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

BY-LAWS - whether the body corporate acted reasonably in issuing by-law contravention notices to the applicant - whether the contravention notices should be withdrawn.

Act, ss 59, 94, 100, 182

• [1] This application is about two by-law contravention notices given by the respondent body corporate to the applicant, the owner of lot 3, in November 2024.
• [2] One contravention notice alleged the applicant had cut a palm tree in breach of By-law 4(1)(a), which is about damaging common property gardens. The other alleged the applicant had installed a one-way traffic sign and spray-painted parking signs on the common property, both in breach of By-law 5(1) which is about damaging common property without approval. The committee resolved to issue the contravention notices to the applicant in October 2024.
• [3] The applicant wants the body corporate to withdraw the contravention notices. She does not dispute being responsible for the cited actions but provides explanations for them. The applicant appears to dispute that the body corporate acted reasonably in issuing the notices.
• [4] The issues to be determined in this application are whether the body corporate acted reasonably in issuing the contravention notices to the applicant, and whether there is basis to require the notices to be withdrawn.

• [5] Tamarra Terraces community titles scheme 2997 (Tamarra Terraces) is a 5-lot scheme at Alexandra Headland. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building format plan 12631.
• [6] This application seeks an order: "That the Tamarra Terraces Body Corporate withdraw the Form 10. Notice of continuing contravention of a body corporate by law - Claiming contraventions of By Law 5 in two instances."

• [7] 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 dispute resolution provisions.[2]

• [8] The applicant initially applied for conciliation in November 2024.[3] However the conciliation was ended by the conciliator in January 2025 because the respondent body corporate did not make a reasonable attempt to participate.
• [9] This application was subsequently lodged on 15 January 2025. The Commissioner's delegate sought clarification on some aspects of the application,[4] which was then amended.[5]
• [10] The Commissioner invited submissions from the committee and all owners.[6] The committee chairperson and one other lot owner made submissions. The applicant obtained copies of the submissions but did not respond to them.[7]
• [11] The application was referred to department adjudication.[8] I have now investigated the dispute, including reviewing the application and submissions.[9]

• [12] The chairperson opposes the application. She says the committee majority voted against withdrawing the contravention notices because the applicant made decisions independently and acted on common property without consulting others or following the correct process. The submission comments on the three issues. They do not want the contravention notices revoked but propose compromises on the three issues.
• [13] One owner supports the withdrawal of the contravention notices. She comments on the parking paint and the sign.

• [14] In determining this dispute, I will outline the legislative obligations for bodies corporate and owners in relation to by-laws. I will then consider the applicable by-laws, the alleged by-law breaches, and whether the applicant has established any legal basis to challenge the by-law contravention notices issued by the body corporate.

• [15] The CMS for a community titles scheme, including any by-laws recorded in the CMS, is binding on the body corporate and each member of the body corporate.[10]
• [16] One of the body corporate's core functions is to enforce the CMS including the by-laws.[11]
• [17] The legislation sets out a process for enforcing the by-laws.[12] If a body corporate reasonably believes an owner or occupier on is contravening a provision of the by-laws, and the circumstances make it likely that the contravention will continue or be repeated, it can issue a contravention notice requiring the person to remedy or not repeat the contravention.[13] A contravention notice must set out certain things about the alleged contravention. The Commissioner's office provides continuing contravention and future contravention notice forms that can be used,[14] although it is not compulsory to use those forms.
• [18] If a person repeats or does not remedy an alleged by-law breach after receiving a contravention notice, the body corporate can pursue the breach through the dispute resolution process or take action in the Magistrates Court for the offence of breaching the contravention notice. But if any dispute about the alleged contravention is resolved, that is the end of the matter. There is no statutory requirement for a by-law contravention notice to be withdrawn if is no longer relevant or required.

• [19] As with all its functions, a body corporate must act reasonably in enforcing the by-laws and in making decisions.[15] The committee must also act reasonably in making decisions.[16]
• [20] The test for whether a body corporate decision is reasonable is objective.[17] It is a question of fact, having regard to all the circumstances.[18] Reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[19] Crucially, the person challenging a decision bears the onus of proof that the body corporate failed to act reasonably.

• [21] The contravention notices issued by the body corporate cite By-laws 4(1)(a) and 5(1) that appear to be taken from schedule 4 of the Act. However, it does not appear that the cited by-laws actually apply at Tamarra Terraces.
• [22] Tamarra Terraces was registered in March 1993 under the Building Units and Group Titles Act 1980 (BUGT Act), which applied prior to the commencement of the current Act.[20] At that time, the default by-laws in schedule 3 of the BUGT Act applied. The body corporate recorded amended by-laws in October 1993, adding By-law 12 and 13.[21]
• [23] The current CMS for Tamarra Terraces was automatically registered on 15 July 2000 under the transitional provisions of the Act.[22] It says the by-laws are taken to be those in effect as at 13 July 2000.[23] That automatic CMS replaced an interim CMS that was taken to exist for the scheme on its commencement under the new Act, and similarly included by-laws that were identical to the by-laws in force prior to the commencement.[24]
• [24] No subsequent CMS has been recorded for this scheme. Accordingly, the by-laws in place in 1997, being the default by-laws in schedule 3 of the BUGT Act and the two by-laws recorded in October 1993, remain in effect.
• [25] The most relevant of the by-laws applying at this scheme are:
  1. Damage to lawns etc. on common property

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property; or

(b) except with the consent in writing of the body corporate, use for his or her own purposes as a garden any portion of the common property.

(1) A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate, but this by-law does not prevent a proprietor or person authorised by the proprietor from installing -

(a) any locking or other safety device for protection of his or her lot against intruders; or

(b) any screen or other device to prevent entry of animals or insects upon his or her lot.

(2) Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a competent manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building.

• [26] The By-law 4(a) that applies has substantively the same effect as By-law 4(1)(a) cited by the body corporate, except that it applies to owners as well as occupiers and it does not empower the body corporate to give written approval for damage. The By-law 5(1) that applies has the same effect as By-law 5(1) cited by the body corporate but for the exclusion for locking devices (which is covered in By-law 5(2) and (3) in schedule 4 of the Act) and its application to owners as well as occupiers.
• [27] So, while the body corporate referenced slightly incorrect by-laws, I am satisfied the error was minor in the circumstances and the applicant was put on notice of the substantive dispute.

• [28] I will comment on the 3 issues raised in the two contravention notices. It is beyond the scope of this application for me to determine whether the applicant actually breached the by-laws or how the impact of any breaches should be remedied. Rather, I am only considering the basis for the body corporate's decision to issue and not withdraw the contravention notices.

• [29] The applicant does not dispute cutting a palm tree on common property outside Lot 1. Photographs submitted by the parties show a palm tree adjacent to an exterior wall with fronds touching an awning on an upper level, and afterwards the tree cut to a bare trunk at the height of an adjacent door.
• [30] The applicant says she cut the palm tree because it was damaging the awning above. In correspondence, she said the tree would have caused the body corporate several thousand dollars to replace the exterior awning of Lot 1 and it should never have been planted there. She offered to supply a low shrub as replacement.
• [31] The chairperson says the applicant cut down the tree behind another owner's lot without consultation and left an unsightly stump. She says the palm tree provided the owner with shade and privacy which the shrub will not provide. She says the applicant should remove the stump at her own cost and replace the tree with one agreed to by the body corporate.
• [32] While the applicant may have had genuine concerns about the palm tree and its impact, she has no authority to unilaterally decide to undertake work on or alterations to common property. While the body corporate could have resolved to trim, cut or remove the tree, an individual owner could not. I am satisfied cutting down much of the palm tree without the knowledge or approval of the body corporate amounted to a breach of By-law 4(1).
• [33] While the applicant has offered a replacement plant, she has not offered to replace it with a similar tree or obtained approval for the alternative that she proposes. Moreover, there is no indication that she has planted a replacement or otherwise remedied the by-law breach to date.
• [34] Given the circumstances, including the applicant's apparent approach of doing things she thinks need doing without getting permission, the applicant has not satisfied me that the body corporate acted unreasonably in issuing a by-law contravention notice to her about this issue or in declining to withdraw the contravention notice.
• [35] It is for the parties to determine how the damage to the tree should be remedied. If they cannot agree, it would be open to the body corporate to take action to enforce the by-law contravention notice and seek orders for the remedy it seeks. The parties may wish to consider whether there is any evidence the body corporate's obligation to maintain common property in good condition[25] would have required it to remove the palm tree or trim its fronds, if the applicant had not acted precipitously.

• [36] The applicant does not dispute installing a 'one-way' traffic sign on a fence on common property. The application includes a photograph of the sign adjacent to speed limit traffic sign.
• [37] Correspondence in the application indicates concerns about people driving the 'wrong way' up the driveway and pedestrian safety. The applicant says the chairperson removed the sign weeks ago. She would like the sign returned, paid for by the body corporate, or reinstated.
• [38] The chairperson says the sign was screwed to the fence behind Lot 5. She says the council has said there is nothing in the development conditions to say which way people should enter or exit the property, and there is nothing documented in the by-laws to suggest that.
• [39] Another owner says the sign is no longer there and there is no damage, so this is irrelevant.
• [40] I am satisfied that screwing a sign onto a common property fence would constitute a breach of By-law 5(1) if it was done without the written approval of the body corporate.
• [41] While the applicant may have genuine safety concerns, she has not provided evidence that vehicles can only lawfully traverse the driveway in one direction, or that the body corporate has resolved to require that. More substantively, there is no suggestion that the body corporate ever agreed to install one-way signage.
• [42] While the signage may now have been removed, the applicant has not established that it had been removed when the body corporate issued the by-law contravention notice. She has not established that it was unreasonable for the body corporate to resolve to issue the by-law contravention notice about the sign in the circumstances.
• [43] Since the removal of the sign, the by-law breach may have been remedied. If so, there would be no basis for the body corporate to act further on the contravention notice. However, the applicant has not established that there is any obligation on the body corporate to withdraw the notice that was lawfully issued once the matter is resolved.
• [44] If the body corporate or a committee member has retained the sign, it would be appropriate to return it to the applicant. However, the applicant would not be entitled to reinstate the sign unless the body corporate specifically resolves to approve its installation on common property.

• [45] The applicant does not dispute spray-painting visitor car spaces on common property with white paint. The application includes photographs of the car spaces with line markings and stencilled 'visitor' and 'parking' words.
• [46] The applicant says the painting was previously agreed to by 3 other owners and invoices for the paint and stencils were submitted to the body corporate manager in 2018. Correspondence in the application says the painted signage was faded, had been redone a number of years ago and reapplied in 2022 after the driveway was refurbished.
• [47] The chairperson says 7 signs for 2 car spaces were stencil sprayed on the driveway with unsightly overspray without any consultation with the body corporate. She says there is no documentation on any previous approval. The chairperson says signage on the wall would have been preferable but no one else was given a say. By way of compromise, she says they agree to wait for the paint to fade or wear off on the condition that the applicant does not respray it without body corporate permission.
• [48] Another owner says the paint has been there since she purchased her lot and was repainted in 2022 with the driveway was refurbished with the verbal permission of the owners of Lots 2, 3 and 5. The submitter says this should not have been included in the complaint.
• [49] While the application includes evidence of reimbursement for paint and stencils in 2018, it does not otherwise include evidence of any body corporate or committee resolution or owner agreement to paint the driveway in 2018, 2022 or at any other time. It may there have been painted car park markings on the driveway for a long time and that some owners supported repainting them. However, that did not entitle the applicant to undertake the work without a body corporate decision. It was open to the body corporate to decide to approach car park signage in a different way.
• [50] Painting the common property without the written consent of the body corporate constitutes a breach of By-law 5(1). The applicant has not demonstrated that she had the written consent of the body corporate to repaint the parking area.
• [51] Considering the circumstances, the applicant has not satisfied me that the body corporate acted unreasonably in issuing a contravention notice in regard to this issue.
• [52] The committee appears willing to leave the paint to fade if the applicant does not respray it without approval. As such, it does not appear to seek further action on the by-law breach. In that respect, the issue may be resolved. However, the applicant has again not established that the body corporate must withdraw the notice that appears to have been validly issued .

• [53] It may be that the applicant acted in good faith and with a genuine desire to maintain the common property. However, that does not entitle her to act unilaterally. The applicant has not satisfied me that the body corporate failed to act reasonably in issuing by-law contravention notices to her. Moreover, she has not established that the body corporate must withdraw the contravention notices in the circumstances. I have dismissed the application.

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

[3] Conciliation application reference 1156-2024

[17] Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

[18] Waters v Public Transport Corporation [1991] HCA 49

[19] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 43, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[22] Pursuant to section 339 of the Act

[24] Pursuant to section 337 of the Act

[25] Section 180 of the Standard Module