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

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

COMMITTEE MOTION - whether the applicant should be permitted to install a gate in the boundary fence.

Act, s 101; Standard Module, ss 116, 187

• [1] This application is about the proposed installation of a gate in a fence. The fence is on the boundary of scheme land, at the front of the complex.
• [2] In February 2023, the committee approved the applicant's request to install a gate in the wooden boundary fence at the rear of their lot under specified conditions, including that the gate was to be upgraded at the applicant's cost when the fence was replaced with a colorbond fence. The applicant then proceeded to install their gate in the wooden boundary fence.
• [3] The replacement of the wooden fencing with colorbond fencing occurred in June 2023. However, in April 2023, the committee rescinded the initial approval given to the applicant to reinstall a gate in the new colorbond fence.
• [4] The applicant sought committee approval to install a gate in the new colorbond fence on 2 subsequent occasions (in September 2023 and January 2025). However, both attempts were unsuccessful.
• [5] At the annual general meeting (AGM) held on 16 November 2023, the body corporate resolved by ordinary resolution (Motion 8) that no future gates are permitted to be installed or constructed in either the colorbond or timber boundary fencing.
• [6] The applicant submits that the gate would serve as an escape route in case of fire or any other type of emergency and that no other residents will be affected. The applicant contends that the committee's refusal is unreasonable, unfair, and purely personal.
• [7] The applicant wants to install a gate in the colorbond boundary fence. The question then is whether the order sought is warranted.

• [8] The application seeks the following outcome:

I seek an order that allows me to reinstall the gate I had in my boundary fence.

• [9] Poinciana Gardens community titles scheme 27282 (Poinciana Gardens) is a 73-lot scheme at Mudgeeraba. The community management statement (CMS) indicates the Standard Module applies. The scheme is registered as survey plan 108860, 108861 and 125789.

• [10] 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 the performance of duties under the Act or CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions in the Act.[2]

• [11] The applicant initially applied for conciliation in December 2024.[3] The parties participated in conciliation in March 2025 but could not reach an agreement.
• [12] This application was then lodged on 11 April 2025. The Commissioner sought further clarification from the applicant about the application.[4] The application was then amended.[5]
• [13] The Commissioner invited submissions from the body corporate committee and all owners.[6] Submissions were received from the chairperson/secretary on behalf of the committee and the owners of 8 other lots. The applicant responded to the submissions.[7]
• [14] The application was referred to department adjudication.[8] I have investigated the dispute, including reviewing the application and the submissions.[9]

• [15] The chairperson/secretary, on behalf of the committee for Poinciana Gardens, opposes the application. Most relevantly, they submit:
  1. The scheme is a secure, gated estate with an onsite manager and CCTV surveillance.
  2. The boundary fences are common property and the body corporate's responsibility to maintain and manage.
  3. Since the replacement of the wooden boundary fence on the front boundary with colorbond fencing in June 2023, no gates have been installed in that section of fence.
  4. The only gates currently in the boundary fencing are at the back of the complex. When these fences need to be replaced due to age, the existing gates will not be replaced in accordance with the 2023 AGM resolution.
  5. The applicant made a verbal request for the gate to be installed in the boundary fence at a committee meeting in February 2023. No plans, quotes, supporting documentation or contractor details were provided. The applicant's motion was still carried.
  6. In April 2023, the committee rescinded the approval for a gate to be installed in the new colorbond boundary fence.
  7. In September 2023, the committee declined the applicant's request to install a gate in the colorbond fence. Only a photo of the gate type was included with the application.
  8. The AGM resolved (with 41 votes in favour, 3 against and one abstention) that no future gates are to be constructed in any body corporate colorbond boundary fencing.
  9. The applicant resubmitted their application for a gate in January 2025 although the committee had no authority to approve it.
  10. The applicant has a standalone house with an external side passage between the house and the fence, providing access from the back of the property to the front.
  11. The 'Building and Fire Safety Act' and the 'Workplace Health and Safety Act' referred to in the application do not exist or do not apply in these circumstances.
  12. The body corporate could be liable for any damage or incidents arising from the gate.
  13. The body corporate would have no control over whether the gate is locked or access to CCTV monitoring, as it is within a private lot.
  14. The outcome of the 2023 AGM shows that the majority of owners do not want gates in the boundary fences and the body corporate's decision to refuse the application for a gate is consistent with this view.
  15. It is unreasonable for the applicant to modify common property to accommodate a hypothetical risk.
• [16] Submissions from 6 other owners support the installation of the gate in the boundary fence given the applicant's safety concerns. Conversely, 2 owners oppose the application due to concerns about scheme security and aesthetics.

• [17] The applicant responded to the submissions. Most relevantly, they say:
  1. No evidence has been provided that the committee received advice against the installation of gates.
  2. It is a matter of general fire safety. The gate would provide a safe and expeditious means of escape.
  3. The alternative escape route proposed by the committee is inadequate.
  4. The absence of prior fire incidents does not justify neglecting prudent risk management.
  5. Contractors engaged at their property are entitled to a safe working environment and they are legally obliged to minimise foreseeable risk.
  6. At least 13 lots within the scheme have back gates in the boundary fence.
  7. The timber fence along the rear boundary (which contains several gates) is obscured by vegetation, making it less secure than the front colorbond fence which is clearly visible from a principal suburban thoroughfare with street lighting.
  8. The AGM held in 2023 occurred after they had obtained approval to install a gate in both the timber and colorbond fences and the subsequent decision of the committee to rescind their approval. The motion referred to future gates, not existing ones.
  9. By-law 19.4 says an owner can install a gate in the common property fence with committee consent. Consent was granted on 23 February 2023.

• [18] Ostensibly this application is about the reasonableness of the committee's decision to rescind the initial approval given to the applicant to install a gate in the colorbond boundary fence and its refusals of the applicant's subsequent requests.
• [19] However, from the outset, I note that it is not clear which decision(s) of the committee the applicant is challenging. The applicant simply seeks an order allowing them to install a gate in the boundary fence.

• [20] In April 2023, the committee rescinded the initial approval given to the applicant to install a gate in the colorbond boundary fence. Then in September 2023, the committee refused the applicant's further request to install a gate. Notably, the applicant has not evidenced any attempt to challenge either of these committee decisions prior to the November 2023 AGM.
• [21] If this adjudication application specifically sought to dispute the committee's decision to rescind its initial approval (which does not appear to be the case), it would be out of time under the Act.[10]
• [22] In any case, it is my view that the body corporate's decision on Motion 8 at the November 2023 AGM has overtaken questions that may have been raised regarding the reasonableness of the committee's decisions prior to the AGM.
• [23] Relevantly, the Act requires the committee to put into effect the lawful decisions of the body corporate.[11] In addition, the Standard Module provides that a resolution passed at a general meeting can only be amended or revoked at a further general meeting by a resolution of the same type (i.e., not by a committee resolution).[12] There is nothing in the submitted material to suggest that the body corporate has since voted at a further general meeting to either revoke or amend the resolution passed at the AGM in November 2023. This means the committee could not approve the applicant's request in January 2025 because to do so would have conflicted with the 2023 AGM resolution.
• [24] The applicant has made no argument as to the reasonableness or the validity of the body corporate's decision on AGM Motion 8 and has made no apparent attempt to overturn the decision at a subsequent general meeting.
• [25] While the applicant was given approval for a gate in both the wooden fence and the future colorbond fence in February 2023, the approval for the gate in the wooden fence is moot where that gate and the wooden fence no longer exist. In any event, as I will explain below, it may have been beyond the scope of the committee's authority to approve the installation of a gate in February 2023.

• [26] Section 187 of the Standard Module permits an owner to make an improvement to the common property for the benefit of their lot if they obtain body corporate approval. The Standard Module provides that the improvement must be authorised by ordinary resolution at a general meeting unless:
  • the improvement is a 'minor improvement';[13] and
  • the improvement does not detract from the appearance of any lot included in, or common property for, the community titles scheme (emphasis added); and
  • the body corporate is satisfied that the use and enjoyment of the improvement is not likely to promote a breach of the owner's duties as an occupier.[14]
• [27] From the submitted material, aesthetic considerations appear to have been a significant factor in the committee rescinding its initial approval for the applicant to install a gate in the new colorbond fence in April 2023. In its reasons for rescinding its decision, the committee noted that:

The fence at the front of the complex is very visible, is the public feature of our complex and should be something we are proud of. Having gates in the colorbond fence would not be a good look.

• [28] If the portion of the boundary fence in which the applicant is currently seeking to install their gate is common property, and if there is a genuine issue that the gate could detract from the visual appearance of the common property, the applicant may always have required approval by ordinary resolution at a general meeting (as opposed to committee approval) for the installation.
• [29] I note that both the applicant and the committee refer to By-law 19.4, which provides that an owner cannot install a gate in a common property fence without committee consent.[15] However, section 187 of the Standard Module prevails over the scheme's registered by-laws in the event of an inconsistency.[16]

• [30] For the reasons outlined, the applicant has not yet established that there is a basis to make an order allowing the applicant to install a gate in the boundary fence. Therefore, the application is dismissed.
• [31] For the information of the parties moving forward, I will make some brief remarks.
• [32] The applicant could consider submitting motions to a future general meeting to overturn the resolution passed at the AGM in November 2023 or for approval to install their gate in the colorbond boundary fence (or both). If any such motions are unsuccessful, the applicant could take steps to challenge the decision if they considered it was not valid.
• [33] Importantly, the body corporate has a statutory obligation to act reasonably when making, or not making, a decision.[17] Consequently, if the applicant submits a motion(s) for the body corporate's consideration at a future general meeting, I encourage the body corporate to bear this obligation in mind.

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

[12] Section 116 of the Standard Module

[13] This means the improvement has an installed value of $3,000 or less

[14] Section 187 of the Standard Module