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

BY-LAWS - whether an alteration to a lot breaches the by-laws.

Act, ss 182, 184

1. The owner of Lot 99, or their agents, must remove the polycarbonate roofing installed on Lot 99 within 3 months of the date of this order, unless within that time the Body Corporate for Surfers Waters has given written approval for the installed roofing.
2. The owner of Lot 99, or their agents, must not install any alternative roofing on Lot 99 unless the Body Corporate for Surfers Waters has first given written approval for the alteration.

• [1] This application is about a structure installed on the respondent's Lot 99. It appears to comprise a small portico roof made of polycarbonate sheeting on one side of the residence.
• [2] The body corporate says that, under By-law 13, owners must obtain written approval to make additions or alterations to their lots. It says the respondent erected the structure without approval, and did not respond to correspondence about the matter or rectify the breach.
• [3] The body corporate seeks an order that the respondent apply for approval of a structure that complies with the by-laws or remove the current structure.

• [4] Surfers Waters community titles scheme 20377 (Surfers Waters) is a 134-lot scheme at Southport. It is registered as group titles plans 2584, 3126, 3133, 3334, 3741, 4175 and 101666. Under the community management statement (CMS) the Standard Module applies.
• [5] The application seeks the following orders:

The Body Corporate seeks an adjudicator's order requiring the Owner of Lot 99 to comply with the registered by-laws of the scheme by:

1. Submitting an application to the Body Corporate for approval of a structure that complies with the by-laws (specifically By-Law #13); or
2. Removing the currently erected, unapproved structure should the Owner not wish to amend the material or seek approval.

Either of these outcomes will bring the Owner into compliance with the by-laws of Surfers Waters.

• [6] 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] I am satisfied I have jurisdiction to determine this matter under the statutory dispute resolution provisions.[2]

• [7] The issue in this application is whether the respondent has failed to comply with the by-laws. I will consider the relevant by-law and the circumstances of this dispute.

• [8] The body corporate wrote to the respondent on 26 August 2024 noting the requirement to obtain prior approval for improvements to lots. It said the roofing that had been added to the lot was not approved and was in non-compliant materials. It asserted this breached By-law 6,[3] and sought removal of the roofing within 7 days.
• [9] The body corporate wrote again on 12 September noting there had been no response to its previous letter. It said the roofing structure breached By-law 13.1(a) and 13.6(c). It asked the respondent to submit a lot improvement application to either remove the structure or replace it with an approved material.
• [10] A committee meeting on 20 November discussed the matter. It said the estate manager had spoken to the owner and advised the plastic roofing material on the front portico did not comply with the by-laws and needed to be removed. The meeting resolved to issue a by-law contravention notice and lodge a conciliation application if that notice was not complied with.
• [11] A by-law contravention notice,[4] citing By-law 13(6), was apparently issued on 4 December.
• [12] The body corporate then applied for conciliation of the dispute in January 2025 [5] However, the conciliator by the process as the respondent did not make a reasonable attempt to participate.
• [13] This application was lodged on 20 March 2025, pursuant to a committee resolution on 5 March.
• [14] The Commissioner invited submissions from the respondent and all owners.[6] One submission was made. The applicant did not obtain or respond to the submission.[7]
• [15] The sole submission was from persons who say they are friends of the respondent and are looking after the property while the respondent is away. The contact details for the submitters do not indicate they occupy the lot. The submitters apologised for the lack of communication and engagement, saying they did not note the importance of previous correspondence.
• [16] The submitters confirm they made changes to the roof of Lot 99, with work completed in November 2024. They acknowledge they did not inform anyone or obtain approval, apparently as they were not aware that was required. They said they submitted a lot improvement application in April 2025 in an attempt to resolve the matter.
• [17] The application was referred to department adjudication.[8]
• [18] I note no submission was made by the respondent. However, the Commissioner's delegate confirmed with the body corporate manager (BCM) that the address of the lot and an email address were the only contact details the body corporate had for the respondent. The BCM further advised that levy notices sent to those addresses were paid, such that the BCM was confident correspondence to those addresses was received. Given the circumstances, I am satisfied reasonable attempts were made to put the respondent on notice of this dispute.
• [19] After reviewing the submitted material, I sought further information from the body corporate.[9] At my request, a member of the Commissioner's office contacted the BCM to ascertain the status of any lot improvement application made by the submitters. The BCM provided the following relevant communications:
  1. A request from the submitter described the alteration as the installation of roof on the wooden at the side door of the house, in black to match the exterior colour.
  2. A response from the BCM on 15 April noted the initial application, but said attached further documentation required completion.
  3. An email from the submitter on 7 May referred to a telephone conversation. They explained that, after concerns were raised about the roofing material, further changes were made involving coating the polycarbonate sheeting with waterproof paint and an epoxy coating to match the exterior colour. The email referred to attached specifications, application for approval, and photograph of the completed roof.
  4. An email from the BCM on 9 May indicated the application would be discussed at a meeting the following week.
  5. A query from the submitter on 24 June about the status of the matter.
  6. An email on 24 June from the BCM to the estate manager noting that the submitted application was not sufficient, and saying that information had been advised.
  7. An email on 2 July in which the estate manager told the BCM they had spoken to the submitter's father (who apparently installed the roofing) to advise the polycarbonate sheeting would not be approved. It said they suggested other materials, but said the current roofing was to be removed and any replacement had to be approved.
  8. The BCM confirmed this information to the submitter on 2 July.

• [20] There is no obligation in the legislation for an owner or occupier to obtain body corporate approval for alterations to a lot. However, such matters are regularly the subject of by-laws.[10]
• [21] By-law 13 in the Surfers Waters CMS includes detailed provisions about building controls and maintenance.[11] The body corporate referred to By-laws 13(1) and 13(6) which state:
  1. Building Controls and Maintenance

(1) General Statement

(a) No construction, alteration, addition or modification of any improvements on any Lot shall be commenced nor shall any landscaping or substantial tree or shrub planting be undertaken on any Lot nor shall any requisite local Government, Registered Certifier or other Governmental approval be sought until the plans and specifications thereof, including the plans for landscaping for the Lot (in accordance with 13(12)(b)), shall have been submitted in writing to and approved by the Body Corporate Committee in writing.

(b) Where required, Engineer's or Architect's plans and/or specifications and time frames for construction must also be lodged with the Body Corporate Committee before approval can be granted.

(c) The Committee may approve or disapprove of such plans and specifications and impose such conditions as it deems appropriate on its approval, including but not limited to conditions requiring compliance with By-laws of the Body Corporate, to ensure unified and consistent development and administration of the Lots in the Group Titles Plan, to maintain the amenity and standards of the said plan and to comply with any Gold Coast conditions of development

(d) Where local Government, Registered Certifier or other Government approval must be obtained, no work shall commence until a copy of such approval in writing has been received by the Body Corporate Committee.

(e) Plans and specifications submitted for approval by the Committee may be disapproved in the event that they do not comply with the building standards set out in By-law 13. The Committee may vary any conditions relating to building upon Lots;

(i) of a total area less than 800 square metres;

(ii) of irregular or narrow shape; or

(iii) with more substantial lake frontage.

No dwelling house including any attached or detached garage, carport or other outside structure shall be erected or permitted to be erected:

(a) From sub-standard materials;

(b) From second-hand or antique materials without the written approval of the Body Corporate Committee.

(c) With roofing of any material other than concrete or clay tiles, notwithstanding that the Body Corporate Committee may give consideration to, and if considered appropriate approve the use of:

(i) different products, materials and finishes in relation to the design and construction of shade structures which form part of the dwelling.

(ii) dwelling roofing materials other than concrete or clay tiles, subject to the roof being constructed behind a parapet so that it cannot be seen from the original lie of the land of common property or residential Lots. The exterior finish of the parapet must be completed with a finish identical to that used for the remainder of the exterior of the house.

(iii) patio roofing materials other than concrete or clay tiles, subject to the roof being constructed behind a parapet so that it cannot be seen from the original lie of the land of common property or residential Lots, and a ceiling being constructed to obscure the roofing materials from view beneath the roof. The exterior finish of the parapet must be completed with a finish identical to that used for the remainder of the exterior of the house.

(d) Other than with exterior finish similar to that achieved by rendering or texture over masonry, equivalent to a Granosite finish. Sheet type products which can achieve this finish are not to remain in any unfinished state, including colour, for more than thirty (30) days.

(e) Other than with exterior colour schemes which conform with the contemporary colour schemes being used throughout the Estate. Samples of exterior colour schemes must be included with the building application and approved in writing by the Body Corporate Committee.

(f) Prior to the commencement of repainting, samples of exterior colour schemes must be submitted to the Body Corporate Committee for their written approval.

• [22] All owners and occupiers must comply with the CMS, including the by-laws.[12]
• [23] The Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.[13] It sets out processes for the body corporate to use in doing so, including issuing by-law contravention notices and lodging dispute resolution applications.[14]

• [24] It is not disputed that an alteration, comprising roofing made of coated polycarbonate sheeting, has been made to Lot 99.
• [25] There is no suggestion the owner of Lot 99 undertook this work personally. However, the persons who acknowledge they installed the roofing say they are managing the property on behalf of the lot owner. As such, it seems the alteration was made by the respondent's agents.
• [26] There is no dispute that the roofing was installed without the prior written approval of the committee. It is also not disputed, and I accept, that the installation of the roofing is an alteration to the lot which requires committee approval under By-law 13(1). Accordingly, it is evident the roofing was installed in breach of By-law 13(1).
• [27] The breach of By-law 13(1) could be remedied if retrospective approval was sought and given.
• [28] The respondent's agents made an initial request for approval of the installed roofing in April, with a more detailed request in May.
• [29] The submitted correspondence referred to the expected consideration of the request for approval at an unspecified meeting. However, the BCM did not provide minutes evidencing the committee's consideration of that application. Regardless of their views or advice on whether the request for approval or the improvement was compliant, neither the BCM nor the estate manager has any authority to determine whether the application for approval could be approved or not. Only the committee could make that decision. If the committee has not formally considered whether to approve or refuse the request, it should do so promptly.
• [30] Notwithstanding that, there is no suggestion that the committee has yet approved the application. Accordingly, it appears the roofing structure remains unapproved.
• [31] There seems to be a view that the polycarbonate sheeting is a material that cannot be approved under the by-laws. I am not convinced on that point. By-law 13(6)(c) says outside structures cannot be erected with roofing of any material other than concrete or clay tiles. But it goes on to say the committee can consider, and if appropriate approve, the use of other roofing materials in certain circumstances. It is arguable that polycarbonate sheeting coated to match the colour of the adjacent roof tiles may be able to be approved under By-law 13(6)(c)(i).
• [32] The fact that the committee may be able to approve the installed roofing does not of itself mean it must do so. However, it must act reasonably in deciding the request for approval.
• [33] To the extent that the committee has apparently refused approval for the alteration to Lot 99, the onus would be on the owner to challenge the validity of that decision if they dispute it.

• [34] I am satisfied on the evidence that apparent agents of the respondent owner of Lot 99 have installed roofing on Lot 99 without body corporate approval. Unless the body corporate grants retrospective approval, that roofing must be removed. No alternative or replacement roofing could then be installed without body corporate approval.
• [35] I will make orders to that effect. Where there is no apparent urgency in the matter, I will allow 3 months for the removal of the roofing. If the respondent disputes the apparent refusal of approval for the installation, it must pursue that concern within that timeframe.
• [36] If the body corporate has not yet provided the respondent or their agent with a copy of a formal committee decision on the application for approval of the roofing, and any reasons for the decision, I would suggest it do so promptly.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[11] CMS recorded 14 September 2023, Titles dealing number 722746297

[14] Noting sections 182 and 184 of the Act in particular