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

BY-LAWS - whether an application to make an improvement to a lot was made in accordance with the by-laws.

REASONABLENESS - whether a body corporate's decision to reject an application to make an improvement to a lot was unreasonable.

Act, ss 94(2), 100(1), 100(5).

• [1] This application is about the respondent's decision to reject the applicant's application to install external shutters on the balcony of his lot. The applicant argues the body corporate acted unreasonably in rejecting the application. The body corporate submits they did not act unreasonably in rejecting the application, which contained insufficient information.
• [2] The applicant seeks the following final orders:

To obtain approval to install 4 white external aluminium shutters, 170mm inside the line of the balcony railing after allowing for the width of the raised surrounds to balcony edge.

The shutters are to be installed, compliant to the building code for the area, by Factory Direct, a prominent supplier/installer on the Gold Coast, the total length of these shutters (4) is less than 50% of the full railing length to the balcony.

There are no shutters to be installed on [the] eastern end of [the] balcony where there is 2 glass railing panels.

• [3] Swell Apartments community title scheme 35926 (Swell Apartments) is a 149-lot scheme and common property in Burleigh Heads. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as building format plan 159244.
• [4] The applicant is the owner of Lot 1142. The respondent is the Body Corporate for Swell Apartments.

• [5] On 31 May 2024, the applicant applied to the body corporate to make an improvement to Lot 1142 (the Request). The Request was to install 4 sliding white aluminium shutters on the external balcony at a similar width to the 6 existing glass panels.
• [6] On 19 June 2024, the body corporate manager responded to the applicant's request with the following:

Further to our previous emails, with regard to your application for shutters, I have been advised by the Committee that they are willing to approve shutters located on the inside of windows and the doors leading on to your balcony but not the ones proposed to be installed on the balcony.

• [7] On 20 June 2024, the applicant responded to the body corporate with an email advising that there were multiple other units with external shutters on their balconies, the supplier had undertaken work in the past and that he had paid a deposit.
• [8] On 11 July 2024, the body corporate manager sent an email to the applicant stating the committee had rejected the improvement request. The email stated:
  1. The body corporate had recently undertaken works to address water ingress issues and would not approve works that may compromise waterproofing membranes such as those found on balconies.
  2. No outdoor plantation shutters would be approved on outdoor balconies that directly overlook the pool area.
  3. By-law 33 did not allow for the enclosure of balcony areas without committee approval which had not been given.
  4. By-law 15 related to the appearance of the lot and the committee did not approve of shutters along the Gold Coast Highway or internal units that overlook swimming enclosure boundaries.
  5. The applicant had referred to shutters in lots at Swell Residences which operated under a different body corporate.
• [9] On 15 July 2024, the applicant sent an email to the body corporate which stated:
  1. The installation would not compromise the balcony tiles' waterproof membranes and would not fully enclose the balcony.
  2. Lot 1044 was fully enclosed with external shutters and had both a balcony overlooking the pool area and was visible from the Gold Coast Highway.
• [10] The applicant also provided the body corporate with an email from Factory Direct stating only an adhesive would be used to attach the bottom tracks to the existing tiles.
• [11] On 5 August 2024, the body corporate sent an email to the applicant which contained a copy of the minutes from the recent committee meeting on 26 July 2024. Item 8.4 of the committee meeting minutes stated the following:

The Committee discussed the correspondence from the Owner of Lot 1142 further to their denial of their application to install shutters on the balcony as it may negatively impact the waterproofing membrane on the balcony and detract from the appearance of the scheme.

The Committee confirmed that its positions on the matter remain unchanged, further commenting that their suggested alternative to installing shutters on the inside of the balcony doors was still an option that they would consider a suitable alternative.

• [12] On 20 September 2024, the parties attempted conciliation but the matter was referred back to the Commissioner as an agreement was not reached.
• [13] On 14 October 2024, the applicant lodged the current application.

• [14] The Commissioner invited the body corporate and all owners to make a submission on the application.[1] The body corporate and 10 other lot owners made submissions. The applicant elected to obtain copies of the submissions and replied to them.[2] The Commissioner then referred the application to departmental adjudication.[3]
• [15] I have investigated the application, including reviewing the application, the submissions, the reply, the current CMS and survey plan 159244.[4]

• [16] The order sought relates to a dispute between the applicant and body corporate regarding the decision to reject the request. As such, I am satisfied the dispute falls within the dispute resolution provisions of the legislation.[5]
• [17] 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 CMS, or about the exercise of rights or powers or performance of duties under the Act or CMS.[6] An order may require a person to act, or prohibit a person from acting, in a way stated.[7] An order may contain ancillary and consequential provision the adjudicator considers appropriate.[8]

• [18] I have summarised the grounds within this application as follows:
  1. There are other units within the applicant's building that have external balcony shutters, including Lot 1044 which has fixed external shutters that overlook both the pool area and the Gold Coast Highway.
  2. The concerns about the waterproof membrane on the balcony had been addressed as the tracks would be adhered to the tiles and would not affect the waterproof membrane.
  3. The balcony shutters would enhance the lot's appearance, not detract from it.
  4. The body corporate acted unreasonably in rejecting the request.
• [19] The applicant also provided copies of photographs and a video depicting the relevant areas where the shutters would be installed and the balconies of other Lots.

• [20] I have summarised the body corporate's submissions as follows:
  1. The body corporate had acted reasonably, making an objective assessment of all relevant factual circumstances.
  2. The by-laws indicated an intention to preserve the consistent external appearance and regulate any changes to the external appearance.
  3. The committee does not approve of external shutters along the Gold Coast Highway and overlooking the swimming enclosure boundaries.
  4. The approval granted to Lot 1044 was distinguishable from the Request as:
     1. approval was granted by a previous committee in or about July 2019,
     2. the approval was granted prior to water ingress issues in or about June 2020 and remedial works being completed on 2 June 2023, and
     3. lot 1044 was not situated directly above the swimming pool enclosure.
  5. Any external fixture directly above or overlooking the swimming pool enclosure may pose an unacceptable safety risk if not properly affixed or damaged over time.
  6. The applicant did not provide sufficient evidence to support the external shutters would not pose a safety risk, compromise the structural integrity of the lot, common property or the shutters themselves, would not adversely affect the appearance of the scheme and would comply with the building code.
  7. The applicant failed to comply with by-law 15(b).
• [21] The owners of Lots 1025 and 1082 provided submissions in support of the application. I have summarised their submissions as follows:
  1. the external shutters will not detract from the external appearance of the lot,
  2. the concerns about the waterproofing membrane were addressed, and
  3. a precedent was set by Lot 1044 having external shutters.
• [22] The owners of Lots 1013, 1041, 1049, 1052, 1079, 1134, 1140, 1141, 1143 and 1146 provided submissions in support of the body corporate. I have summarised their submissions as follows:
  1. the by-laws need to be followed for safety and general community living,
  2. the appearance of the body corporate should be maintained,
  3. if there are strong winds, which are common, the shutters could dislodge and pose a safety risk, and
  4. having external blinds may impact the views from neighbouring units.

• [23] I have summarised the applicant's reply to the submissions provided by the body corporate and other lot owners as follows:
  1. There are many external shutters and, while there have been problems with shade sails, loose furniture and items, he was unaware of any shutters "flying off".
  2. The 7 external shutters on Lot 1044 are visible to all pool users and most units around the pool area.
  3. The owner of Lot 1140 sold his unit on 20 January 2025 and his submission was no longer relevant.
  4. The impacts on views by the installation of external shutters was an exaggeration.

• [24] The issue in question is whether the body corporate acted unreasonably in declining the Request to install external shutters on the balcony of Lot 1142.
• [25] I will review whether the Request for body corporate approval was made in accordance with the relevant by-laws. I will then review the body corporate's duty to act reasonably in making a decision. Finally, I will consider whether in the circumstances the committee or body corporate have acted unreasonably in declining the request.

• [26] By-law 15(a)(i) states that, without written approval of the body corporate, owners and occupiers are prohibited from undertaking any work that alters the external appearance of a lot. By-law 33 similarly prohibits owners and occupiers from closing in balconies, changing a lot's external façade or erecting any structures or changing existing structures on the outside of the lot or building without written approval from the body corporate.
• [27] I particularly note by-law 15(b) states the following:

Prior to seeking approval from the Body Corporate for any alteration or addition to a Lot of the kind described in By-law 15(a)(i),(ii), (iii) or (iv), the Owner seeking consent must supply details of the proposed renovation to the Committee. The details of the proposed work must include:

1. detailed plans (of the changes) and detailed engineering plans and, if requested by the Committee, any relevant certification,
2. detailed descriptions of the proposed renovations (for example plumbing, cables and wiring, flooring, installing air conditioning and alike),
3. all relevant local authority approvals,
4. all contractors' names, registration, licences and insurance details for each contractor performing the proposed work,
5. copy of the certificate of currency of insurance from the trades people performing the work,
6. expected commencement and completion dates for proposed works,
7. if the work includes alterations to the original layout, or structural alterations of any kind, then the Owner must provide a certificate from a registered structural engineer, independent of the Owner and approved by the Committee, in favour of the Body Corporate, certifying that the works will not affect the structural integrity of the Building, and
8. any additional information reasonably requested by the Committee.

• [28] The validity of the by-laws is not in dispute and the body corporate has not provided written approval under by-law 33 or 15(1)(a)(i). However, the body corporate submitted the applicant failed to comply with by-law 15(b). By-law 15(b) sets out the details of proposed works that must be included in such a request.
• [29] In determining whether the Request was made in accordance with by-law 15(b), I have considered the information contained within the applicant's Request and the subsequent correspondence to the body corporate.

• [30] The applicant stated in the Request that the improvement would be to install and fit 4 white aluminium sliding shutters on the external balcony of Lot 1142, to be supplied and fitted by Factory Direct. The Request also recorded the shutters would be similar widths to the 6 existing glass panes.
• [31] I note under the 'Plans enclosed?' section of the Request, the applicant crossed out 'Yes' and hand-drew a diagram of the proposed locations of the shutters at the bottom of the Request. While I consider the Request included "detailed plans (of the changes)", I am not satisfied the Request included the required detailed engineering plans pursuant to by-law 15(b)(i).
• [32] I am satisfied on the evidence before me that the applicant's description in the Request was a detailed description of the proposed renovation, as per by-law 15(b)(ii).

• [33] The Request identified that the external shutters would be supplied and fitted by Factory Direct. However, there is nothing on the evidence before me to indicate the Request, or the subsequent correspondence to the body corporate, included the contractor's details, certificate of currency of insurance as required by by-laws 15(b)(iv) and (v).

• [34] There is similarly no evidence before me to indicate the Request, or the subsequent correspondence to the body corporate, contained an expected commencement and completion date for the works as per by-law 15(b)(vi).

• [35] There is no evidence before me to indicate any relevant local authority approval was required or provided to undertake the works outlined in the Request as per by-law 15(b)(iii).
• [36] As the nature of the Request was to install external shutters, and on the basis of the evidence before me, there is nothing to indicate the work included making an alteration to the original layout or structural alterations of any kind. As such, I am satisfied a registered structural engineer's report certifying the works would not affect the structural integrity of the building was neither provided, nor required, as per by-law 15(b)(vii).
• [37] Overall, the applicant provided some, but not all, of the information required under by-law 15(b). I note the Request did not contain the information required under by-laws 15(b)(i), (iv), (v) and (vi). As such, I am not satisfied the applicant's Request was made in accordance with the requirements of by-law 15(b).

• [38] As I am not satisfied the Request was made in accordance with by-law 15(b), it would be inherently reasonable for the body corporate to reject the Request on that basis. Whether it would be reasonable for the body corporate to reject a future request would depend on the circumstances at the time, including the information provided. As the Request in this matter did not contain all of the information required by by-law 15(b), additional detailed information would need to be provided alongside any further requests.
• [39] Given the likelihood of future requests, and for the reasons outlined below, I consider it appropriate to discuss reasonable decision making by a body corporate committee and determine whether, in these circumstances, the decision to reject the Request was unreasonable.
• [40] When considering a motion, the body corporate is required to act reasonably in making, or not making, a decision about the motion.[9] When a committee is making decisions on behalf of the body corporate, the committee must also act reasonably.[10]
• [41] In Body Corporate for Beaches Surfers Paradise v Backshall, Justice Carmody stated that reasonable decision making involves:[11]

...an evaluation of the known facts, circumstances and considerations" that tend to have a rational bearing on the issue at hand including predictable future possibilities and risks.

• [42] Further, Justice Carmody stated the following in considering whether a decision was reasonably reached:[12]

A legally reasonably decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong.

• [43] This means that the body corporate is not deemed to have acted unreasonably simply by reaching a different conclusion than sought by the applicant. Where a decision by a body corporate is challenged, the body corporate does not need to demonstrate that it acted reasonably. The applicant must satisfy an adjudicator that the body corporate acted unreasonably in reaching their decision.
• [44] When the actions and decisions of body corporates are challenged as unreasonable, the role of an adjudicator is not to put themselves in the shoes of the body corporate, substitute their own views, or conclude that another decision should be preferred over the decision that was made.[13] If the adjudicator is satisfied that relevant factors have been considered, the committee's decision will stand unless the adjudicator is satisfied the decision is not legally reasonable.[14] That is, the decision will only be overturned if the adjudicator finds the decision lacks "an evident and intelligible justification when all relevant matters [are] considered."[15]
• [45] In considering this, I note Justice Carmody also found that a committee could not be found to have properly exercised its discretion without, at the least, genuinely looking for ways to grant a request as well as reasons for denying it.[16]
• [46] The body corporate provided details of the reasons for their decision to reject the Request which have already been summarised above.[17]

• [47] The body corporate submitted the applicant did not provide sufficient evidence to support the external shutters would not pose a safety risk, compromise the structural integrity of the lot, common property or the shutters themselves, would not adversely affect the appearance of the scheme and would comply with the building code.
• [48] As stated above, a committee must genuinely look for ways to grant a request as well as reasons for denying it. However, I note many of these concerns may have been addressed at the outset had the Request been made in keeping with by-law 15(b).
• [49] On the evidence before me, I consider the applicant providing insufficient information in relation to the Request was a relevant consideration for the body corporate in their decision.

• [50] The applicant argued that the Request was similar to the approval granted to Lot 1044 who had 7 external shutters installed on its balcony that were similar in appearance and visibility from the pool area and Gold Coast Highway.
• [51] The body corporate submitted the approval granted to Lot 1044 was distinguishable from the applicant's request as it had been given by a previous committee in 2019 and it was not located directly above the swimming pool enclosure. The body corporate also argued the approval granted to Lot 1044 was distinguishable as it occurred prior to water ingress issues in 2020.
• [52] Although the committee may be currently comprised of different members than those in 2019, it is still the same body corporate and "a decision of the committee is a decision of the body corporate".[18] If a decision by a body corporate, or a committee in this matter, is inconsistent with an earlier decision about the same, or substantively similar, issue solely on the basis that it was considered by different members, then the inconsistency could be challenged as being unreasonable.
• [53] However, it is not in dispute that between Lot 1044's approval in 2019 and the Request in 2024, the body corporate experienced issues regarding water ingress and waterproofing membranes. It is also not in dispute that the installation of external shutters could have an impact on these issues.
• [54] After examining the video provided by the applicant and the survey plan, I am satisfied that although Lot 1044 is not directly above the common property pool, it is located partially above the pool enclosure. Further, I also consider Lot 1044's external shutters are similarly visible from the pool area and the Gold Coast Highway as the applicant's would be.
• [55] Where other external shutters have been approved within the scheme, the committee must consider the similarities and differences of each and ensure it made decisions that were consistent to the extent that the circumstances were comparable.
• [56] On the basis of the evidence before me, I am not satisfied that the shutters approved for Lot 1044 are substantially different than those proposed to be installed by the applicant. As such, I consider the committee not having regard to the approval given to Lot 1044 was unreasonable in the circumstances.

• [57] The body corporate submitted the by-laws indicated an intention to preserve a consistent external appearance and that the applicant did not provide sufficient evidence to support the external shutters would not adversely affect the appearance of the scheme, particularly along the Gold Coast Highway and overlooking the pool enclosure.
• [58] The applicant argued that at least 5 other lots in the building, including Lot 1044, had external shutters installed on their balconies. The Request also identified the shutters would be white. While Lot 1044's external shutters are also white, the colour, style and visibility of the other unidentified lots' external shutters are unknown.
• [59] It is not in dispute that the appearance of the scheme would be different if the Request were approved. The evidence before me indicates the exterior shutters requested by the applicant were to be white and located in a similar position to those on Lot 1044. While the body corporate argued approving the Request would adversely affect the consistent external appearance of the scheme, I consider the scheme's external appearance was already made inconsistent when Lot 1044's external shutters were approved.
• [60] As such, the body corporate's consideration that approving the Request would change the consistent external appearance of the scheme was not relevant as it failed to take into account the change to the scheme's appearance by virtue of the approval previously given to Lot 1044 to install external balcony shutters.

• [61] The body corporate expressed concerns about the impact the installation of the external shutters would have on the waterproof membrane. The body corporate and other lot owners also expressed concerns regarding potential safety risks of external fixtures over the swimming pool area if not properly affixed or damaged over time.
• [62] On 16 July 2024, the applicant forwarded an email to the body corporate from Factory Direct that stated they would only use an adhesive to attach the tracks to the existing tiles. While the applicant stated this would not compromise the waterproof membrane, no further evidence was provided regarding how the waterproof membrane would not be compromised. I consider such evidence is likely to be found within engineering plans, contractor licences and insurance information.
• [63] The onus of proof is upon the applicant in these matters to demonstrate that the body corporate acted unreasonably in their decision to reject the Request. On the basis of the evidence before me, and in the absence of further information provided to the body corporate, I consider the committee's concerns of the safety risks to be a reasonable consideration in rejecting the Request.

• [64] I have dismissed this application on the grounds that it did not contain the necessary information required by by-law 15(b). To grant the order sought would circumvent the need to obtain and provide plans, contractor and work information to the body corporate which I consider appropriate and necessary to approve the installation of external shutters.
• [65] I also consider the decision made by the body corporate to reject the Request was not unreasonable in these circumstances. The body corporate's concerns about possible safety risks, compliance with the building code and potential impact on the waterproofing membrane was not sufficiently addressed by the information provided alongside the Request.
• [66] It is, of course, open to the applicant to make another request to the body corporate in the future. It would be beneficial for all parties that any such request includes all of the information required under by-law 15(b). The body corporate must act reasonably in making decisions for any further requests, taking into account all information provided. Each application must be considered fresh by the body corporate and decisions must be made on the basis of the evidence before them. It cannot reject such a request solely on the basis that a prior request had been rejected.
• [67] As stated above, a committee must genuinely consider ways to grant a request as well as reasons for denying it, otherwise it can be found that they have not properly exercised their discretion. A decision to deny such a request without considering ways to address any concerns or risks and approve it may be challenged as unreasonable.

[1] Section 243 of the Act.

[2] Section 244 of the Act.

[3] Section 248 of the Act.

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

[9] Section 94(2) of the Act.

[10] Section 100(5) of the Act.

[11] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42].

[12] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47].

[13] Seabreeze On Reid [2022] QBCCMCmr 246 at [11]; Casablanca Palms [2020] QBCCMCmr 486 at [7].

[14] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [46].

[15] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [57]- [61].

[16] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [107].

[18] Section 100(1) of the Act.