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)

INTERIM ORDER - whether an interim order is warranted.

1. The application for an interim order is dismissed.

• [1] This application is about the respondents (the owners of Lot 275) constructing a fence on the boundary of their lot.
• [2] The body corporate is seeking final orders that the respondents remove or modify the fence to comply with the community management statement (CMS) and that they obtain the body corporate's written approval before proceeding with further works. The body corporate says they became aware of works commencing on the lot on 20 October 2025.
• [3] In the by-law contravention notice issued to the respondents in November 2025, the body corporate asserts that the construction of the fence has not been approved by the body corporate and that the fence does not meet the standards of transparency or landscaping required in the Architectural and Landscape Code (ALC).
• [4] Pending the determination of the final orders sought, the body corporate is seeking an interim order to restrain the respondents from continuing with the construction of the fence.
• [5] At this stage, I will only consider whether an interim order is warranted in the circumstances.

• [6] The body corporate seeks the following interim outcome:

The owner of Lot 275 must immediately cease all construction or alteration of the boundary fence until either: - a final adjudication has been determined; or an amended application has been submitted and approved by the Body Corporate, in full compliance with By-law 31. Comply with Architectural and Landscape Code, and Part B - Architectural and Landscape Code - Fencing, clauses 12.25 to 12.32. No further works are to proceed unless and until formal approval is granted in accordance with the above requirements.

• [7] The body corporate then seeks the following final outcome:

The owner of Lot 275 must, within 21 days of the order:

• - Remove or modify the fence to comply with the CMS requirements and
• - Obtain written approval from the Body Corporate before proceeding with any works for any revised design.

• [8] Serenity Shores community titles scheme 54905 (Serenity Shores) is a subsidiary scheme of the Oyster Cove Waterfront community titles scheme 28389. The CMS indicates the Standard Module applies. The scheme is registered as survey plan 159254, 164199, 211889, 287588 and 287589.

• [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 the performance of duties under the Act or CMS.[1] Relevantly, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary due to the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions in the Act.[3]

• [10] This application was lodged on 17 November 2025. The Commissioner sought further clarification from the body corporate about the application.[4] The application was then amended.[5]
• [11] I have been tasked with deciding whether the circumstances warrant an interim order.[6] There is no legislative requirement to give notice of an interim order application to a respondent or affected party.[7] In the circumstances, I gave the respondents a limited opportunity to respond to the interim order application. I also sought further information from the body corporate to clarify certain points in the application.

• [12] The respondents oppose the interim order application. Most relevantly, they say:
  1. The circumstances do not demonstrate the immediacy or harm necessary to warrant an interim order.
  2. The photographs in the application show numerous lots in the scheme with solid rendered walls, extended boundary structures and fences exceeding (or appearing to exceed) the heights in the ALC. These structures are longstanding and highlight the body corporate's inconsistent enforcement, which is contrary to sections 94 and 100 of the Act. Singling out one lot for urgent enforcement while there are similar structures throughout the scheme is contrary to section 100(5) of the Act.
  3. As no evidence of ongoing conduct has been provided, the requirement in section 279(1) of the Act is not satisfied.
  4. The applicant's assertions of harm are speculative. The suggestion that the fence may permanently alter the appearance of the property or that enforcement may be more difficult in the future does not demonstrate a genuine risk of irreversible harm warranting an interim order under section 279 of the Act.
  5. Possible rectification costs or inconvenience does not make the matter urgent, especially when final orders are available to require modification or removal where appropriate.
  6. The respondents have been cooperative and transparent and there is no need for an order compelling them to cease any activity.
  7. The works have already ceased. Therefore, an interim order is not necessary because of the nature or urgency of the circumstances under section 279(1) of the Act.

• [13] The sole issue for me to determine at this stage is whether an interim order is warranted. However, to make this determination, I must consider the substantive issues in dispute.

• [14] An interim order is intended to protect rights and interests temporarily, or maintain the status quo, until the substantive issues in dispute are finally determined.
• [15] The Act stipulates that an adjudicator may make an interim order if they are satisfied, on reasonable grounds, that an interim order is necessary due to the nature or urgency of the circumstances.[8]
• [16] In determining whether it is just and equitable to make an interim order, an adjudicator must consider whether the application raises serious legal questions. Although I am not making any final decisions as to the merit of the substantive issues at this time, I must consider whether the body corporate has made a prima facie case on genuine legal issues.
• [17] An adjudicator must also weigh the impact of refusing to make an interim order if the final orders are ultimately granted, against the impact of granting the interim order if the final orders are ultimately refused (referred to as the 'balance of convenience'). It is particularly important to consider whether an interim order is necessary to prevent serious or irreparable harm.

• [18] I will now turn to consider the legal basis for the final order sought and whether there is an arguable case.
• [19] The application asserts that the respondents are constructing a boundary fence contrary to By-law 31 and the ALC.
• [20] The body corporate says it first became aware of the fence being constructed on the lot on 20 October 2025. It then advised the respondents that the body corporate's written approval is required for any proposed works in accordance with the CMS and to submit an application for consideration. It also directed the respondents to cease all works until body corporate approval is obtained.
• [21] The respondents initially sought approval for a 1.8 metre high rendered block wall on the boundary of the lot on 30 October 2025. This application was declined by the committee. An amended application for a 1.2 metre high rendered block wall was then submitted on 6 November 2025. The committee also declined the amended proposal.
• [22] A by-law contravention notice was subsequently issued to the respondents, claiming that the fence does not meet the required standards of transparency or landscaping as detailed in the ALC.
• [23] The Act requires a continuing contravention notice to contain particular details, including that it must state the provision the body corporate believes is being contravened and details sufficient to identify the contravention.[9]
• [24] The body corporate identified By-law 31, which requires owners and occupiers to comply with the terms of the ALC and deems any breach of the ALC to be a breach of the by-laws. The body corporate also referred to the general fencing clauses in 12.25 to 12.32 of the ALC without identifying the specific fencing clause (or clauses) allegedly being breached or detailing the exact breach.
• [25] The continuing contravention notice also claims that construction of the fence was not approved by the body corporate. However, the body corporate has not identified the specific by-law or clause in the ALC which requires body corporate approval to be obtained.
• [26] In my preliminary view, while there may be a genuine legal issue, at this stage, the application lacks specificity about how the respondents have allegedly breached the by-laws and the ALC regarding the construction of the current fence.

• [27] The body corporate submits that the respondents are actively constructing a boundary fence and asserts that continued construction will:
  • cause irreversible changes to the property frontage
  • make it difficult to restore compliance without significant cost or disruption
  • make enforcement reactive and more complex once the fence is completed
  • detract from the architectural cohesion of the scheme, affecting visual amenity and potentially diminishing property values
  • compromise compliance with By-law 31 and the ALC
  • hinder the body corporate's ability to enforce its by-laws.
• [28] Notably, the photo of the respondents' fence included in the application indicates that a significant portion of the construction is already complete.[10]
• [29] As part of my investigations, I sought further information from the body corporate about how the continued construction of the fence will cause irreversible changes to the property frontage. The body corporate responded that the construction of the fence is in direct contravention of the ALC. It also explained the purpose of the ALC in enhancing the amenity and character of Serenity Shores and that the fence disrupts the intended uniformity of the streetscape. Most relevantly though, the body corporate noted that:

Once completed, the fence will materially and permanently alter the visual presentation of both the individual lot and the scheme as a whole. Even if subsequently removed, the frontage will have been changed in a way that may not be capable of being fully restored to its original state.

• [30] However, the body corporate's response simply restates (albeit in slightly different terms) its original contention, without going further to clarify how the continued construction of the fence will result in these alleged irreversible changes.
• [31] I also sought clarification about how the body corporate will be adversely impacted if the fence needs to be removed. The body corporate responded that as the owners of Lot 275 would be responsible for the removal and associated costs, the body corporate would not be adversely affected. Therefore, even if there is significant cost or disruption if the fence needs to be removed or modified, prima facie, any such cost or disruption will be borne by the respondents, not the body corporate.
• [32] Furthermore, the body corporate's claims about the continued construction of the fence hindering its ability to enforce its by-laws and diminishing property values appear to be largely speculative at this stage.
• [33] Relevantly, in their submission, the respondents claim that the works have already ceased and that no interim order is necessary where there is no evidence of ongoing conduct or imminent risk.
• [34] In my preliminary view, the body corporate has provided little to no detail or evidence in the application or its further responses to support its claims about the alleged consequences of continued construction (if indeed construction is even continuing) on the substantially completed fence. Given the limited evidence before me as to the alleged consequences and the respondents' submission that the works have already ceased, the body corporate has not satisfied me that there is any basis to grant the interim relief sought.

• [35] For the reasons outlined above, I have dismissed the body corporate's application for an interim order. Even if a genuine legal issue exists, the body corporate has not satisfied me that granting the interim order sought is warranted in the circumstances.
• [36] The application for final orders remains to be determined. Pursuant to the Act, I will refer the application back to the Commissioner to progress.[11]
• [37] If the application is not withdrawn, the body corporate may wish to review the application in light of the matters outlined above.
• [38] If the application proceeds, I will recommend that the Commissioner refer this application to department conciliation. Having an impartial person who understands body corporate law facilitating discussion may assist the parties to reach an agreement about the issues currently in dispute and improve their understanding of by-law enforcement.

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