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

IMPROVEMENT TO COMMON PROPERTY - where the respondents installed a gazebo on the exclusive use area allocated to their lot - whether the gazebo was installed without approval in breach of the legislation and by-laws - whether the gazebo should be removed.

Act, s 59; Standard Module, ss 193, 212

1. The owners of Lot 2, Timothy and Pamela McNamara, must remove the gazebo installed on the exclusive use courtyard allocated to Lot 2 and reinstate the common property within 3 months of the date of this order unless within that time the Body Corporate for The Outlook Currimundi has approved the gazebo.
2. If the owners of Lot 2, Timothy and Pamela McNamara, do not remove the gazebo in accordance with order 1, the Body Corporate for The Outlook Currimundi may resolve to undertake the work, to engage contractors to enter the exclusive use area and undertake the work, and to give the owners of Lot 2 a notice of entry to the exclusive use area, and it may recover its reasonable costs of the work from the owners of Lot 2 as a debt.

• [1] This application is about a gazebo. The respondents' Lot 2 is on the ground floor of the building. An area of common property outside the lot (a courtyard) has been allocated for the exclusive use of Lot 2.[1] In May 2024 the respondents installed a gazebo in the courtyard.
• [2] The respondents initially expressed a wish to install the gazebo in around November 2023. There were discussions about it between the respondents and the committee, and the respondents applied for approval. However, the respondents then installed the gazebo without obtaining consent. The respondents subsequently sought retrospective approval at an annual general meeting (AGM) on 24 September 2024, but the motion (Motion 9) did not pass.
• [3] In November 2024 the body corporate gave the respondents a by-law contravention notice seeking the removal of the unapproved gazebo. It says the respondents have not complied. The body corporate now seeks an order that the respondents remove the gazebo, or that it be authorised to remove the gazebo if the respondents do not.
• [4] I have considered this application concurrently with an application lodged by the respondents seeking to overturn the decision of the body corporate not to pass AGM Motion 9.[2]

• [5] The Outlook Currimundi community titles scheme 17047 (The Outlook Currimundi) is a 17-lot scheme at Currimundi. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 102612.
• [6] This application seeks the following orders:

That the respondent remove the unauthorised gazebo from the exclusive use courtyard allocated to lot 2 and reinstate any affected common property within 21 days of the date of this order.

That, if the respondent fails to comply with the above order, the body corporate (and its contractors) be authorised to:

d. recover its associated costs from the respondent as a debt.

• [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.[3] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[4]

• [8] The body corporate initially applied for conciliation of the dispute in December 2024,[5] soon after the respondents lodged their related adjudication application. However, the conciliation was ended by the conciliator in January 2025 without the parties attending a session.
• [9] This application was then lodged on 7 February 2025, pursuant to a committee resolution.
• [10] The Commissioner invited submissions from the respondents and all owners.[6] Seven submissions were received. The applicant obtained and responded to the submissions.[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 respondents say Cyclone Alfred caused damage over southeast Queensland but there was no movement or damage to the gazebo, so the argument that it could become a projectile holds no water. They say it was installed as per the manufacturer's instructions with cement added. They also say they offered to indemnify the body corporate for any future damage.
• [13] The respondents also refer to their case to have the AGM motion carried and to submissions made in response to the related application. They say shelter is a right and all units with exclusive use areas have either a gazebo or a shade structure. They say those who have voted no have not stated what would be acceptable. They refer to other structures and how they have been dealt with and the evidence they submitted. They comment on the actions of others. They say no one owns a view and the views from each unit have changed over 30 years and the first floor lots never had views. They say the gazebo provides more privacy and a better outlook for the lot overlooking the courtyard.
• [14] They say that after 4 months of trying to comply with the committee's requirements, they concluded it was never going to give them approval. So, they installed it on 13 May 2024. They say it has not moved since despite serious weather.
• [15] An owner submission opposing the application expresses concern at the conflict between the committee and the owners of Lot 2 on various matters. They consider this dispute is unreasonable and hostile by the committee. They object to body corporate fees funding legal advice on this matter. The owner has no concern with the gazebo. They believe it is aesthetically consistent with the building, and more so than blue sails that were approved for Lot 1. They believe they and some other owners have been disenfranchised by the committee.
• [16] The submissions from the owners of 5 lots support the application. In particular:
  1. An owner who is also the chairperson details the history of the gazebo and the committee's actions. He says the committee made significant efforts to facilitate the owners' application for approval. It applied for conciliation and was hopeful that the parties could reach some common understanding and a constructive outcome, but they were told at short notice and with no reason given that the owners would not attend. He says the AGM vote reflects the concern of owners for the lack of demonstrable structural integrity of the gazebo, support for the committee's concerns, and the concerns of others about the impact of the gazebo. Other owners were not consulted.

The submitter says the body corporate has an obligation to require any development on common property to conforms to the building code and is safe. He says a desk top assessment by its engineer raised doubts but could not be confirmed without a site inspection, and entry was refused. The submitter also raises concerns that the gazebo was not constructed in accordance with the manufacturer's instructions. They say the respondents did not provide details of the installation or who carried out the works, or structural adequacy information or certificates. As the body corporate cannot establish the structural adequacy or safety of the gazebo, it would be negligent to approve it.

1. Another submission says unauthorised alterations compromise the integrity of the original design and set a concerning precedent. They say the gazebo looks tacked on and they want compliance with the building's architectural standards. They say the gazebo has a considerable impact on them and their use of their lot. It is used on a daily basis, obstructs the view from their lot, affects their privacy, generates noise, and impacts on the valuation of their unit. They also share the committee's safety concerns.
2. Another submission says an inspection is required to confirm the gazebo meets the requirements and for safety and structural certification, but entry was denied by the respondents. They say if that continues, the only recourse is to remove the gazebo.
3. A further submission says their primary concern is that improvements to common property which are not safe or could leave owners liable for damage should not be approved. They say the only way for that to be assured is if council approvals and building code requirements are satisfied. The submitter is also concerned that improvements not negatively impact on any owner's amenity or property value. If the application by the owners of Lot 2 is declined, they support this application.

• [17] In reply the body corporate says:
  1. The relationship with the respondents does not excuse the respondents from obtaining approval and Motion 9 was defeated by a majority of owners.
  2. The vergola on Lot 15 was approved unanimously at a general meeting in 2009 subject to, amongst other things, council approval. It says the owners of Lot 15 had to make a development application and provide plans and certifications from their contractor.
  3. The claim that the gazebo withstood a cyclone is overstated. Weather data shows westerly winds, and the gazebo is protected by the building from the west and south.
  4. It provides a video taken during a storm on 29 March 2025 depicts the louvres moving, the first respondent attempting to secure the gazebo, and louvres in the closed position during high winds contrary to the condition in the respondents' motion.
  5. Whether the gazebo is structurally sound is not the only factor it might reasonably consider. The submissions supporting the application raise other objections.

• [18] The primary issue in this application is whether the gazebo is required to be approved by the body corporate and, if it is not, whether it must be removed. I will refer to, but not restate, the findings related to this dispute that I have made in the related application.

• [19] The installation of an item such as a gazebo structure on common property would constitute an improvement to the common property. The Act defines an 'improvement' as including the erection of a building, a structural change, and a non-structural change.[10] The definition refers to the definition of 'change' in the Acts Interpretation Act 1954 which "includes change by addition, exception, omission or substitution."[11]
• [20] There are two contexts in which the legislation enables an owner to be permitted to make an improvement to common property.
• [21] First, an improvement can be made to an area of common property that has been allocated to a lot for their exclusive use, pursuant to an exclusive use by-law.[12] Where the exclusive use by-law authorises stated improvements to the area, no further approval is required. If the exclusive use by-law does not authorise the improvement, the improvement can only be made if the body corporate authorises specifically it. If the value of the improvements is over $3,000 then a general meeting resolution is required. Otherwise, committee approval will be sufficient.
• [22] An owner can also make an improvement to an area of common property that is not an exclusive use area, if they obtain body corporate approval.[13]

• [23] A committee can approve such an improvement if is minor,[14] it does not detract from the appearance of any lot or common property, and the use and enjoyment of the improvement is not likely to promote a breach of the owner's duties as an occupier. Any other improvement requires approval by an ordinary resolution at a general meeting. Authorisation may be given on such conditions as the body corporate considers appropriate, and the owner must comply with the conditions and maintain the improvement in good condition.
• [24] In either context, the body corporate and its committee must act reasonably in making a decision as to whether to approve or refuse approval for the improvement.[15] The impact of the improvement on others may be relevant to whether it is appropriate for the body corporate to grant any approval requested and whether to impose any conditions on approval.

• [25] By-law 21 does not authorise improvements to the exclusive use area allocated to Lot 2. Accordingly, any improvements to that area of common property must be specifically authorised by the body corporate, pursuant to section 193 of the Standard Module.
• [26] It appears it was initially believed the cost of the improvement would be less than $3,000. In correspondence to the committee seeking approval, the respondents referred to the cost of the gazebo being $2,500, with an expected installation cost of $340, giving an installed value of $2,840. It was appropriate for the committee to consider whether to grant approval based on that information. However, it appears the respondents subsequently advised the cost had exceeded $3,000. Their submission says the gazebo cost $2,548 to purchase and $595 to install. Accordingly, I am satisfied that its installed value exceeded $3,000.
• [27] I conclude, and it is not disputed by the parties, that the installation of the gazebo required body corporate approval by way of an ordinary resolution at a general meeting.
• [28] The owners of Lot 2 constructed the gazebo without approval either from the committee or at a general meeting despite knowing that body corporate approval was required. The respondents challenged the decision of the body corporate not to grant approval at the 2024 AGM. However, I have dismissed the respondents' application in that regard.[16] The owners of Lot 2 did not satisfy me in that related application that an order to reverse the decision on AGM Motion 9 was warranted. Accordingly, the gazebo remains unapproved.

• [29] By-law 8(a) specifies that an occupier must not mark, paint, or drive nails or screws or the link into, or otherwise damage or deface a structure that forms part of the common property, except with the written consent of the committee.
• [30] The respondents have not argued that they have not breached the by-law or the regulations by installing the gazebo without approval. Any frustration the respondents may have felt with the duration or requirements of the process (which do not appear to have been excessive in any event) does not entitle them ignore the legislation. Where the respondents attached a structure to common property without approval, I am satisfied they are in breach of By-law 8(a).
• [31] By-laws are binding on all owners and occupiers.[17] The Act imposes a duty on the body corporate to enforce the CMS, including the by-laws, but it must act reasonably in doing so.[18] The legislation sets out the processes for pursuing an alleged by-law breach.[19]
• [32] I am satisfied the body corporate complied with the required processes for enforcing the by-laws. Moreover, the respondents have not established that the body corporate has acted unreasonably in seeking to enforce the by-laws.
• [33] In particular, the respondents have not established that other improvements to common property have been made without approval but not pursued or that the body corporate has imposed notably different or greater obligations on the approval of the gazebo as compared with similar improvements to common property.

• [34] I am satisfied the gazebo was installed without body corporate approval in breach of the regulations and, consequently, in breach of By-law 8(a). Accordingly, the body corporate is entitled to require its removal. I will make and order that the gazebo must removed and kept removed unless it is subsequently approved by the body corporate.
• [35] Given the circumstances, I will allow the respondents 3 months to remove the gazebo. That should provide sufficient time for the respondents to submit a further motion for approval of the gazebo that addresses the concerns raised, and for that motion to then be considered at a further general meeting. The body corporate must act reasonably (including promptly) in considering any further motion. If the respondents do not submit a further motion, or do not do so soon enough for it to be reasonably considered by the body corporate, or if any motion is not passed, the respondents will need to remove the gazebo.
• [36] It is certainly unfortunate that the respondents will have 'wasted' the expenditure incurred to date if the gazebo is not approved in future. However, it is clear the respondents were well aware that they required body corporate approval and decided to proceed regardless.
• [37] The question then is the second order sought by the body corporate. If an owner or occupier does not carry out work they have an obligation to carry out under the order of an adjudicator (amongst other things), the body corporate may carry out the work and recover the reasonable cost of doing so as a debt.[20] Accordingly, if the gazebo is not approved or removed within 3 months of the date of this order, the body corporate can choose to remove the gazebo itself. It would need to resolve to remove the gazebo and approve the expenditure (at least in the first instance) and the engagement of a contractor to do so. It would also need to authorise the contractor to enter the exclusive use area to remove the gazebo and give notice of the intended entry to the respondents (noting that the body corporate has a statutory right of entry to undertake work it is required or authorised to undertake).[21] It could then seek to recover the reasonable cost of the work from the respondents as a debt. I will make an order to that effect. Alternatively, the body corporate could enforce this order in the Magistrates Court.[22]

[1] Pursuant to By-law 21 and schedule E of the community management statement recorded on 25 October 2023, Titles dealing number 715389351.

[2] Application 1228-2024, The Outlook Currimundi [2025] QBCCMCmr 148

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

[11] Schedule 1 of the Acts Interpretation Act 1954

[12] Section 193 of the Standard Module

[13] Section 187 of the Standard Module

[14] A 'minor improvement' is defined as an improvement with an installed value of $3,000 or less.

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

[16] The Outlook Currimundi [2025] QBCCMCmr 148

[20] Section 212 of the Standard Module