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

REASONABLENESS - where applicant argues that failure by the body corporate to approve installation of LED downlights was unreasonable - whether the body corporate failed to act reasonably when refusing permission for the applicant to install ceiling downlights

Act, ss 20, 68, 94, 100, 152, 159; Land Title Act 1994 s115O

Accommodation Module, s 177

I hereby order that the Body Corporate for Park Breeze Luxury Apartments CTS 29235 is deemed to have approved the request by the owner of Lot 79 to install ducting through their ceiling area to service their bathroom exhaust fan.

I further order that the Body Corporate for Park Breeze Luxury Apartments CTS 29235 is deemed to have approved the request by the owner of Lot 79 to install recessed LED Downlights in their ceilings subject to the following conditions:

1. The owner of Lot 79 is to ensure that the installation is undertaken by a licensed electrical contractor.
2. The installation is to comply with all applicable statutory requirements, including any requirements under the Electrical Safety Regulation 2013, any Australian Standard, or AS/NZ Standard mandated by the Regulation, and any applicable provisions of the National Construction Code
3. If requested, the owner of lot 79 is to provide photographic evidence of the completed compliant work to the Body Corporate.

• [1] Park Breeze Luxury Apartments consists of 84 lots and common property. The scheme is located at Southport and is regulated by the Accommodation Module.
• [2] This is a dispute between the owner of lot 79 and the body corporate, over their failure to approve certain improvements, specifically the installation of LED downlights and the redirection of toilet exhaust ducting.

• [3] The owner seeks the following orders from an adjudicator:

1. The Committee's decision refusing the LED downlights and the redirection of the toilet exhaust fan ducting be set aside.

2. Retrospective approval be granted for the completed LED downlights.

3. Approval be granted for the proposed redirection of the toilet exhaust fan ducting.

• [4] On March 3, 2025, Lot 79 submitted a Lot Improvements Application for modern LED downlights throughout the unit, and a new exhaust fan in their bathroom with new exhaust ducting to be installed in their ceiling.
• [5] The applicant says that on 17th March 2025, the Committee approved the new bathroom exhaust fan but rejected his proposal to install LED downlights without technical justification or explanation.
• [6] On 19 March 2025 the Body Corporate Manager wrote to the applicant on behalf of the committee, advising that their application to undertake certain renovation works including installation of an exhaust fan in the bathroom, was approved subject to certain conditions.
• [7] However the letter also advised "Please note your request to install downlights throughout the unit has not been approved due to the roof space being common property".
• [8] Between March and May 2025, the applicant sought professional advice and asked the committee to reconsider his application, especially regarding the exhaust duct redirection. The applicant provided clarification and sought further advice from his electrician to address safety concerns and proposed a practical solution for the existing toilet ducting, emphasizing the financial strain caused by the delays in their home renovation.
• [9] The applicant says that despite his efforts, the committee confirmed its original denial without appearing to fairly reconsider the new technical evidence, leading him to proceed with the downlights due to financial necessity and ultimately seek adjudication to secure approvals.
• [10] Following rejection of the applicant's proposal, he sought clarification from his electrician who inspected the property. He says the electrician confirmed that the proposed LED downlights were suitable but recommended installing "fire collars" for added fire protection where the downlights penetrated the ceiling.
• [11] During the inspection, the electrician identified an issue with the existing exhaust fan in the bathroom. The electrician found that it was continuously running and loud. He recommended redirecting the existing ducting to new bathroom exhaust ducting, venting through the balcony ceiling (soffit) to reduce noise and improve efficiency.
• [12] The applicant submitted this assessment and advice to the Body Corporate, asking the Committee to reconsider their decision. He says he followed up multiple times, stressing that the delays prevented the start of renovations and caused significant financial pressure as they were paying both rent elsewhere and their home mortgage without rental income.
• [13] The applicant says his request for approval was rejected by the committee. He further states that due to limited availability and scheduling limitations of tradespeople, he felt compelled to proceed with the installation of the LED downlights in order to avoid further delay. He says the downlights were properly installed with fire collars.

• [14] On May 26, 2025, the applicant received the minutes of the committee meeting held on 21 May 2025, which only contained a single line: "Lot 79 LED Downlights - it was RESOLVED that the request be declined".
• [15] The applicant sought a reconsideration of the decision but on 3 June 2025 was informed the committee decision stood, and was advised to lodge a conciliation application if he wished to dispute the outcome. The applicant subsequently lodged a Form 22, and a conciliation session was scheduled for July 3, 2025. However, the Body Corporate failed to participate. The applicant says this demonstrates an ongoing pattern of "unreasonable and dismissive conduct".

• [16] The applicant asserts that the Body Corporate has failed to act reasonably under Section 94 of the Body Corporate and Community Management (BCCM) Act and has not adequately responded regarding improvements on common property under Section 100.
• [17] The applicant argues that the improvements (downlights and ducting redirection) are entirely within the roof space of the unit, are low-risk and have no effect on common property appearance or use.

• [18] Pursuant to section 243 of the Act, the body corporate and all lot owners were invited to make submissions regarding the outcomes sought by the applicant. Four submissions were received. Two submissions opposed the application and two submissions supported the application.
• [19] The committee says the ceiling space is common property and that the applicant defied the committee decision not to approve installation of the downlights. The committee believes the downlights and ducting should be removed and the fire rated ceilings should be returned to their original condition.
• [20] I note that in June 2025, some months after the committee refused permission to install the downlights, the on-site managers engaged Immix Electrical to conduct an inspection of work done in lot 79 and prepare a report. This report was forwarded to this Office on August 12, 2025 via email by Darren Radlow.
• [21] The Immix Report[1] raised a number of issues regarding the work including the following:

1. New ducting for an exhaust fan was observed with an outlet installed in the balcony ceiling.

2. Downlights had been recessed into the plaster board ceiling but had no coverings and these downlights were not "fire rated".

3. Numerous cable penetrations were present and had not been fire sealed with fire-rated products such as caulking or expanding foam.

• [22] A submission was received from the owner of lot 80 who was concerned that if an exhaust fan was installed in lot 79, the noise would come through the walls.[2]
• [23] A submission was also received from the owner of lot 48, a licensed electrician who supports the application. He notes that the light fittings will protrude into the roof space, as do the exhaust fan which the committee has already approved. He says the applicant has provided a significant amount of detail regarding the type, suitability, and safety of the proposed downlights.
• [24] He is not aware of any safety issues due to the installation of additional wiring. Electrical cabling for light fittings specific to that unit is already in the ceiling space and maintenance of any such cabling is the responsibility of the unit owner. He would expect a maximum of six downlights would be required for a lounge sized room. This would involve up to an additional 18m of electrical cabling which would weigh less than 2 kg and it is spread out around the ceiling area.
• [25] In conclusion he says that this type of lighting is very common and in the absence of evidence that it poses some sort of risk to the building, he believes the committee should review its decision in favour of the applicant.

• [26] The applicant says he has noted that the existing downlights are not fire-rated. His electrician has ordered fire-rated downlights and the currently installed downlights will be replaced once the fire-rated downlights arrive.
• [27] He has provided a copy of the Immix Report to his electrician for review. Several of the items appear to relate to older, pre-existing electrical works, rather than works recently carried out. Upon his return to complete installation of fire-rated downlights, his electrician will also check all items raised in the report.
• [28] He advises that any electrical work by his electrician will be made fully compliant and safe. Once the fire-rated downlights have been installed and all checks are completed, he will provide photographic evidence of the compliant works to the Body Corporate.

• [29] The principal question is whether the body corporate has acted unreasonably in refusing to give approval for installation of recessed LED downlights and exhaust fan ducting.
• [30] My review of the subdivisional plan for the scheme shows that lot 79 is on level D, the top level, and therefore I am of the view that the "roof space" above lot 79 is common property.
• [31] By-law 34 for the scheme provides that permission is required for alterations and renovations to a lot, including alterations to electrical installations. Further, to the extent that the downlights protrude into the roof space, they may be considered improvements to common property requiring approval by the body corporate committee under section 177 of the Accommodation Module.
• [32] A body corporate must act reasonably, in the performance of its functions, including making or not making a decision.[3] If the applicant is able to satisfy me that the committee did not act reasonably in making the decision or that the decision is unreasonable, I may overturn it.[4] A committee can be understood to have acted reasonably if "a notionally reasonable committee faced with the same issue could (not would) have honestly and rationally reached the same conclusion on a proper consideration of all the available material".[5]

• [33] On March 3, 2025, Lot 79 submitted a Lot Improvements Application for modern LED downlights throughout the unit, and a new exhaust fan in the bathroom.
• [34] On 19 March 2025 the Body Corporate Manager advised the applicant that various proposed renovations were approved but "your request to install downlights throughout the unit has not been approved due to the roof space being common property".
• [35] Subsequently, on 26 May 2025, the applicant received committee meeting minutes from 21 May 2025, which only stated: "Lot 79 LED Downlights - it was RESOLVED that the request be declined". The committee says the ceiling space is common property and that the applicant defied the committee decision not to approve the downlights.
• [36] By-law 34 is a "permissive by-law", pursuant to which the body corporate is given discretion as to whether it will approve specific requests and it is required to consider each request on its merits and in its particular circumstances.[6] A body corporate must actually exercise the discretion given to it in the by-law.[7] A complete failure to exercise the discretion available to the body corporate is a failure to act reasonably. Similarly, it is not reasonable to refuse an application without a cogent basis for that belief. [8]
• [37] As outlined above, I believe that a prohibition on installation of recessed downlights on the basis that (1) the ceiling space is common property and (2) installation of downlights would involve the presence of additional wiring, is unreasonable. I am also of the view that refusal of permission to install downlights would be unreasonable where an applicant undertakes to ensure that the installation is undertaken by a licensed electrical contractor in compliance with statutory requirements.[9]

• [38] As stated above, on 17 March 2025 the body corporate approved the installation of the bathroom exhaust fan. The applicant advises that this exhaust fan replaced an existing exhaust fan and during installation new ducting was installed, venting through the balcony soffit to reduce noise and improve efficiency. However the body corporate subsequently requested its removal.
• [39] I am of the view that the "roof space" above lot 79 is common property. By-law 34 provides that permission is required for alterations and renovations to a lot. Further, section 177 of the Accommodation Module provides that improvements to common property require approval by the body corporate. However the body corporate has not given any reason for its failure to approve installation of the ducting other than claiming that the applicant installed new ducting without its permission. I do not believe there is any logical basis for the body corporate's refusal to give permission for installation of the ducting.

• [40] It should also be noted that lot 79 is entitled to a statutory easement to accommodate utility infrastructure pursuant to Section 115O of the Land Title Act 1994 which provides as follows:

115O Easements in favour of lots for utility services and utility infrastructure

(1) An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.

(2) However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.

• [41] The definition of utility infrastructure in Schedule 6 of the Act includes cables, wires, drains, ducts, plant, and equipment for supplying utility services.
• [42] A statutory easement creates automatic rights and is subject only to the requirements of section 68 of the Act regarding the exercise of the rights, including that the rights must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property. Section 68 provides as follows:
  1. Exercise of rights under statutory easement

(1) Rights under a statutory easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.

(2) If a statutory easement entitles a lot owner to enter another lot or common property to carry out work, the owner -

(i) to the other lot's owner, and additionally, if the owner is not the occupier, the other lot's occupier, before entering the lot to carry out work; or

(ii) to the body corporate, before entering the common property to carry out work; and

(b) must comply with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.

(3) If a statutory easement entitles the body corporate to enter a lot to carry out work, the body corporate must give reasonable written notice to the lot owner before entering the lot to carry out work.

(4) Subsections (2) and (3) do not apply if the need for the work to be carried out is, or is in the nature of, an emergency.

• [43] I am of the view that the applicant is entitled to a statutory easement over common property such as the ceiling space to accommodate electrical wiring and exhaust ducting. A statutory easement is subject only to the requirement that the exercise of rights under the statutory easement does not interfere unreasonably with the use of enjoyment of lots or the common property. I am not satisfied on the evidence that the proposed downlights, wiring and exhaust ducting would cause an unreasonable interference with the use or enjoyment of common property or other lots.

• [44] This leads to the question of what orders are appropriate in the circumstances.
• [45] Section 276 of the Act provides:

(1) An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorization of a person as a letting agent for a community titles scheme.

(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.

(3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in Schedule 5.

• [46] The orders which may be made by an adjudicator under Schedule 5 include the following:

17. If satisfied the body corporate's decision about a proposal by the owner of a lot to make improvements on or changes to common property is an unreasonable decision - an order requiring the body corporate -

• [47] As outlined above, I believe that a prohibition on installation of recessed downlights on the basis that (1) the ceiling space is common property and (2) installation of downlights would involve the presence of additional wiring, is unreasonable. I am also of the view that refusal of permission for installation of the downlights would be unreasonable where an applicant undertakes to ensure that the installation is undertaken by a licensed electrical contractor in compliance with statutory requirements.[10]
• [48] I note that on 19 June 2025, well after the committee refused permission to install the downlights, an inspection report was obtained by the on-site managers from Immix Electrical, an electrical contractor. This report was later forwarded to this Office via email by Darren Radlow on August 12, 2025.
• [49] The body corporate relies upon the Immix Electrical Report which contains the following observations regarding the downlights:
  • Downlights were recessed into the plasterboard ceiling but the installed downlights were not "fire rated".[11]
  • Numerous cable penetrations were present and had not been fire sealed with

fire-rated products such as caulking or expanding foam to fill penetrations.[12]

• [50] In response, the applicant states that he has a copy of the Immix Electrical report and has given this to his electrician for review. Several of the photos appear to relate to older, pre-existing electrical works, rather than works recently carried out. However he has acknowledged the concerns raised in the report. He says that his electrician has ordered "fire-rated downlights" and that the currently installed downlights will be replaced once the fire-rated lights arrive.
• [51] He advises that any electrical work by his electrician will be made fully compliant with relevant regulations and made safe. Once the fire-rated downlights have been installed and all checks are completed, he will provide photographic evidence of the compliant works to the Body Corporate.
• [52] In the circumstances I consider that it is just and equitable to make an order authorising the applicant to install the LED downlights and exhaust ducting, subject to appropriate conditions.

[1] See report from Immix Electrical dated 19 June 2025

[2] This is despite the fact that there was an existing fan in lot 79

[4] The Atrium Resort [2016] QBCCMCmr 164

[5] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at para 99

[6] Riverside Hamilton [2020] QBCCMCmr 13 at para 49; Noosa Shores [2023] QBCCMCmr 382 at para 23

[7] Seacrest [2016] QBCCMCmr 28; Melaleuca Park [2018] QBCCMCmr 87

[8] Seacrest [2016] QBCCMCmr 28 at para 37; The Atrium Resort [2016] QBCCMCmr 164 at para 38

[9] Such as the Electrical Safety Regulation 2013 and any Australian Standard, or AS/NZ Standard mandated by the Regulation, and any applicable provision of the National Construction Code.

[10] Including (1) the Electrical Safety Regulation 2013 and any Australian Standard, or AS/NZ Standard mandated by the Regulation, and (2) any applicable provision of the National Construction Code.

[11] Fire-rated downlights are designed to maintain fire resistance of the ceiling into which they are recessed (see AS/NZS 3000 Clause 7.5.2.3 & NCC Vol 1: Specification C3.15 Penetration of Walls, Floors and Ceilings by Services).