Active Electrical Pty Ltd, owner of Lot 12 (respondent)

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

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

IMPROVEMENT TO COMMON PROPERTY - BY-LAWS - whether an owner undertook work to install gas cylinders and associated infrastructure on common property - where the work was not approved - whether the owner is in breach of the regulations and by-laws.

Act, ss 67-70, 94, 182, 183, 184; Commercial Module, ss 134, 140, 159

1. Within 6 months of the date of this order the owner of Lot 12, Active Electrical Pty Ltd, must removal all works undertaken on common property in 2024, including on the car space allocated for the exclusive use of Lot 12, that are associated with the supply of gas to Lot 12, and reinstate the common property, unless within that time the owner obtains all approvals from the Body Corporate for Production Avenue Commercial Centre that are required in relation to the works.
2. The application is otherwise dismissed.

• [1] This application is about works undertaken by the respondent, the owner of Lot 12, on its exclusive use area and other common property. Substantively, the relevant work involved installing LPG gas cylinders (with associated infrastructure and screening) on an exclusive use car space allocated to Lot 12, cutting the concrete driveway between Lot 12 and the car space to install a gas pipeline to connect the cylinders to the lot, and installing a gas meter/valve box on the exterior of the building.
• [2] The respondent applied for approval of the work in April 2024. The body corporate raised concerns and requested further information. In June 2024 it refused approval. Correspondence ensued. The respondent then undertook the work without approval.
• [3] The body corporate asserts the work breached By-laws 5, 8(b), 11 and 15. It further says the respondent breached the regulations by making an improvement to common property without approval. It issued contravention notices to the respondent and pursued conciliation.
• [4] The respondent subsequently submitted a motion to amend the exclusive use area and by-laws to permit it to use an exclusive use car space to store gas bottles and to run gas lines through the driveway. That motion (Motion 11) was considered at the annual general meeting (AGM) on 11 April 2025. Motion 11 required a resolution without dissent but failed to pass.
• [5] The body corporate seeks orders that the respondent disconnect the gas supply, remove the unauthorised works, and restore the common property. It seeks authorisation to undertake the work itself at the respondent's cost if the respondent fails to do so.
• [6] The issue in this application is whether the respondent contravened the by-laws and regulations in undertaking the work. I have determined the application concurrently with an application brought by the owner of Lot 12 which seeks to deem the body corporate to have resolved to amend the by-laws and exclusive use areas, and permit the installation.[1]

• [7] Production Avenue Commercial Centre community titles scheme 52360 (PACC) is a 16-lot scheme at Molendinar. The community management statement (CMS) shows the Commercial Module applies. The scheme is registered as survey plan 304092.
• [8] The application seeks the following orders:
  1. to disconnect the gas supply within 48 hours;
  2. to remove all unauthorised works undertaken to the common property and to the exclusive use area within 7 days of the orders;
  3. to restore the common property (Vehicle access / driveway) and the exclusive use area of Lot 12 (carpark) to its original condition, within 7 days of the orders; and
  4. lf the Respondent fails to comply with the Orders sought at b and c. the Applicant be authorised to carry out the works, at the cost of the Respondent.

• [9] 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.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[3]

• [10] The body corporate initially applied for conciliation of its dispute in December 2024.[4]
• [11] The parties participated in a conciliation session in January 2025, but did not reach agreement.
• [12] This application was then lodged on 18 March 2025, pursuant to a committee resolution passed on 5 December 2024 which authorised the conciliation and adjudication applications.
• [13] The Commissioner invited submissions on the application from the respondent and all owners.[5] Two submissions were made. The applicant obtained and responded to the submissions.[6]
• [14] The application was referred to department adjudication.[7] I have now investigated the dispute, including reviewing the submitted materials and Titles records.[8]

• [15] The respondent says if its related application is successful, this application is a nullity. It argues the body corporate acted unreasonably in applying for orders knowing Motion 11 had been submitted. It further argues the cost of pursuing orders is unreasonable, the time frames in the orders are unreasonable, and the fourth order could result in unreasonable costs.
• [16] Substantively, the respondent says the body corporate acted unreasonably in refusing to approve its gas bottles and associated pipes. It says the reliance on the by-laws as a basis to refuse approval is unreasonable where the by-laws are a mechanism to grant approval.
• [17] The respondent argues it has not violated By-laws 8(b) or 9. It says the installation complies with relevant local regulations, met safety standards, adhered to relevant environmental and operational requirements, and was carried out in a professional manner. It says the installation has not detracted from the appearance of, or decreased the amenity of, the scheme. It says it offered to be responsible for repairs and maintenance of the installation and for regular inspections. It also says no car spaces were lost as it has an extra parking space within its lot.
• [18] The respondent also says the installation and the current arrangements have not adversely affected any other lot. It says most owners favour amending the by-laws and allowing the installation to remain. It says the orders sought would inconvenience other owners.
• [19] A submission by the owner of 3 lots says the works have no discernible negative impact on their lots, operations, or use of the common property. They say they have not experienced any obstruction, nuisance or safety concerns, the alterations are visually unobtrusive and do not interfere with traffic, there is no increase in insurance or other body corporate costs, and no evidence the works pose a risk to persons or property. They say the relief sought is disproportionate to the potential impact. They seek a constructive resolution, potentially with conditions, rather than the removal of the removal of the installed infrastructure.
• [20] The body corporate's reply to the submissions includes:
  1. The respondent's motion was submitted after undertaking the work and receiving contravention notices. It was on clear notice its actions would contravene the by-laws. Arguably the respondent's motion was only submitted to try and defeat this application.
  2. It disputes that the completed works do not breach the by-laws.
  3. It acted reasonably by enforcing the CMS and achieving a reasonable balance between the competing interests affected by the proposal.
  4. The respondent was repeatedly asked to provide additional documentation. The application for approval was reasonably refused when the respondent failed to address its legitimate concerns, despite its requests.
  5. It disputes its reasons for refusal were unclear, and refers to its correspondence.
  6. A resolution without dissent was required, which is beyond the power of the committee.

• [21] In determining this dispute, I will consider the requirement for body corporate approval of the works undertaken by the respondent and whether the works undertaken amount to a contravention of the regulations or the by-laws.

• [22] PACC substantively comprises a 2-storey building in a horseshoe configuration surrounding common property. The concreted common property in the centre of the scheme has car parking surrounded by a driveway that provides access to all lots. The building comprises 16 lots which house commercial and light industrial businesses.
• [23] As PACC is registered as a building format plan of subdivision, the boundaries of the lots are defined on the survey plan by the structural elements of the building, including floors, walls and ceilings.[9] The boundary between each lot and the adjacent lot or common property with be the centre of the floor, wall or ceiling. Accordingly, the building exterior is common property.
• [24] Under By-law 11 in the CMS,[10] each lot is given exclusive use of an area shown in a plan attached to schedule E for car spaces_._ Under schedule E, which lists 'Exclusive Use Area - Car Spaces', Lot 12 is allocated area marked X12 on the exclusive use plan DWGH133G. The attached plan shows area X12 as a 66m2 area with 5 car spaces.
• [25] It is not disputed that the respondent undertook work on common property. The substantive work involved installing LPG cylinders one of the respondent's exclusive use car parks, including screening and other associated infrastructure. However, the work also included pipework laid across the unallocated common property between Lot 12 and its exclusive use area, and a gas meter/valve box installed on the common property exterior of the building.

• [26] Works of the nature carried out by the respondent constitute an improvement to the common property. The Act defines an 'improvement' as including the erection of a building, a structural change, and a non-structural change.[11] It refers to the Acts Interpretation Act 1954 definition of 'change' in which "includes change by addition, exception, omission or substitution."[12]
• [27] Where an owner or occupier seeks to make an improvement to the common property, different requirements may apply depending on whether the work is on an exclusive use area or other area of common property, the nature of the alteration, and whether any by-laws apply.[13]
• [28] If an improvement is proposed to an area of common property that has been allocated to a lot for their exclusive use, and the exclusive use by-law authorises the stated improvements to the area, no further approval is required.[14] But if the exclusive use by-law does not authorise the improvement (as is the case here), the improvement can only be made if the body corporate specifically authorises it.[15] Moreover, an ordinary resolution at a general meeting is required. The committee cannot authorise an improvement to an exclusive use area.
• [29] An owner can also make an improvement to an area of common property that is not an exclusive use area, for the benefit of their lot, if they obtain body corporate approval.[16] A committee can approve such an improvement. Authorisation may be given on such conditions as the body corporate considers appropriate, and the owner must comply with the conditions and maintain the improvement in good condition unless excused by the body corporate.
• [30] In either context, the body corporate and its committee must act reasonably in making a decision as to whether to approve or refuse approval for the improvement.[17] Although approval should be sought and obtained before any improvement is made, there is no legal reason why a body corporate cannot grant retrospective approval. The impact of the improvement on the body corporate and other owners and occupiers may be relevant to whether it is reasonable for the body corporate to grant approval and whether to impose any conditions on approval.
• [31] There are further matters of relevance to a proposed improvement to common property.
• [32] All owners own common property as tenants in common and the occupier of each lot enjoys the right to the use of the common property.[18] Unless they have been granted particular legal rights over common property, no occupier has greater rights to the use and enjoyment of any area of common property than another. Where a proposed improvement to unallocated common property will have the effect of occupying or subverting the use of common property for an unlimited period, that disposition of common property must also be specifically authorised.[19] The right to the ongoing use of the common property is usually given by way of a grant of exclusive use,[20] or a lease or license.[21]
• [33] But if a proposed improvement to common property is for the purpose of utility infrastructure to provide a utility service to a lot, the issue of statutory easements also arises.
• [34] Under the Land Titles Act 1994, a statutory easement can exist in favour of a lot and against other lots and common property, to supply utility services to the lot and to establish and maintain utility infrastructure reasonably necessary to supply those services.[22] The body corporate legislation then provides for the application of statutory easements.[23] Rights under an easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.[24]
• [35] Essentially these provisions give owners a qualified right to install and maintain utility infrastructure on or over other lots and common property to supply a utility service to their lot. This potential right does not displace the requirement to obtain body corporate approval where required under the regulations or a by-law.[25] But, in deciding a request for an improvement that involves installing utility infrastructure to service a lot, the body corporate should have regard to statutory easement rights. It should consider if the infrastructure is reasonably necessary to supply the service and whether it would unreasonably interfere with the use and enjoyment of lots or common property. It may propose conditions on the location or nature of the installation, including to address any interference.
• [36] Installing utility infrastructure on common property may have the effect of subverting that part of common property to the sole use of an owner or occupier. However, it has been accepted that if there is a statutory easement, the owner does not also require formal authorisation to use the common property by way of a grant of exclusive use, a lease or licence.[26] Rather, it is the easement itself that imparts the rights over the common property. On that basis, it may not be necessary for a body corporate to grant exclusive use or other rights over relevant parts of common property owners before the installation of utility infrastructure can be validly approved.

• [37] As outlined above, under the regulations the improvement to the respondent's exclusive use car park could only be approved by ordinary resolution. The committee did not have the power to authorise that work.
• [38] The respondent clearly made an improvement to its exclusive use area without seeking or receiving general meeting approval. That contravened the regulations. To date the body corporate has not retrospectively approved the improvement to the exclusive use area. In the related application I have not been satisfied that approval should be deemed to have been given. Accordingly, that contravention remains. However, that does not prevent the respondent from submitting further motions to achieve the requisite approval.
• [39] To the extent that the respondent undertook work on common property outside the exclusive use area, that could potentially have been approved by the committee under the regulations if the respondent had rights under a statutory easement to enable it to install utility infrastructure on common property to provide a utility service to its lot. If no statutory easement rights applied, it appears the body corporate would have needed to approve (by a resolution without dissent) a grant of exclusive use rights or a lease or licence over the common property to allow the respondent to exclusively use the common property on which the gas pipeline and gas meter/valve box are located. Exclusive use rights over the area have not been approved.
• [40] The parties have not canvassed the question of statutory easement rights. Given all the circumstances of both applications, I do not consider it necessary to investigate whether the respondent would have rights to use the common property in that way. That is a matter for the parties to consider if the respondent makes a further request for approvals relating to its work. Particular considerations would include whether the particular infrastructure installed was reasonably necessary to provide the utility service to the lot and whether the infrastructure and its location would unreasonably interfere with other lots and common property.
• [41] In addition to the approvals required under the regulations, there is a question of whether the works required approval under the by-laws.

• [42] All owners and occupiers must comply with the CMS, including the by-laws.[27] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.[28] It sets out processes for the body corporate to use in doing so, including issuing by-law contravention notices and lodging dispute resolution applications.[29]
• [43] The body corporate gave the respondent by-law contravention notices in November 2024 alleging breaches of By-laws 5, 8(b)(i), 8(b)(ii), 11 and 15, and pursues those allegations in this application. The respondent denies breaches of By-laws 5, 8(b)(i) and 8(b)(ii), but does not comment on the alleged breaches of By-laws 5, 11 and 15.[30]
• [44] I will consider in turn those by-laws, as recorded in the current CMS for PACC:

• [45] The body corporate says the respondent caused damage and defaced the common property without the written approval of the body corporate, in breach of By-law 5. That by-law says:

An Owner or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the Body Corporate, but this By-Law does not prevent an Owner or person authorised by him from installing:

(a) Any locking or other safety device for protection of his lot from intruders;

(b) Any screen or other device to prevent entry of animals or insects upon his lot;

Provided that the locking or other safety device, or as the case may be, screen or other device is constructed in a workman-like manner, is maintained in a state of good and serviceable repair by the Owner and does not detract from the amenity of the building.

• [46] It is clear the work involved cutting into or attaching things to common property. That could only be done with body corporate approval. If approval for the works was given, including approval under the regulations, there would be no breach. But that has not occurred to date. Until such approval is given, the respondent remains in breach of By-law 5.

(a) An Owner or occupier of a lot must not, without the written approval of the Body Corporate Committee make a change to the external appearance of the lot.

(b) An Owner or occupier of a lot must not without the prior written approval of the Body Corporate Committee:-

(i) Erect any outside aerials, blinds, awnings, change utility infrastructure or install air conditioning; or

(ii) Display a sign, advertisement, placard, banner, pamphlet or similar article;

(iii) Permit or maintain anything within his lot or outside his lot that is not in keeping with the amenity of the complex;

(iv) Place or allow to be placed on a lot any materials or items that the Body Corporate considers to be unsightly or detracts from the appearance of the lot.

• [48] The body corporate alleges By-law 8(b)(i) has been breached because utility infrastructure has been changed, by way of its installation, without body corporate approval. The respondent says there is no breach because no outside aerials, blinds, awnings, changes to utility infrastructure or installation of air conditioning has occurred. The body corporate responded that the respondent installed gas pipes which are utility infrastructure.
• [49] Neither party explains their position in detail. But on its face, having regard to the definition of 'utility infrastructure' in the Act,[31] the work involved installing new utility infrastructure (including equipment and pipes) on common property to supply a utility service to Lot 12. I consider the installation of new utility infrastructure amounts to a change to the utility infrastructure at the scheme. Accordingly, I consider the work required body corporate approval under that by-law.
• [50] The body corporate then asserts a breach of By-law 8(b)(iii) by the respondent placing equipment outside the lot that is not in keeping with the amenity of the complex, without body corporate approval. The respondent says the installation is in keeping with the amenity of the industrial complex. In reply, the body corporate says the works have significantly altered the appearance and character of the common property.
• [51] The disputed installation on the exclusive use area takes up most of a car space. It clearly changes the appearance of the common property car park area. But By-law 8(b)(iii) does not require approval for changes to the appearance of the common property. Rather, it requires approval for anything on a lot or outside a lot that is not in keeping with the 'amenity' of the complex. The gas cylinders on the exclusive use area are screened by fencing. Given the context of a commercial and light industrial scheme, the body corporate has not substantiated how this installation, however significant, detracts from the amenity of the scheme. I am not satisfied on the submitted evidence that there has been a breach of By-law 8(b)(iii).
• [52] Although not cited in the by-law contravention notices or argued in the application, the parties then also refer to By-law 8(b)(iv). The respondent says it has not been breached because the installation did not occur on the lot, but rather on the common property. The body corporate responds that the work involved the installation of a gas meter/valve box on the exterior of the building, which detracts from the appearance of the lot.
• [53] I do not consider By-law 8(b)(iv) to be relevant. The gas meter/valve box was apparently installed on the exterior of the building which is common property. Accordingly, it was not placed on the lot. In any event, the body corporate has not provided any photographs of the gas meter/valve box or other evidence of its appearance. As such, even if the box was on the lot, the applicant has not established that it detracts from the appearance of the lot given the original appearance of lots on the scheme in the context of an industrial complex.

• [54] By-law 11 provides for exclusive use allocations as follows:

The Owner for the time being of each lot shall be entitled to the exclusive use for himself and his licensee for the purposes of a car space/car spaces of the area shown on the Plan in Schedule E.

• [55] The body corporate says the only purpose for which the respondent is entitled to use an exclusively occupy the car spaces allocated to Lot 12 is for a car space.
• [56] The allocation of common property for the purpose of a 'car space' does not necessarily mean the area can only be used to park cars or other vehicles in. There may be other uses that may not be inconsistent with the purpose of a car space. For example, it is common in bodies corporate for exclusive use car spaces to be used for temporary storage of goods. Depending on the terms of the by-law and the context of the scheme and the storage, that use may not be inconsistent with the substantive purpose of an area as a car space.
• [57] But in this case, I consider the nature of the infrastructure constructed in the exclusive use car space, including its scale and permanence, is inconsistence with the stated purpose of the exclusive use area as a car space. Accordingly, I consider the respondent will be in breach of By-law 11 for as long as the installation remains in the car space, even if the improvement to common property was approved. To address this issue while retaining the installation would require an amendment to By-law 11 to permit the alternative use of the affected part of exclusive area X12 at least. To date that has not occurred.

• [58] Finally, the body corporate says the respondent is breaching By-law 15 by altering the common property without its approval. That by-law says:

An Owner or occupier of a lot shall not construct or permit the construction or erection of any structure or alteration of any kind within or upon a lot or on Common Property without the prior approval in writing of the Body Corporate Committee.

• [59] It is clear the respondent has made an alteration to the common property without approval. Unless approval is given, the respondent is in breach of By-law 15.

• [60] I am satisfied the respondent has breached the regulations, along with By-laws 5, 8(b)(i) and 15, by undertaking works and installing infrastructure on the common property without approval. I also consider the respondent has breached By-law 11 by using part of its exclusive use are for a purpose other than as a car space.
• [61] These contraventions could be rectified if the body corporate were to grant retrospective approval for the works and amended the CMS. To date that has not occurred. In the related decision I have not been satisfied that an order to give effect to the respondent's AGM Motion 11 is warranted.[32] However, more appropriately constructed motions could be put forward in future, having regard to the matters raised in the reasons for both decisions.
• [62] If the respondent submits further motions to the body corporate about this matter, the body corporate must act reasonably in deciding any motions including considering the motions promptly. If the motions fail to pass, they could be challenged if there is a legal basis to do so.
• [63] If further motions are not put or are not passed, the unauthorised installation must be removed. But the application gives no evidence of any urgency to do so. No evidence was provided that any other person's use of the common property is currently impeded or that there is any risk to the scheme from the installation. Accordingly, I consider it appropriate to give the respondent time to make a further attempt to obtain the relevant approvals, or to remove the installation if approvals are not sought and received.
• [64] The body corporate also seeks an order that it be authorised to undertake the works if the respondent does not comply with the orders. I do not consider that such an order is necessary. It may be that appropriate approvals are obtained. If they are not, the legislation empowers the body corporate to carry out work that an owner or occupier is required to undertake under an adjudicator's order and recover the reasonable cost of doing so from the owner.[33] If the body corporate sought to do so in this case, the committee would need to resolve to undertake the work, to engage contractors and authorise the spending on that work, and to recover the cost of the work from the owner of Lot 12. If the body corporate sought to enter the exclusive use car space to undertake any work, it would also need to give the occupier of Lot 12 the requisite notice of entry by its authorised contractors.[34]

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

[9] Sections 48C and 49C(4) of the Land Title Act 1994

[10] Recorded 6 February 2019, Titles dealing number 719232710

[12] Schedule 1 of the Acts Interpretation Act 1954

[13] I will discuss the relevant by-laws further later in this decision.

[14] Section 140(1) of the Commercial Module

[15] Section 140(3) of the Commercial Module

[16] Section 134 of the Commercial Module

[17] Sections 94(2) and 100(5) of the Act

[19] Noting in particular Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 and Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15

[21] Section 137 of the Commercial Module

[22] Section 115O of the Land Title Act 1994; the definitions of utility services and utility infrastructure in the Land Title Act 1994 point to the definitions of those terms in schedule 6 of the Act

[24] Section 68(1) of the Act, Ralborg No 2 Pty Ltd atf Ralston Property Trust v The Body Corporate for The Regent Apartments CTS 9573 [2020] QCATA 117

[25] Ralborg No 2 Pty Ltd atf Ralston Property Trust v The Body Corporate for The Regent Apartments CTS 9573 [2020] QCATA 117, para 62

[26] Riverford [2018] QBCCMCmr 606, para 19

[29] Sections 182, 183 and 184 of the Act i

[30] The respondent also submits that it has not breached By-laws 8(b)(iv) and 9, and the body corporate responded to those submissions, but such breaches are not alleged in the application.

[32] Production Avenue Commercial Centre [2025] QBCCMCmr 270

[33] Section 159 of the Commercial Module