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

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

REASONABLENESS - whether the committee's decision to revoke approval to install a privacy screen was unreasonable; whether the committee's decision to reject a request to remove a handrail on a lot was unreasonable.

COSTS - whether the respondent is responsible for paying the costs for the conciliation and adjudication applications.

Act, ss 59(2), 94(2), 100(5), 169(1)(b)(i), 280

1. I hereby declare that the body corporate failed to act reasonably in deciding the applications to make an improvement made by the owner of Lot 2 on 31 October 2024 and 7 November 2024.
2. I further order that, within 30 days from the date of this order, the body corporate must reconsider and decide the applications to make an improvement made by the owner of Lot 2 on 31 October 2024 and 7 November 2024.
3. I also order that, within 30 days from the date of this order, the body corporate must pay $220.60 to the owner of Lot 2 as reimbursement for the conciliation and adjudication application fees.

• [1] This application is about the applicant's request to install a privacy screen on the balcony of his lot. Approval was originally given but then the applicant sought to remove a handrail to enable the installation. The committee refused that request and then rescinded its original approval. The applicant disputes those decisions. The applicant also wants the body corporate to pay the cost of the adjudication and conciliation applications (the Costs).
• [2] The applicant seeks the following final orders:

An order that the body corporate approve my privacy screen to be installed on my lot. If not applicable, then an order for the body corporate to reinstate my initial approved submission, and I will install the privacy screen without touching the rail.

An order that the body corporate reimburse a total of $220 for the conciliation and adjudication fees for they did not attempt to show to resolve this matter.

• [3] Monet Gardens community title scheme 26536 (Monet Gardens) is a 21-lot scheme and common property in Robina. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as building format plan 115340.
• [4] The applicant is the owner of Lot 2. The respondent is the Body Corporate for Monet Gardens.

• [5] On 31 October 2024, the applicant applied to make an improvement to their lot (the First Application). The details stated that the applicant was:

Looking to add a 1m high privacy screen (horizontal slats) on top of the white wall of my lot. This will go on top of the wall nearest to the road, and the wall next to the walk way to the door.

The horizontal slats will be black, keeping up with the colour code of the building.

• [6] On 6 November 2024, the applicant received a letter from the body corporate manager stating the First Application had been approved by the committee. The letter stated the approval was only for the scope of works outlined in the First Application, on the condition that the privacy screens adhered to the building's colour scheme, and that any additional works or modifications would require further committee approval.
• [7] On 7 November 2024, the applicant made another application to make an improvement to their lot (the Second Application), to clarify how the screen would be installed. The request stated:

Not sure if this was obvious in my previous application for putting up horizontal privacy screen slats on my outdoor area walls, but checking just in case with an approval.

For the slats to go up, we will be removing the handrail that sits on top of the wall so the slats can sit atop the wall. This would make the slats sit nicer and neater on the wall, rather than have a messy set up.

• [8] On 22 November 2024, the body corporate manager sent an email to the applicant referring to by-law 8 about the appearance of the building. It referred to a statement from the committee that the by-laws require the façade of the building to stay the same. It said the screening proposed would significantly change the appearance of the building and remove body corporate property to do so. It said the owner was unable to use the privacy screens but could use planter boxes.
• [9] On 25 November 2024 the applicant responded expressing confusion, noting that they already had approval for the privacy screen, with materials ordered and work scheduled, and that the second approval just related to the handrail. Further correspondence ensued.
• [10] On 29 November 2024, the body corporate manager sent an email to the applicant which stated the committee were undecided in regard to the Second Application. Neither of the parties have provided the minutes of a committee decision on the issue, if there is one, and the email is unclear as to who made the final decisions on the applications and what that decision was. However, it appears there is a belief that the committee retracted the approval for the First Application and declined approval for the Second Application.
• [11] The applicant applied for conciliation, but the conciliation arranged on 29 January 2025 did not proceed because the respondent did not attend.
• [12] The applicant then lodged the current application.

• [13] The Commissioner invited the body corporate and all owners to make a submission on the application.[1] No submissions were received from the body corporate while submissions were received by two lot owners. The applicant elected to obtain copies of the submissions and replied to them.[2] The Commissioner then referred the application to departmental adjudication.[3]
• [14] I have investigated the application, including reviewing the application, the submissions, the reply, the current CMS and survey plan 115340.[4]

• [15] The orders sought relate to a dispute between the applicant and body corporate regarding the decision to reject a request to make an improvement to their lot. As such, I am satisfied the dispute falls within the dispute resolution provisions of the legislation.[5]
• [16] 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 CMS, or about the exercise of rights or powers or performance of duties under the Act or CMS.[6] An order may require a person to act, or prohibit a person from acting, in a way stated.[7] An order may contain ancillary and consequential provisions the adjudicator considers appropriate.[8]

• [17] I have summarised the grounds within this application as follows:
  1. When the Second Application was rejected, the approval given for the First Application was retracted. The reason for this was verbally expressed by a committee member to be that they did not receive the First Application.
  2. There is nothing in the by-laws stating that approval may be given and then retracted without justification.
  3. The body corporate referred to the appearance by-law as the reason for retracting approval for the First Application and rejecting the Second Application. However, other lots have fences which similarly conflict with the by-law, including the style they seek.
  4. The proposal is no different than two other lots have installed. They query why some lots are allowed privacy screens while others are not.
  5. The committee did not act reasonably in making its decision.
  6. The body corporate made no attempt to attend the conciliation with the applicant being advised 45 minutes prior to the start time that the body corporate was not attending.
• [18] The applicant provided photographs of the location of the requested works and the style of horizontal slats requested to be installed. The applicant also provided photographs of other balconies with different screens than others, including a balcony with the same style of horizontal slats they requested.

• [19] I have summarised the submissions provided by the owner of Lot 1 as follows:
  1. Building a fence around the balcony to resolve privacy concerns appeared excessive when window coverings would achieve the same result. Other options such as freestanding screens, plants and window coverings were available.
  2. The proposed request works would significantly change the appearance of the front of the building and the entrance would appear asymmetrical.
  3. Approval for the First Application was given without knowledge of the by-laws and was further examined when the Second Application was received.
  4. One of the privacy screens depicted in the photographs provided by the applicant was a freestanding fence, was not a permanent attachment and had no impact on the appearance of the building. The other lots' fences have little impact on the appearance as they are at the rear of the building or in an area with low foot traffic.
  5. When asked by a committee member about the by-laws, she quoted the relevant by-law and commented the proposed structure would significantly alter the appearance of the building.
• [20] The owner of Lot 1 also provided photographs depicting window blinds and other lots' balconies on the scheme land.
• [21] The owner of Lot 4 stated they "abstain from any submission" before submitting that the by-laws stated you could not make structural changes to the building, what Lot 7 did was not their concern, and the screen on Lot 4 was freestanding and not attached to the building.

• [22] The applicant's reply to the submissions provided by the other lot owners was that the by-laws did not stipulate that they applied differently based on where in the scheme you lived.

• [23] The primary issue in question is whether the body corporate acted unreasonably in revoking their approval for the First Application and rejecting the Second Application.
• [24] I will review whether the First and Second Applications were made in accordance with the relevant by-laws. I will then review the body corporate's duty to act reasonably in making a decision. Next, I will consider whether in the circumstances the body corporate acted unreasonably in making its decisions. I will then consider the applicant's claim for costs.

• [25] The Act states that the CMS is binding upon the body corporate and each member of the body corporate, including occupiers of a lot within the scheme.[9] The Act also states a scheme's by-laws may provide for the regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme.[10]
• [26] Monet Gardens' CMS was registered on 28 January 1999. The by-law relevant to this dispute is by-law 8.1 which states:

The occupier of a lot must not, without the body corporate's written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

• [27] The nature of the First Application was to install a privacy screen on top of Lot 2's balcony wall. The nature of the Second Application was to remove the balcony wall's handrails to assist in installing the privacy screen. As such, I am satisfied the two applications fall within the scope of making a change to the external appearance of the lot.
• [28] By-law 8.1 indicates that written approval is not required if "the change is minor and does not detract from the amenity of the lot and its surrounds".[11] There is nothing to indicate the requested changes would detract from the amenity of the lot and its surrounds. However, I do not consider the changes for both applications to be minor as the evidence before me indicates it would involve the installation of a previously non-existent privacy screen and the removal of an equal section of handrailing that is affixed to the wall.
• [29] Therefore, I am satisfied written approval was required in relation to both requests.

• [30] When considering a request for approval under a by-law, the body corporate is required to act reasonably in making, or not making, a decision about the request.[12] When a committee is making decisions on behalf of the body corporate, the committee must also act reasonably.[13]
• [31] In Body Corporate for Beaches Surfers Paradise v Backshall, Justice Carmody stated that reasonable decision making involves:[14]

...an evaluation of the known facts, circumstances and considerations" that tend to have a rational bearing on the issue at hand including predictable future possibilities and risks.

• [32] Justice Carmody also stated the following in considering whether a decision was reasonably reached:[15]

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.

• [33] This means that the body corporate is not deemed to have acted unreasonably simply by reaching a different conclusion than that sought by the applicant. Where a decision by a body corporate is challenged, the body corporate does not need to demonstrate that it acted reasonably. Rather, the applicant must satisfy an adjudicator that the body corporate acted unreasonably in reaching their decision.
• [34] When the actions and decisions of a body corporate are challenged as unreasonable, the role of an adjudicator is not to put themselves in the shoes of the body corporate, substitute their own views, or conclude that another decision should have been preferred over the decision that was made.[16] If an adjudicator is satisfied that the relevant factors have been considered, the committee's decision will stand unless the adjudicator is satisfied the decision is not legally reasonable. That is, the decision will only be overturned if the adjudicator finds the decision lacks "an evident and intelligible justification when all relevant matters [are] considered."
• [35] In considering this, I note Justice Carmody also found that a committee could not be found to have properly exercised its discretion without, at the least, genuinely looking for ways to grant a request as well as reasons for denying it.[17]
• [36] In determining whether the committee's decisions were unreasonable in this case, I have considered the evidence before me regarding the reasons for the decisions.
• [37] The body corporate did not provide any submissions regarding its reasons for revoking approval for the First Application and rejecting the Second Application. In this regard I have considered the body corporate manager's emails to the applicant. I have also considered the correspondence provided by the applicant and other lot owners.

• [38] The emails from the body corporate manager stated that the reason that approval for the First Application had been revoked, and the Second Application was undecided, was that the by-laws stated the façade of the building had to remain consistent.
• [39] The applicant argued approval for similar privacy screens had been given and the by-laws did not apply differently based on where you lived within the scheme building.
• [40] The owner of lot 1 submitted that the applicant's proposed changes would significantly change the appearance of the front of the building and other options existed, such as freestanding screens.
• [41] The owner of lot 4 submitted that the by-laws prohibited making structural changes to the building.
• [42] As stated above, by-law 8.1 states that that the occupier of a lot must not make changes to the external appearance of a lot without written approval from the body corporate, unless the change is minor and does not detract from the amenity of the lot and its surrounds. This means that changes that are not minor can, in fact, be made but just require written approval from the body corporate first.
• [43] In the absence of any other by-laws relevant to changes made to the appearance of a lot, structural or otherwise, I do not accept the arguments that the by-laws require the façade of the building to remain consistent. As such, I do not consider the body corporate's consideration of the by-laws in their decision was relevant or reasonable in the circumstances.

• [44] The owner of Lot 1 submitted that building a fence around the balcony was excessive when other options, such as freestanding screens, plants and window coverings were available.
• [45] There is no dispute that alternatives to the installation of privacy screens exist, such as the use of planter boxes. However, as stated above, the committee must reasonably consider ways to grant the request, not just to deny it.
• [46] The correspondence from the body corporate manager to the applicant indicates that, as the committee's interpretation of the by-laws indicated the façade of the estate had to remain consistent, they did not consider alternative ways to grant the request to install privacy screens. I consider the committee's failure to do so was not reasonable in the circumstances.

• [47] The owner of Lot 4 stated the by-laws prohibited making structural changes to the building. While these submissions were limited, it is apparent their concerns are that the installation of the privacy screens would constitute a structural change.
• [48] While the First Application was to attach privacy screens to the boundary wall, there is limited information before me to indicate that this would require structural changes to the boundary wall beyond the removal of the handrail as requested in the Second Application.
• [49] As by-law 8.1 does not prohibit changes made of a structural nature, and in the absence of evidence regarding the impact to the boundary wall that a structural change could have, I am not satisfied that refusal of the applications on this basis would be reasonable in the circumstances.

• [50] The applicant argued that approval had been given to other lots to install privacy screens, including one with the same style they desired.
• [51] The owner of Lot 1 argued the other lots who had been granted approval to install privacy screens were located in areas where they had little impact on the appearance of the scheme building.
• [52] As stated above, there is limited information before me regarding the committee's reasons for their decisions beyond their consideration of the by-laws. It is unclear whether any approval given to other lots for similar privacy screening was considered. However, it is evident that other lots have installed privacy screens, freestanding or otherwise, and they have either been approved by the body corporate or permitted to remain without approval.
• [53] As such, I am satisfied that the failure to consider the existence of screens on other lots, including the comparative visual impact and the basis for other approvals, would not be reasonable in the circumstances.

• [54] The Act states an adjudicator may order the respondent to pay the applicant the costs of the conciliation and adjudication applications if:[18]
  1. the applicant for an adjudication made a conciliation application for the same dispute; and
  2. the respondent to the adjudication application was the respondent to the conciliation application; and
  3. the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.
• [55] It is not disputed that the conciliation related to the same dispute as this application and the respondent is the same respondent to the conciliation application.
• [56] The conciliation certificate recorded that the application was referred back to the commissioner because the body corporate did not attend, and they were considered not to have made a reasonable attempt to participate in conciliation.
• [57] Submissions were received from 2 lot owners, however no submissions were received from the body corporate, nor any correspondence regarding why it did not attend or participate in conciliation.
• [58] As such, I consider it appropriate in the circumstances that the respondent pay the costs of the conciliation and adjudication applications. I am satisfied the respondent was sufficiently aware of the dispute and no reasonable excuse has been provided as to the body corporate's failure to participate in conciliation.

• [59] I am satisfied that the committee acted unreasonably in the circumstances. The by-law relied upon in making their decisions does not state that changes to the external appearance of the building cannot be made. I particularly note that the inclusion of "without written approval" within by-law 8.1 indicates that changes to the external appearance of a lot can, in fact, be approved and made. As such, I consider it appropriate in the circumstances to order that the body corporate failed to act reasonably in making its decisions on the First and Second Applications.
• [60] I am satisfied that the installation of the new privacy screens, with or without the removal of the handrail, constitutes a non-minor change to the appearance of the lot and it is unclear on the evidence before me whether the committee considered additional factors other than the by-laws, such as the approval given to other lots.
• [61] I consider it appropriate to impose an order requiring the body corporate to reconsider whether it would be appropriate to approve the privacy screens, with or without the proposed handrail alteration. To that end, I have provided the body corporate with 30 days from the date of this order to consider and make a decision in relation to the two requests.
• [62] As stated above, the body corporate must act reasonably in reconsidering the applications, taking into account all information provided. Each application must be considered fresh by the body corporate and decisions must be made on the basis of the evidence before them. It cannot reject the applications solely on the basis that there has been a dispute in relation to the matter or its previous decisions. Such a decision could be challenged as unreasonable.
• [63] In granting the order that the body corporate reimburse the applicant the costs for the conciliation and adjudication application fees, I am satisfied that procedural fairness has been offered to the body corporate who were sufficiently on notice of the dispute. There is no evidence before me about any circumstances that would lead me to consider not exercising my discretion to award costs. Therefore, I am satisfied it is appropriate in the circumstances to grant the order requesting the body corporate pay the costs for the conciliation and adjudication applications.
• [64] Although the applicant's orders sought requested $220 as reimbursement for the conciliation and adjudication application fees, I note the applications fees are $110.30 each, for a total amount of $220.60. As such, I order the body corporate reimburse this amount.

[5] Sections 227, 228, 276 and Schedule 5 of the Act.

[14] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42].

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

[16] Seabreeze On Reid [2022 QBCCMCmr 246 at [11]; Casablanca Palms [2020] QBCCMCmr 486 at [7].

[17] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [107].