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)

BY-LAWS - whether the body corporate has failed to enforce a by-law against an occupier - APPLICATION FEES - where the body corporate did not make a reasonable attempt to participate in conciliation - whether the body corporate should pay the application fees.

Act, ss 94, 182-186, 280; Standard Module

1. The Body Corporate for Pier One Hervey Bay must take all reasonable steps to enforce By-law 3 and ensure the prompt removal of the pot plants obstructing the walkway outside Lot 11.
2. Within 14 days of the date of this order the Body Corporate for Pier One Hervey Bay must pay the applicant, Thomas Jehn, the amount of $220.60 as reimbursement for the application fees paid for conciliation application 1211-2024 and adjudication application 0097-2025.

• [1] This application is about by-law enforcement.
• [2] The applicant is an owner and occupier of Lot 12. The occupier of the adjacent Lot 11 has placed two pot plants either side of the front entrance to Lot 11, on a passageway on level 2. The applicant says the pot plants are directly in front of the door to their lot and are a trip hazard and a nuisance. He says this particularly affects one occupant of Lot 12 due to their medical circumstances. The applicant says the occupier of Lot 11 did not obtain body corporate approval for the pot plants and is breaching By-law 3 regarding obstructions.
• [3] The applicant says they have raised this with the body corporate since October 2023. He says the body corporate issued warning letters and by-law contravention notices, but the occupier of Lot 11 ignored requests to remove or relocate the pots. The applicant says the body corporate has failed to follow up or enforce the by-laws and has placed the onus on owners to act.
• [4] The applicant wants the body corporate to enforce By-law 3 and remove the pot plants. Also, as the body corporate did not make a reasonable attempt to participate in conciliation, the applicant wants the body corporate to pay the conciliation and adjudication application fees.

• [5] Pier One Hervey Bay community titles scheme 34699 (Pier One Hervey Bay) is an 18-lot scheme at Urangan. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 167969.
• [6] The application seeks the following orders:

That the Pier One Body Corporation enforce by-law No.3 and remove said pot plants posing a potential trip hazard. It is reasonably believed that the occupant Lot 11 has contravened the following by-law - Pier One Apartments by-law 3: Obstruction

1. An occupier of a lot must not obstruct the lawful use of the common property by someone else.

2. The pathways and drives on the land and any easement giving access to the land or any other land shall not be obstructed by any of the occupiers or used by them for any other purpose other than the reasonable ingress and egress to and from the respective lots and no occupier shall park nor permit to be parked any vehicle so as to prevent the passage of other vehicles over the said pathways, drives and easements.

3. I would like the body corporate to reimburse me for the conciliation and adjudication application fees.

• [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] On 17 November 2023 the applicant emailed the committee notifying it that the occupant of Lot 11 had placed pot plants in front of her door, obstructing the walkway and causing a possible trip hazard. The applicant noted the impact on his wife and his concern for her safety.
• [9] On 23 November 2023 the body corporate manager wrote to the occupier of Lot 11 on behalf of the committee advising of a complaint about the pot plants. The letter asked that she comply with By-law 3. It said if the by-law breach continued, it would take further action.
• [10] At a meeting on 29 November 2023 the committee resolved to remind owners that corridors are common property and any adornments including ornaments and pot plants require approval pursuant to the by-laws and workplace health and safety and fire legislation.
• [11] The occupier of Lot 11 disputed that the pots were obstructing the use of common property and asserting that they were on the entry to the private residence and not a public thoroughfare.
• [12] The minutes of the annual general meeting on 17 January 2024 record that it was noted during general business that residents must obtain body corporate approval before placing pot plants in walkways causing obstruction and nuisance in common areas and that residents with pot plants obstructing walkways were to remove them immediately.
• [13] The applicant then lodged a conciliation application against the occupier of Lot 11 in February 2024, seeking the removal of the pot plants.[3] The applicant and the occupier of Lot 11 participated in conciliation in April 2024 but could not reach an agreement.
• [14] On 17 July 2024 the body corporate issued a BCCM Form 10 and BCCM Form 11 to the occupier of Lot 11 alleging a breach of By-law 3. The forms said the two pots were obstructing the walkway and posing a trip hazard to Lot 12 and there had been no request for approval.
• [15] On 13 September 2024 the body corporate wrote again noting the complaint about the breach of By-law 3 by the pot plants obstructing the walkway and posing a trip hazard. It asked that the conduct cease within 14 days. The occupier of Lot 11 responded 'go to hell'.
• [16] In October the applicant asked the committee to pursue the matter or said that he would. The body corporate responded that it was happy for the applicant to proceed with an application.
• [17] At a committee meeting on 4 December 2024, about 'obstruction of walkways', the committee resolved that submitting a conciliation application would be a prolonged and costly exercise for the body corporate, but owners could submit their own application to the commissioner.
• [18] On 13 December 2024 the applicant submitted a BCCM Form 1 to the body corporate alleging a breach of By-law 3 by the occupier of Lot 11. He noted it was a function of the body corporate to enforce the by-laws. The applicant says the body corporate did not respond.
• [19] The applicant then applied for conciliation against the body corporate.[4] A conciliation session was scheduled. However, the conciliator then ended the conciliation on the basis that the respondent body corporate did not make a reasonable attempt to participate in conciliation.
• [20] This application was lodged on 30 January 2025. The Commissioner's delegate sought clarification from the applicant on aspects of the application,[5] which was then amended.[6]
• [21] The Commissioner invited submissions from the committee and all owners.[7] A submission was made on behalf of the committee. The applicant obtained and responded to the submissions.[8]
• [22] The application was referred to department adjudication.[9]
• [23] I have investigated the dispute, including reviewing the application and submissions.[10] Although the occupier of Lot 11 was not named as an 'affected person' for the application, or directly invited to make a submission, I considered they would be directly and materially affected by the outcomes sought in the application. Accordingly, I wrote to them formally inviting their comment on the application. The applicant responded to that submission.

• [24] A submission made on behalf of the committee opposes the application. It includes:
  1. By-law 3 prohibits obstruction of common property but does not define what constitutes a reasonable obstruction.
  2. The pot plants do not significantly obstruct ingress or egress. Photographic evidence demonstrates there is amble walkway space to move without impediment.
  3. No independent evidence has been provided that the pot plants create a trip hazard.
  4. Images and measurements indicate the pot plants do not encroach beyond a reasonable limit into the walkway.
  5. Other objects, including decorative items such as the applicant's own pelican statue, have been placed in the common area without issue.
  6. The body corporate resolved that owners could submit individual applications rather than the body corporate pursuing enforcement action.
  7. Several warnings and contravention notices were issued to Lot 11.
  8. Given the minor nature of the issue, the body corporate determined that further legal action would be disproportionate. It is not deemed significant enough of a breach to warrant legal enforcement at the body corporate's expense.
  9. It must act reasonably in enforcing the by-laws. There must be clear evidence that a by-law enforcement is justified and necessary. The applicant has not provided sufficient evidence that it acted unreasonably in declining to take further action.
  10. The applicant engaged in conciliation but failed to reach an agreement. Reimbursement of the application fees is outside its obligations under the legislation.
  11. The occupier of Lot 11 has expressed the position that the pot plants are not obstructing the lawful use of the common property.
  12. It fulfilled its obligations by issuing warnings, discussing the matter in meetings, and offering the applicant alternative dispute resolution mechanisms.
• [25] The occupier of Lot 11 says the first she knew of any problem with the pot plants was when she received an invitation to conciliate.[11] She comments on the conciliation.[12] She says she has been bullied by the applicant and the committee over 5 years. The occupier asserts the photograph used by the applicant is not of the pots. She disputes that the plants are in front of the applicant's unit, and says they are beside her front door. She says they do not extent further than the front door mat and are not causing an obstruction. She says the walkway is over 1m wide, which meets regulations, and they had no problem fitting a wheelchair past.
• [26] The applicant's reply to the submission includes:
  1. The body corporate has a legal responsibility to ensure the safety of anyone in the building in the case of a fire evacuation, and to ensure that a person does not obstruct a fin evacuation route. A person cannot place a thing within 2 meters of an exit or an evacuation route. The walkway is an evacuation route.
  2. A Queensland Fire and Emergency Services maintenance inspection report on 1 September 2023 confirmed that at the time of inspection the building was deemed acceptable. But the pot plants were placed in front of Lot 11 after that inspection.
  3. Once a body corporate notifies a complainant that it has issued a contravention notice, it is then responsible for taking action if the contravention notice is not complied with.
  4. Formal body corporate approval was obtained for the placement of their pelican statue.
  5. The decorative items in common areas referred to in the submission are not in common walkways and are not trip hazards.
  6. Comments are made on some statements made by the occupier of Lot 11.

• [27] The substantive issue in this application is whether the body corporate has failed to enforce the by-laws and, if so, whether orders are warranted.

• [28] A body corporate must administer the common property and body corporate assets, enforce the CMS, and carry out any other functions given to it under the Act and CMS.[13]
• [29] A body corporate must act reasonably in undertaking its functions, including in making decisions.[14] Similarly, a committee must act reasonably in making decisions.[15] The test for reasonableness is objective, based on a consideration of all relevant circumstances.[16] 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".[17] The person disputing a body corporate's decision or action (or failure to make a decision or act) bears the onus of demonstrating that the body corporate did not act reasonably or otherwise lawfully.

• [30] All owners and occupiers must comply with the CMS, including the by-laws.[18] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.
• [31] If a body corporate wishes to pursue an alleged by-law breach, it can decide to issue a by-law contravention notice.[19] The notice must state certain things, including the nature of the breach, and be given to the person believed to be breaching the by-law.
• [32] A body corporate is not required to issue a by-law contravention notice when it receives notification of an alleged breach. It is also not required to issue a contravention notice when it believes a by-law may have been breached. The legislation says the body corporate must:
  1. reasonably believe the owner or occupier is contravening the by-law, and
  2. reasonably believe the circumstances of the contravention make it likely that the contravention will continue or be repeated.
• [33] If those criteria apply, the body corporate may give the person a contravention notice requiring them to remedy or not repeat the contravention. It may not be reasonable to issue a notice for every by-law breach that is identified. For example, minor or isolated breaches, or breaches that be addressed without formal action, may not warrant a contravention notice being issued.
• [34] If the body corporate decides to issue a contravention notice, and the alleged breach is not remedied, the body corporate must consider what action is required to enforce the by-law. It could seek compliance with the by-law through an application to the Commissioner's office or to take action in the Magistrates Court for the offence of failing to comply with the contravention notice. But there may be other steps the body corporate could reasonably decide to take.
• [35] Although the legislation imposes an obligation on the body corporate to enforce the by-laws, it also provides avenues for owners and occupiers to raise concerns. They can notify a body corporate if they reasonably believe another owner or occupier has breach a by-law and if the circumstances of the contravention make it likely that the contravention will continue or be repeated.[20] A complainant must use the prescribed form to notify the body corporate.[21]
• [36] If a complainant gives the body corporate a prescribed form and it advises within 14 days that it has issued a by-law contravention notice, the complainant cannot purse a dispute about the alleged breach against the person they are complaining about. Rather, the legislative expectation is that the body corporate will act on the contravention notice it has issued. A complainant could only pursue an application against the person allegedly breaching the by-law if the body corporate does not notify them within 14 days that it has issued a contravention notice. In either case, the complainant can pursue a dispute with the body corporate if they believe it has failed to comply with its obligation to enforce the by-laws.

• [37] The current CMS for Pier One Hervey Bay includes the following By-law 3:[22]

3.1. An occupier of a lot must not obstruct the lawful use of the common property by someone else.

3.2. The pathways and drives on the land and any easement giving access to the land or any other land shall not be obstructed by any of the occupiers or used by them for any other purpose than the reasonable ingress and egress to and from the respective lots and no occupier shall park nor permit to be parked any vehicle so as to prevent the passage of other vehicles over the said pathways, drives and easements.

• [38] The CMS does not define obstruct or obstruction for the purposes of By-law 3. The Act generally defines 'obstruct' to include 'hinder, resist and attempt to obstruct'.[23]
• [39] All owners own common property as tenants in common and if an occupier is not an owner, the owner's right to the use and occupation of the common property is enjoyed by the occupier.[24] Prima facie, owners and occupiers do not require body corporate approval to use common property. But that right to use the common property is not absolute. It is constrained, for example, by the statutory obligation on occupiers not to cause a nuisance, hazard or unreasonable interference with use by others,[25] the requirement for body corporate approval to make improvements to common property,[26] and the by-laws applying to the scheme.
• [40] Whether the use of common property or the placement of something on common property will amount to an obstruction of the lawful use of common property will be a factual question in the particular circumstances. Considerations may include the nature of any impact and whether the impact is occasional or temporary, or permanent or ongoing. There is considerable discussion about obstruction of common property in case law.[27]
• [41] In 2006 the Queensland District Court considered the situation of tables and chairs put in a common property passageway by an occupier who operated a coffee shop, apparently leaving at least 2 meters of passageway unobstructed. In determining the appeal of an adjudicator's order, Durwood SC DCJ found this was an obstruction of the passageway in contravention of the by-laws.[28] His Honour considered a High Court decision about the meaning of obstruction,[29] citing the following statement from Griffith CJ: [30]

"the term 'obstruction' ... includes any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not.

• [42] The approach in that decision contrasts somewhat with an earlier Queensland Court of Appeal decision under the previous legislation,[31] about various items being placed on common property and whether they amounted to exclusive use of the area.[32] Pincus JA noted that one tenant in common has no right to exclude another from part of the co-owned property and if the statutory power to grant exclusive use is not exercised, the ordinary right of an owner not to be excluded from any part of the commit property exists.[33] McPherson JA considered there was an implied right to use common property in a manner or for a purpose that did not unreasonably interfere with the exercise of similar rights by others.[34] Ambrose J noted that in many cases an owner could not make any use of common property without excluding others from using it at the same time and so the right to use common property for lawful purposes will effectively exclude others.[35] Ambrose J then discussed rights of way and reasonable use where a right of way is partially obstructed.[36] The majority decision considered the need to determine whether common property was being used for a purpose that unreasonably interfered with the use and enjoyment of others under the provisions of the legislation, rather than whether the items on common property amounted to an obstruction under the by-law.
• [43] Considering the case law, an adjudicator has previously noted that where items are temporarily placed on common property, and are not in a location used for any specific purpose (such as passage), adjudicators have not necessarily viewed them as causing an obstruction.[37]
• [44] However, that adjudicator also previously considered whether two pot plants on a landing at the top of common property stairs between two lots was an obstruction.[38] He said the mere fact that the pots were on common property did not mean they were obstructing the lawful use of it. He said owners are entitled to make reasonable use of the common property including placing items temporarily on it. But in that case he accepted the pots were in an area designed for walking, potentially while carrying bulky items. He said the pots narrowed the space by approximately a third, significantly diminishing the space available for passage and potentially making it more difficult to safety negotiate past. He concluded the pot plants were an obstruction, and required their removal so they did not interfere with the safe use of the stairs.[39]
• [45] In another matter the adjudicator found that a screen installed on common property (with body corporate approval) obstructed the lawful use of common property because it made it more difficult to access the garage of the adjacent lot, although the garage could still be accessed.[40]

• [46] The substantive issue in this dispute is the conduct of the body corporate and not the conduct of the occupier of Lot 11. However, it is relevant to consider what evidence the body corporate had of a breach of By-law 3 by the occupier of Lot 11 when considering this matter.
• [47] It is not disputed by any party that there have been pot plants on either side of the entrance door to Lot 11 for some time, and that they remain in place.
• [48] It appears that the occupier of Lot 11 believes the pot plants can be placed in this location because it is the entrance to a private residence and not a public thoroughfare. However, while the pot plants are outside to door to Lot 11, they are not on the lot itself. They are clearly on common property that is and must be available for use by all. Moreover, it is clear that they are on passageway. While that passageway may only be used by the occupiers and invitees of a few lots, it is still a publicly accessible area.
• [49] The question then is whether the pot plants obstruct the lawful use of the common property by anyone else.
• [50] The applicant refers to the pot plants and their impact on the occupants of Lot 12, but the only photograph of the pot plants in the application is one that was included in correspondence from the committee to the affected person in November 2023. In that photograph the pots and the foliage of the plants extends approximately the same distance into the walkway as a doormat in front of the door and upwards to approximately the height of the door handle. The photographs included in the body corporate's submission show somewhat different pots and plants. Although undated, these photographs may be more current. In these photographs the pots appear to protrude a similar distance into the walkway, but the foliage is much lower.
• [51] The body corporate's submission includes a sketch of the area. These indicate that on the Lot 12 side of the Lot 11 door the walkway is 1,000 cm wide. The area in front of the Lot 11 door is some 1,610 cm wide. On the other the door the egress narrows 980 cm at one point. The sketch indicates that the pot plants protrude some 38 cm from the Lot 11 doorway. The applicant does not dispute this sketch plan. In the absence of evidence to the contrary, those measurements appear consistent with the survey plans and the photographs provided.
• [52] I found the body corporate's position on this dispute to be somewhat unclear and contradictory. On the one hand it issued warnings and contravention notices apparently on the basis that the occupier of Lot 11 had breached By-law 3 and was continuing to do so. But its submission says the pot plants do not encroach 'beyond a reasonable limit' into the walkway. It does not explain what it means by a 'reasonable limit' or why that is the relevant test. The submission says By-law 3 prohibits the obstruction of common property but does not define what is a 'reasonable obstruction', and it asserts the pot plants do not 'significantly' obstruct ingress or egress. However, By-law 3 does not prohibit only 'significant' or 'unreasonable' obstructions. Rather, it prohibits any obstruction of the lawful use of common property. The submission appears to accept that there is an obstruction, but then assert that the obstruction is acceptable or would be impractical or disproportionate to pursue.
• [53] It may well be possible to use this area of common property, passing the pot plants on each side of the Lot 11 doorway, without incident. But it appears to me on the evidence that on each side of the door there are points where the space to pass is reduced by at least a third. I consider the extent of that reduction may mean the lawful use of the walkway is impeded in some circumstances. For example, if a person is unsteady on their feet or are carrying bulky items such multiple shopping bags, the presence of the pot plants may affect their ability to safely pass through the walkway. And while some may be able to use the passageway easily, there is a plausible argument that the applicant's wife at least is hindered by the diminished space available in the passageway when seeking to access her own front door.
• [54] The claim that the occupier of Lot 11 could use a wheelchair in this area without incident is not immediately persuasive. Presumably the wheelchair could enter and exit the door to Lot 11 directly to the much wider space in front of that lot, without needing to move around the pot plants and without needing to go through the narrower spaces on either side of the door.
• [55] Accordingly, on the submitted evidence it seems to me that the pot plants do obstruct the lawful use of the common property, in breach of By-law 3. That view is consistent with the apparent position of the body corporate when it decided to issue by-law contravention notices to the occupier of Lot 11.

• [56] The body corporate expressed a view in committee and general meetings that the placement of items like pot plants on common property required body corporate approval. The letters sent to the occupier of Lot 11, and the by-law contravention notices issued, evidence that the body corporate formed the view that the placement of the pot plants was in breach of By-law 3 and that the breach was continuing. As outlined above, the body corporate should only have issued a by-law contravention notice to the occupier of Lot 11 if it reasonably believed that By-law 3 had been breached and that the breach was likely to continue or be repeated.
• [57] It is not apparent that the committee subsequently determined that the occupier of Lot 11 was no longer in breach of By-law 3, either because she had rectified the breach or because it believed its decision to issue the contravention notice was in error and there was never a breach. There is no indication that the body corporate has withdrawn the contravention notices, as would be the appropriate if it considered the notices were incorrectly issued.
• [58] Having accepted there was a by-law breach and deciding to issue contravention notices on that basis, there was an expectation on the body corporate to then act on the notices. It was not necessarily required to lodge a dispute resolution application against the occupier of Lot 11. But it was arguably unreasonable for the body corporate do nothing despite the continuation of the offending conduct.
• [59] It appears the committee in part chose not to pursue the breach because owners could submit their own dispute resolution application. However, the legislation places the onus on the body corporate and not owners to enforce the by-laws. The capacity of owners to lodge a dispute resolution application does not discharge the body corporate's responsibility. The body corporate cannot purport to delegate its by-law enforcement responsibilities to owners. Moreover, where a body corporate has chosen to issue a by-law contravention notice, in some circumstances an owner or occupier may be barred from lodging a dispute resolution application directly against the person they allege has breached a by-law. Accordingly, I do not consider this was a reasonable basis for the committee not to act.
• [60] The committee also resolved not to proceed with a dispute resolution application because it would be prolonged and costly. It is questionable whether a body corporate is entitled to disregard its statutory obligations (in this case to enforce the by-laws) because of the cost or inconvenience. For example, it would be unlikely to be reasonable for a body corporate to fail to meet its statutory obligation to maintain common property in good condition because of the cost or inconvenience of maintenance work. Moreover, the dispute resolution process is comparatively low cost. And any adjudication application brought by an owner would still incur time and cost for the body corporate in distributing the application to owners and responding. Furthermore, lodging a dispute resolution application or taking action in the Magistrates Court are not necessarily the only avenues for the body corporate to pursue a by-law breach. Given the circumstances, I am not satisfied that it was reasonable for the body corporate not to act on the contravention notice it issued because of the time or cost involved in further action.
• [61] The body corporate says it decided legal action would be disproportionate given the minor nature of the issue. However, it is evident that the breach has been continuous for at least 18 months. It is not occasional or minor. It is also not clear that the body corporate specifically considered the circumstances of the applicant's wife, or the impact of the pot plants on her ability to safely use the walkway. While the obstruction posed by the pot plants may have little or no impact on others, it does not appear to be minor for her. Furthermore, arguably the body corporate should have decided on the appropriateness of pursuing the breach before issuing by-law contravention notices and not afterwards.
• [62] The applicant referred to fire safety regulations and says the pots present a trip hazard. In November 2023 the committee noted that fire safety and workplace health and safety issues would be a consideration in approvals for items in corridors. The applicant evidences that the building was assessed as compliant before the pot plants were installed, but has not shown that the pot plants have since been identified as problematic by any relevant expert or authority. It is not my role to interpret or apply the fire safety legislation or any other safety regulations. But the body corporate was required to be cognisant of those requirements. It is not evident the committee considered those obligations when deciding not to take action.
• [63] The body corporate's submission refers to other decorative items on common property. However, if those items have been approved by the body corporate or do not impede the use of common property (particularly in passageways) it is not clear why the existence of those items would be a justification for the body corporate not to take action on the Lot 11 pot plants. There is no suggestion that the body corporate has issued by-law contravention notices about any other items so the question of whether the body corporate has not acted on identified by-law breaches that have not been remedied does not appear to arise.

• [64] The applicant seeks an order to be reimbursed for the application fees paid for the conciliation and adjudication applications.
• [65] The Act provides that, if asked, an adjudicator may order a respondent to pay the application fees for a conciliation application and adjudication application.[41] That order can only be made if the adjudication application was for the same dispute as a conciliation application which ended because the respondent failed, without reasonable excuse, to participate.
• [66] While the occupier of Lot 11 participated in conciliation with the applicant in April 2024, I am satisfied from the certificate dated 28 January 2025 that the conciliator ended the conciliation for application 1211-2024 because the body corporate did not make a reasonable attempt to participate. I am satisfied that conciliation application was about the same dispute as this application. As conciliation did not proceed, the applicant had to lodge this application, with a further fee, to pursue the dispute with the body corporate.
• [67] Parties are generally required to attempt to resolve a dispute internally and then by conciliation before a matter proceeds to adjudication. Participation in conciliation can assist disputes to be resolved more quickly, cheaply, and collaboratively. The failure of the body corporate to conciliate put the applicant to additional expense. The body corporate's submission does not explain why it did not participate. While the committee may not have seen any utility in conciliation, that is not justification to disregard the statutory dispute resolution process. I understand the committee was put on notice that an adjudicator could require the body corporate to pay the application fees if they did not participate.
• [68] In the circumstances, I consider it is appropriate to exercise my discretion and make an order that the respondent pay the application fees associated with this dispute. The applicant paid an application fee of $110.30 for each of the conciliation and adjudication applications. Accordingly, I consider the respondent should pay $220.60 to the applicant.

• [69] Having regard to the submitted evidence I consider the body corporate has not discharged its statutory obligation to enforce the by-laws. The body corporate has failed to act when the occupier of Lot 11 did not comply with the by-law contravention notices issued by it notwithstanding that the cited by-law breach has not been remedied.
• [70] I consider the body corporate should take reasonable steps to enforce By-law 3 and ensure the removal of the pot plants on common property next to the entrance to Lot 11. It is not necessary for present purposes to determine what specific steps will be required. It may be the body corporate could engage informally with the occupier of Lot 11 to resolve the matter. It could pursue a formal dispute resolution application. Also, where the occupier of Lot 11 has placed something on common property without body corporate approval and has ignored requests to remove it, it is arguable that it would not be unreasonable in these particular circumstances for the body corporate to simply resolve to remove the pot plants itself and store them for the occupier to collect and relocate.[42]
• [71] In addition, for the reasons outlined, I will require the body corporate to reimburse the applicant for the application fees paid in respect of this dispute.

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

[3] Conciliation application reference 0147-2024

[4] Conciliation application reference 1211-2024

[11] I assume this is referring to the first conciliation application between the applicant and the affected person.

[12] Pursuant to section 252E(5) of the Act, evidence of anything said or done about a dispute in a departmental conciliation session is inadmissible in a proceeding. Accordingly, I have not considered the affected person's comments about what occurred during their conciliation session.

[16] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342, Waters v Public Transport Corporation [1991] HCA 49

[17] 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

[22] Titles dealing number 721286781, recorded date 25 November 2021

[26] Section 177 of the Accommodation Module

[27] See for example Redgums Two [2024] QBCCMCmr 451 which details some decisions.

[28] Body Corporate for the Phoenician v Herme Pty Ltd & anor (QDC, unreported, Durward SC DCJ, BD2346-05, 22 December 2006)

[29] Haywood v Mumford [1908] HCA 62

[30] Griffith CJ in Haywood v Mumford [1908] HCA 62 at p 138, cited in Body Corporate for the Phoenician v Herme Pty Ltd & anor (QDC, unreported, Durward SC DCJ, BD2346-05, 22 December 2006) at para 30

[31] Building Units and Group Titles Act 1980

[32] Platt v Ciriello [1997] QCA 33

[33] Platt v Ciriello [1997] QCA 33, p 5

[34] Platt v Ciriello [1997] QCA 33, p 21

[35] Platt v Ciriello [1997] QCA 33, pp 32-33

[36] Platt v Ciriello [1997] QCA 33, pp 34-37

[37] Santorini Twin Waters [2024] QBCCMCmr 443, para 12, citing Alexandria [2019] QBCCMCmr 159, Noosaville Central [2018] QBCCMCmr 20, and Hatlowe Heights [2010] QBCCMCmr 353

[38] Girraween [2024] QBCCMCmr 448

[39] Girraween [2024] QBCCMCmr 448, para 11

[40] Admiralty Gardens [2021] QBCCMCmr 461

[42] I note the powers given to the body corporate in section 202 of the Accommodation Module, but the body corporate's capacity to make decisions about the management of the common property is not limited to the circumstances in that provision.