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

INTERIM ORDERS - whether interim orders are warranted in the circumstances.

Act, ss 59, and 279

1. The owner of Lots 60 and 62 and the named occupier of those lots (the Respondents), must not take any further steps to:

(a) remove any live vegetation, trees, flowers, plants and/or shrubs on any of Lot 60, Lot 62, common property, or any other lots;

(b) prepare for or install a driveway over any part of Lot 60, Lot 62, common property, or any other lots; or

(c) further develop, including by constructing a dwelling or preparing to construct a dwelling on Lots 60 or 62.

1. The above interim orders have effect until the earlier of: the issue by an adjudicator of a further interim or final order for the application, the application is withdrawn or otherwise ended, or 12 months have elapsed from the date of this order.
2. The application for interim orders is otherwise dismissed.

• [1] This application is brought by the body corporate against the owner and the occupier of two lots (Respondents).
• [2] The setting for the dispute is a community titles scheme established in an environmentally sensitive area. The scheme was originally developed pursuant to consent orders issued by the Planning and Environment Court (P&E Court). Those orders, which were amended several times by the P&E Court, approved reconfiguration of a parcel of land and development of the scheme pursuant to the Body Corporate and Community Management Act 1997 (Qld) (Act), subject to several development conditions. Many of the development conditions relate to the ecologically sensitive nature of the land and the environmental impact of the development.
• [3] The scheme's community management statement (CMS), which is binding on the respondents pursuant to the Act, also expressly recognises the environmental significant of the scheme land and contains multiple provisions regulating the use of scheme land.
• [4] The body corporate says the Respondents have commenced various works, including vegetation clearing works and works to construct a driveway. The body corporate says the works are unauthorised, breach the scheme's CMS, and if allowed to continue, the works will cause irreparable damage to the scheme. The body corporate is seeking interim orders restraining the Respondents from continuing with the works while final orders are pending.
• [5] For the reasons given below, I have made most, but not all, of the interim orders requested by the body corporate.

• [6] The scheme known as Sunrise at 1770 CTS 32536 (Sunrise):
  1. is located in Agnes Waters
  2. is registered as a standard format plan of subdivision on survey plans SP150901, SP178171, SP171151, and SP193640
  3. consists of 173 lots, common property, and its CMS, and
  4. is regulated pursuant to the Act and, as designated in its CMS, the Accommodation Module.
• [7] The applicant is the Body Corporate for Sunrise at 1770.
• [8] The Respondents are the owner of Lots 60 and 62, and an occupier of Lots 60 and 62.[1]

• [9] The Commissioner referred the application for an interim order to department adjudication under section 247(2)(b) of the Act.
• [10] An adjudicator has jurisdiction, and the power to make orders that are just and equitable in the circumstances, to resolve a dispute between certain parties about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights or powers, or the performance of duties, under the Act or CMS.[2]
• [11] An adjudicator is expressly given the power to make an interim order "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[3]
• [12] The parties to the dispute are the body corporate and the owner and the occupier of lots in the scheme. This is a combination of parties provided for in the Act.[4] This dispute concerns actions by the Respondents and includes claims of contraventions of the CMS. I am thus satisfied this is a dispute within the dispute resolution provisions of the Act and within the jurisdiction of an adjudicator.[5]
• [13] There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided. In the circumstances, I did not seek a submission from the Respondents because I was reasonably satisfied that I had sufficient material to make a decision on the application for interim orders. However, if there are matters not presently known me which would justify varying or cancelling the interim order, either of the Respondents or an affected party may make such a request.[6]

• [14] As background, the body corporate says the scheme is a low-density residential scheme and can be described as a "multi award winning Sustainable Eco Development, located on 4 kilometres of pristine beach facing the Coral Sea and surrounded by Littoral Rain Forest and National Parks."
• [15] In summary, the body corporate says:

1. the Respondent's lots are approximately 1500sqm each 2. it became aware in or about August 2025 that the Respondents were unlawfully and without authority, undertaking large scale vegetation clearing on the lots, Lot 61, and common property (Vegetation Clearing) for their own amenity and to prepare for installation of an unapproved driveway (Driveway) 3. the arborist retained by the body corporate to inspect the Vegetation Clearing:

(i) noted that coastal banksias are "native to the area, they provide significant amenity value, habitat, and shelter, and play a crucial role in stabilizing the foreshore against erosion" > > (ii) considered the assessed banksias were otherwise in reasonable condition and demonstrated healthy growth > > (iii) was of the opinion that the nature of the damage to the banksias and the collection and heaping of debris was evidence that the damage was not from natural causes and was the result of deliberate actions, and the systematic nature and extent of damage indicated it was conducted over a period, potentially to improve views and gain access, and > > (iv) he considered the damage to and loss of the trees represents a significant negative impact on local amenity and ecological value

1. the Vegetation Clearing is in direct contravention of the CMS, including multiple by-laws and constitute harm to the ecological features of the scheme land and that the Respondents are required to obtain body corporate authorisation before they commence any Driveway or other building works 2. it has been trying to resolve the dispute including by corresponding with the Respondents, issuing in late September 2025 a by-law contravention notice (Form 11 Notice) to the Respondent owner which, among other things, required that the debris from the Vegetation Clearing be removed, and in October 2025 by requesting an undertaking that the Respondents replant the areas that had been cleared and comply with the requisite approval process for the Driveway 3. the Respondents suggested to the body corporate that the Vegetation Clearing was undertaken by them in the interests of fire safety 4. the Respondents subsequently notified the body corporate that they intended to construct the Driveway for Lot 60, which was to be built over common property and was "self-assessable" 5. despite correspondence from the body corporate and the Form 11 Notice, the Respondents continued with the Vegetation Clearing including in the period from 25-27 October where clearing was done at an accelerated rate and with a large chainsaw, and the clearing damaged vegetation on common property and Lot 61 6. based on the Respondents' correspondence to the body corporate and on comments by a Respondent to a neighbour about a "better view" (and that complying with the CMS was "not required"), the body corporate suggests the Respondents have an incorrect understanding of the CMS and the laws that govern the Respondents' use of the lots and common property 7. correspondence from the Respondent occupier on 29 October 2025 to the body corporate indicates that the Respondents also intend to begin construction of a dwelling on one of the Lots without the required pre-approval of the body corporate 8. the Respondents also contravening the by-laws by parking vehicles and machinery other than in approved driveways or properly constructed parking areas on the lots, and 9. the Respondents are also contravening the by-laws by storing fuel containers in quantities greater than required for normal domestic use on the lots or common property.

• [16] The body corporate says the Respondents are breaching the CMS and the by-laws and that there is evidence to suggest further breaches of the CMS are reasonably anticipated. It seeks 5 interim orders, specifically that the Respondents be ordered to cease:

(i) the removal of any vegetation, trees, flowers, plants and/or shrubs on:

(ii) any works related to the installation of a driveway over:

(iii) any further development, including but not limited to the construction of a dwelling, over:

(iv) parking vehicles and machinery other than in approved driveways or on properly constructed parking areas on the Respondents' Lots; and

(v) storing fuel containers in quantities greater than required for normal domestic use on the Respondents' Lots or Common Property

• [17] The body corporate says the interim orders are urgently required because, without them, the Respondents will continue with the unauthorised Vegetation Clearing and the Driveway and other construction works that have not been approved. It says those actions will cause irreparable damage to the scheme and its award-winning ecological features.

• [18] The only issue to decide at this time is whether one or more of the requested interim orders are warranted.
• [19] I am empowered to issue an interim order if I am satisfied "on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[7] If I am satisfied an order is necessary, I may make an interim order that is just and equitable. Adjudicators often make interim orders in the form of a temporary injunction (an order not to do something) to preserve the status quo pending a final determination of an application.
• [20] To determine if it is just and equitable to make an interim order, there must be some reason in law to make an order. For this, I must consider the substantive issues in dispute. The applicant must satisfy me that there are serious legal questions to be answered. At this stage, an applicant does not need to satisfy me on the balance of probabilities that their legal arguments will be successful.[8] Rather, I must be satisfied there is a sufficient likelihood of success to justify making an order. Higher courts considering whether to make interlocutory restraining orders indicate that what will be considered a sufficient likelihood of success may depend upon the nature of the claim and the practical consequences likely to flow from the order sought.[9]
• [21] This means I must also consider the practical reasons for and the likely effects of an interim order. This is known as assessing the balance of convenience between the parties. To do this, I must consider the inconvenience or harm to the body corporate if I do not make an interim order but final orders later determine the Respondents have contravened the CMS or the Act. I must weigh that against the harm to the Respondents if I grant an interim order and the body corporate is later unsuccessful in its application for final orders.
• [22] Accordingly, to determine whether I am satisfied any of the interim orders are warranted and appropriate, I will consider whether serious legal issues with sufficient likelihood of success have been presented and also consider the inconvenience and potential for harm to the respective parties.

• [23] In its application, the body corporate says it has raised serious legal questions about whether by undertaking the Vegetation Clearing and intending to proceed with construction of the Driveway without seeking approval, that the Respondents have:

1. failed to comply with a by-law contravention notice 2. contravened By-laws 2.1, 3.1, 4.1, 4.3, 4.4, 5.10, 6.2 and 6.3; 3. contravened or it is reasonably anticipated will contravene parts of the CMS including:

(i) Schedule D - Part 2, section 5 - Body Corporate Approval Process; > > (ii) Schedule D - Part 3 - Design and Operations Manual, particularly the Building Design Code (section 3) and the Landscape Design and Vegetation Management (section 5); and

1. unlawfully disposed of common property.

• [24] The body corporate also says the Respondents are contravening By-law 6.3 by storing fuel in excess of domestic quantities and by parking contrary to By-law 6.2.

• [25] All community titles schemes must have a CMS.[10] There are certain things a CMS must include, for example, identification of scheme land and by-laws.[11] A scheme's by-laws are usually found in Schedule C of its CMS.
• [26] A CMS for a scheme may also include anything permitted by the applicable regulation module.[12] The Accommodation Module, for example, provides that a CMS is permitted to include "provisions adopting and regulating the operation of an architectural and landscape code."[13]
• [27] There are several important points to note about codes, which are recorded separately in the CMS, usually in Schedule D. Firstly, such a code is part of the CMS and will be binding on the body corporate and each owner in the scheme.[14] Secondly, adjudicators have found that a code is not a by-law.[15] This means the statutory provisions applying to by-laws and processes for enforcement do not automatically apply to the code.[16] Thirdly, to the extent there is an inconsistency between a by-law and a provision in a code, the code provision will override a by-law to the extent of the inconsistency.[17]
• [28] The CMS, including the by-laws, is binding on the body corporate, each member of the body corporate and each person who is otherwise the occupier of a lot in the scheme.[18] The Act provides that the binding effect of the CMS is as if the CMS included mutual covenants to observe its provisions entered into by each person bound by it.[19]
• [29] The legislation makes clear that a body corporate must enforce the CMS.[20] This obligation thus includes enforcement of both the by-laws and any code included in the CMS.
• [30] The legislation also includes sections setting out the preliminary procedures for resolving disputes about by-laws. Where the body corporate reasonably believes that a person is contravening a by-law, the body corporate may decide to require the person to comply with the by-laws.[21] The body corporate must enforce the by-laws in the way provided under the Act.[22] Generally speaking, the first step is for a body corporate to issue the breaching party with a contravention notice.[23] A contravention notice:
  1. can be about a continuing or a future contravention of the by-laws
  2. must state certain things, including the specific by-law at issue, and details sufficient to identify the alleged contravention[24]
  3. must state a reasonable time by which the contravention must be remedied, and
  4. must advise the person that, if the breach is not remedied, the body corporate may make an application to the BCCM Office to resolve the dispute or may initiate proceedings with the Magistrates Court.[25]

• [31] I have reviewed the CMS for Sunrise and I am satisfied that the body corporate has raised a serious legal issue about whether by carrying out the Vegetation Clearing the Respondents have contravened one or more of the by-laws and/or provisions of the Codes found in Schedule D of the CMS.
• [32] I am also satisfied from the evidence submitted by the body corporate that it has raised a serious legal question whether the CMS requires that the Respondents obtain approval from the body corporate before proceeding with development works for the Driveway and whether it is reasonably anticipated that the Respondents will in the immediate future contravene those provisions of the CMS.
• [33] Where the body corporate appears to have issued the requisite Form 11 notice about the claimed contraventions of By-laws 3, 4 and has also put the Respondents on notice of its claims about contraventions of Schedule D Parts 3 and 5, I consider it has a sufficient likelihood of success on its legal claims for me to consider making the interim orders sought about the Vegetation Clearing and the Driveway works.
• [34] However, I could not see any evidence that the body corporate has served the Respondents with the requisite notice about purported breaches of By-laws 6.2 (parking) and 6.3 (fuel in excess of domestic requirements stored in containers on the lot).
• [35] Where a contravention notice is a pre-requisite step in the enforcement process, at this stage, I am not satisfied there is a sufficient likelihood of success for me to consider making the interim orders sought about alleged breaches of By-laws 6.2 and 6.3. Accordingly, I decline to make those interim orders

Nature or urgency of circumstances and the balance of harm

• [36] In terms of the nature or urgency of the circumstances, I am persuaded by the arborist's report that there is the potential for further significant negative impact on local amenity and ecological value if the Respondents continue with the Vegetation Clearing. I am also persuaded for the purposes of considering an interim order that the Respondents intend to continue with Vegetation Clearing and to take steps towards installing the Driveway.
• [37] I have also considered the comments in the correspondence from the Respondents that the Vegetation Clearing was undertaken by them in the interests of fire safety. At this initial stage, where there is evidence from the arborist that the Respondents have left the organic debris from the Vegetation Clearing in piles, it strikes me as a matter of common sense those actions create and not mitigate any fire danger.
• [38] In terms of the balance of convenience, I consider the balance weighs in favour of the body corporate and making the interim orders sought restraining the Vegetation Clearing and further steps towards construction of the Driveway. If the interim orders are not made and the body corporate is ultimately successful in its application, the vegetation will be lost and the body corporate harmed. Reinstatement of vegetation or the process of objecting and/or removing any permanent structures installed by the Respondents will inconvenience the body corporate.
• [39] In contrast, if the interim orders are made but the body corporate is ultimately unsuccessful in its application for final orders, the inconvenience to the Respondents will be limited to a delay in progressing their works.
• [40] For these reasons, I will make the interim orders sought by the body corporate to restrain the Respondents from continuing with the Vegetation Removal and the works to install a Driveway.

• [41] I have made some interim orders for the reasons given above.
• [42] As I noted in the Preliminaries section above, if there are matters not presently known me which would justify varying or cancelling the interim order, either of the Respondents or an affected party may make such a request.[26]
• [43] If the dispute is not resolved and the applicant does not withdraw the application, the application for final orders will remain to be determined. The application will be referred back to the Commissioner to progress under the Act.[27] The dispute may then be resolved by an adjudicator with the benefit of submissions from the Respondents and all affected parties.
• [44] Even though I declined to make the requested interim orders about parking and storing of fuel in containers on the lot, I remind the Respondents that they are obligated to comply with the CMS (including the by-laws) for the scheme. This decision and order should not be read to excuse them from complying with By-laws 6.2 and 6.3.
• [45] Finally, to the extent it creates a fire hazard, the Respondents should remove the organic debris that resulted from the Vegetation Clearing.

[1] The body corporate says that, by a power of attorney, the Respondent owner of the lots has appointed the Respondent occupier to act on her behalf for all matters relating to administration of the lots.

[5] Sections 226, 228 and 276 of the Act

[6] Until a final order is made, an adjudicator has the power to extend, vary, renew, or cancel an interim order. See Section 279(2)(b) of the Act. I note also that the body corporate and all owners will be invited to give their views before final orders are issued. See id. at Section 243

[8] Although an applicant must identify a genuine legal issue to be decided, the granting of an interim order by itself does not indicate whether or not an applicant will ultimately be successful on their application for final orders.

[9] See e.g., Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 80 ALJR 1672 at [65] citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 - 623

[10] Section 24 of the Act. The CMS for the scheme is binding on the body corporate, each member of the body corporate, and certain others. See Sections 31 and 59(2) of the Act

[13] Section 7(b) of the Accommodation Module

[15] See Brookwater Vista 2 Home Owners Club [2020] QBCCMCmr 649 at [29]; The Lake Port Douglas [2016] QBCCMCmr 71 at [19]; Calypso Bay Residential Land [2018] QBCCMCmr 195 at [35]

[16] For example sections 169,180 and 184 of the Act

[21] See Sections 182 and 183 of the Act

[22] See Sections 182 and 183 of the Act

[23] See id. The Commissioner produces BCCM Forms 10 and 11 to assist bodies corporate in ensuring compliance with the statutory requirements.

[25] See id. at Sections 182(4)(e) and 183(4)(e)

[26] Until a final order is made, an adjudicator has the jurisdiction and power to extend, vary, renew, or cancel an interim order. See Section 279(2)(b) of the Act