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

EXCLUSIVE USE BY-LAW - whether a resolution to grant exclusive use of most car spaces at the scheme to one owner was within the power of the body corporate to pass - whether the resolution was reasonable - TIME LIMIT - whether there is good reason to waive the time limit applying to the application.

Act, ss 94, 170, 171, 242

• [1] This application is about the exclusive use of car spaces at this scheme, which was established to provide student accommodation.
• [2] At an annual general meeting (AGM) in June 2004 the body corporate resolved to record a new community management statement (CMS) that granted exclusive use of 29 car spaces to the owner of Lot 8. At the time, the owner of Lot 8 was the caretaking service contractor.
• [3] The body corporate now seeks to argue that exclusive use of the car spaces was improperly granted. It says the allocation of all student car parks and a minibus car park to the caretaker's lot was ultra vires because it was contrary to the development approval for the scheme. In the alternative, it argues that granting all common property car spaces to one lot was unreasonable. It says the decision removed the right of student occupiers to park, and the right of body corporate to park the minibus it is required to have. It asked the respondent, the current owner of Lot 8, to agree to surrender the exclusive use areas. The respondent refused.
• [4] The application seeks a declaration that the 2004 AGM resolution that granted exclusive use of the car spaces was invalid. I will consider the validity of the resolution.

• [5] Nexus Place community titles scheme 31206 (Nexus Place) is a 39-lot scheme at Ashmore. It is registered as survey plan 148317. The CMS shows the Accommodation Module applies.
• [6] The application seeks the following orders:

(a) a declaration that resolution 9 passed at the annual general meeting held on 28 June 2004 which caused the grant of exclusive use of the car parks in the scheme to lot 8 as depicted by the hatched areas marked "B" on Plan C of the Community Management Statement dated 7 July 2004 as recorded in the Land Titles Registry under dealing number 707887528 ("the New CMS") was at all times invalid;

(b) that the body corporate shall within six weeks of the date of this order record a new community management statement deleting the exclusive use areas referred to at Schedule E and depicted by the hatched areas marked "B" on Plan C of the New CMS.

• [7] 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]

• [8] This application was lodged on 17 February 2025, pursuant to a committee resolution passed on 11 February.
• [9] The Commissioner invited submissions from the respondent and all owners.[3] The applicant obtained and responded to the submissions.[4]
• [10] The application was referred to department adjudication.[5]
• [11] I have now investigated the dispute, including reviewing the application and submissions, and seeking further information from the parties.[6]
• [12] During my investigations, the body corporate asserted that while the relief sought in the application was for a declaration that the 2004 motion which amended the CMS was invalid, the amendment to By-law 49 should be itself also be declared invalid. However, that particular order was not sought in the application. The applicant did not seek the permission of the Commissioner to amend the application to seek that declaration.[7] Moreover, once the Commissioner made a dispute resolution recommendation referring the application to adjudication, there was no capacity for the Commissioner to permit the amendment of the application. I do not consider I have the capacity to permit the applicant to amend or add to the relief sought by the application, although I will comment on that alternative outcome.

• [13] Nexus Place was established in March 2003.
• [14] Development approval (as a material change of use application for a student accommodation complex), was given by the Gold Coast City Council (GCCC) in November 1999. The notified conditions did not detail any required car parking. However, the approval required (condition 1) that the development accord with the endorsed plans. An attached plan of the basement carpark referred to 57 common spaces, 2 courtesy bus spaces, and 2 access spaces, for a total of 61 spaces. The plan also identified Lot 8 as the 'manager's residence'.
• [15] There was a subsequent application to change the approval conditions. A GCCC town planner assessed the application in April 2002, discussing the car parking requirements for hostel accommodation and the proposed relaxation to 1 space for every 4 beds. The town planner recommended a modification of the conditions subject to a requirement for the regular operation of a minibus between the scheme and tertiary institutions. The GCCC's amended approval given in May 2002 included a condition for the operation of a minibus service. The amended plans showed 39 numbered car spaces on the lower level. It included the following:

• [16] The first CMS recorded when the scheme was established,[8] included in By-law 49 that the owners of Lot 8 would be entitled to the exclusive use of areas shown in attached plans A and B and detailed in schedule E. These areas, marked A on the plans, are not car spaces. The plans (with amendments) were variously signed by a surveyor 3, 11 and 28 March 2003.
• [17] The body corporate entered a caretaking and letting agreement (management agreement) with the then owners of Lot 8 in May 2003. Clause 12 deemed approval for the owner of Lot 8 to use the lot for residential and caretaking purposes. One of the duties of the caretaker at clause 4(ae) was to 'Supervise the car parking arrangements and maintain the car parking areas and car wash areas on common property in a clean and tidy condition'.
• [18] At its AGM on 28 June 2004 the body corporate considered Motion 9 to record a new CMS which included a grant exclusive use of areas of common property to Lot 8 (described as the manager's unit) which was said to have been omitted from the previous CMS. The motion passed with 17 votes for and none against. The owners of Lot 8 at the time, and persons identified as the proposed new caretakers (and their solicitor), were present at the AGM.
• [19] An 'annual report to owners' from the body corporate manager accompanying the notice of the AGM referred to the sale of the management rights. It noted the motion to approve the recording of a new CMS. It said the purpose was '...to formalise the arrangement whereby the Managers are given exclusive use of all parking areas in the building as was apparently disclosed to all original buyers in their sale contracts.'
• [20] The explanatory note for Motion 9 said the CMS registered at the time the scheme was created had an exclusive use plan annexed which differed from the plans proposed in the disclosure statement given to purchasers by the developer. It said those plans were to create an exclusive use area for the parking of the bus used for conveying resident students to university and for the control by the onsite manager of the car parking spaces in the basement. It said the first CMS failed to have annexed the correct exclusive use plan to reflect the plans in the disclosure statement. The AGM notice included a copy of the new CMS.
• [21] The new CMS was subsequently recorded.[9] In it, By-law 49 granted to Lot 8 exclusive use of areas shown in attached plans A, B and C. Areas marked A are as shown on plans A and B as in the previous CMS. In addition, areas totalling 597m2 are marked B and shown on plan C. Plan C is signed by the same surveyor as plans A and B and dated 25 May 2004.
• [22] The exclusive use areas shown on plan C comprise the minibus parking bay on Level B and car spaces on Level A. There was no condition in the by-law that the owner of Lot 8 make the car spaces available for the use of occupiers or to make the minibus parking space available for the minibus that the GCCC required to be operated.
• [23] The management agreement was assigned in February 2015, and then again in October 2017 to Oppo Property Pty Ltd (Oppo). The respondent was one of two authorised representatives of Oppo under the assigned agreement and was apparently a shareholder (although not a director). The respondent became the owner of Lot 8 in October 2017. A liquidator was appointed for Oppo in February 2024. The management agreement was later terminated.
• [24] The body corporate subsequently raised concerns with the respondent about the exclusive use areas including that they were associated with and allocated for the purposes of the management agreement and were improperly granted. As the owner of Lot 8 did not consent to revoking the exclusive use attached to the lot, the body corporate says there was no utility in calling a general meeting to consider a motion to change the exclusive use in the CMS.

• [25] The respondent opposes the application. They say:
  1. Lot 8 was sold and treated as a unique lot differentiated by its use and amenities.
  2. They acquired Lot 8 on the understanding it included exclusive use rights over most basement car parks and the ground floor bus parking. Those rights were clearly documented in the CMS and reflected in the marketing and sales documents. They acquired Lot 8 in good faith and on the understanding that the exclusive use areas were validly granted and registered. They paid market value for a lot that included the benefit of the exclusive use areas and to remove them now would significantly diminish the value of the lot and interfere with their property rights.
  3. An adjudicator cannot enforce planning laws and there is no enforcement order from the GCCC invalidating the CMS or the car park allocations.
  4. The body corporate considered the grant of exclusive use in 2004 and that decision is not unreasonable merely because it adversely affects other owners.
  5. They note their genuine attempts to resolve the matter. They have offered to discuss shared or licenced access arrangements, participate in mediation, lease the parking spaces in bulk to the body corporate, or rent the car spaces to tenants.
• [26] One owner made a submission opposing the application. The submission includes:

1. This is an attempt to strip assets from the owner of Lot 8. It is not reasonable to think the owner of Lot 8 would agree to stripping that asset without compensation. The value of the car spaces is estimated at around $500,000. The committee has not obtained valuations, discussed a settlement sum, or made any offers of compensation. 2. The exclusive use rights allowed the owner of Lot 8 to manage the parking, allocate car spaces, and charge a weekly fee. 3. The creation of the exclusive use areas was to benefit the body corporate because it created an income to the caretaker with no cost to the body corporate. If the exclusive use areas are removed, there is no income left to offer a new caretaker. 4. The development approval does not refer to the use of the car parks; it just calculates the minimum number of spaces be provided based on the number of beds. 5. The exclusive use areas have no value to the body corporate. It cannot earn an income from them other than giving a contract to a third party. Owners cannot make an income from them and there are not enough spaces for all owners to be allocated one. 6. Other than the change to the exclusive use areas, there was no change to the wording of the CMS. The CMS did not change the requirement that the parking is for tenants. 7. It was always known the car park was for tenants. There is no reason to claim this was not understood or implemented by the owner of Lot 8. 8. Access to the car park is controlled by a key operated security gate. All tenant room keys can operate the gate. The body corporate issues the room keys. There is no evidence the car spaces have ever been used by non-residents, visitors, or workers. 9. The claim there are no car parks for the student accommodation is false. There is currently free parking for all students. Occupiers currently have unfettered and unsupervised access to the car park. Their use is only limited by the number of spaces. 10. The owner of Lot 8 is not preventing parking and claiming the development approval has been breached is false. 11. The body corporate received legal advice that the exclusive use areas were properly allocated and the only way to proceed was to get an agreement from the respondent. 12. In the deed of assignment to Oppo, the body corporate agreed it would not rely on any breach of the management agreement by the assignor or any predecessor. If the allocation of exclusive use was always invalid, the assignor was in breach. The body corporate agreed not to use the breach in an action against the assignee. 13. The management agreement allowed the caretaker to provide associated services without body corporate interference. Removing exclusive use breaches that condition. 14. The applicant complains about the CMS not dealing with what the management agreement should have. The solution is to renegotiate the management agreement, not delete the exclusive use areas. 15. There are 39 car spaces. 35 are exclusive use areas. Of the remaining 4, 3 are visitor parking and 1 is disabled parking. There is also a disabled parking space in the exclusive use areas. Three spaces were converted to a garage that has been used for storage rather than parking for some time. As a result, there are 32 rentable spaces. 16. The operation of the shuttle bus was part of the compromise to allow a reduced number of parking spaces. The bus service was operated by the caretaker, and it was appropriate that they be allocated a parking space for it. 17. There is currently no bus service. The body corporate is in breach of the development approval by not providing a bus or ensuring there is a caretaker to provide one. 18. The allocation of exclusive use areas was documented by solicitors and approved at a properly authorised meeting, without dissent. It was not invalid. 19. Student occupiers have no right to the park in the car park. To have that right they would each need an allocated car space. No rights have been taken away from students. They have always had the opportunity to park if there is a space available and they pay the parking fee. 20. The development approval did not allocate powers to the body corporate in relation to the CMS. The approval did not direct how car spaces were to be used. 21. It is not relevant that there was no payment for the grant of exclusive use. It was up to the body corporate to decide if it wanted payment for the allocation of the rights. The fact that it did not cannot be undone now. Subsequent caretakers paid for the transfer of those rights. It is not appropriate to claw back money the original caretaker was not asked to pay from the final caretaker who paid a premium for the rights.

1. If the exclusive use is extinguished, the only alternative is un-managed, free parking for all students. There are no resident owners to monitor the car park, and the committee cannot do so. The cost of maintaining the car park would fall to the body corporate.

1. If the exclusive use areas are to be extinguished, a proposal should be put to all owners at a general meeting with proposed compensation.

1. They argue the need for an onsite caretaker at the scheme.

• [27] The body corporate secretary provided submissions in support of the application from the owners of 12 lots. These submissions, each in the same terms, seek a resolution to the issue of the control of the car parks. They say the respondent is not the caretaker or letting agent but has exclusive access over the car park and can prevent tenants and other owners from using parking spaces. They say the respondent can choose to charge tenants for parking even though they have no role, authority, or contract with the body corporate. They say there is no orderly management of the car park and parking is left to tenants on a first-in, best dressed basis, causing arguments. They also say the respondent does not maintain, clean, or ensure the tidiness of the carparks. The submitters argue the car park is a shared facility and should be managed fairly and transparently for the benefit of all. They say giving one owner exclusive use of all car parks is against the GCCC approval and not in the interests of all.
• [28] The applicant's reply to the submissions includes:
  1. The respondent's submission does not address the issue in the application, that the grant of exclusive use was not valid.
  2. The respondent provides no evidence of any extra value paid for Lot 8 because of the exclusive use. The due diligence at the time would have revealed there was no consideration paid for the grant of exclusive use in 2004.
  3. The alternative solutions are proposed without evidence that they would be allowed under the development approval.
  4. The proposal to rent the car spaces does not address the issue that the development approval required the car spaces to be available to the scheme and not one owner. The proposal to operate a paid car park is not allowed in the development approval and would require a change to the development approval. The respondent does not provide evidence that they have development approval to operate a paid car park.
  5. The submissions from the opposing owner misconceive the nature of the dispute, are contradictory, and do not respond to the main issue in the application.
  6. The body corporate's legal advice in 2004 was limited to the procedure. It did not investigate or consider the development approval or whether it was unreasonable.
  7. It denies the exclusive use benefited the body corporate when it was granted to Lot 8.
  8. In setting the number of car spaces, the development approval was based on the formula used by the town planner. The town planner's notes clearly imply the intended use of the car parks was for occupiers. Once exclusive use was granted to Lot 8, there were no car parks available for other occupiers.
  9. The fact that the owner of Lot 8 is not currently enforcing the exclusive use by-law does not mean the scheme's occupants have free use of the area. The respondent could stop exclusive occupants from using the area at any time.
  10. The management agreement is not relevant when it does not oblige the caretaker to make car spaces available to tenants. It is not a duty under the management agreement that the owner of Lot 8 make car parks available to the occupiers.
  11. The management agreement did not include a requirement for the caretaker to operate a minibus. The respondent does not operate a minibus and has no obligation to do so.

• [29] Having reviewed the submitted material, I sought further information from the body corporate. I invited it to provide any reason for the delay in bringing this application and why the relevant time limit should be waived. I asked whether it had any opinion or determination from the GCCC or a relevant town planning professional as to whether the disputed grant of exclusive use breaches the development approval or planning laws. I also sought the notice of the AGM.
• [30] The body corporate provided the AGM notice. However, it said it had doubts as to the veracity of the explanatory note. It says it investigated whether the plans disclosed in the off the plan contract were different from the CMS plans but said it could not locate an off the plan contract. However, looking at correspondence between the developer and the then body corporate manager in the lead up to the AGM (which it provides), the actual changes in the CMS, the legislative requirements for disclosure for proposed lots, and the date of the survey plan, it claims the explanatory note was a fiction. It says the explanatory note is not a credible explanation for the motion and is contrary to contemporaneous correspondence. It further says the explanatory note does not mention that the wording in exclusive use By-law 49 and schedule E was changed. And it says plan C in the CMS is dated in April 2004 and so could not have been attached to the sale contracts. As the explanatory note is inconsistent with the actual circumstances, it says it appears to have been designed to mislead owners. As such, it says owners were not properly informed about the carparking rights being taken away.
• [31] The applicant did not provide evidence from GCCC or a town planner that the disputed grant of exclusive use was contrary to the development approval. Rather, it provided the opinion of a barrister with apparent experience in planning law. The opinion stated there is a 'strong argument' that the exclusive use by-law means the use is not generally consistent with the plans because the car parks are not required to be used for the approved use (student accommodation) and so is in breach of the development approval. It said an alternative view was that the use of the area by one owner to operate a car parking business was a code assessable use of land for which development approval is required. The advice concludes that the effect of the effect of the by-law allocating the exclusive use of the car park unconditionally changed the use of the premises such that the use is not generally in accordance with the approved plan, and the use of the premises is not for student accommodation and ancillary uses but is for student accommodation and a parking station. The advice said each of those conclusions amounts to a breach of the development approval and is an offence.
• [32] The body corporate also commented on the time limit issue.
• [33] The body corporate said if the council were to prosecute the contravention of the development approval on the basis that the car parks were not available, it could face significant fines. It says dismissing the application in circumstances where it could be prosecuted for a contravention of development approval is not a just and equitable resolution of the dispute.
• [34] I invited the respondent to comment on the body corporate's response. They said:
  1. The body corporate relies heavily on alleged breaches of the original development approval and the Planning Act 2016, but it is well established that an adjudicator does not have jurisdiction to enforce or determine compliance with planning approvals.
  2. Whether there is a planning breach is a matter for the GCCC. No enforcement notice or proceeding has been issued by the GCCC in over 20 years.
  3. To declare the by-law invalid based on alleged planning offences would usurp the jurisdiction of the Planning and Environment Court.
  4. Once recorded in a CMS, exclusive use by-laws are binding and cannot be revoked without the consent of the affected lot owner. They have never consented to the removal of these rights. The attempt to retrospectively invalidate the by-law undermines the statutory protections on vested proprietary interests.
  5. They purchased in good faith, relying on the registered CMS. The exclusive use areas were a central component of the lot's value and were marketed as such. The distinct configuration and exclusive use allocations differentiate Lot 8 from other lots.
  6. For 20 years the body corporate has operated on the basis that Lot 8 held these rights. That long-term acquiescence weighs strongly against disturbing the vested rights. Principles of equity and estoppel prevent retrospective deprivation of interests.
  7. Removing these rights now would retrospectively strip proprietary rights without compensation, contrary to fundamental property law principles and fairness.
  8. The AGM notice demonstrates that owners were informed that the arrangement had been disclosed to purchasers. It required unanimous support. The suggestion that the explanatory note was a fiction is undermined by the plain wording.
  9. They have consistently sought cooperative solutions.
• [35] The body corporate responded to the respondent's remarks, including:
  1. It denies an adjudicator does not have jurisdiction to determine the application and says where the respondent did not previously object to jurisdiction it cannot now do so.
  2. The cases cited regarding compliance with planning approvals support its position that an adjudicator can declare an exclusive use by-law invalid it if it has been granted contrary to planning approval for the scheme.
  3. In one cited case the adjudicator found the body corporate had acquiesced and encouraged an owner to believe they had a grant of exclusive use, but that did not change that the exclusive use by-law and allocation was invalid.
  4. Irrespective of whether owners were misled by the AGM notice, an exclusive use by-law cannot be made where it is contrary to a development approval.
  5. The respondent's proposal of leasing car spaces is contrary to the planning approval.
  6. The grant of exclusive use to the respondent over the car spaces as an amenity which the council approval required to be available for all owners was always invalid.

• [36] The issue to determine in this dispute is whether the original body corporate decision to grant exclusive use of car parking spaces at the scheme was valid. I will first discuss a preliminary issue. I will then note the legislative provisions about exclusive use and discuss the reasons why the applicant asserts that 2004 AGM Motion 9 was invalid.

• [37] The Act provides, in part, that an application to invalidate a general meeting resolution must be lodged within 3 months of the date of the meeting.[10] The Commissioner must deal with a late application as if it were in time. An adjudicator may then waive the time limit for 'good reason'.
• [38] Whether there is 'good reason' to exercise the discretion to waive the time limit requires consideration of the circumstances such as the length of the delay, the reason for it, any significant prejudice to the respondent and others, and the prospects of success if the application had been made in time_._[11] An applicant bears the onus of satisfying the adjudicator that the time limit should be waived.
• [39] This application did not seek an order to invalidate the CMS or the amendment to By-law 49. Rather, it specifically sought an order to invalidate the resolution passed on Motion 9 on 28 June 2004. An application to invalidate that resolution needed to be lodged by 28 September 2004 to be made in time. It was not lodged until well over 20 years later.
• [40] The application did not explain why the validity of the AGM resolution was not challenged earlier or seek a waiver of the time limit. So, I asked the applicant to give any reason for the delay and why it asserted the time limit should be waived.
• [41] In response, the body corporate said the by-law amendment was triggered by the developer 12 months after the registration of the scheme and it at the time it was unaware of the resulting planning issue. It says the issue only manifested itself when the management agreement was terminated. It says it mistakenly believed the use of the car park was tied to the management agreement. It says it did not receive advice about the development approval conditions and the effect of the exclusive use by-law until this dispute commenced. It says it mistakenly believed the by-law could be reviewed under section 178 of the Act but that does not apply.
• [42] The applicant also argues there is no prejudice to the respondent from the delay. It says the respondent has not evidenced that they paid extra consideration for the attached exclusive use. It says based on the provided opinion, the respondent cannot rent the car parks or operate a paid parking station without council approval. Accordingly, it says the car park has no intrinsic value to the respondent and so no detriment would be suffered by the respondent if the amendment to the by-law or the resolution passing the amendment were declared invalid.
• [43] Conversely, it says the detriment to the body corporate and other lot owners is 'serious and extreme' where it remains indefinitely liable to prosecution for development offences.
• [44] The body corporate further asserts that, based on the opinion it provides, the 2004 amendment to By-law 49 was always invalid as a contravention of the development approval. It submits that the delay in bringing the application has no bearing on the validity of the by-law. It says there is no limitation period for the prosecution of a development offence and the only way to remove the possibility of prosecution of the offence is to record a new CMS without the 2004 amendments. It says while the relief sought in the application is for a declaration that the motion was invalid, the amendment to the by-law should also be declared invalid. It says that declaration does not trigger the operation of section 242 of the Act.
• [45] It may be the body corporate did not turn its mind to the validity of the 2004 AGM resolution, or the consequences of the grant of exclusive use, until the management agreement was terminated. But it cannot be said that the body corporate was not aware of the substance of the decision at the time or since or did not previously have the opportunity to seek advice on that matter. It has not explained why its misapprehension of its legal rights and obligations, or its failure to inquire into those matters, amounts to a good reason for a 20-year delay.
• [46] I also do not accept that the delay has not prejudiced the respondent. Regardless of the consideration paid for the lot, the respondent acquired a lot that benefited from significant exclusive use rights. It acquired the lot more than 13 years after the AGM decision and held it for many years before any issue was raised. And despite the use to which the exclusive use area is currently being put to, or how it could be used in future (with or without an application to council), a grant of exclusive use is intrinsically a property right. Particularly given the size of the grant in this case, it is ostensibly a valuable one. The body corporate has not offered any compensation or other measures to address the loss of property rights that would arise from the order sought. The Queensland Civil and Administrative Tribunal (QCAT) has said:[12]

In the context of waiver or extension of time limits, the incurring of prejudice by a party which cannot be adequately compensated for is usually fatal to the grant of an extension.

• [47] My preliminary view is the applicant has not provided adequate basis to waive the time limit on an application to invalidate a resolution that it and owners accepted and relied on for over 20 years. However, I will consider the merits of the application in the event it was made in time.

• [48] The legislation provides for exclusive use by-laws which attach to a lot and give the occupier of the lot exclusive use of, or other special rights to, common property or a body corporate asset.[13]
• [49] A body corporate must pass a resolution without dissent to record a new CMS that adds or alters an exclusive use by-law.[14] Also, an exclusive use by-law can only attach to a lot, or stop applying to it, if the lot owner benefiting from the by-law consents in writing to the new CMS before the resolution to record the new CMS passes or they vote personally on the resolution.[15]
• [50] Exclusive use by-laws are not an appropriate means of giving a caretaking service contractor the right to use common property for purposes related to their business. Rather, a body corporate can resolve to give a service contractor or letting agent an occupation authority, authorising them to occupy part of the common property for a purpose that is necessary to perform their obligations as service contractor or operate as a letting agent.[16] Notably, the regulations say a service contractor or letting agent may only acquire rights to occupy part of common property for the purpose of their engagement or authorisation under that section.[17] That provision has been in place since before the disputed AGM resolution.[18]
• [51] However, the legislation provides a specific process to review exclusive use by-laws in circumstances where the owner of a lot benefiting from an exclusive use by-law ceases being a body corporate manager, service contractor or letting agent, and the by-law is not for the continuing engagement or authorisation of the lot owner as a body corporate manager, service contractor or letting agent. If there is a dispute about whether the exclusive use by-law should continue to be in force in such cases, the body corporate can apply for the order of a specialist adjudicator or QCAT for a review of the exclusive use by-law.[19] The order must '...have regard especially to the interests of all owners of lots included in the scheme in the use and enjoyment of their lots and of the common property...'. The order can potentially provide for a new CMS to be recorded omitting the exclusive use by-law and compensation to the owner.

• [52] The body corporate challenges the validity of the AGM resolution on two grounds. The first is that it was beyond the power of the body corporate because it was contrary to the development approval. The second is that it was unreasonable.

• [53] The body corporate says the effect of the grant of exclusive use was to remove the right of student occupiers to park in the 29 common property car spaces and the right of the body corporate to park a minibus in the minibus parking space. It says the owner of Lot 8 then has a right to exclude occupiers and the body corporate from the spaces.
• [54] The body corporate says the effect of the grant of exclusive use is contrary to the development approval requirement that 29 car spaces be available for student accommodation, that the minibus park be available for the scheme to operate the minibus service, and that only one car space be allocated to the onsite manager. Accordingly, it says the grant of exclusive use was unlawful at the time it was first given and was always invalid. It says an amendment to the development approval would have been required to change the use of the car spaces.
• [55] It seems clear the GCCC's development approval expected a minimum of 32 parking spaces at the scheme, with 29 spaces available for student accommodation, one for the manager's residence, and two visitor parking spaces.
• [56] But it does not appear from the GCCC documentation that the GCCC imposed any requirement as to the management and control of the required car parking spaces.
• [57] It is not suggested there do not continue to be at least 32 parking spaces at Nexus Place.
• [58] Given the exclusive rights allocated to Lot 8 under the CMS, it certainly appears the owner of Lot 8 would be able exclude occupiers and the body corporate from the parking spaces, such that student occupiers have no inherent right to park in the 29 spaces. Before the current CMS was recorded, the car park was unallocated common property and there was no restriction on its use except in regard to any designated visitor parking under By-law 23. But before the current CMS was recorded, occupiers still had no inherent right to park on common property given there are less car spaces than the number of lots or potential occupiers.
• [59] In any event, it is not clear that in practice residents are prevented from parking in the common property car park. The submissions in support of the application say parking is on a first-in basis. I have been given no evidence that parking is not currently available for occupiers, or that the respondent is preventing residents parking at the scheme. Moreover, I have been given no evidence that residents have ever been prevented from parking in the 29 spaces since the current CMS was recorded. As such, I have no evidence that the allocation of exclusive use rights has ever been exercised in a way that prevents the residents of the student accommodation from using the 29 car spaces, or that the respondent is currently utilising their exclusive use rights in that way.
• [60] It may be that the nature of the exclusive use allocation is inherently contrary to the development approval, regardless of the actual practices of the current or any former owner of Lot 8. However, as clearly acknowledged by both parties, it is not the role of an adjudicator to interpret or enforce planning laws.[20] Where it is unequivocal that a by-law is contrary to planning laws or development approval, there may be a basis for an adjudicator to invalidate the by-law. However, I do not consider that is the case here.
• [61] The applicant has not provided any evidence that the GCCC has made any determination or expressed any view that the grant of exclusive use inherently breaches the development approval conditions or that the way in which the owner of Lot 8 is currently exercising their exclusive use rights results in a breach of the development approval. While there may be no limitation period on the prosecution of a development offence, I consider it is noteworthy that the GCCC has not pursued any alleged non-compliance for over 20 years. The applicant has also not evidenced that it has canvassed with the GCCC the scope to apply for a variation to the development approval to address any actual or perceived non-compliance.[21]
• [62] I acknowledge the opinion of the applicant's counsel that there is a 'strong argument' that the effect of the exclusive use by-law is that the use of the scheme is not in accordance with the development approval, and the reasoning outlined for that opinion. However, on balance I do not consider that opinion is expressed in such unequivocal terms that compels me to determine that the grant of exclusive use over the car park area of itself definitively contravenes the development approval. I do not consider that is a conclusion I am empowered to reach.
• [63] I consider that unless and until there is a definitive finding by a qualified and binding authority that the form of the exclusive use allocation or the way it is exercised is contrary to the development conditions for this scheme, I am unable to conclude the decision to record the CMS in 2004 was always invalid or that the current CMS itself is invalid.
• [64] Also, if the current arrangements breach the development approval, it is not necessarily clear that grant of exclusive use is inherently or was always contrary to the development approval. That is distinct, for example, from the nature and adequacy of any associated arrangements with the owner of Lot 8 (such as the management agreement), the actual conduct of the body corporate and the owner of Lot 8, or the actual use of the scheme.
• [65] And while the body corporate expresses concern that the development approval is being contravened in regard to the availability of parking for occupiers, there is no evidence that the body corporate was concerned with compliance with the conditions of development approval when the car parking was managed by the caretaker. Similarly, it does not appear to have the same concern about the development condition that it provides a shuttle bus service. It is evident that service is no longer being provided by a caretaker but there is no indication that the body corporate is taking steps to provide that service. That could give rise to a question about whether compliance with the development approval is the true motive for the application.

• [66] The body corporate asserts it was in breach of the obligation to administer the common property and assets for the benefit of owners, and to act reasonably, by resolving to take away the right to park in the 29 student parking spaces and the minibus parking space. It says the owners of Lot 8 did not pay any money or give any other consideration for the grant of exclusive use. It says there was no condition in the by-law or the management agreement to require the owner of Lot 8 to make the car spaces available for occupiers or the mini-bus park available to the scheme so it could operate the mini-bus service. It also notes there was no condition that the caretaker operate the mini-bus service. It says that, as a result, there are no car spaces available for the student accommodation, no place to park the mini-bus, and over 30 car spaces for the owner of Lot 8.
• [67] The Act requires a body corporate to act reasonably in regard to its functions, including in making or not making a decision.[22]
• [68] The test for whether a decision is reasonable is objective.[23] It is a question of fact, having regard to all the circumstances.[24] 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".[25] 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."[26]
• [69] The person challenging a decision bears the onus of establishing that the body corporate failed to act reasonably.
• [70] If a body corporate has failed to act reasonably in making a decision, an adjudicator can make an order that is just and equitable to resolve a dispute, including overturning or amending that decision.[27] But it is not for an adjudicator to supplant the body corporate's decision-making or impose their own views. A decision will only be set aside if an adjudicator is satisfied the decision was so unreasonable that no reasonable body corporate could have come to it, or it is 'conflicted, arbitrary, patently absurd or plainly unjust'.[28]
• [71] On its face, it may seem unfair that one owner should have exclusive use of significant areas of common property while others have none. However, there is no general statutory requirement for car parks or any other area of common property to be allocated for exclusive use at all, or to be allocated on an equitable basis. Indeed, it is common for allocations of exclusive use to vary significantly between lots. In this case, it is evident that the intention from the inception of the scheme was for Lot 8 to be different to the other lots. By-law 2 in the CMS, for example, describes a different use for Lot 8 than other lots. Moreover, there are insufficient car spaces to allocate them to be allocated equitably, with one to each lot.
• [72] At the time of the disputed AGM resolution, the owners of Lot 8 were the caretaking service contractors, albeit that ownership of the lot changed soon after and just before the current CMS was recorded. Given the nature of the scheme and the use of the other lots, it may have been inherently logical for the body corporate to give the owners of Lot 8, as the only resident owners, control over car parking at the scheme.
• [73] If that control was intended to be part of the caretaking and letting business, it might have been expected that it would be at least mentioned in the management agreement. Also, it might have been expected that an occupation authority would be established rather than an exclusive use by-law. But I have insufficient clear evidence that it was intended as part of the business. Moreover, notwithstanding what it might logically have done, the applicant does not establish that the body corporate could not decide under the body corporate legislation to give the owner of Lot 8 control over part of the common property without further conditions about its management and use.
• [74] Having regard to the current consequences of the 2004 decision, it is clearly frustrating for other owners that an owner who is not a caretaker and is not associated with a caretaker has control over most of the carparking at the scheme. However, as noted above, it does not appear to be that there is no carparking available for student occupiers, or that the owner of Lot 8 is preventing residents from parking at the scheme. And the applicant has apparently not agreed to suggestions from the respondent that would provide the body corporate some control over parking while retaining the existing exclusive use allocation.
• [75] The fact that current owners do not like the way the owner of Lot 8 is currently using or managing the exclusive use areas granted to them under the CMS does not of itself mean the decision of the owners in 2004 to grant exclusive use was unreasonable.
• [76] The primary difficulty for the applicant in establishing that the decision at the 2004 AGM was unreasonable is the significant passage of time.
• [77] If any owner who voted in favour of the 2004 AGM resolution (or did not vote on the motion) is still an owner, the applicant has not provided any statements from them. The explanatory note and annual report included in the AGM notice appear to be the only currently available evidence as to the reason for the disputed motion. The applicant has provided no clear evidence that the facts, circumstances, and considerations before the voters at the time were other than those stated in the AGM notice. No evidence has been provided that any owner misunderstood the circumstances at the time or was misled.
• [78] I struggle to understand the applicant's assertion that emails apparently between the developer and its solicitor and the body corporate manager at the time evidence that the explanatory note was fictitious. I cannot discern anything inherently contradictory in that correspondence.
• [79] I am not convinced that anything turns on the fact that the explanatory note did not explicitly refer to changes to the wording of By-law 49 and the schedule E where those changes were only to change the reference from plans A and B to plans A, B and C.
• [80] If a plan of exclusive use areas was included in the original purchase contracts, as indicated in the AGM notice, there is no reason it needed to be in the form of a formally surveyed or dimensioned plan. But a surveyed plan was likely required to record the new CMS. Discussions on the preparation of a survey plan does not of itself evidence that there was no plan of exclusive use included in sale contracts.
• [81] Similarly, the fact that the explanatory note said the exclusive use plan in the original CMS differed from that in the disclosure statement does not necessarily only mean that an incorrect plan was attached that could be swapped. Rather, it may simply be that the exclusive use plan in the original CMS was prepared based on an allocation of areas A and B and did not include all areas that had been disclosed to the original purchasers. The inclusion of the reference to area C, in addition to the new plan of exclusive use, would then logically have been required to give effect to the inclusion of the new plan of exclusive use.
• [82] On its face, the AGM notice indicates a logical and understandable basis for recording the new CMS. The applicant has not substantiated its claims the notice was false or misleading.
• [83] I also have no evidence that it was inherently unreasonable to consent to the new CMS in 2004 without additional remuneration from the then owner of Lot 8, if that was the case. No evidence has been provided that the original or any subsequent caretaker did not pay a premium, in one way or another, for the benefit of exclusive use. If the original development was planned on the basis that the caretaker would have exclusive use of the carpark, that may have been part of the consideration between the developer and the original caretaker when first entering into the management agreement or acquiring the lot. It was open to owners in 2004 to vote against the new CMS if they required compensation for grant. But the legislation does not require a body corporate to be paid directly or indirectly for a grant of exclusive use.
• [84] The submissions also point to the consequences of the arrangement. But the concerns only appear to have arisen since the termination of the management agreement. I have been given no indication the arrangement did not operate as originally intended for the first 20 years. That does not support a contention that it was unreasonable record the CMS in 2004.
• [85] On the limited submitted evidence, the applicant has not demonstrated that the votes cast by owners at the time were based on considerations were improper or irrelevant. It has not established that the body corporate could not reasonably have come to the decision at the time or that the decision at the time was 'conflicted, arbitrary, patently absurd or plainly unjust'.

• [86] The body corporate did not seek an order that the current CMS or the 2004 amendment are invalid. Rather it sought to invalidate the decision to pass AGM Motion 9. For the reasons given, it has not satisfied me that decision was invalid. In the circumstances, I am not satisfied there is good reason to waive the 20-year delay in bringing this application. For the reasons outlined, I have dismissed the current application.
• [87] The body corporate now purports to seek a declaration that the 2004 amendment to By-law 49 and the grant of exclusive use over the car park was invalid, substantively on the basis that it contravenes the development approval. The body corporate may have genuine concerns as to whether the exclusive use allocation in the CMS and the current use of the scheme contravenes the development approval. However, without more definitive evidence that the exclusive use allocation is contrary to the development conditions or approved use for this scheme, I do not consider that is a conclusion I am empowered to reach.
• [88] If the body corporate believes the exclusive use of the car spaces were allocated to Lot 8 for purposes relating to management agreement (notwithstanding there is no reference to that in the by-laws or agreement), it could be argued the grant of exclusive use to Lot 8 was contrary to section 147 of the Accommodation Module. But the applicant has not argued that as a basis for the orders sought in the grounds to the application, or sought to substantiate such a claim, despite the issue being previously canvassed by its previous legal advisors. As that was not stated by the applicant as a basis for the order sought, the respondent was not on notice in the application that it was an issue in dispute. Accordingly, I do not consider it would be appropriate in the context of this application to investigate or make any findings on that issue.
• [89] As the current dispute about the car park only arose since the termination of the management agreement, it may give rise to a question of whether there is a dispute for the purposes of the exclusive use by-law review process in section 178 of the Act. The body corporate apparently considers that process is not applicable because the current owner of Lot 8 was never the caretaker. There may be a question of statutory interpretation as to the application of that section. But if a dispute under that section exists, I do not have jurisdiction to determine it.
• [90] Beyond that, arguably there is scope for the parties to engage in constructive dialogue on how to resolve the current issue. Potentially (and I do not purport to comment on the legality or appropriateness of any potential options) that might include agreeing to the imposition of conditions about the use of the exclusive use areas, the body corporate offering compensation for the respondent relinquishing exclusive use, an agreement to give the body corporate control over the parking spaces, or applying to the GCCC for a change in the conditions or use under the development approval.
• [91] The submissions indicate a view that the respondent is not maintaining the exclusive use areas as required under By-law 49. If that is the case, it is open to the body corporate to pursue a dispute on that issue with the respondent. If the respondent fails to meet their maintenance obligations, the body corporate could resolve to undertake the required work itself and recover the reasonable cost from the respondent as a debt.[29] But any such maintenance failure is not a basis to invalidate the decision to grant the exclusive use or the grant of exclusive use itself.

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

[8] Titles dealing number 70640445, recorded 4 April 2003

[9] Titles dealing number 707887528, recorded 13 July 2004

[11] See Kulcsar & Ors v Body Corporate for Larnaca Court CTS 10467 [2016] QCATA 47, Weeks v Commissioner for Body Corporate (QDC, unreported, Dodds, 13-99, 20 September 1999)

[12] Cairns Central Plaza Pty Ltd v Lloyd and Anor [2013] QCATA 26, para 40

[16] Section 147 of the Accommodation Module

[17] Section 147(7) of the Accommodation Module

[18] Noting section 89(7) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997

[20] This is a distinct question from whether I have jurisdiction to determine the application, and I have accepted that I do have jurisdiction.

[21] The applicant has commented that it is unlikely the GCCC will grant a variation to the development approval, but that assertion is not explained or substantiated.

[23] Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

[24] Waters v Public Transport Corporation [1991] HCA 49

[25] 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

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

[27] For example, Item 24 of Schedule 5 of the Act

[28] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 34, 74 and 98

[29] Noting section 212 of the Accommodation Module