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

INTERIM ORDER - whether an interim order is warranted.

1. Pending a final determination on this application, the Body Corporate for Regency Place must not remove or dispose of the shed, BBQ, furniture, trampoline or any other property of the owners or occupiers of Lot 6 located at the rear of Lot 6.
2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

• [1] This application is about an alleged by-law contravention.
• [2] On 12 June 2025 the body corporate manager (BCM) wrote to the owners of Lot 6 asserting they had items on the common property including a shed, BBQ, furniture and trampoline. The letter said they needed to remove the items from common property immediately. It said that, as no items were to be stored on common property, the items were to be removed by 19 June or they would be removed, dumped and the account sent to the owners. The letter cited By-law 3 regarding obstructions and By-law 7 regarding depositing rubbish on common property.
• [3] The applicant is one of owners of Lot 6. He wrote to the committee in response saying the shed was installed with body corporate approval and sits under the roofline of their property and does not contravene any by-laws. He also said the other items did not breach the by-laws. He asked to discuss the matter. The applicant then says he called the BCM and committee members directly seeking a response. He says he has not received a response.
• [4] The applicant says the shed was approved and is not obstructing common property. He says the other items are not on common property and are not rubbish. He says the common property can be accessed at any time without obstruction, but has never been used by others.
• [5] The applicant wants the BCM's letter to be declared void. In the interim, he to stop works to remove the disputed items. At this time, I will consider whether interim orders are warranted.

• [6] Regency Place community titles scheme 21972 (Regency Place) is a 16-lot scheme at Burleigh Waters. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as group titles plan 519.
• [7] This application seeks an interim order:

We request an order that the body corporate stop the planned works on 19/06/2025 to remove the shed, bbq and other equipment from the rear of Lot 6 / 105 Christine Avenue, Burleigh Waters, Qld, 4220, as per the notice provided to owners on 12/06/205, or any future works to remove items at a later planned date.

• [8] The application then seeks the following final order:

That the notice from Body Corporate Choice addressed to Mr MJ Dun & Ms JA West, owners of Lot 6 - CTS 21972, dated 12/06/2025 requesting the removal of the shed and bbq be declared to be void and of no effect.

• [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.[1] Notably, an adjudicator may make an interim order if satisfied on reasonable grounds it is necessary due to the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to decide this matter.[3]

• [10] This application was lodged on 16 June 2025. The Commissioner's delegate sought clarification on some aspects of the application,[4] which was then amended.[5]
• [11] As permitted under the Act, the Commissioner referred this application to me to decide whether the nature or urgency of the circumstances warrant an interim order,[6] notwithstanding that notice of the application has not yet been given to the respondent or owners.
• [12] At my direction, a member of the Commissioner's office contacted the BCM to seek further information. The BCM was asked if the body corporate had scheduled or planned a date to remove the disputed items or engaged a contractor to undertake that work. The BCM was also asked if the body corporate had responded to the applicant's email asserting the items did not breach the by-laws. The BCM was then advised (verbally and in writing) that if the committee provided a written undertaking not to remove the items adjacent to Lot 6 before the interim order was determined, I would provide time for the committee to make a submission about the interim order, but if not I may determine the interim order without further reference to it.
• [13] The BCM verbally advised there had been no response to the applicant other than to a request for more time. The BCM then provided an email from the applicant dated 16 June indicating they had moved some items but required until 23 June to arrange to relocate the larger items. He said the removal and dumping of property worth over $2,000 was not reasonable and the short timeframe was not adequate. The BCM said the extension had been approved. The BCM did not provide any other information and the committee did not, within the timeframe provided, undertake not to remove any items until the interim order was determined.
• [14] There is no statutory requirement to obtain comment before an interim order is decided. Given the current circumstances, including the limited response from the body corporate, I have proceeded to determine the interim order without further reference to the body corporate.

• [15] The only issue at this time is whether an interim order is warranted. However, it is necessary to consider the substantive issues in dispute to decide whether to make an interim order.

• [16] Any order granted must be just and equitable.[7] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[8] An adjudicator must be satisfied an application raises serious legal questions and that the balance of convenience between the parties justifies injunctive relief. That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence an interim order is necessary to prevent serious or irreparable harm.

• [17] Several issues appear to arise in regard to this dispute. I will comment on the key issues.

• [18] The applicant does not dispute having items including a shed, BBQ, furniture and a trampoline at the rear of Lot 6. However, there may be some question as to whether those items are located within the boundaries of Lot 6 or are on common property.
• [19] The applicant provides photographs of the rear of Lot 6. One shows a small metal shed, a covered BBQ, a ladder and a wheelbarrow on pavers against the wall of the residence, adjacent to a high fence. These appear to be on the eastern side of the rear of the lot. The items appear to be under the eaves of the roof of the residence. Other photographs show a trampoline and a stack of chairs on a paved area, apparently at the western side of the rear of the lot, adjacent to Lot 5. The chairs appear to be under the eaves of the roof. The trampoline extends well beyond the roofline but not beyond a slatted timber screen that extends from what appears to be the exterior wall of Lot 5. The photographs show a grassed area between the paving and garden beds and a fence, which is presumably the rear boundary of the scheme.
• [20] Regency Place is registered as a standard format plan of subdivision (formerly a group titles plan). Under this type of plan, boundaries are defined using a horizontal plane and references to marks on the ground.[9] Structures, such as exterior walls and fences, do not necessarily denote the boundary of lots. The survey plan for Regency Place shows Lot 6 borders Lot 5 on the western side and is otherwise bounded by common property. It is not immediately clear from the plan were the rear boundary of Lot 6 is relative to the structure on the lot.
• [21] The precise location of the disputed items relative to the boundaries of Lot 6 may require further investigation. However, it would be surprising if the boundaries of Lot 6 did not at least include the area under the roofline of the residence. Accordingly, while it is likely the trampoline is largely on common property, I am unclear whether other items are.

• [22] The applicant asserts the shed was installed with the approval of former committee members in January or February 2015. He says he no longer has copies of the original communications but that the BCM may have the records. However, he says the committee at the time made many decisions verbally or in emails rather than in formal minutes.
• [23] The circumstances of the shed are currently unclear to me, and further investigations may be required in that regard.
• [24] If the shed is wholly within the boundaries of Lot 6, body corporate approval may have been required under By-law 8 which relates to external appearance and requires committee consent to 'do anything to vary the external appearance of the lot'. If the shed is wholly or partly on common property, and is fixed to the common property an improvement, body corporate approval may be required on that basis.[10] If there is a question about whether the shed has been approved, the applicant could inspect or obtain a copy of body corporate records.[11]
• [25] If the shed was not approved, or no record of approval has been retained, arguably the body corporate should at least give the applicant the opportunity to formally apply for approval before seeking its removal. That is particularly so if the shed, as claimed by the applicant, has been in place for over 10 years and if no previous issue with the shed has been raised.

• [26] The BCM's letter cited By-laws 3 and 7 although it did not explain how it was asserted that the owners of Lot 6 were contravening the by-laws.
• [27] The BCM's letter said that no items are allowed to be stored on common property. However, it is not evident that there is a by-law provision to that effect.
• [28] Under By-law 3 an owner or occupier must not obstruct the lawful use of common property. If any of the disputed items are not on common property it is difficult to see how they could obstruct the use of the common property. But even if the items are wholly or partly on common property, that does not necessarily mean they are obstructing the use of common property.
• [29] 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'.
• [30] All owners own common property as tenants in common.[12] Prima facie, owners and occupiers do not require body corporate approval to use common property. But the right to use 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,[13] the requirement for approval to make improvements to common property,[14] and the by-laws.
• [31] Using common property or placing something on it does not automatically constitute an obstruction of the lawful use the common property. Whether it is 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.[15] Accordingly, it will be a matter for further consideration whether any of the items referred to by the BCM are in fact obstructing the lawful use of common property.
• [32] By-law 7 provides that an owner or occupier must not deposit or throw onto the common property any rubbish, dirt, dust or other material likely to interfere with anyone else lawfully using the common property. It is not immediately clear how the current circumstances could amount a breach of By-law 7. The items referred to are clearly not dirt or dust and do not appear to be rubbish. The meaning of 'other material' in the by-law would arguably be limited to things such as rubbish, dirt and dust.[16]

• [33] If the owners of Lot 6 have breached the by-laws in respect of any of the disputed items, there is a further question about the power of the body corporate to require the owners to remove the items, or to remove and dump the items itself and charge for the cost of doing so. If it could, there is a question whether the letter of 12 June would be sufficient to enable that.
• [34] All owners and occupiers must comply with the CMS, including the by-laws.[17] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.[18] As with all of its functions, the body corporate must act reasonably in enforcing the by-laws.[19]
• [35] The Act sets out a process for a body corporate to enforce by-laws. This includes first issuing a by-law contravention notice.[20] If a body corporate decides to issue a contravention notice, and the alleged breach is not remedied, the body corporate 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.
• [36] If someone has placed something on common property without body corporate approval and in breach of the by-laws, and has ignored requests to remove it, there may also be scope for the body corporate to resolve to remove the item itself.[21] However, again the body corporate must act reasonably in that regard.
• [37] While the BCM wrote to the applicant on 12 June, that letter does not fulfill the requirements for a by-law contravention notice under the Act. It also does not clearly explain how the items are alleged to breach the cited by-laws. The body corporate could not pursue the matter in the Commissioner's office or the Magistrates Court before issuing a by-law contravention notice. I have no information yet on whether the committee resolved to issue the letter of 12 June, or take any action if the request in that letter is not complied with. In particular, I am unclear if the committee actually resolved to remove or dump the disputed items, to engage a contractor to do so, to incur expenditure on such works, or to charge the lot owners for any costs incurred. The body corporate could not act without such resolutions.
• [38] If any of the items in dispute are on common property and contravene the by-laws, it is arguable that the body corporate should give adequate notice of the alleged contravention to the lot owners and give them an adequate opportunity to address the situation. I consider there is a genuine question at this time as to whether the body corporate has done so to date. That is particularly so if the body corporate has not responded to the applicant's queries.

• [39] The applicant seeks an interim order to stop work to remove the items from the rear of their lot. The applicant refers to the work being planned for 19 June 2025, but it is not evident the body corporate ever planned to remove the items on that date. Rather, the BCM said it would do so if the lot owners did not remove them by that date. Notwithstanding that, the letter implies the items could be removed at any time after 19 June. Given the apparent extension given by the committee, it appears the body corporate could seek to remove any items not removed by 23 June at any time after that date.
• [40] The applicant refers an unreasonably short time to rectify the request, the lack of time for due process, and the unwillingness of the committee to engage in any discussion. They say they work full time and the describe what would be involved to remove the items, including permanent fixtures. They also refer to the cost of removal and relocation of the items.
• [41] There is a question as to the cost and inconvenience of removing the items (either by the lot owners or the body corporate), and the replacement of items if the body corporate disposes of them, if there is no actual breach of the by-laws.
• [42] Conversely, it is not immediately apparent that there could be any genuinely urgent need on the part of the body corporate for the items to be removed. On its face, the items are located against the exterior wall of Lot 6. It is not evident from the photographs supplied that the items could impede the use of the grassed area behind Lot 6, if in fact any other occupier sought to use that area of common property. The applicant claims the shed at least has been in situ for over 10 years and that the area is not used by others.
• [43] I consider those circumstances favour the interim order.

• [44] I am satisfied the applicant has raised a genuine question about whether the items behind Lot 6 are on common property in breach of the by-laws and whether the body corporate is entitled to remove them if the lot owners do not. Given the circumstances, I consider an interim order is warranted to restrain the body corporate from removing the items until the substantive dispute can be resolved.
• [45] I will refer the application back to the Commissioner to progress under the Act.
• [46] In the first instance, I propose recommending to the Commissioner this application be referred to conciliation to see if the parties could reach an agreement on the issues in dispute. The parties could consider the items are on the lot or are on the common property, and whether any require body corporate approval or could constitute a breach of any by-law. If the dispute is not otherwise resolved between the parties, the Commissioner is likely to invite submissions in respect of the final orders from the committee and all owners.
• [47] The parties should note section 279(2) of the Act regarding the term and effect of an interim order. This interim order will have effect for a period of up to twelve months. The interim order will not automatically be renewed, and it will be up to the applicants to request an extension of the order if this application is not otherwise resolved within twelve months. The order will lapse if the application is withdrawn or otherwise ended.

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

[9] Section 48B of the Land Titles Act 1994

[10] Section 187 of the Standard Module

[14] Section 177 of the Accommodation Module

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

[16] Under the ejusdem generis rule of statutory interpretation, where a list of specific terms is followed by a general term, the general term is limited to the category of items established by the specific terms.

[19] Noting section 94(2) and 100(5) of the Act

[21] I note the powers given to the body corporate in section 212 of the Standard Module