Qd R 317".

Broad and the meaning of amenity in a planning context was considered in Holcim (Australia) PL v Brisbane City Council & Ors [2012] QPEC 32 at [20] to [27]. At [21], Searles DCJ referred to the statement of de Jersey J as he then was in Broad "that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of place on the senses, but also the resident's subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one's perception of amenity". At [23], the statement by Wilson SC DCL as he then was in Alex Gower Pty Ltd v Redland Shire Council & Ors was cited. Wilson said, "Amenity especially in residential neighbourhoods, involves more than the physical aspects of neighbourhood amenity, it is the perception of the "atmosphere", "ambience", "feeling" and "character" of the neighbourhood".

Although Broad and Holcim were concerned with wider issues, I consider the principles discussed are relevant to the concept of amenity in the context of By-law 8(1).[13]

[23] From the Form 10, it appears the main concern of the committee is that the fridge detracts from the amenity of the lot and the scheme. This also featured prominently in the 9 opposing submissions, 7 of which the applicants note come either from the committee (1), or owners who are committee members (4), or the resident managers (2).
[24] Neither the committee, nor the owners making submissions went into any great detail about how the refrigerator on the balcony of lot 38 allegedly detracts from the amenity of the scheme.
[25] The owner and occupier of lot 44 says it has an aesthetic and visual impact and that a refrigerator on a balcony is inconsistent with the building's appearance and may negatively affect property values. They say Lot 38 is directly opposite the swimming pool, recreational and BBQ areas and as so is highly visible to users of these facilities. They also cite noise concerns, saying refrigerators generate continuous operational noise, which could be disruptive to neighbouring residents. There was also concern that approving this installation could set a precedent for further non-standard balcony modifications, potentially impacting the building's uniformity and liveability.
[26] The applicants say appearance is subjective; a matter of personal opinion. Apart from them and the one supporting submission, 85.3% of other lot owners in the complex did not feel it unsightly/untidy enough to register a submission or complaint when invited to as part of this process, including their adjacent neighbour in unit 39 who would be most exposed to it.
[27] The applicants reply to the submissions saying that the fridge can be seen only from a small section of internal footpath that runs from the BBQ area to the end of the balcony of lot 38 where the stairwell entry is. They say it is barely visible from the pool area; you would have to know it was there and be actively looking for it to notice it. There is already an approved fridge on the rear, upper balcony of lot 55, so theirs is in keeping with the building's appearance, if not more so than lot 55's, as theirs is covered by a permanent roof structure, it does not require a tarpaulin to protect it. Unlike the tarpaulin-covered fridge on the rear balcony of lot 55, the applicants' fridge is not visible from outside the scheme and therefore would have less impact on property values than that of unit 55's.
[28] The applicants further reply that they have had no complaints of noise from their closest neighbour in lot 39. The entrance door to the stairwell is directly behind the wall the fridge is against so there is no unit directly behind it. They say it is a modern appliance and makes very little operational noise; in fact, they can regularly hear people accessing the entry to the stairwell, the pool equipment and the pool/BBQ users that Mr Lambert points out are in the vicinity, over the operational noise of the fridge, as well as internal appliances such as their TV.
[29] In response to the comments about property values, the applicants say:
- They believe that the rights of all owners should be equal whether they are owner occupiers or investors. To limit the lifestyle of owner occupiers in order to increase the financial benefit of investors seems extremely unfair and unjust.
- They are not looking to degrade nor devalue their unit or the complex; this seems to be overstating the impact of a modern, clean refrigerator.
- Unit 52 directly above them went up for sale shortly after their unit. They commented to each other on the foot traffic for viewings whilst sitting out on the patio where the refrigerator is. Despite only having one front balcony, whereas lot 38 also has a rear patio being ground floor, unit 52 sold for $816,000 - that is $51,000 above the purchase price of $765,000 for lot 38 in July. Therefore, the refrigerator seems to have had no detrimental effect on property prices.
[30] In response to Mr Lambert's concerns regarding precedent, the applicants say that the body corporate is required to assess each new application and consider the specific facts and circumstances relevant to that application. In allowing the appliance on the rear, upper patio of unit 55, the committee has already set a precedent, given it is visible from outside the scheme and has less weather protection than theirs.
[31] The committee says the lot 55 fridge was approved because it is a rear-facing courtyard (the only one which is partly visible from the street) and it would have been very unfair to not allow lot 55 to fully utilise this rear courtyard space for recreational purposes where all others in the scheme are granted a degree of flexibility with rear balconies/courtyards. The committee says it allows more flexibility to what can and can't be approved for rear balconies/courtyards such as fridges due to the fact that they are not visible from the front, detracting from the amenity of the Lot and scheme, as explained multiple times to the applicants.
[32] In response to lot 55's approved fridge, the applicants say:
- Mr Bujeya concedes that lot 55's rear patio and therefore the fridge are visible from outside the scheme.
- The committee continues to try to justify approving one fridge as it is on a rear patio as opposed to a front patio. It is on a rear patio, however, it is visible outside the scheme whereas theirs is not. They would suggest being visible outside the scheme is more detrimental to the amenity of the scheme and potential property values than a refrigerator visible inside the complex from a very small section of path.
- Mr Bujeya also talks about allowing the owners of lot 55 to fully utilise their rear patio for recreational purposes-why are they not afforded the same rights? Their rear courtyard is only accessible through their bedroom so is neither a suitable place to have an unprotected appliance or to entertain visitors. It also makes more sense to have their second fridge easily accessible to the kitchen given they store food in it, not just drinks.
[33] 'Amenity' is defined in the Oxford Dictionary as a desirable or useful feature or facility of a building or place; something that helps to provide comfort, convenience or enjoyment. It has been held that a mere change in the external appearance does not constitute a detraction from the amenity of a building[14]. There is no specific prohibition of refrigerators on balconies in the by-laws, or any requirement that all lots look the same from the exterior. I note from the building unit plan, submissions and photos provided and available online that there is little 'uniformity'. To the extent that putting a refrigerator on the balcony of lot 38 constitutes a change to the external appearance of the lot, I am satisfied that it is 'minor' and 'does not detract from the amenity of the lot or the scheme' in the circumstances of this particular case. The fridge on the balcony of lot 38 is barely visible from the common property, being largely obscured by balustrades, greenery, and the BarBQ, cabinet and other furniture which the committee does not object to.

[34] I am not satisfied that the applicants, by placing a refrigerator on their balcony, made an alteration to their lot such that they needed to seek approval under by-law 16. Further, to the extent that doing so constitutes a change to the external appearance of the lot, I am satisfied that it is 'minor' and 'does not detract from the amenity of the lot or the scheme' in the circumstances of this particular case, such that by-law 16.1(b) has not been contravened. The fridge is barely visible from the common property, being largely obscured by balustrades, greenery, and the BarBQ, cabinet and other furniture which the committee does not object to.
[35] The distinction the committee attempts to make between the fridge of the applicants and that of the occupiers of lot 55 and other items on other balconies which have been photographed by the applicants and not objected to by the committee, is not able to be objectively maintained, in my view.

[1] I have not been provided with any minutes of any committee meeting, or record of any motion voted on outside of a committee meeting, evidencing the decision of the committee, but accept the letter of 5 September 2024 from Archers Body Corporate Management to the applicants, as evidence of such a decision having been, at least purportedly, made.

[2] Section 177, Accommodation Module

[3] Sections 59 and 66, Act

[7] Grand Palais Boolarong Resort [2006] QBCCMCmr 80

[8] Watermark Residences [2014] QBCCMCmr 56

[9] The Inglebrook Towers [2007] QBCCMCmr 308

[14] Everton Mews [2014] QBCCMCmr 281 @ [33]

Corporate and Community Management Act 1997

Corporate and Community Management (Accommodation Module) Regulation 2020

Markham Court [2025] QBCCMCmr 194 (9 June 2025)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Markham Court [2025] QBCCMCmr 194 (9 June 2025)

Legislation Cited (2)