A by-law requires proprietors to maintain the exterior of their lot's Principal Structure in good condition and repair. The Body Corporate alleges part of residence exterior is stained and seeks an order that it be pressure washed. The question is whether the by-law requires the facade to be cleaned.

A by-law requires a proprietor to maintain landscaping in good condition and repair. The Body Corporate alleges the yard requires maintenance for weeds and overgrown vegetation. The question is whether the by-law imposes an obligation to keep landscping tidy and uniform for other lots.

Act, s 77

1. Yipeng Du, the owner of lot 24 in Harpullia GTP 107045 must, within 14 days of this order, cause to be removed all weeds emerging through the front driveway pavers, extending from the front garden bed, and growing along the side of the property.
2. The application is otherwise dismissed.

• [1] This is an application by the Sanctuary Cove Principal Body Corporate (PBC) for orders that a lot proprietor attend to maintenance of their lot.
• [2] The Respondent is the owner of lot 24 in Harpullia GTP 107045. Harpullia is a subsidiary body corporate of the PBC within the Residential Zone of Sanctuary Cove Resort.
• [3] The applicant says that the respondent has failed to comply with Residential Zone Activity By-Laws (RZABLs) s 3.1 (a) and (c), concerning repairs and maintenance.[1] The applicant describes the required maintenance as relating to:

stained rendering on the front and rear upper exterior portions of the principal structure, overgrown vegetation encroaching upon the driveway and sides of the property, and excessive vegetation in the backyard extending into the waterway.

• [4] It provides photographic evidence of the front of the lot, depicting staining of a small area of the facade, presumably due to organic material or pollution washing over from above, weeds on and around the driveway and untrimmed shrubs. A similar state of affairs is depicted for the rear of the property.
• [5] The applicant seeks the following orders:

a. The Respondent must pressure wash the existing stained rendering on the front and rear exterior portions of the principal structure.

b. The Respondent must trim and prune the excessive, unsightly growth of the overgrown vegetation of the rear yard.

c. The Respondent must remove and tidy the weeds emerging through the front driveway pavers, extending from the front garden bed, and growing along the side of the property.

PART 3 REPAIR AND MAINTENANCE

(a) maintain in good condition and repair and where necessary replace or renew the exterior of his Principal Structure including for the purposes of this by-law only, and without limitation, all fences, walls, windows, gates, sidewalls, walkways, driveways and other structures located on the Lot; and

(b) maintain in a clean condition the interior of his Principal Structure and take all practicable steps to prevent infestation by vermin or insects; and

(c) maintain in good condition and repair and where necessary replace or renew all yard landscaping, irrigation facilities, drainage facilities, spas and fountains located on the Lot;

(d) make any necessary arrangements for sufficient water required for the maintenance and irrigation of all yard landscaping, and must be responsible for the payment of any charges levied in respect of excess water usage.

• [7] I will deal firstly with the requested order to clean the facade.
• [8] By-laws must be read in context and construed objectively, by reference to what an ordinary reasonable person would understand the language of the instrument to mean.[2] RZABL 3.1(a) requires a 'Principal Structure' to be maintained 'in good condition and repair'. In previous decisions[3] about whether 3.1(a) requires an owner to keep their residence's facade clean, I have noted and found the following:
  1. Reading By-law 3.1 as a whole, it is notable that subclause (a) does not use the word 'clean', or a synonym, whereas subclause (b) does.
  2. The Queensland Court of Appeal in Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors[4] considered that a statutory maintenance obligation for windows may include cleaning, but also said that the extent of the obligation depends on the circumstances.[5] In Sattel & Ors v The Proprietors Be Bee's Tropical Apartments Building,[6] the Queensland Court of Appeal considered that, for a caretaker's contractual cleaning and tidying obligation, cleaning and maintenance were distinct activities.[7]
  3. Regardless of the statutory context, an ordinary reasonable person would see that By-law 3.1 subclauses (a) and (c) explicitly say that owners must keep some things 'in good condition and repair', whereas subclause (b) says they must keep other things 'clean'. The reasonable person may conclude that the things mentioned in subclauses (a) and (c) are not also required to be kept clean, as such.
  4. In circumstances where the words of By-law 3.1 draw a clear distinction between maintaining exteriors and cleaning interiors, I am not satisfied that the PBC is empowered by By-law 3.1 to compel an owner to keep the external surfaces of a residence clean.
  5. The subclause purports to impose an obligation on the respondent, and the PBC as the applicant bears the onus of satisfying me I ought to make the requested order. Therefore, any ambiguity or uncertainty in the application of the subclause must be resolved in the respondent's favour.
• [9] In a recent decision on the same issue[8] a referee made an order to the effect that a facade be cleaned, pursuant to the same by-law obligation to keep it in 'good condition and repair'. However, it appears the adjudicator was not alerted by the applicant to by-law 3.1(b), which differentiates between maintenance and cleaning obligations imposed for exteriors and interiors, discussed above. Accordingly, the referee was not called upon to give substantial consideration to the extent to which an unclean facade was not 'in good condition and repair'.
• [10] In that decision, the referee also found, on the photographic evidence, that the facade was 'heavily stained'. I agree that a facade may be so heavily stained as to meet an ordinary reasonable person's understanding of not being in 'good condition and repair'. At what point that occurs is impossible to state with any precision.
• [11] In this case, on the applicant's photographic evidence, the staining is apparent but I would not characterise it as heavily stained. I am not sure that I would have noticed the staining had my eye not been drawn to it by the description of its location and the red oval superimposed on the photograph to indicate the area.
• [12] On the evidence before me, I am not satisfied it has reached such a state as to require maintenance. I therefore decline to make the requested order about the facade.

• [13] I note that By-law 3.1(c) says nothing about vegetation, but I consider that an ordinary reasonable person would expect that 'yard landscaping' includes it. Further, I consider an ordinary reasonable person would conclude that yard landscaping includes at least deliberately-planted vegetation, of any type. To the extent that a weed is situated in a landscaped area, such as a garden bed, or otherwise intermingled with other planted items in a landscaped area, I am satisfied that a weed is part of the landscaping, at least for this by-law's purposes.
• [14] I accept that substantial weed growth is evidence of a failure to keep landscaping in good condition. It is not always clear, especially from limited photographic evidence, as to what constitutes a weed. There is often not much visual difference between a weed and a deliberate planting. I agree with another referee's view that any vegetation growing between driveway pavers can safely be described as a weed if it does not appear to have been deliberately planted, given driveways are rarely planted deliberately.[9]
• [15] I am satisfied on the photographic evidence that there are weeds growing through what is probably a crack in the driveway and alongside its left edge, and that a reasonable person would consider they require attending to. I am also satisfied that the PBC has put the respondent on notice of its allegations and its required outcomes. I am therefore prepared to make an order about the weeds.
• [16] As to the state of the other plants, the applicant seeks an order to remove 'unsightly growth', but nothing in the words 'maintain' or 'good condition and repair' requires the landscaping to be visually attractive. I consider a reasonable person would consider that a yard which is heavily overgrown to the extent of, for example, hindering access paths or encroaching into another lot, or which has fallen or dead vegetation, is not in good condition. However as I noted in the context of the facade, that is a matter of degree, about which reasonable minds might differ.
• [17] The hedge row at the front of the property is not trimmed, but I do not consider that a hedge must necessarily be trimmed in order to be in good condition. I would say the same of the larger plants at the rear. The photographic evidence depicts thick vegetation of various types, but it does not convince me that it necessarily requires attending to. The state of it might well be a reasonable choice for the lot owner. Other owners may prefer uniformity of appearance between lots, but I am not informed of any by-laws which require that.
• [18] I therefore decline to make orders about the other vegetation.

• [19] For the reasons above, I will make orders about the weeds and dismiss the balance of the application.
• [20] I appreciate that this decision will be unsatisfactory for the owners who have made submissions in support of the application. Their submissions add other things to the list of the property's maintenance needs, such as mould growth and unfiltered black pool water, and I do not doubt that it causes them distress. However, unfortunately, those other things are not the subject of requested orders in this application or the very limited evidence and submission put before me by the PBC, and I cannot go beyond those bounds in considering the application. They may wish to make their own application about those other maintenance needs.
• [21] They also may wish to direct their ire to the committee for the PBC, which has repeatedly lodged perfunctory applications such as this and ignored referee's comments which make it quite plain that the by-laws need to be amended if proprietors wish to impose clear and strict obligations on owners and occupiers to keep up the appearance of the scheme's lots.

[1] The RZABL bind the PBC and PBC members, as well as the proprietors, mortgagees in possession, lessees and occupiers of lots within the residential zones in the Sanctuary Cove Resort. Section 96A(6) of the SCR Act

[2] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at [18]

[3] Sanctuary Cove Principal Body Corporate [2021] QBCCMCmr 472; Sanctuary Cove Principal Body Corporate [2021] QBCCMCmr 477

[4] [2003] QCA 283

[6] [2001] QCA 560

[7] Sattel, de Jersey CJ at [25]-[26] and Chesterman J at [60]-[62]

[8] Sanctuary Cove Principal Body Corporate [2025] QBCCMCmr 38

[9] Sanctuary Cove Principal Body Corporate [2021] QBCCMCmr 506