Brice Superannuation Pty Ltd as trustee, owner of Lots 2, 4 and 5 (second respondent)

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)

IMPROVEMENTS TO COMMON PROPERTY - BY-LAWS - where there have been numerous improvements to common property benefiting lots - whether the improvements require approval - whether the improvements require a grant of exclusive use - whether the lots benefit from a statutory easement in respect of some improvements - whether the owners are in breach of any by-laws.

Act, ss 35, 62, 67-70, 170, 182-188; Standard Module, s 187

1. Within 6 months of the date of this order, the owners of Lot 1 must remove all the improvements to common property that constitute the kitchen and seating area, and must reinstate the common property to its condition prior to the installation of those improvements, unless within that time the Body Corporate for the Lookout Shopping Village retrospectively approves the installations and grants the owners or occupiers of Lot 1 exclusive rights to the use of the area of common property on which the kitchen and seating area are located.
2. Within 6 months of the date of this order, the owners of Lot 1 must remove the gas bottles, gas corral, exhaust fan and associated equipment and infrastructure, and make good the common property, unless within that time the installations and any required rights to use the common property are retrospectively approved by the Body Corporate for the Lookout Shopping Village.
3. Within 6 months of the date of this order, the owners of Lot 1 and 2 (jointly or severally) must remove the two cold room condenser units and one of the two air-conditioning condenser units installed on the external wall of Lot 2 located adjacent to the Lot 7 garage, and make good the common property, unless within that time the installations and any required rights to use the common property are retrospectively approved by the Body Corporate for the Lookout Shopping Village.
4. The application is otherwise dismissed.

[1] This application alleges improvements to common property by the respondent owners.

[2] The scheme comprises 5 commercial lots (Lots 1 to 5 on level A) and 2 residential lots (Lots 6 and 7, predominantly on Level B above the commercial lots). The first respondent owns Lot 1 which operates as a restaurant. The second respondent owns Lots 2, 4 and 5 under different trust instruments. The other 3 lots are in separate ownership.

[3] This scheme was registered in 1998. Title records show that until 2017 all lots had the same owner and were sold to the current owners between November 2022 and April 2025. The body corporate says until 2023 the scheme operated as a single lot without regard to the legislation.

[4] The applicant says issues have arisen because of the scheme's non-compliant operation. Particularly, it says the owners of Lot 1 constructed (or allowed to remain) various improvements on common property without authorisation or a grant of exclusive use over the common property. These improvements comprise a kitchen, an enclosed deck used for restaurant seating, a corral for the storage of gas bottles, and an exhaust fan.

[5] The body corporate suggested granting exclusive use rights over some areas in exchange for a payment (based on a valuation) and other matters. But it did not receive a substantive response. The body corporate then issued a by-law contravention notice to the respondents. The respondents denied a by-law breach and asserted that a statutory easement existed for the gas corral and exhaust. They said they would submit motions for exclusive use and retrospective approval of the improvements with an alternative valuation, but had not done so at the time the application was made.

[6] The applicant also says in August 2023 the owner of Lot 2 was authorised to install a single air conditioner subject to certain conditions, but the respondents then installed 4 condensers, with one breaching the conditions. It then says a parking barrier and bollard have been installed, impeding the car park, and the tenant of Lot 1 is storing bins and oil drums in the car park.

[7] After this application was referred for adjudication, the respondents submitted motions proposing a grant of exclusive use over parts of common property to Lot 1 authorisation for the various improvements to common property. Those motions were considered by the body corporate at a general meeting in February 2026 but did not pass.

[8] The application seeks removal of the kitchen, seating area, gas corral, exhaust fan, condenser units, bollard, and traffic bumper device, unless approved by the body corporate. The applicant also wants the respondents and their tenants to cease using the car park for storage.

[9] The Lookout Shopping Village community titles scheme 24531 (The Lookout) is a 7-lot scheme at Point Lookout. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 106658.

1. That, unless retrospectively approved by the Body Corporate within 3 months of the date of the order, the owners of Lots 1, 2, 4 and 5 must at their cost, within a further 3 months reinstate Lot 1 and the common property to:

(a) their original condition under building units plan number 106658;

(b) alternatively, to the position, condition and appearance it was in prior to the Unauthorised Improvements being undertaken,

by removing the following structures or improvements (Unauthorised Improvements) from common property:

(c) the Kitchen;

(d) the Seating Area;

(e) the gas bottles and Gas Corral;

(f) the Exhaust Fan.

1. That, unless retrospectively approved by the Body Corporate within 3 months of the date of the order, the owners of Lots 1, 2, 4 and 5 must:

(a) remove the two cold room condenser units and two air-conditioning condenser units from the external wall of Lot 2 located adjacent to the Lot 7 car park (Car Park);

(b) remove the bollard and traffic bumper device from the Car Park.

1. That the Respondents, including the tenants or occupants of Lot 1, 2, 4 and 5, must cease using the Car Park as a storage area including for the storage of rubbish bins, drums or other materials.
2. Such further or other order as an Adjudicator considers just and reasonable.

[11] 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]

[12] This application was lodged in August, pursuant to a committee resolution of 18 August 2026.

[13] The Commissioner invited submissions from the respondents and all owners.[3] A submission was made on behalf of the respondents. The applicant responded to the submission.[4]

[14] The application was referred to department adjudication.[5] I have now investigated the dispute, including reviewing the submitted material and seeking further information from the parties.[6]

[15] The respondents seek dismissal of the application. They make submissions about the proper respondents to the application. I will note their response to the specific issues in my analysis, but in general terms their submission most relevantly includes:

1. They query the validity of the contravention notice issued in June 2025. They were not provided the minutes of the meeting which authorised the contravention notice.
2. No by-law contravention notice has been issued with respect to orders 2 and 3.
3. The applicant acted prematurely in filing this application where the respondents indicated they would requisition a general meeting to consider motions.
4. As stated in July 2025, they intended to submit motions to a general meeting to consideration of exclusive use of the kitchen area, seating area and toilet area, and retrospective approval of the improvements to common property (the seating area, kitchen area, gas storage area, exhaust, and toilet area) once a valuation was obtained.
5. They have now obtained a valuation report and will submit motions.
6. They deny disregarding or taking no action to comply with the by-laws. They detail their actions and responses.

[16] In addition to specific matters noted in my analysis below, the body corporate's reply includes:

1. Each of the respondents is controlled by William and Shona Brice. While it would seem logical that it is the owner of Lots 1 or 2 who installed the disputed improvements or allowed them to remain, it is impossible for the body corporate to know whether these actions were undertaken by Mr and Mrs Brice wearing the 'hat' of one of the other respondents or were partly responsible for them.
2. The tenants of all four of the respondents' lots use the car park for storage.
3. It does not object to order 1 only being made against the first respondent or order 2 only being made against Lot 2 regarding the condenser units.
4. Order 2 should be made against all respondents in regard to the bollard and traffic bumper to avoid the scenario where the owner of Lot 2 removes them, and another respondent causes them to be reinstalled.
5. Order 3 should be made against all respondents as each engage in those activities.
6. It evidences the committee minutes authorising the contravention notice.
7. It is not necessary to issue a by-law contravention notice to require a party to comply with the terms of approval by removing unauthorised improvements.

[17] As the respondents submitted that they intended to requisition a general meeting to consider motions about the matters in dispute, I first sought clarification as to whether that had occurred. The respondents subsequently gave (almost 3 months after their submission) a notice to the body corporate requesting a general meeting to consider 7 motions. The first motion proposed a grant of exclusive use to Lot 1 subject to a payment. The remaining motions sought to retrospectively authorise the owners of Lot 1 to make improvements identified in each motion.

[18] The body corporate subsequently advised that the annual general meeting (AGM) had been called for 17 February 2026, with the respondents' motions listed as Motions 8 to 14. It further said the other owners had advised they intended to vote against the proposed motions on the basis that they were for materially less than the value identified in a valuation it obtained.

[19] I requested and was provided with a copy of the minutes of the AGM to ascertain the outcome of the respondents' motions.

[20] The applicant also subsequently provided a supplementary valuation report which included an additional area of scheme land and responded to the respondents' valuation.

[21] This application raises range of disparate matters. I will note some general matters relevant to the issues in dispute. I will then consider in turn each issue on which orders are sought.

[22] In my view the applicant has conflated separate disputes in this application. One is the dispute between the body corporate and the owners of Lot 1 about the kitchen, seating area, gas corral, and exhaust fan used by the owners or occupiers Lot 1, and the storage of items on common property by the tenants of Lot 1.[7] The second appears to be with the owner of Lot 2 regarding the condenser units and the allegedly associated parking barrier and bollard. Lots 4 and 5 only appear to be involved in the alleged storage of items on common property.[8] Notwithstanding that the owners of Lots 1, 2, 4 and 5 are related entities and under the same effective control, it would seem to have been more appropriate for the separate disputes with different respondents to be the subject of separate applications. But to avoid further time and inconvenience, I will determine the matters together.

[23] All owners own common property as tenants in common and the occupier of each lot enjoys the right to the use of the common property.[9] Unless they have been granted specific legal rights over part of common property, no occupier has greater right to the use and enjoyment of any area of common property than another. That is the case regardless of the area's proximity to a lot, the past or current usage, or the need or interest of any person to use the area.

[24] A body corporate can resolve to give specific legal rights to common property in various ways. If it wants to sell or otherwise dispose of part of the common property, or grant a lease or license for more than 3 years over any or all of the common property, it must authorise that by a resolution without dissent.[10] A lease or licence over common property for 3 years or less can be approved by special resolution. But the most common way of giving rights to use common property or a body corporate asset is through an exclusive use by-law.[11] A resolution without dissent is required to record a CMS containing differences in an exclusive use by-law.[12]

[25] Adjudicators have consistently accepted that a grant of exclusive use or other legal right over common property cannot be deemed to have been created because of uncontested use over an extended period of time.[13] The legislation includes specific requirements for approving and recording the grant of such rights that must be complied with.

[26] The legislation also provides for the body corporate and owners to make improvements to common property.[14] The Act defines an 'improvement' as including the erection of a building, a structural change, and a non-structural change.[15] That definition refers to the Acts Interpretation Act 1954 definition of 'change' which "includes change by addition, exception, omission or substitution."[16]

[27] If an owner wants to make an improvement to an area of common property that is not subject to an exclusive use by-law, they require body corporate approval.[17] A committee or general meeting resolution is required depending on the installed value and impact of the improvement.

[28] The body corporate and its committee must act reasonably deciding a request for approval.[18] Although ideally approval should be sought and obtained before any improvement is made, there is no legal reason why a body corporate cannot grant retrospective approval. The impact of the improvement on the body corporate and other owners and occupiers and any conditions of approval may be relevant considerations in deciding a request for approval.

[29] If an improvement to unallocated common property will have the effect of occupying or subverting the use of common property for an unlimited period, that disposition of common property (such as by a grant of exclusive use) must also be specifically authorised.[19]

[30] If an improvement to common property is for the purpose of utility infrastructure to provide a utility service to a lot, the issue of statutory easements also arises.

[31] Under the Land Titles Act 1994 (LT Act), a statutory easement can exist in favour of a lot and against other lots and common property, to supply utility services to the lot and to establish and maintain utility infrastructure reasonably necessary to supply those services.[20]

[32] The body corporate legislation then provides for the application of statutory easements.[21] Rights under an easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.[22]

[33] If a statutory easement exists, an owner or occupier will have a qualified right to install and maintain utility infrastructure on or over other lots and common property to supply a utility service to their lot. But it has been accepted that the use right does not displace the requirement to obtain body corporate approval where required under the regulations or a by-law.[23] In deciding a request for an improvement that involves installing utility infrastructure to service a lot, a body corporate should consider potential statutory easement rights. That may include if the infrastructure is reasonably necessary to supply the service and whether it would unreasonably interfere with the use and enjoyment of lots or common property. The body corporate could potentially impose conditions of approval, for example on the location or nature of the installation, including to address any interference.

[34] Installing utility infrastructure on common property may have the effect of subverting that part of common property to the sole use of an owner or occupier. Accordingly, prima facie exclusive use or other rights to common property must be acquired. However, it has been accepted that if there is a statutory easement, there is no requirement to obtain additional rights to use the common property by way of a grant of exclusive use, a lease or licence.[24] Rather, it is the easement itself that imparts the rights over the common property. On that basis, it may not be necessary for a body corporate to grant exclusive use or other rights over relevant parts of common property before the installation of utility infrastructure can be validly approved. However, approval for the improvement is still required.

[35] While adjudicators have jurisdiction to determine disputes relating to the exercise of rights under a statutory easement pursuant to section 68 of the Act, the District Court has recently determined that a dispute about the existence of a statutory easement under the LT Act does not fall within the scope of section 228 of the Act.[25]

[36] In part, this application alleges a failure to comply with the by-laws. All owners and occupiers are bound by the CMS and the by-laws in it.[26]

[37] The Lookout was created on registration of building units plan 106658, pursuant to the Building Units and Group Titles Act 1980 (BUGT Act).[27] Accordingly, on registration, the applicable by-laws were the default by-laws in schedule 3 of the BUGT Act. A CMS was automatically recorded when no CMS was recorded by the body corporate.[28][29] The effect was that the by-laws were deemed to be those in force as of 1 July 2000, being schedule 3 of BUGT Act. No subsequent CMS has been recorded. Notably, the body corporate has not recorded any by-laws granting any exclusive use over common property to any lot.

[38] The body corporate's by-law contravention notice in June 2025 referred to By-laws 3 and 5(1). It appears that By-law 10 is also relevant. These by-laws state:

3 Obstruction

A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.

5 Damage to 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.

10 Garbage disposal

_A proprietor or occupier of a lot shall - _

(a) save where the body corporate provides some other means of disposal of garbage, maintain within his or her lot, or on such part of the common property as may be authorised by the body corporate, in clean and dry condition and adequately covered, a receptacle for garbage; and

(b) comply with all local government local laws and ordinances relating to the disposal of garbage; and

(c) ensure that the health, hygiene and comfort of the proprietor or occupier of any other lot is not adversely affected by his or her disposal of garbage.

[39] A body corporate must enforce the CMS, including the by-laws.[30] The legislation sets out the process for pursuing an alleged by-law breach.[31] The first formal step for a body corporate is to issue a by-law contravention notice to the person it alleges is breaching the by-law. The notice should detail the by-law it alleges is being breached and details of the alleged contravention. If the alleged breach is not remedied, the body corporate can apply for dispute resolution against the person it asserts is breaching the by-law.

[40] Part of order 1 is that the respondents remove the kitchen and seating area and reinstate the common property to its original condition or its condition proper to the improvements being undertaken, unless the body corporate retrospectively approves the improvements.

[41] The applicant says Lot 1 operates as a restaurant and has done for many years. It says the owners of Lot 1 constructed, or allowed to be constructed or remain, a kitchen area of about 8m2 along with an enclosed deck area of approximately 120m2 that is used exclusively for restaurant seating. It says both are on common property.

[42] The body corporate says the kitchen area, deck extension and seating areas plainly encroach onto the common property and alienate the areas for the sole use of Lot 1. It says the areas cannot be used by any other owner except (in the case of the seating area) as a restaurant customer. As such, it says the common property has been subsumed into Lot 1. The body corporate says exclusive use rights to the common property areas have bever been sought or authorised and do not arise automatically from use. It says it did not authorise the construction or installation of the kitchen or seating area. It says the value of the kitchen has been independently assessed at $72,000 and the seating area assessed at $240,570.

[43] The respondents do not dispute that a grant of exclusive use is required to use this area of common property, or that body corporate approval is required for the improvements to common property. They simply said they would put motions to a general meeting for a use right and for retrospective approval of the seating area and kitchen area approvals. After receiving a valuation in September 2025, the respondents submitted motions in December 2025.

[44] The body corporate says the respondents appear to be asserting that the body corporate should not enforce its by-laws and should allow the respondents to alienate large sections of common property based on the vague indication that a motion might be submitted at some unspecified time. It notes the issue has been ventilated since early 2025.

[45] The application includes photographs of the kitchen, deck, and seating area.

[46] In an initial letter in June 2025, the body corporate proposed authorising the allocation of exclusive use rights for the kitchen and seating areas subject to various conditions including consideration of $330,000. In the absence of a substantive response, it wrote again alleging breaches of the by-laws and regulations and seeking removal of the respondents' property from the kitchen and seating areas. The respondents replied, in part saying that as recent owners they were not responsible for the improvements and believed them to be long-standing.

[47] In December 2025 the respondents submitted a motion (2026 AGM Motion 8) proposing a grant of exclusive use to Lot 1 on an area indicated in an accompanying valuation. This appears to encompass the kitchen and seating areas. The motion proposed payment of $120,000 for the grant, along with the reasonable costs to obtain a plan of the exclusive use area and to record a new CMS. Although submitted as a motion requiring a resolution without dissent, it was listed on the agenda (presumably in error) as requiring ordinary resolutions.

[48] Three further motions proposed that, subject to the grant of exclusive use rights over the areas in which the improvements are located, the body corporate authorise the improvements comprising the seating area on the verandah adjoining Lot 1 (AGM Motion 9), a toilet and associated amenities adjoining Lot 1 (AGM Motion 10), and the kitchen and bar service area adjoining Lot 1 (AGM Motion 11). These motions were listed as requiring an ordinary resolution but are subject to a grant of exclusive use requiring a resolution without dissent.

[49] The AGM minutes record that Motion 8 did not achieve a resolution without dissent, with 4 votes for and 3 against. Motions 9, 10 and 11 were ruled out of order as Motion 8 did not pass.

[50] The application included a valuer's report on the market value of the common areas if allocated for the exclusive use of Lot 1, the value of the interest to be transferred assessed as $330,000. The respondent's submission includes a valuation report assessing the market value of the 'shaded outdoor area' to be $120,000. A revised assessment obtained by the body corporate dated 12 February 2026, proposes an amount of $450,000 to be paid for the transfer of interest. The advice also comments on the market value submitted by the respondents.

[51] It is not disputed that the seating and kitchen areas are wholly or largely on common property and have been used by the owners or occupiers of Lot 1 to the exclusion of other occupiers. It is also not disputed that the owners or occupiers of Lots 1 have made or permitted to remain improvements to those areas of common property without body corporate approval.

[52] I am satisfied that the improvements should not remain, and the common property should not be alienated from use by other occupiers, unless the body corporate authorises the improvements and grants exclusive use (or other property rights) over the areas of common property on which the improvements have been made.

[53] The body corporate has not passed resolutions authorising the improvements to this area. And even if it had, and as a matter of law, any such authorisation would only have effect if the body corporate has granted exclusive use (or other property rights) over the areas on which the improvements are located. With the failure of AGM Motion 8 that has not yet occurred.

[54] It seems the primary sticking point is the level of compensation payable to the body corporate for the grant of exclusive use. That may be a matter for further negotiation between the parties. But unless and until a grant of rights and the improvements are approved, I consider the improvements must be removed and the common property reinstated.

[55] Order 1 seeks the same outcomes regarding the gas bottles and corral.

[56] The body corporate says there is a storage corral for gas bottles on the common property. It says the owners of Lot 1 constructed the gas corral or allowed to be constructed or remain. It says the gas corral is entirely on common property, and the gas bottles only service Lot 1. It says the installation required body corporate approval, but no approval has been obtained.

[57] The body corporate also says the corral impedes vehicular access to the Lot 6 and 7 garages.

[58] The respondents say the gas bottles and gas corral constitute utility infrastructure, for which a use right exists under the LT Act. They assert the gas storage has existed for some 30 years, and so it is improbable that it unreasonably interferes with vehicular access. But if there was unreasonable interference, the respondents say the gas corral could simply be relocated to another part of common property. They say the body corporate has not offered any alternative position. They confirm they will seek retrospective approval for the improvement.

[59] In response, the body corporate discusses the test to enliven a right to a statutory easement, being that it is reasonably necessary for the supply of utility services to the lot and does not unreasonably interfere with the use and enjoyment of the common property against which it lies. It says the respondents attempt to reverse the onus of proof on this issue. It says it only needs to establish that the gas corral (and exhaust fan, in regard to issue 3 below) encroach onto are or on common property and required body corporate approval which was not obtained. It says those matters are clear and not contested. It says the respondents bear the onus of proving the existence of a statutory easement and have not established it.

[60] The body corporate further says the length of time the gas corral has been in place has no relevance or bearing on whether they interfere unreasonably with access to Lots 6 and 7. Where all lots were until recently under common ownership, it says the owner was unlikely to complain to itself about the interference it had created. It further says the respondents do not say why the corral is reasonably necessary to supply utility services to the relevant lot.

[61] It also says it is not for the body corporate to propose a different location for the corral.

[62] The application includes photographs showing two large gas bottles located on common property next to the boundary fence on the northwestern side of the scheme. There is a slatted fence around the bottles, and it and the bottles appear to be on a slab or plinth. The corral is located between the entrances to garages on Lots 6 and 7. There is also a metal guard rail installed in front of the corral.

[63] The valuation obtained by the body corporate refers to the area comprising approximately 3 square metres. It also refers to a proposal to relocate the gas bottles to the southwestern end of the scheme, adjacent to Lot 5.

[64] In an initial letter in June 2025 about various issues, the body corporate said it would not insist on the gas corral being vacated at that time but sought 'meaningful discussions' about it. It indicated it would consider the allocation of exclusive use rights for the gas corral on another area of common property which would not impede the use of any other lot. However, in the absence of any substantive response, the body corporate sought removal of the gas corral.

[65] AGM Motion 14 proposed retrospectively authorising the owner of Lot 1 to make improvements to common property comprising a gas bottle corral and associated bollards contained in the area marked gas bottles on the accompanying valuation (being the current location). The AGM motions did not seek exclusive use of the area on which the corral is located. The AGM minutes record that Motion 14 failed on a poll vote with 4 votes in favour and 3 against, but 444 contribution schedule lot entitlements in favour and 556 against.

[66] It is not disputed that the gas bottles and corral are on common property and are used by the owners or occupiers of Lot 1. It is also not disputed that the owners or occupiers of Lots 1 installed or permitted them to remain. The respondents seek to retain this infrastructure.

[67] As detailed above, I do not have jurisdiction to determine if a statutory easement exists that entitles any owner or occupier to have the gas bottles on common property. But whether or not it does, I am satisfied the installation is an improvement to common property that requires body corporate approval. And if a statutory easement does not exist, a grant of rights to the use of the common property on which the gas bottles and associated corral and bollards are located would also be required.

[68] The respondents do not dispute that approval for the installation has not yet been given. Their attempt at obtaining such approval at the recent AGM was unsuccessful. The respondents could potentially challenge that decision. If the respondents claim statutory easement rights, they would bear the onus of establishing that the current location of the gas corral does not unreasonably prevent or interfere with the use and enjoyment of a lot or common property. Alternatively, they would need to apply for exclusive use or other rights over the area. And if the respondents are willing to relocate the gas corral to minimise the impact on others, including access to the Lot 6 and 7 garages, in the first instance they would be responsible for identifying a suitable alternative and seeking approval to move the gas corral to that location.

[69] Unless and until the installation and any necessary grant of rights have been approved, I am satisfied the gas corral must be removed and the common property reinstated.

[70] The final part of order 1 relates, in the same terms, to the exhaust fan.

[71] The applicant says an exhaust fan has been installed on the external face of Lot 7, along with an associated stack and ducting. It says the owners of Lot 1 installed it or allowed it to be installed or remain. It says the exhaust fan is entirely on common property. It appears the equipment services the kitchen of the restaurant on Lot 1.

[72] The body corporate says the equipment interferes with the use and enjoyment of other lots. It says it causes substantial noise and vibration for the occupants of Lot 7 while the exhaust is operating, and it discharges noxious fumes and odours onto the verandah of Lot 6.

[73] The respondents say the exhaust constitutes utility infrastructure for which a use right exists. They say the contention that the exhaust interferes with the use and enjoyment of Lots 6 and 7 has not previously been asserted and no evidence of it has been provided. However, they confirm they will seek retrospective approval of the improvement.

[74] The body corporate repeats its arguments regarding statutory easements and the onus of proof outlined above. It says the respondents' submissions are similarly silent about the exhaust fan and provide no evidence of the elements necessary to establish a statutory easement for it.

[75] The application includes photographs of a large metal exhaust stack located on common property between the boundary fence on the northwestern side of the scheme and the northwestern wall of the Lot 7 garage on Level A. The stack is close to the exterior wall on the southwestern side of Lot 7 on Level B, and it extends well above the roof line of the building. It appears the exhaust fan is below the stack, although that is not clear from the photographs.

[76] In its letter in June 2025, the body corporate indicated it would consider the allocation of exclusive use rights regarding the current exhaust or the location of any new exhaust installed. However, in the absence of any substantive response to its proposals, the body corporate sought removal of the exhaust.

[77] AGM Motion 13 proposed retrospectively authorising the owner of Lot 1 to make improvements to common property adjacent to Lot 7 comprising an exhaust duct for the mechanical extraction of exhaust from Lot 1. The AGM motions did not seek exclusive use of the area on which the exhaust equipment is located. The AGM minutes record that Motion 13 failed on a poll vote with 4 votes in favour and 3 against, but 444 contribution schedule lot entitlements in favour and 556 against.

[78] It is not disputed that the exhaust fan, stack, and associated infrastructure are installed on common property and are associated with and used by the owners or occupiers of Lot 1. It is also not disputed that the owners or occupiers of Lots 1 installed this infrastructure or permitted it to remain. The respondents clearly seek to retain this infrastructure.

[79] As with the gas corral, I do not have jurisdiction to determine if a statutory easement exists that entitles any owner or occupier to have the exhaust equipment on common property. But regardless, the installation is an improvement to common property that requires body corporate approval. And if a statutory easement does not exist, there would also be a need for the body corporate to grant a right to use the common property on which the infrastructure is located.

[80] It is again evident that the body corporate has not approved the installation and, to the extent required in the absence of a statutory easement, specific rights to use the affected common property. As with the gas corral, unless and until that occurs, I consider the exhaust equipment must be removed and the common property reinstated.

[81] The first part of order 2 is that, unless retrospectively approved, the respondents remove the two cold room and two air-conditioning condenser units from the external wall of Lot 2.

[82] The body corporate says that at the extraordinary general meeting (EGM) on 21 August 2023 it authorised Lot 2 to install an air conditioning unit on the exterior wall of Lot 2 subject to conditions. It says that, despite the resolution, four condensers were installed.

[83] The body corporate says the four condenser units required body corporate approval and were not approved. It says the lowest of the units installed is below the conditioned height, at 1,100mm above ground level, and has been installed in a way that prevents the adjacent car park being used for that purpose.

[84] The respondents say the condensers constitute utility infrastructure. As such, they say a statutory easement exists for the right to use the area on which the condensers are affixed. They say the body corporate has not previously raised the condensers as an issue.

[85] The respondents also dispute that the condensers are unapproved. They say they do not recall any conditions being requested or discussed when the condenser was approved in 2023 and there are none in the minuted resolution. They further argue that the language of the motion does not lend itself to a singular installation. They say it has been interpreted as authorisation for the owners and occupiers of Lot 2 to install the condensers on the external wall of Lot 2 for an air conditioning unit. The respondents then say that even if retrospective approval was required, it would likely be unreasonable to refuse. They say the application does not evidence that the improvements prevent the use of the adjacent common property.

[86] In response, the body corporate says the issue with the condensers was raised in December 2024 and March 2025 as part of a broader discussion about the subject of the application. It also refers to the conditions of approval in the EGM notice.

[87] It further says the argument concerning statutory easements suffers from the same problem as arises with the other unauthorised improvements. It says it is clear the condenser units are located on common property and required body corporate approval, which was not obtained, and that is not contested by the respondents. It says the respondents have not provided evidence that the condensers do not unreasonably interfere with the use and enjoyment of the common property against which the purported statutory easement lies or that they are reasonably necessary for the supply of utility services to the lot.

[88] The application includes photographs of the exterior wall of Lot 2 (on Level A of the scheme, below Lot 7 on Level B). This shows two large condenser units (apparently for cold rooms) set on top of each other immediately adjacent to the exterior wall of the Lot 7 garage. A smaller condenser (apparently for air conditioning) is located next to the uppermost larger condenser units. These three condenser units are together at the end of an area that has line markings as if it was a car space, but which is full of garbage bins. A second smaller condenser unit (also apparently for an air conditioner) is located at the same height as the other smaller condenser unit but on the other side of the wall.

[89] The notice of the 2023 EGM listed Motion 18 as:

Air Conditioning Unit - Lot 2

THAT Owners and Occupiers of Lot 2 be permitted to install the condenser unit for an air conditioning unit to the external wall of their lot (the North Carpark Wall on building one (adjacent to Unit 2's exterior wall) at a height of 1600 off the ground. No impediment to current car parks) subject to the Owner of Lot being responsible for any damage and the maintenance of the common property where the equipment is installed.

[90] The minutes of that EGM record the following Motion 18 being passed with 2 votes for, none against, and 2 abstentions:

Air Conditioning Unit - Lot 2

THAT Owners and Occupiers of Lot 2 be permitted to install the condenser for an air conditioning unit to the external wall of their lot, subject to the Owner of Lot being responsible for any damage and the maintenance of the common property where the equipment is installed.

[91] AGM Motion 12 proposed retrospectively authorising the owner of Lot 1 to make improvements to common property comprising 2 cold room condenser units and 2 air-conditioning condenser units. The motion does not seek exclusive use of the area on which the units are located. The AGM minutes record that Motion 12 failed on a poll vote with 4 votes in favour and 3 against, but 444 contribution schedule lot entitlements in favour and 556 against.

[92] The submitted information is unclear as to who installed the disputed condenser units. The 2023 EGM authorised the owners and occupiers of Lot 2 to install a unit, and the applicant does not object to this order being made against the owners of Lot 2. But 2026 AGM Motion 12 sought to retrospectively authorise the owners of Lot 1 to make the improvements.

[93] Where the respondents claim statutory easement rights in respect of the condensers, and that is disputed by the body corporate, the existence of those rights is again not something I can determine. But regardless, the installation of all four condenser units constitutes improvements to common property that required body corporate approval.

[94] With the failure of 2026 AGM Motion 12, the only evidence of any approval is 2023 EGM Motion 18. I acknowledge the terms of the minuted motion differ from that of the agenda, by the omission of the bracketed conditions. I have been given no explanation for the difference. Conceivably the minutes did not record the entire motion as decided by the meeting, or the meeting amended the motion to remove the conditions. But if there was a procedural motion to amend the motion at the EGM to remove those conditions, that should have been recorded in the minutes. And if the respondents are asserting there was a defect in the consideration of the motion, the resolution would arguably be invalid such that there was no approval.

[95] Substantively, the respondents do not dispute that four condenser units have been installed on the exterior of Lot 2. Moreover, they do not appear to dispute that two are cool room condensers and two are air conditioning condensers. 2023 EGM Motion 18 clearly only related to an air conditioning condenser. I do not consider the resolution could rationally be interpreted as giving authority for a cool room condenser (or two). Clearly separate authority would be required for any cool room condensers to be installed.

[96] Motion 18 did purport to approve the installation of an air conditioning condenser. I do not accept the respondents' assertion that the language of the motion provided for more than one condenser. Both the heading and the wording of the motion on the agenda and minutes refer to a singular item of equipment being a 'condenser' for a singular air conditioning unit.

[97] The condenser that the applicant says is lower than the required height appears to be one of the cool room condenser units that is unapproved. Accordingly, whether it would comply with any conditions of approval of the single air conditioning condenser is immaterial. There is no suggestion that either of the air conditioning condensers do not comply with the conditions. Moreover, it is not immediately clear how the condensers other than the lower of the two cool room condensers could materially impede the use of the common property in that area.

[98] The body corporate seeks removal of all four condensers. But the body corporate does not appear to dispute approving one of the air conditioning condensers or assert that the air conditioning condensers breach the conditions of that approval. In the circumstances, I consider it appropriate to make an order requiring the removal of the two cool room condensers and only one of the two air conditioning condensers, unless they are approved by the body corporate. As it is somewhat unclear who installed or seeks to keep the condensers, I will make this order against the owners of both Lot 1 and Lot 2.

[99] If the respondents seek to retain the other condensers, the onus will be on them to submit further motions, establish the existence of statutory easement rights (if contested), and if necessary to demonstrate that the units will not unreasonably interfere with the use and enjoyment of common property. If the existence of statutory easement rights is not established, the respondents will also need to seek approval for exclusive use of (or other rights to) the common property on which the condensers are located.

[100] The second part of order 2 is that, unless retrospectively approved, the respondents must remove a bollard and traffic bumper device from the car park.

[101] The applicant submits that the respondents installed a parking barrier (also referred to as a traffic bumper device) and a bollard. It presumes these installations were a consequence of the installation of the condensers. It says parking at the scheme is limited and the installation of these items have prevented the car park being used for parking.

[102] The respondents note there are other traffic bumper devices installed in other car parks on common property. They say it is not clear when the traffic bumper devices were installed or by what authority. But they also say the body corporate has not evidenced that the respondents installed the devices or ought to be responsible for their removal.

[103] The respondents accept the bollard is an improvement to common property that requires approval. They say the applicant did not raise any issue with the bollard before bringing the application. They note that it appears the bollard was placed to protect the condensers. But they say they did not arrange for the installation of the bollard.

[104] The body corporate says it did not arrange for the installation of these items and suggest it is more likely they were installed by the contractor who installed the unauthorised condensers. It notes the respondents do not express an intention to apply for retrospective approval of the items. On that basis, it says orders to require the respondents to remove the devices or permit the body corporate to do so are appropriate.

[105] The application includes photos in which a yellow bollard is bolted to the concrete on the common property adjacent to one of the condenser units and amongst garbage bins and barrels. A wheel stop style of barrier is shown installed on the ground in the same area. This barrier appears similar to those on adjacent car spaces, but its different location would prevent a car parking in the area if there were no bins there.

[106] Minutes of a committee meeting in March 2025 indicate a discussion of the occupation of common areas by the Lot 1 restaurant. It referred to a bollard 'removing' a car park.

[107] I am satisfied the bollard and traffic barrier are improvements to common property. Regardless of whether they were installed by the body corporate or an owner or occupier, they required body corporate approval. No evidence has been provided of any approval of these items.

[108] Although the applicant may assume these items were installed by the respondents, no evidence of that has been provided. The respondents dispute knowledge of how the items were installed. They do not claim authority to install them. They have not sought retrospective approval of the items or indicated that they intend to do so.

[109] Given the history of the scheme, there seems little prospect of determining the origin of these items. They may have been installed before the current ownership of the lots with the agreement (if not formal approval) of the owners at the time. In the absence of cogent evidence that the items were installed by or on behalf of any of the respondents, I do not consider there is any basis for an order to require any of the respondents to remove the items.

[110] But that does not mean the items must remain. It is open to the body corporate to decide to remove the items. This would amount to an improvement to common property by the body corporate and the body corporate can pass a resolution to do so (by a committee resolution depending on the value of the work). As that is within the existing powers of the body corporate, I do not consider there is any need for an order to permit it to do so. If the body corporate considers a motion to remove the items, and that is not passed, it could be challenged on the basis that there was no evidence of approval for the original installations.

[111] The third order sought is that the respondents, including the tenants or occupants of Lot 1, 2, 4 and 5, cease using the carpark for the storage of rubbish bins, drums, or other materials.

[112] The application grounds are limited on this issue. The applicant asserts that, contrary to the by-laws, the respondents have caused or allowed the carpark to be used as a storage area for bins and oil drums used by the tenant of Lot 1. It says the respondents have expropriated the car park for their own use as a storage area for rubbish bins, oil drums, and other materials associated with the operation of Lot 1.

[113] The respondents say the applicant has not issued a contravention notice about the storage of items in the carpark or otherwise attempted internal dispute resolution on this issue.

[114] The respondents also say the applicant has not evidenced that the area described as a car park is required to be used for that purpose. It says the survey plans and CMS do not identify it as anything other than unallocated common property. They say if the applicant cannot evidence that the area must be used for car parking, it cannot sustain an argument that the respondents are obstructing the use of the area for that purpose. They say the area is not a thoroughfare or pathway and it is open to any owner to use the area for bin storage in the absence of any other dedicated area. They content that there is no unreasonable interference, and so owners ought to be able to use the area for bin storage.

[115] The respondents say the by-laws contemplate an area being authorised for the purpose of garbage disposal. They say 5 of the 7 lots are for commercial use and require garbage disposal services. They say the body corporate ought to act reasonably in approval the area for garbage disposal services.

[116] The body corporate asserts the area in question was approved by council for use as a carpark and always has been used as such until the respondents installed the condenser units, bollards, traffic devices, and used it for bin storage. It refers to the original approved plans. These plans, stamped as approved by the Redland Shire Council in March 1996, show the area in question marked as a car park adjacent to other car spaces.

[117] The body corporate acknowledges it has not issued a by-law contravention notice on this issue. But it says where the storage of bins is an obvious and ongoing contravention of the by-laws and impeding the use of the carpark by others, it is just and equitable that general orders be made that the car park not be used as a bin storage area.

[118] The body corporate asserts that the respondents' lots are all tenanted by retail food and beverage outlet that account for at least 22 rubbish bins plus additional bottle bins and waste oil bins. It says the primary offender is Lot 1, but an order should make a general prohibition against all owners using the area for that purpose. It notes that the other lots produce little or no waste, but the tenants of Lot 1 regularly use the bins of other lots for disposing additional waste and placing those other bins in this area. The body corporate further says it is not the for the body corporate to generate a solution to a problem created by the respondents' tenants.

[119] The application includes photos in which at least a dozen rubbish and recycling bins are visible on an area of common property adjacent to the Lot 7 garage and the exterior wall of Lot 2 (under the condenser units). Blue drums and bags are also visible in some photographs. The items are located within an area the apparent size of a car space with line markings matching others which appear to define car spaces in the area.

[120] The supplied minutes of a committee meeting in March 2025 indicate a discussion (with no resolution) of the occupation of common areas by the Lot 1 restaurant. It referred, amongst other things, to 23 wheelie bins mostly for restaurant use and waste oil drums on the car park.

[121] It is not necessary for present purposes to investigate whether the area in question can only be used for the purposes of car parking pursuant to the development approval for the scheme. Even if it is not, that does not give owners or occupiers carte blanche to use the common property for storage or any other use. The use of common property is subject to the constraints in the legislation and CMS. An owner or occupier cannot purport to subvert common property for their sole use without an appropriate grant of rights over that common property. And an owner or occupier must comply with the by-laws, and must not cause a nuisance, hazard or unreasonable interference when using the common property.[32]

[122] Although the body corporate indicated the respondents were breaching the by-laws on this issue, it did not cite any specific by-laws or follow the by-law enforcement process for it. It seems By-laws 3 and 10 are most relevant to this issue.

[123] I have been given no evidence that the body corporate has resolved to authorise an area of common property for the purpose of garbage receptacles, or any other means for the disposal of garbage. If the respondents would like that to occur, they can submit a motion to that effect. But unless and until that occurs, By-law 10 requires receptacles for garbage to be maintained within the lot, not on common property. And in the absence of a designated area on common property for garbage bins, it could be argued that subsuming an area of common property for storage in a way that continuously or permanently prevents anyone else from similarly using that area (if that is the case) could amount to an obstruction of the common property.

[124] However, there are several difficulties for the applicant on this issue.

[125] First, the applicant has not followed the preliminary procedures required for an application alleging a by-law breach. The application is defective in that regard.

[126] But more substantively, I have been given no evidence that the respondents themselves are storing bins, barrels, or any other items in this location on common property. The submitted material refers to the use of the area primarily by the tenant in Lot 1. To the extent that it refers to the respondents' other lots, it indicates they are also tenanted. Accordingly, if the storage of items on common property breaches By-laws 3 and 10, it appears to be the respondents' tenants who are engaging in the offending conduct rather than the respondents themselves.

[127] It may be the respondents have accepted, or even encouraged, the use of this common property for storage. I have no evidence in that respect. But under the Act it is the body corporate and not the respondents who are responsible for enforcing the by-laws against the persons alleged to be breaching them.

[128] And to the extent that order 3 purports to apply to the occupiers and tenants of Lots 1, 2, 4 and 5, those persons were not named as respondents to this application. It would be contrary to the requirements of natural justice to make an order against persons who are not named in the application and with whom there has been no attempt at self-resolution or (in the case of alleged by-law breaches) compliance with the preliminary procedures. Moreover, where the issue has not been properly ventilated with the persons alleged to be breaching the by-laws, I do not consider that even a general order would be appropriate.

[129] Accordingly, the applicant has not satisfied me that order 3 should be made. It is open to the body corporate to pursue a dispute directly with the persons who it asserts are leaving bins and other items on common property.

[130] I am satisfied the installation of the kitchen and seating area on common property and associated with Lot 1 amounts to an improvement to common property by an owner that has not been approved. I consider an order is warranted to require those improvements to removed, and the common property reinstated, unless the improvements and a grant of property rights over the affected areas is approved.

[131] I am also satisfied that the gas bottles, corral and associated infrastructure, the exhaust fan and associated equipment and infrastructure, two cold room condenser units, and one of the two air conditioning condenser units are all improvements to common property by an owner and have been installed without the requisite body corporate approval. Whether or not the owners or occupiers benefit from a statutory easement for those items (which I have no jurisdiction to determine), I consider that an order requiring the removal of those items is warranted unless the improvements are approved by the body corporate. Moreover, if the respondents seek to retain those items, they bear the onus of establishing a statutory easement or obtaining a grant of property rights over the areas affected by the improvements.

[132] But for the reasons outlined, the applicant has not satisfied me that orders are warranted regarding the bollard and traffic bumper device installed near the condensers or the storage of items on common property. Accordingly, I have dismissed the balance of the application.

[133] For those items I have ordered to be removed, as they have apparently been in situ for some time and there is no apparent urgency, I will allow 6 months for that to occur. This should allow sufficient time for the parties to negotiate further on the conditions under which the items could be approved (including having regard to the matters discussed in these reasons), and for the respondents to submit further motions for approval. The body corporate must act reasonably in considering any further requests for approval. But the onus rests with the respondents to submit proposals and motions, and to remove unapproved items.

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

[7] Although the latter is arguably a separate dispute with the occupier of Lot 1.

[8] Again, this appears to be a dispute with the tenants of those lots rather than the owners.

[10] Section 184 of the Standard Module

[13] For example: Oxford Court [2022] QBCCMCmr 215

[14] Sections 186, 187 and 193 of the Standard Module

[16] Schedule 1 of the Acts Interpretation Act 1954

[17] Section 187 of the Standard Module

[18] Sections 94(2) and 100(5) of the Act

[19] Noting in particular Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 and Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15

[20] Section 115O of the LT Act; the definitions of utility services and utility infrastructure in the LT Act point to the definitions of those terms in schedule 6 of the Act

[22] Section 68(1) of the Act, Ralborg No 2 Pty Ltd atf Ralston Property Trust v The Body Corporate for The Regent Apartments CTS 9573 [2020] QCATA 117

[23] Ralborg No 2 Pty Ltd atf Ralston Property Trust v The Body Corporate for The Regent Apartments CTS 9573 [2020] QCATA 117, para 62

[24] Riverford [2018] QBCCMCmr 606, para 19

[25] Holland & Anor v Hing & Anor [2025] QDC 206

[27] Although the scheme was registered after the commencement of the current Act, where the survey plan says it was registered under the BUGT Act, I assume the transitional provision in section 325(2)(c) of the Act applied.

[28] Titles dealing number 704196197, recorded 15 July 2000