Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

IMPROVEMENT TO LOT - ACCESS TO A LOT - where glass panels have been installed on the balcony of a lot - whether the body corporate should be restrained from seeking to enter the lot to remove the panels.

Act, ss 94, 100, 161, 163; Accommodation Module, s 202

1. The Body Corporate for Thirty Four Riverwalk must not enter Lot 13, or authorise any person to enter Lot 13 on its behalf, for the purpose of removing the glass panels and associated tracks on the balcony of the lot unless:
   1. the body corporate has been given a notice by a relevant authority under an enactment, or the order of an adjudicator, a court, or the Queensland Civil and Administrative Tribunal, requiring it to remove the panels and tracks, or
   2. the owners or occupiers of Lot 13 have been given a notice by a relevant authority under an enactment, or the order of an adjudicator, a court, or the Queensland Civil and Administrative Tribunal, requiring them to remove the panels and tracks and they have failed to do so within the notified or ordered time, and
   3. the body corporate has passed resolutions agreeing to undertake the work, approving the engagement of persons to undertake the work, authorising the persons to enter Lot 13 to undertake the work, and deciding to give an entry notice to the owners and occupiers of Lot 13, and
   4. the body corporate has given a valid notice of entry to the owners and occupiers of Lot 13.
2. The application is otherwise dismissed.

• [1] This application is about a glass enclosure on the balcony of the applicants' Lot 13 and the body corporate's proposed entry to the lot to remove it.
• [2] In October 2016 the committee resolved to retrospectively approve glass balcony enclosures on 4 lots, including Lot 13. But on 19 March 2025 the committee rescinded those approvals.
• [3] In May 2024 Axis Building Certifiers (Axis) reported fire safety and drainage concerns with the enclosures. In September 2024 the Gold Coast City Council (GCCC) issued a show cause notice to the applicants about development approval for the enclosure of the balcony. After exploring solutions, the applicants removed 6 of the 14 glass panels. The GCCC inspected the lot in April and subsequently confirmed the non-compliance had been rectified and the matter resolved. The body corporate had also advised its insurer, which required further information. The insurance broker subsequently confirmed the renewal conditions had been satisfied.
• [4] However, before those matters were resolved, on 25 March the body corporate gave the applicants notice of intended entry to Lot 13 on 14 April to remove and dispose of the glass panels and associated tracks. The applicants disputed the entry. I made interim orders to restrain the body corporate from entering the lot for that purpose.
• [5] The application for final orders remains. The applicants particularly seek an order permanently restraining the body corporate from entering the lot to remove the remaining panels and tracks.

• [6] Thirty Four Riverwalk community titles scheme 34520 (Thirty Four Riverwalk) is a 22-lot scheme at Robina. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 165606.
• [7] The application to be determined now is for the following final orders, as amended:
  1. That the Body Corporate be restrained from entering Lot 13 to remove the remaining glass panels and aluminium tracks until such time as the GCCC has completed their re-inspection of Lot 13 and have issued their written advice as to whether or not the remaining glass panels and tracks are now compliant and therefore the Show Cause Notice will be withdrawn as suggested in the email from GCCC dated 3 March, 2025 (marked "J") or alternatively, if the GCCC requires further action taken to make the works compliant, that a reasonable time is allowed for such works to be completed.
  2. If required by GCCC that the body corporate obtain at its expense a fire engineer's report as originally recommended by Axis Building Certifiers who were engaged by the body corporate.
  3. Given the negligence of the body corporate in retrospectively approving unanimously the glass panels and tracks at a meeting on 13 October 2016 without ensuring that the works had been properly approved as required by law, and before we became the current registered owners, that the body corporate pay all costs and expenses in relation to any necessary rectification works.
  4. That the purposed recission motion of the body corporate contained at item 7.13 of the committee minutes dated 19 March 2025 (marked "O") and received by email from Archers Body Corporate Management at 7.34am on Friday 4 April 2025 be declared invalid.
  5. The Body Corporate for Thirty-Four Riverwalk must not enter Lot 13, or authorise any person to enter Lot 13 on its behalf, for the purpose of removing the remaining eight glass panels and associated tracks.

• [8] 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 decide this matter.[2]

• [9] This application was lodged on 1 April 2025. The Commissioner's delegate sought clarification of some aspects of the application,[3] which was subsequently amended.[4]
• [10] The application was then referred to me to decide the interim orders.[5] After considering an interim submission from the committee, on 11 April I made the following interim order:[6]

Pending a final determination on this application, the Body Corporate for Thirty Four Riverwalk must not enter Lot 13, or authorise any person to enter Lot 13 on its behalf, for the purpose of removing any glass panels or associated tracks. > > This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

• [11] I then referred the application back to the Commissioner.[7] The Commissioner's delegate sought information about the status of the dispute, particularly a decision from the GCCC.
• [12] On 3 June the body corporate chairperson formally requested that the interim order be lifted. At my direction, the Commissioner's delegate sought further information from the chairperson about the request. On 11 June I refused the request to cancel the interim order.[8]
• [13] The applicants amended their application again, in part to reflect the further events.
• [14] The Commissioner then referred the matter to conciliation.[9] A conciliation session was held in August and the parties reached a partial agreement.
• [15] After the conciliation, the applicant provided further information. The Commissioner then invited submissions about the final orders from the committee and all owners.[10] Four submissions were received. The applicants obtained and responded to them.[11]
• [16] The application was referred to department adjudication.[12] I have now investigated the dispute, including reviewing the submitted material.[13]

• [17] A submission made on behalf for the body corporate seeks dismissal of all orders sought. It notes the history of the matter and most relevantly says:
  1. It does not believe the applicants have provided cogent evidence in support of the outcomes sought or discharged their onus of proof.
  2. It disputes that the applicants were denied natural justice about the rescission motion. It believes there is no requirement to notify an owner of a motion affecting them or to invite comment before a motion is decided.
  3. It objects to assertions of negligence regarding the 2016 retrospective approval when the owners themselves did not ensure the work had building approval.
  4. The applicants have removed 6 of the 14 panels originally installed, altering the original installation, and resulting in a renewed requirement for plans, specifications and building approval in line with the Australian building code. It disputes the applicant's belief that the lifting of the show cause notice gives them building approval.
  5. Given the interim order, it does not believe it is required to comment on outcome 1.
  6. It believes the applicants have not identified a legal basis for outcomes 2 or 3.
  7. In regard to outcome 4, it disputes being negligent in approving the enclosures in 2016. The negligence rests with the original owners of Lot 13.
  8. By-laws 5, 19 and 20 are clear that an improvement to a lot requires approval.
  9. It would consider an application relating to the remaining glass panels. It expects the applicants to provide building approval for the installation which addresses fire resistance, building load assessment, glass rating assessment for class 2 buildings, as well as fixed panels versus sliding panels for wind and storm impact.
  10. The applicants have submitted a motion for approval of the remaining panels.
  11. It believes outcome 5 conflicts with section 163 of the Act. If the body corporate does not approve any future application submitted by the applicants relating to the remaining panels and tracks, it must be able to enact section 163.
  12. It must be mindful that any approval of the remaining glass does not expose common property or another lot to damage due to non-compliance with the building code.
  13. The 8 remaining panels are visible from another lot and the common property.
• [18] Two submissions were made by owners who are also committee members.
  1. One notes the history of the installation of the glass enclosures. They question the retrospective approval of the enclosures given in 2016. They say that following receipt of the Axis report, it was evident the original approval was inappropriate. They object to accusations in the application and to the approach taken by the applicants. They discuss the orders sought and seek dismissal of the application.
  2. The other claims there is confusion about the number of panels that must be removed to satisfy the GCCC show cause notice. But they say all involved agree that to ensure compliance the remainder must form fixed, non-movable panels at the extremity of their tracks. They say this is not the case at the moment, as the panels are free to be positioned anywhere on the tracks. They say sections of tracks need to be removed to render the panels immovable. They say the concern about the panels has proved valid with a serious fire on the balcony of another lot.
• [19] One submission from owners supports the application and for a costs order to be made against the body corporate. They believe the matter could have been solved amicably, but the committee is not prepared to meet owners it disagrees with. They say the committee involved the GCCC and other entities for the first time to force owners to comply with its demands. They question the reversal of a previous unanimous committee approval.
• [20] The applicants' response to the submissions includes:
  1. Outcomes 2, 3 and 4 in the original application were dealt with by the interim order. The remaining issue is whether the body corporate should be permanently restrained from removing the remaining panels.
  2. They reject inferences made against them and cite inaccuracies in the submissions.
  3. The body corporate has not been interested in any outcome other than the removal of all panels despite being provided with clear evidence of a compromise solution.
  4. The original reason for removing all the panels was to satisfy the building insurer based on the Axis report but since November 2024 Axis has acknowledged that the removal of some panels may provide a solution.
  5. Despite initiating the GCCC process and evidence that a positive outcome from the GCCC was likely, the committee did not await the outcome of the show cause notice process before seeking the removal of the panels.
  6. Nothing has been produced to indicate that planning or building approval is required for the panels. The written advice from the GCCC is that no further action is required and the advice from a private certifier indicates that no such application is needed. The original show cause notice was comprehensive and has been resolved.
  7. Even after the issues with the GCCC and the insurer have been resolved, the body corporate remains determined to force the removal of the remaining panels.
• [21] The parties made other comments about the conciliation session. But under section 252E(5) of the Act, evidence of anything said or done about a dispute in a conciliation session is inadmissible in a proceeding. Accordingly, I have not had regard to those comments.

• [22] It is not necessary at this stage to recount in detail the history of this dispute. Much of that is outlined in the reasons for the previous orders. At this point, I will simply discuss the 5 orders sought in the application. Although the applicants indicate they do not pursue orders 2, 3 and 4, they did not expressly withdraw those outcomes and so I will comment on all outcomes.

• [23] The applicants sought an order to restrain the body corporate from entering Lot 13 to remove the remaining panels and tracks until GCCC completed its reinspection of the lot and advised on the show cause notice. That was the effect of the interim order. Where the GCCC investigation is complete and a decision has been made, this order is no longer relevant.

• [24] The applicants originally asked that, if required by GCCC, the body corporate obtain at its expense a fire engineer's report. As I noted in the reasons for the interim order, the applicants did not explain the basis for this order. It seems they no longer seek this order.
• [25] The committee indicated an intention in May 2024 to engage a fire safety engineer. But I have been given no evidence that GCCC, Axis or the insurer actually recommended or required that a report be obtained a fire engineer. It is open to the body corporate to obtain advice from a fire safety engineer or any other relevant professional. But the applicants have not substantiated that the body corporate has a statutory obligation to obtain such a report. They did not establish any basis to make order 2.

• [26] The applicants also sought an order that the body corporate pay for any necessary rectification works, based on the assertion that the body corporate was negligent in retrospectively approving the enclosures in October 2016 without ensuring the work was properly approved. Again, the applicants no longer appear to seek this order.
• [27] The grounds to the application did not explain or substantiate the basis for this order. As I noted in the reasons for the interim order, owners are primarily responsible for improvements to their lot. As such, prima facie, it is for owner to ensure any alterations they choose to make to their lot are compliant and have all requisite approvals. The applicants have not established that the body corporate acted in breach of its statutory obligations in 2016 by approving enclosures that owners had by then already installed. And even if it did, the applicants have not established the legal basis for an adjudicator to require the body corporate to pay for rectification works or to compensate the applicants for the cost of rectifying Lot 13.

• [28] Next, the applicants sought an order to invalidate the rescission motion passed by the committee on 19 March 2025. The applicants do not appear to pursue this order.
• [29] The applicants had said they were not notified that a motion affecting their lot was to be rescinded and they were denied natural justice in regard to it.
• [30] A committee must to notify owners of committee meetings, motions, and decisions,[14] but it can decide things that are not on the agenda.[15] And there is no statutory requirement to specifically notify an owner of a motion affecting them or to invite comment on before a motion is decided. Accordingly, the applicants have not explained why the motion to rescind the October 2016 approvals was invalid because they were not notified of it beforehand or able to address it.
• [31] Furthermore, as previously noted, it seems incongruous to allege the committee was negligent for retrospectively approving the glass enclosures in October 2016 without ensuring the installation was properly approved, but then also objecting to it rescinding those approvals when it became apparent the installation had not been properly approved.
• [32] More substantively, I tend to the view that the 2016 approval is no longer relevant because, as a result of the removal of 6 of the 14 panels, what is currently installed is substantively different to what was originally installed and retrospectively authorised.

• [33] Finally, the applicants seek an order that the body corporate not enter Lot 13 or authorise any person to enter the lot for the purpose of removing the remaining 8 panels and associated tracks. This is the substantive relief now sought by the applicants. It raises questions of the power of the body corporate to enter Lot 13 and remove the panels and tracks.

• [34] Under section 163 of the Act a body corporate has a right of entry to a lot or an exclusive use area, by persons authorised by the body corporate, for the purpose of inspecting the need for or undertaking work that the body corporate is required or authorised to undertake.
• [35] Except in an emergency, notice of intended entry to a lot must be given to the owner, or to the occupier of a lot if the owner is not in occupation of the lot. Entry must be 'at a reasonable time' after at least 7 days written notice is given. The power of entry allows authorised persons to remain on the property while reasonably necessary to carry out the inspection or works.
• [36] The power of entry is a statutory right that does not need an adjudicator's order to be effected. An affected owner or occupier is not required to consent to the entry or entry arrangements. It is an offense to obstruct entry that is exercised pursuant to a valid entry notice. But a body corporate must act reasonably when exercising its power of entry.[16]
• [37] Importantly, the body corporate cannot just exercise the power of entry for any purpose that it believes is appropriate. A body corporate can only enter a lot to undertake work that it is 'required or authorised to undertake'.

Work the body corporate is required or authorised to undertake

• [38] The fundamental question arising in regard to order 5 is whether the body corporate is or could be required or authorised to remove the remaining panels and tracks.
• [39] It appears the body corporate previously sought to remove the panels and tracks because of the Axis report, the GCCC show cause notice, and its insurers' queries. But neither the body corporate nor the owners of Lot 13 are or have ever in receipt of a statutory notice from any relevant authority requiring the removal of any or all of the panels or tracks.
• [40] The body corporate now indicates a view that it should be able to use section 163 of the Act to enter Lot 13 to remove the panels and tracks if the remaining panels are not approved. But the body corporate does not explain why it considers that it would or could be required or authorised to remove the panels and tracks if they are unapproved.
• [41] In the reasons for the interim order, I flagged the potential for the body corporate to resolve undertake remove the panels and tracks if the applicants had failed to do so in accordance with an obligation they have to do so under the Act, the regulations, or the CMS.
• [42] It was not necessary at that time to explore the circumstances of that possibility, but it becomes relevant to discuss it in more detail here.
• [43] A body corporate only has the powers necessary for carrying out its functions.[17] Those functions include administering the common property and enforcing the by-laws.[18] Except where specifically provided for in the legislation,[19] a body corporate does not have any role or responsibility with regard to a lot. A body corporate does not have an unfettered authority to take on responsibility for something that an owner or occupier is obliged to do.
• [44] Section 202 of the Accommodation Module gives the body corporate the power to carry out work required of an owner or occupier in some circumstances.[20] This power could arise if an owner or occupier does not carry out work they have an obligation to carry out under a provision of the body corporate legislation, a statutory notice, the CMS including the by-laws, an adjudicator's order, or the order of a court or the Queensland Civil and Administrative Tribunal. If that applies, the body corporate could choose to carry out the work and recover the reasonable cost from the lot owner as a debt. The body corporate would need to pass specific resolutions to do so. That would include resolving to undertake the work in place of the owner or occupier, engage any contractor, and incur the expense at least in the first instance. And if the work involves a lot or exclusive use area, the body corporate would also need to authorise the person undertaking the work to enter the lot or exclusive use area and an entry notice.
• [45] The question then is whether there is or could be any basis for the body corporate to use this power to enter Lot 13 to remove the panels and tracks.

• [46] As noted, there is currently no statutory notice or order from a relevant authority requiring either the body corporate or the owners or occupiers of Lot 13 to remove the remaining panels and tracks. There is no indication on the submitted material that any such notice is likely. There is no provision of the Act or the regulation module that imposes an obligation on the owners of Lot 13 to remove the panels and tracks. The only question is whether the owners could be obliged under the CMS including the by-laws to remove the panels and tracks.
• [47] If the body corporate does not approve the remaining panels and the applicants do not then remove them, the body corporate could form the view that the applicants were in breach of the by-laws by retaining the unapproved panels. If it pursued that alleged by-law breach in this office, and an order was made requiring the owners to remove the panels, and if the owners failed to do so in compliance with the order, then the body corporate could rely on section 202 of the Accommodation Module to enter and remove the panels. But could the body corporate do so without an adjudicator's order?
• [48] The body corporate refers to By-laws 5, 19 and 20 as imposing the requirement for approval of the panels. By-law 5 simply sets out the process if an owner or occupier seeks body corporate approval or consent for anything. By-law 19 says an owner or occupier must not make any improvement to their lot (other than minor cosmetic work that does not affect, alter, or otherwise impact the common property or another lot) without the written approval of the body corporate. By-law 20 says an owner or occupier must not make a change to the external appearance to their lot (unless it is minor and does not detract from the amenity of the lot and its surrounds) if it will change the appearance for the lot being visible from another lot or the common property or outside scheme land,) without the written approval of the body corporate. Prima facie, the remaining balcony panels require approval under By-laws 19 and 20.
• [49] If the remaining panels are not approved, the applicants may be in breach of By-laws 19 and 20 if they do not then remove them. But By-laws 19 and 20 do not of themselves impose an obligation on an owner or occupier to remove any unapproved improvement or change.
• [50] Accordingly, I do not consider the removal of the panels itself would be work the applicants have an obligation to carry out under By-laws 19 and 20, for the purposes of section 202 of the Accommodation Module. For that reason, I do not consider the body corporate could rely on an alleged by-law breach to empower it to enter Lot 13 and remove the panels itself. Rather, it would need to utilise the by-law enforcement processes set out in the Act to obtain an order for the removal of the panels if it asserts that the applicants are in breach of the by-laws.[21]

• [51] Orders 1 to 4 are either no longer required or not warranted, and so I have dismissed them.
• [52] With order 5, it is evident the body corporate anticipates seeking in future to enter Lot 13 to remove the remaining panels and tracks if they are not approved. But as outlined I consider the body corporate could only enter the lot to remove the panels if it is given a statutory notice or order requiring it to do so, or the owners of Lot 13 are given a statutory notice or order and fail to comply with it. The body corporate would then need to pass appropriate resolutions and give a valid entry notice to the owners or occupiers. I will make orders to that effect.
• [53] Any question of removing the remaining panels would be moot if the applicants were given retrospective approval for them by the body corporate. It appears the applicants have submitted a motion for approval. The parties have not provided a copy of the motion or advised the status of it, but the committee submission indicates the information it would expect to enable the motion to be decided. The question of any approval is beyond the scope of the orders sought by this application. However, in the interests of minimising further dispute in this protracted matter, I will make some brief comments for the parties.
• [54] Prima facie the committee could choose to give retrospective approve the remaining panels pursuant to By-laws 19 and 20. If approval is refused and the applicants dispute the reasons for the decision, the decision could be challenged in this office.
• [55] The committee must act reasonably in deciding any request for approval under the by-laws.[22] It must decide any application on its merits, only considering relevant matters and disregarding irrelevant matters.[23] Prima facie, the only relevant considerations for the purposes of the applicable by-laws will be whether the panels could have any adverse impact on any other lot or common property or detract from the amenity of the lot and its surrounds. The history of dispute over the balcony enclosures and any interpersonal conflict between the applicants and committee members would seem to be irrelevant to the current question. And while the committee could seek further information and documents about the proposal, that should only be information reasonably necessary for it to decide the request and its impact, and not merely to frustrate the applicants or justify a refusal.
• [56] Given the circumstances, arguably the body corporate would need to articulate genuine and substantiated (not merely speculative) grounds to refuse approval. For example, the committee says it expects the applicants to provide evidence of building approval. But it is not clear why it believes the current installation requires building approval. Where the GCCC is primarily responsible for building approvals, and both the GCCC and a private certifier inspected the balcony for compliance issues, it seems surprising if further approval was required and not identified by either the GCCC or private certifier. Arguably if the committee believes further external approval is required, it should seek confirmation of that from the GCCC before it requires evidence of a building approval from the applicants or refuses to approve the panels under the by-laws because of the absence of building approval. Similarly, a submitter asserts the remaining panels must be fixed to be compliant. But I can see is no such suggestion in the correspondence from the GCCC or the building certifier. To the contrary, the building certifier's letter of 16 June said the retention of the 8 panels would retain the status of an open balcony no matter which location the panels are located or configured.

[2] See sections 227, 228, 276 and Schedule 5 of the Act

[6] Thirty Four Riverwalk [2025] QBCCMCmr 124

[8] Thirty Four Riverwalk [2025] QBCCMCmr 198

[14] Sections 47, 49 and 63 of the Accommodation Module

[15] Section 49(2) of the Accommodation Module

[16] Noting sections 94(2) and 100(5) of the Act

[19] For example, pursuant to section 170 of the Accommodation

[20] Pursuant to section 161 of the Act

[21] Noting the by-law enforcement processes in chapter 3, part 5, division 4 of the Act.

[23] 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, at 42