Post Office Square [2022] QBCCMCmr 80

Body Corporate for Post Office Square (applicant)

R & K Hall Family Super Fund BT Pty Ltd ACN 605551317,

Ten Toes Brewery ACN 601914103, occupier of Lot 4 (respondents)

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)

SIGNAGE - where owners can install a sign in a designated panel on a pylon sign on common property - where the respondents had an approved sign - where the respondents changed the approved sign - whether the respondents required and failed to obtain body corporate approval - whether the new sign should be approved.

Act, ss 182-188; Standard Module, s 187

1. Within 30 days of the date of this order, the respondents must remove the current Lot 4 sign installed on the common property pylon sign.

2. The respondent may only replace the current Lot 4 sign on the common property pylon sign with a sign that:

(a) is of the same design and style, including the materials and dimensions, as the sign previously approved by the Body Corporate for Post Office Square, or

(b) has been approved in writing by the committee for the Body Corporate for Post Office Square after the date of this order.

• [1] This application is about signage installed by or for the respondents on common property. Although the owner and occupier of Lot 4 are separate companies, it appears the director of the company owner of Lot 4 also owns the company that occupies Lot 4.
• [2] The scheme is a small commercial scheme and all lots have use of a designated panel in a pylon sign on common property. It appears the respondents replaced their sign. The applicant says the new sign is a metal box-shape that is considerably wider than the previous Lot 4 sign and obscures and shades the signage below. It says the sign was installed without body corporate approval, in breach of By-law 13. The body corporate issued a by-law contravention notice to the respondents in August 2020. However, the contravention notice and subsequent correspondence did not resolve the issue.
• [3] The body corporate seeks an order that the respondents remove the box sign and apply for approval for a flat sign of a similar design and appearance to the other signs. The question then is whether the respondents have breached By-law 13 and whether an order is warranted.

• [4] Post Office Square community titles scheme 6547 (Post Office Square) is a 5-lot scheme at Alexandra Headland. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as Building Units Plan 8749.
• [5] This application was lodged on 16 June 2021, pursuant to a committee resolutions passed on 17 August 2020 and 2 and 14 June 2021.
• [6] The application is seeking: "...the removal of the large metal box sign from the Body Corporate sign post and an application from the respondent for committee approval to install a flat sign of similar design and appearance as the other signs."

• [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 that I have jurisdiction to determine this matter under the legislative dispute resolution provisions.[2]

• [8] Initially the applicant applied for conciliation in March 2021.[3] A conciliation session was scheduled however, the conciliator ended it because the respondent did not make a reasonable attempt to participate. This application was subsequently lodged.
• [9] The Commissioner sought clarification from the applicant on some aspects of the application.[4] The application was then amended.[5]
• [10] The Commissioner invited submissions on the application from the respondents and all owners.[6] A submission was made on behalf of the respondents and by a committee member. The applicant inspected and responded to the submissions.[7]
• [11] A dispute resolution recommendation was made referring the file to department adjudication.[8]
• [12] I then investigated the dispute, including reviewing the application and submissions.[9]

• [13] A submission made on behalf of both respondents includes:
  1. They detail their communication with the Commissioner's office about the conciliation application. They say they made a reasonable attempt to participate in conciliation. They assert that the applicant failed declining a request to participate in conciliation.
  2. As they made a reasonable attempt to conciliate, and the applicant did not, they submit that the application should be dismissed and there should be no orders in respect of the payment of the conciliation or adjudication application fee.
  3. The body corporate erected a sign for common usage on common property, as contemplated by By-law 13.2.
  4. On or about August 2016, before purchasing Lot 4, the first respondent obtained the applicants consent to erect a sign. The then manager consented to the request.
  5. In or around August 2016 the first respondent erected the sign in accordance with the consent. The sign complied with By-law 13.
  6. At a general meeting on 13 February 2019, the body corporate resolved to grant retrospective approval for all lot owner improvements on common property.
  7. In May 2020 the respondents undertook improvements to its common property sign.
  8. As it was only undertaking improvements to the sign it had consent for, there was no requirement for it to seek further approval for the improvements.
  9. Before undertaking the improvements, its representative spoke advised the chairperson and committee members of the improvements. They did not raise any concerns.
  10. Two committee members observed and indicated their approval of the improved sign.
  11. The improvements comply with By-law 13.
• [14] A submission by the secretary, apparently on behalf of the committee and the owners of Lots 1, 2, 3 and 5, includes:
  1. The pylon sign consists of exterior supporting posts, with cross members to support signage panels. The existing signage on the pylon sign for other lots includes a non-illuminated flat piece of metal or the like, attached to the cross members or with cleats.
  2. The former Lot 4 sign was of the same construction as the others. No sign obstructed or overshadowed others and each was clearly visible.
  3. The new Lot 4 sign is significantly different. It is some 300 mm wide, overshadows the sign below, and from certain angles partly obscures the sign above.
  4. They do not have any issue with the Lot 4 business being advertised in the designated location on the pylon sign. However, they take issue with the form of the sign. It is not in keeping with other signage, and obstructs and obscures other signage.
  5. They take issue with the respondent not seeking consent when it knew consent was required and its disregard for approval processes and the rights of other owners.
  6. Had the respondent sought approval, it would have refused the sign in its current form.
• [15] In reply to the respondents' submission, the applicant says:
  1. It did not decline the conciliation. It signed the relevant documentation and did not consider not attending. It wanted the matter resolved.
  2. It does not deny the respondent had approval for the sign, which was ratified in February 2019.
  3. The respondent removed the signage that had been approved.
  4. The respondent did not obtain written approval to replace the sign.
  5. The new signage is not an improvement; it is an entire replacement with a change of materials, size, and impact. The sign is not like for like. It is significantly different in form, particularly its depth and impact on other signs.
  6. The committee 'strongly' disagree with the submission regarding communication with committee members. It says committee members did raise concerns. It further says the respondent was advised that written consent from the committee would be required. It details conversations before and after the sign was installed.
  7. It has no objection to the respondent replacing the signage, like for like.

• [16] The issue to determine in this application is whether the respondents have installed a sign on common property in breach of By-law 13.

• [17] The CMS for Post Office Square contains the following By-law 13:[10]

13.1 An Owner of a Lot may displace any sign, advertisement, placard, banner or like matter ("the Sign") to the external walls of its Lot subject to the following conditions:

(a) the Owner must first obtain the written consent of the Committee;

(b) the sign must relate to the business or usage being conducted from within the Lot;

(c) the design and style of the Sign must comply with all Requirements;

(d) the design and style of the Sign must, in the opinion of the Committee be aesthetically compatible with the design of the Scheme building;

(e) the Owner is responsible for the cost of erecting, installing and maintaining the Sign;

(f) the Owner must, within 14 days of receiving notice in writing from the Committee, renew the Sign to an 'as new condition'; and

(g) if the body corporate carries out any work to renew the Sign to an 'as new condition', the body corporate may recover the cost from the Owner as a debt.

13.2 If the Body Corporate has erected a sign for common usage on the Common Property, an Owner of a Lot may display any sign, advertisement, placard, banner or like matter from the sign subject to the conditions specified in By-law 13.1(a)-(g) inclusive.

• [18] The definitions in By-law 1.1 include, at (k), a definition of "Requirement" as meaning:

...any requirement, or authorisation, of any statutory body, local authority, governmental or other authority necessary or desirable under applicable law or regulation and includes the provisions of any statute, ordinance or by-law under the Act.

• [19] A body corporate has a statutory obligation to enforce its by-laws.[11] As with all of its functions, a body corporate it must act reasonably in doing so.[12] I am satisfied the applicant complied with the legislative requirements for enforcing its by-laws.[13]
• [20] It is not suggested that By-law 13 is not valid and I cannot see any reason why it would be.
• [21] Although not mentioned by the parties, it is relevant to note that the regulations also provide for the body corporate, if asked, to permit an owner to make improvements to common property for the benefit of the lot.[14] If the improvement is minor (that is, with an installed value of $3,000 or less), does not detract from the appearance of any lot or common property, and is not likely to promote a breach of the owner's duties as an occupier, the improvement may be approved by the committee. Otherwise, a general meeting resolution is required.

• [22] It is not disputed that the use of the pylon sign on common property by owners is contemplated under By-law 13.2. That use is subject to the conditions in By-law 13(1)(a) to (g). In particular, it requires the prior written approval of the committee for any lot signage.
• [23] The respondents say the first respondent obtained approval of the sign in August 2016, before the lot was purchased. That submission is confusing given the titles records show the first respondent became the registered owner of Lot 4 in September 2015. However, it is immaterial when the body corporate ratified all owner improvements to common property in February 2019. Moreover, the body corporate does not dispute that the previous sign was approved or object to the previous sign.
• [24] The respondents claim they only made 'improvements' to their approved sign. However, they do not explain what was done to the sign that would amount to an 'improvement' of the existing approved sign as distinct from a replacement of the sign. The body corporate, conversely, claims the sign was replaced with a new sign rather than the existing being 'improved'.
• [25] Regardless of which is true, it does not appear to be disputed that the currently installed sign is different to the sign previously installed. Moreover, the respondents do not dispute the assertions in the application (including the photographs of the sign) as to the size, construction, and impact of the Lot 4 in its current form.
• [26] While the sign in its previous form was approved, I am satisfied on the submitted evidence that the current sign in its 'improved' (or replaced) form was not. The body corporate's retrospective approval of owner improvements in February 2019 could only rationally apply to the sign as installed at that time. The respondents have provided no evidence, and do not assert, that the February 2019, or any other body corporate decision, authorised alterations to the approved sign or replacement signs that are different.
• [27] Having regard to By-law 13 and the regulations, and where it is apparent that the Lot 4 sign installed on common property is different to the one originally approved, I am satisfied that the replacement or other alteration of the sign required fresh approval of the body corporate.
• [28] The respondents do not substantiate their claims that individual committee members supported or did not oppose the sign 'improvements'. The applicant disputes those claims. In any event, regardless of any conversations, there is no evidence that the respondents made a formal request for approval of a new or altered sign. Importantly, there is no evidence that the body corporate gave written approval for a new or altered sign as required by By-law 13 and the regulations. Individual committee members have no authority to make binding decisions.

• [29] The Act provides that, if asked, an adjudicator may order a respondent to pay the application fees for a conciliation application and adjudication application.[15] This order can only be made if the adjudication application was for the same dispute as a conciliation application that ended because the respondent failed, without reasonable excuse, to participate in the conciliation.
• [30] The certificate dated 19 May 2021 says the conciliator ended conciliation application 0311-2021 because the respondent did not make a reasonable attempt to participate. Notwithstanding the respondents' submissions, there is no evidence the applicant refused to participate in conciliation. Rather, it seems the conciliation did not proceed simply because the conciliator did not receive advice of the respondent's willingness to participate until after the conciliation certificate had been issued. Given the apparent willingness of both parties to participate, it is certainly unfortunate that a conciliation session did not proceed.
• [31] In any event, that matter is immaterial for the purposes of this application because the applicant did not ask for orders that the respondents pay the application fees. As such, there is no basis for me to consider whether costs should be awarded. Moreover, the circumstances of the conciliation are not a proper basis to dismiss this application.

• [32] I am satisfied that the respondents have altered the sign for Lot 4 that is installed on the common property pylon sign, by replacing or otherwise changing the sign. I am satisfied the body corporate approval for the sign related only to sign in its form that at the time of the approval, and so it did not provide for subsequent alterations to the sign. Accordingly, I am satisfied the respondents' alterations to the sign required a fresh body corporate approval.
• [33] The respondents' did not obtain prior written approval for the alterations to the sign, and the body corporate has asserted that it would not be willing to approve the altered sign because of its impact on other signs. In the circumstances, I consider that it is appropriate to make an order requiring the removal of the current sign for Lot 4 on common property. I will allow the respondents 30 days to remove the sign.
• [34] The respondents have two options to replace the sign. They could reinstate the sign in the form that was originally improved (including the original materials and dimensions). Alternatively, they could make a written application to the committee for approval of a sign of an alternative design and style. If pursuing that path, the respondents should have regard to the concerns expressed by the body corporate about the impact of the sign on adjacent signs, particularly with respect to its dimensions. The body corporate in turn must not unreasonably delay or refuse approval for any signage proposal from the respondents.

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

[3] Conciliation application reference 0311-2021

[7] See sections 246 and 244 of the Act respectively

[9] The investigative powers of an adjudicator are set out in section 271 of the Act

[10] Recorded 26 November 2019, Titles dealing number 719756516

[12] Section 94(2) and 100(5) of the Act

[14] Section 187 of the Standard Module