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)

GENERAL MEETING MOTIONS; REASONABLENESS - whether a motion to grant some lots exclusive use of areas of the rooftop that are only accessible via those lots failed due to opposition that was unreasonable in the circumstances; whether a motion to permit those lots to construct improvements on the rooftop was unreasonably refused; whether to give effect to the motions.

Act, ss 62(2), 94(2), 281; Standard Module, ss 180, 187(2), 192, 193(4).

• [1] Lots 9 to 12 at Pumicestone Chase occupy the top floor and have internal stairwells that lead to the rooftop. The lots each include a small patch of rooftop where the stairs exit. The remainder of the rooftop is common property, though it is divided up with metal fences into four sections surrounding the exit from each lot, effectively granting each lot de facto exclusive use of a portion of the rooftop that can only be accessed via that lot.
• [2] Motion 3 of an extraordinary general meeting held on 12 December 2024 proposed formalising this arrangement by recording a new community management statement with a new exclusive use by-law. It required a resolution without dissent.[1]
• [3] Motion 4 proposed authorising lots 9-12 to make improvements to their rooftop areas that would include constructing a roofed alfresco dining area with kitchenette and an open seating area. It required an ordinary resolution.[2]
• [4] Both motions failed when the remaining lots (lots 1 to 8) voted against them.
• [5] The applicant is the owner of lot 11 seeking orders in the following terms:

A declaration that motion 3 of the EGM held on 12 December 2024 was not passed by resolution without dissent because of opposition that was unreasonable in the circumstances;

An order that motion 3 of the EGM held on 12 December 2024 is deemed to have been resolved in favour;

A declaration that the body corporate's decision regarding motion 4 of the EGM held on 12 December 2024 was unreasonable;

An order requiring the body corporate to agree to motion 4 of the EGM held on 12 December 2024.

• [6] The applicant wrote to the owners of lots 1 to 8 and asked their reasons for opposing the motion but received no replies. Those owners made no submissions in response to the present application either. The sole submission was from the body corporate committee, opposing the application.
• [7] The applicant argues "the quality of the grounds of opposition of the dissenting voters...is insufficient since no grounds have been submitted". In its reply to submissions, it elaborated:

There is an inference of unreasonableness in circumstances where the dissenting owners have not articulated any basis for their opposition.

It is not for the adjudicator in this application, nor for the respondent, to postulate the basis upon which the dissenting owners opposed motion 3.

• [8] The difficulty with that argument is that the applicant bears the onus of establishing that the opposition to the motion was unreasonable in the circumstances. It is not for the opposing owners to set out the basis for their opposition to demonstrate that it was reasonable. If no one proves anything, the default position is that motion 3 failed.
• [9] The lone fact that the opposing owners have not shared their reasons for opposing the motion does not mean they had no reasons or their reasons were inadequate. They may regard voting as a private matter, or wish to avoid conflict with their neighbours, or struggle to express themselves in writing. No doubt there are many reasons a person might prefer not to engage.
• [10] The applicant might succeed without reference to the subjective reasons of the opponents of the motion if it could show that no reasonable opposition was possible in the circumstances. The applicant points out that no other lot can access or see the rooftop, lots 9 to 12 have enjoyed de facto exclusive use of it for more than 40 years since the scheme's inception, the owners of lots 9-12 paid a premium for their use of the rooftop when purchasing their lots, and no one's use of their lots or the common property would change if the motion was passed. Those are all relevant considerations that weigh in favour of the motion.
• [11] On the other hand, the committee points out that passing the motion would mean giving up the possibility of using the rooftop in the future, with no compensation offered, and without the owners of lots 9 to 12 taking responsibility for the maintenance of the following items that remain body corporate responsibilities in the absence of specific provision to the contrary in the new exclusive use by-law:

(a) maintaining in good condition roofing membranes that -

(i) are on the part of the common property to which the by-law applies; and

(ii) provide protection for lots or common property; or

(b) maintaining in a structurally sound condition any of the following elements of scheme land that are part of a structure that is on the part of the common property to which the by-law applies and is not constructed by or for the owner -

(iii) essential supporting framework, including load-bearing walls.[3]

• [12] Those are also relevant considerations that might reasonably support opposition to the motion.
• [13] The applicant suggests it would be unreasonable and therefore contrary to section 94(2) of the Act if the body corporate was to put the rooftop to some other use, such as by installing solar panels, given the longstanding use of the area by lots 9 to 12. But that is not necessarily so. The obligation to act reasonably is about process rather than result.[4] It requires the body corporate to act in a rational manner, base its decisions upon evidence, and to consider all relevant circumstances. The decision that is ultimately reached, or the weight that is given to the various factors that inform the decision, is up to the body corporate.[5] Consequently, it is rarely possible to say in advance that a particular decision absolutely could not be reached without acting unreasonably.[6] To take the solar panel example, the body corporate might consider the impact on the owners of lots 9 to 12 and their history of using the rooftop, but reflect on the fact that they have never had any legal entitlement to use the rooftop to the exclusion of other owners, and ultimately decide that it is more equitable to use the area to provide a benefit to all owners in the form of cheaper electricity. That would not be irrational, notwithstanding that it would be an unwelcome change for lots 9 to 12.
• [14] Further to that point, and to the failure to offer any compensation for the proposed exclusive use, the majority of the High Court said in Ainsworth v Albrecht:

A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person's material advantage. That is so, if for no other reason than that he or she may reasonably expect to be offered something in return for agreement to part with it to another lot owner.[7]

• [15] With respect to the fact that the proposed new exclusive use by-law would not have transferred responsibility for the maintenance of the roofing membrane and structural elements to the benefitting lot owners, the applicant said the owners of lots 9 to 12 would be agreeable to that amendment. That tends to support the view that it offered a reasonable basis for opposition to the motion. I will not amend the motion and deem it passed though as that would not address the other issues just discussed.
• [16] In the absence of submissions from the owners of lots 1 to 8, I cannot know whether the issues raised by the committee were the reasons for their opposition to motion 3. But they demonstrate that reasonable scope for opposition was available. In that context, I cannot assume that the opposition was unreasonable in the circumstances.

• [17] The applicant argues that the body corporate acted unreasonably when declining motion 4 because the proposed improvement to the rooftop areas:

a. is consistent with the use of those rooftop areas by the owners of lots 9 - 12 for more than 40 years;

b. will have no visual impact on the body corporate or other lot owners, since the gazebos cannot be seen from lots 1 - 8 or any common property on scheme land (other than the rooftop);

c. will have no noise impact on the body corporate or other lot owners, since the proposed use of the rooftop areas is consistent with the existing use;

d. will have no financial impact on the body corporate, since the owners of lots 9 - 12 are required to pay for the installation and ongoing maintenance of the gazebos;

e. will not offend any planning or other statutory requirements, since the owners of lots 9 - 12 are required to obtain all necessary approvals as a condition of the body corporate's approval; and

f. is required to be constructed by licenced builders who hold appropriate insurance and comply with all work health and safety requirements.

• [18] The committee gives various reasons for opposing the motion. Some are contested by the applicant, but others appear to offer reasonable scope for declining to support the motion. For instance, the committee expresses concern that the penetrations to the slab that would be necessary to secure the proposed new structures would perforate the waterproof membrane and could cause leaks. It submitted a letter from a waterproofing company that has carried out several repairs to the rooftop membrane in the past, which concluded:

It is my professional opinion, that this type of use and structure on the existing membrane would more than likely cause significant damage to the existing rooftop membrane as it was never designed for this purpose. In addition, it would significantly increase the risk of water infiltration, which has already occurred in 2023, increased ongoing maintenance costs and the potential for a reduced roof life span and in extreme cases structural damage. Should you proceed, the existing 15-year warranty would be voided.

• [19] The committee also submitted an email from the architect who designed the building, which said "the roof slab was not designed to take the structural loads that would accompany such an additional recreation level".
• [20] As the body corporate is responsible for the maintenance of the membrane and the roofing structure,[8] it would be required to repair them if they were damaged by the improvements. It could also be held liable for any resulting damage to lots, common property, and occupiers' property if they failed.[9] Motion 4 included a condition requiring the owners to maintain their improvements in good condition, but it made no provision for damage the improvements may cause to the membrane, building, or other owners' property.
• [21] The committee points out the improvements would obstruct visibility and access for maintenance purposes, which also seems a fair point. Motion 4 did not require the owners to remove and reinstate the improvements at their cost if the body corporate needs access to the membrane or roofing structure beneath them.
• [22] The body corporate could reasonably have refused to pass motion 4 due to these concerns, notwithstanding the long use of the area by lots 9-12 and the other considerations the applicant mentions.

[1] Act, s 62(2).

[2] Standard Module, ss 187(2) & 193(4).

[3] Standard Module, s 192(3).

[4] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [25].

[7] [2016] HCA 40 at [62].

[8] Standard Module, ss 180(1) & (2)(b)(ii), 192(3)(a)& (3)(b)(ii).