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

BY-LAW - whether a by-law restricting short-term letting is valid.

Act, ss 169, 180

1. Within 3 months of the date of this order, the Body Corporate for Thornclyffe Residences must lodge a request to record a new community management statement which removes By-law 9.4.
2. Until By-law 9.4 is removed from the community management statement in accordance with the first order, the Body Corporate for Thornclyffe Residences must not enforce By-law 9.4.

• [1] This application is about short-term letting of lots at Thornclyffe Residences.
• [2] At an extraordinary general meeting (EGM) held on 7 May 2025, the body corporate resolved to adopt By-law 9.4 (with 15 votes for and 3 against). The body corporate has since registered a new community management statement (CMS) on 20 June 2025 to give effect to the EGM motion.
• [3] The new By-law 9.4 includes that a lot cannot be used other than as a private residence or be rented for a period of less than one month.
• [4] The applicant submits that By-law 9.4 is invalid, as it prohibits short-term residential use and conflicts with adjudicators' decisions.
• [5] The applicant says that when they purchased their lot, they relied in good faith on the body corporate manager's advice that there was nothing in the CMS preventing short-term letting. At a committee meeting on 19 May 2025, they say they proposed a compromise, including strategies to minimise any potential impact on the scheme. However, a formal warning was subsequently issued to the applicant that they were in breach of By-law 9.4.
• [6] The applicant wants By-law 9.4 to be declared invalid and for the body corporate to be restrained from enforcing By-law 9.4 against them. The question then is whether the order sought is warranted.

• [7] The application seeks the following outcome:

That Clause 9.4 of the Community Management Statement for Thornclyffe Residences CTS 54571, approved at the Extraordinary General Meeting held on 7 May 2025, be declared to be invalid and of no effect under Section 180(3) of the Body Corporate and Community Management Act 1997, and that the Body Corporate be prohibited from taking any enforcement action against the applicant in relation to short-term letting of Lot 1.

• [8] Thornclyffe Residences community titles scheme 54571 (Thornclyffe Residences) is a 21-lot scheme at Kangaroo Point. The CMS indicates the Standard Module applies. The scheme is registered as survey plan 310447.

• [9] 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 the performance of duties under the Act or CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions in the Act.[2]

• [10] This application was lodged on 15 July 2025. The Commissioner sought further clarification from the applicant about the application.[3] The application was then amended.[4]
• [11] The Commissioner invited submissions from the body corporate committee and all owners.[5] Submissions were received from the chairperson on behalf of the committee and one owner. The applicant responded to the submissions.[6]
• [12] The application was referred to department adjudication.[7] I have investigated the dispute, including reviewing the application and all submissions.[8]

• [13] The chairperson, on behalf of the committee, opposes the application. Most relevantly, they say:
  1. Thornclyffe Residences is a building zoned and approved for residential use under the Brisbane City Plan 2014. Residents want to maintain the security and amenity of the residential building.
  2. By-law 9.4 was introduced in response to concerns from owners about the impacts of the applicant's short-term letting on the security, amenity, and residential character of the scheme, which is predominantly owner-occupied.
  3. By-law 9.4 clarifies and supplements By-law 9.1 which restricts the use of lots to residential purposes.
  4. The meaning of 'residential purposes' does not include short-term letting of less than one month. Short-term letting, as a 'separate enterprise for commercial gain', is not 'residential use' within the meaning of the Act or the CMS. Therefore, By-law 9.4 does not restrict the use of any lot for residential purposes.
  5. By-law 9.4 is valid, reasonable and enforceable.
  6. Short-term letting under one month is a commercial activity like serviced apartments or holiday accommodation.
  7. Short-term letting is not a 'type of residential use' and therefore does not violate section 180(3) of the Act.
  8. The Act enables bodies corporate to make by-laws regulating the use and enjoyment of lots, provided they are not oppressive, unreasonable, or discriminatory.
  9. A minimum tenancy duration of one month is a reasonable threshold to distinguish residential occupancy from transient commercial use. The body corporate has not made this decision capriciously.
  10. The meaning of 'residential use' should be interpreted in accordance with the District Court's interpretation in Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 (Fairway Island). The District Court upheld the decision of the Southport Magistrates Court to overturn the challenge of an equivalent by-law under the Building Units and Group Titles Act 1980 (BUGT Act). As judicial commentary from a superior court of record on this matter, the interpretation applied by the District Court should be applied when interpreting 'residential use' under the Act.
  11. In the Fairway Island case, a by-law prohibiting lettings under one month was upheld.
  12. The interpretation of 'residential purposes' in the Fairway Island case is highly persuasive. Even though the Fairway Island case involved the BUGT Act, both the BUGT Act and the Act aim to preserve community amenity. The BUGT Act has undergone significant changes to bring it into alignment with the Act.
  13. By-law 9.4 does not restrict the type of residential use any further than By-law 9.1. By-law 9.4 sets out what the law has already established to be the meaning of 'residential use'.
  14. The adjudicators' decisions referred to by the applicant predate the Fairway Island case.
  15. Adjudicators have followed the reasoning in the Fairway Island case in other circumstances. In Summer Waters [2020] QBCCMCmr 432, the adjudicator referred to the principles for the construction of by-laws discussed in the Fairway Island case.
  16. In accordance with section 14A of the Acts Interpretation Act 1954, the Act should be interpreted in a manner consistent with the legislative intention that residential character and amenity be preserved for residential schemes.
  17. Thornclyffe Residences comprises a majority Class 2 building under the National Construction Code, designed and approved for long-term residential occupancy. Using a Class 2 building for short-term accommodation without a material change of use application or reclassification is inconsistent with the National Construction Code and the original planning approval.
  18. Short-term letting has eroded community amenity and security in various ways.
• [14] The owner's submission supports the application. They say:
  1. They voted against the change to the by-laws. The decision is unreasonable.
  2. Short-term letting gives owners a source of income, especially with the cost of living increasing. The option for short-term letting adds value to all the properties in the scheme.
  3. Noise and nuisance concerns can be dealt with through existing by-laws.

• [15] The applicant responded to the submissions. Most relevantly, they say:
  1. Many of the issues raised by the committee appear to be overstated and not supported by evidence.
  2. Their intention has always been to operate short-term letting responsibly and respectfully.
  3. Long-term residents allowing family or friends to stay in their units while they are away raises similar, if not greater, security concerns than professional short-term letting where guests are screened and managed.
  4. As part of their mitigation strategy, they offered to limit guest access to their unit (which is detached from the main building) and not to common areas such as the pool. This was rejected by the committee.

• [16] The issue in this dispute is whether By-law 9.4 exceeds the statutory power of the body corporate to make by-laws. The alleged adverse impacts arising from the applicant's short-term letting are not relevant to the question of whether of By-law 9.4 is valid.

• [17] Section 169 of the Act sets out the content and extent of by-laws for community titles schemes. This provision permits the body corporate to make by-laws only for the administration, management and control of common property and body corporate assets, and the regulation of the use and enjoyment of lots, common property, body corporate assets and services and amenities supplied by the body corporate.
• [18] Further to the permissible scope of by-laws in section 169 of the Act, section 180 of the Act sets out specific limitations for by-laws. Most relevantly for the purposes of the current application, section 180(3) of the Act provides:

If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

• [19] In determining whether By-law 9.4 is invalid, the primary question for me to consider is whether the meaning of 'residential use' in section 180(3) of the Act includes short-term letting for a period of less than one month.

• [20] The CMS recorded on 20 June 2025 contains By-law 9, which has been amended to include the disputed By-law 9.4.[9] Currently, By-law 9 reads as follows:
  1. Use of lots

9.1 Except as otherwise provided in this By-law, each Lot in the Scheme may only be used for:-

(a) residential purposes; and/or

(b) a home office but only if that use or activity:-

(i) does not cause a nuisance;

(ii) complies with local government requirements for such activity; and

(iii) does not involve any use, business or activity relating in any way to the letting of lots in the Scheme or outside the Scheme.

9.2 If the way in which an Occupier uses a Lot (or any associated exclusive use area) causes an increase in the premium for reinstatement insurance effected by the Body Corporate, the Occupier shall be liable to account to the Body Corporate for the amount of the increase.

9.3 An Occupier must comply with the provisions of the By-laws and must not allow the Lot or any Common Property to be used in such a manner as to contravene any By-law.

9.4 An Owner of a lot shall not use or permit their Lot to be used other than as the private residence of the Owner or for accommodation of the Owner's guests and visitors. Notwithstanding the foregoing, the Owner may rent out their lot from time to time, provided that in no event shall any individual rental be for a period of less than one (1) month.

• [21] By-law 9.4 purports to restrict the use of lots for short-term letting and prevent lots being leased for a period of less than one month. The applicant therefore argues that By-law 9.4 is contrary to section 180(3) of the Act, which stipulates that if a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use. It is not disputed that lots at Thornclyffe Residences may lawfully be used for residential purposes.
• [22] Conversely, the committee contends that By-law 9.4 does not restrict the type of residential use, as the meaning of 'residential use' in section 180(3) of the Act does not include short-term letting for a period of less than one month.
• [23] Numerous adjudicators have held that by-laws which purport to prohibit or restrict short-term letting offend section 180(3) of the Act.[10]
• [24] In an appeal from an adjudicator's initial decision (Hilton Park),[11] the Queensland Civil and Administrative Tribunal (QCAT) determined that it was clear the legislature intended 'residential use' in section 180(3) of the Act to include holiday letting or short-term accommodation.[12]
• [25] The Hilton Park case involved a by-law which required lots to be used for residential purposes and not commercial purposes. The body corporate attempted to amend the meaning of 'commercial purposes' in the by-law to include tenancy agreements for a period of less than 6 months. The adjudicator invalidated the motion to amend the by-law in that way.[13] In concluding that 'residential use' includes holiday letting or short-term accommodation, Member King-Scott undertook a detailed examination of pertinent considerations, including the history of the legislation, the primary and secondary objects of the Act, the construction of the terms in section 180(3) of the Act with reference to relevant case law, and extrinsic material such as the explanatory notes for the Act and its associated regulation modules.[14] The appeal from the adjudicator's initial decision was ultimately dismissed.
• [26] The committee has advanced an argument that the District Court's interpretation of 'residential use' in the Fairway Island case should be used to interpret the meaning of 'residential use' in section 180(3) of the Act (albeit that the scheme in the Fairway Island case was governed by the BUGT Act).
• [27] In the Fairway Island case, the District Court determined that it was within the body corporate's power to create a by-law imposing a minimum rental term of one month for the control, use or enjoyment of lots in the scheme.[15] I note that the wording of the disputed by-law in the Fairway Island case is nearly identical to that of By-law 9.4 adopted by the body corporate in the current matter.
• [28] Barlow KC DCJ noted that the terms 'residential' and 'residential purpose' are not defined in the BUGT Act or the by-laws and should therefore have their ordinary meanings.[16] Barlow KC DCJ observed that 'residential' "imports a degree of establishment or occupation for a period of time" and that to 'reside' means to "dwell permanently or for a considerable time".[17] The discussions and conclusions of the Western Australian Court of Appeal and the advice of the Privy Council regarding the meaning of 'residential purpose' were also considered.[18] Barlow KC DCJ ultimately distinguished short-term letting or short-term accommodation from 'residential use' and held that the body corporate can draw a line between holiday or temporary use and a degree of permanence in use as a residence, provided such a line is not drawn capriciously.[19]
• [29] While I appreciate that there are instructive principles in the Fairway Island case, the District Court's interpretation of 'residential purpose' was formed in a different legislative context. The District Court's interpretation is therefore distinguishable from the current matter involving a community titles scheme under the Act.
• [30] To clarify this position, I will outline several of the considerations in the Hilton Park case that underscore the Act's distinctive context in relation to 'residential use'.

• [31] In relation to the claim that 'reside' (unlike the term 'accommodation') "incorporates a temporal factor", Member King-Scott noted the following comments of Isaacs J in The Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe that:

... "resident" and its cognate terms, "reside", "residing" and "residence," are terms not of art or defined legal import, but of very flexible meaning, acquiring whatever precision they have in any given case from their surroundings.[20]

• [32] Member King-Scott observed that section 180(3) of the Act contemplates that there is more than one type of residential use - namely, short or long-term accommodation.[21] With reference to pertinent case law, the QCAT member noted that if 'residential use' is construed as not including holiday letting, then the use of the word 'type' in section 180(3) of the Act would be superfluous, and that where two constructions are open, the one that avoids 'surplusage' is to be preferred.[22]
• [33] Moreover, Member King-Scott considered the primary object in section 2 of the Act: to provide for flexible and contemporary communally based arrangements for the use of freehold land, having regard to the secondary objects of the Act. The following secondary objects in section 4 of the Act were also considered,[23] with particular emphasis on section 4(c) which was introduced as part of the Body Corporate and Community Management and Other Legislation Amendment Act 2007:

(a) to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes;

(c) to encourage the tourism potential of community titles schemes without diminishing the rights and responsibilities of owners, and intending buyers, of lots in community titles schemes;

(g) to provide an appropriate level of consumer protection for owners and intending buyers of lots included in community titles schemes.

• [34] The QCAT member also cited the explanatory note accompanying the introduction of the secondary object in section 4(c) of the Act, which relevantly provided:

Clause 4 recognises the important contribution the community titles sector makes to Queensland's tourism industry, particularly through the provision of short-term holiday accommodation. The amendment in part encourages bodies corporate to consider tourism issues in the administration of their schemes. The acknowledgement of tourism issues is not intended to override or fetter existing rights of unit owners (for example, the right to object to, or vote against body corporate proposals that may have tourism benefits). The recognition of tourism is also not intended to limit the operation of existing consumer protection provisions for intending purchasers (for example, provisions requiring disclosure of letting arrangements in the course of the sale of lots).[24]

• [35] In addition, the following excerpts from the explanatory notes accompanying the introduction of the 2008 Standard and Accommodation Modules were also referenced. The 2008 modules replaced the previous 1997 regulation modules which were scheduled to expire. The explanatory note for the Standard Module stated:

The policy objective of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the new Standard Module) is to provide management processes for predominantly owner-occupied schemes and schemes which are a mix of permanent residential and holiday letting.[25]

• [36] The explanatory note for the Accommodation Module stated:

The policy objective of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the new Accommodation Module) is to provide management processes designed for schemes that are used predominantly as holiday letting or serviced apartment operations with the need for accommodation management.[26]

• [37] Critically, under the BUGT Act, there is no equivalent to the limitation in section 180(3) of the Act (which is the focal provision for consideration in this matter) or any of the primary or secondary objects outlined above.
• [38] In Fairway Island, Barlow KC DCJ commented in considerable detail on the broad scope of the body corporate's by-law making power under section 30(2) of the BUGT Act and its relevance when considering the validity of by-laws.[27] While the Act contains multiple limitations on by-laws in section 180, the only express limitation imposed on the by-law making power under the BUGT Act is in section 30(6), regarding restricting or prohibiting a transfer, lease or mortgage of a lot.
• [39] In commenting on the Act and its predecessor in Hilton Park, the QCAT member observed that while the Act refined the BUGT Act, the Act "did much more in meeting the changing needs of the community."[28]
• [40] In light of the different legislative context in which the District Court considered the meaning of the term 'residential purpose', I do not view the District Court's interpretation as binding on my current determination about the validity of By-law 9.4. However, the decision of QCAT is binding precedent. Given the thorough consideration of the construction of section 180(3) of the Act undertaken by Member King-Scott in like circumstances - specifically, where the proposed changes to the by-law in that case similarly purported to restrict short-term letting by imposing a minimum rental term - I can see no basis for me to depart from the position in Hilton Park. I also note that since Fairway Island, adjudicators have continued to apply the interpretation of 'residential use' in Hilton Park when determining whether a by-law purporting to restrict short-term letting offends section 180(3) of the Act.[29]

Other considerations about the validity of By-law 9.4

• [41] In its submission, the committee noted that Thornclyffe Residences comprises a majority Class 2 building under the National Construction Code, designed and approved for long-term residential occupancy. Relevantly, adjudicators have held that the question of whether short-term letting is permitted according to the building classification is separate to the question of whether short-term letting is a type of 'residential use' for the purposes of section 180(3) of the Act.[30]
• [42] In Hilton Park, Member King-Scott also determined that a by-law restricting short-term letting by imposing a minimum rental term was also contrary to the limitation on by-laws in section 180(4) of the Act, as it purported to restrict an owner's ability to lease their lot.[31]

• [43] The applicant also seeks an order that the body corporate be prohibited from enforcing By-law 9.4 against them.
• [44] On 27 May 2025, correspondence was sent to the applicant from the chairperson, indicating the body corporate's intention to issue a by-law contravention notice if the applicant continues to use their lot for short-term letting purposes for periods of less than 1 month. As I have determined that By-law 9.4 in its current form contravenes section 180(3) of the Act, I consider it appropriate in the circumstances to make a further order preventing the body corporate from taking any action to enforce By-law 9.4 against the applicant while it remains in the current CMS.

• [45] For the reasons outlined, I am satisfied that the body corporate cannot lawfully create a by-law which purports to restrict the use of lots for short-term letting and prevent lots being leased for a period of less than one month. A by-law of this nature is contrary to the limitation in section 180(3) of the Act. In line with the position in Hilton Park, it is my view that the term 'residential use' in section 180(3) of the Act was intended to incorporate short-term letting and that this interpretation best achieves the purpose of the Act.[32] As the body corporate has already registered a new CMS incorporating By-law 9.4, the body corporate must record a new CMS removing By-law 9.4. I will make an order to that effect.
• [46] As explained above, I will make a further order preventing the body corporate from enforcing By-law 9.4 against the applicant pending the lodgement of a new CMS.
• [47] For the information of the parties, I will make some brief comments about the applicant's lodgement of a development application (DA) for a material change of use of Lot 1 to allow short-term accommodation. On 3 December 2024, the applicant was advised by the Brisbane City Council that body corporate consent is required for the DA to progress. Importantly, this order will have no impact on the enforcement of local planning laws by the Brisbane City Council. The fact that I have determined that By-law 9.4 is invalid does not of itself require the body corporate to consent to the DA. Any determination as to the reasonableness of the body corporate's decision not to consent to the DA is beyond the scope of this application.

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

[10] For example, see Noosa Close [2007] QBCCMCmr 612; First Avenue Mooloolaba [2011] QBCCMCmr 241; Lynkim Lodge [2016] QBCCMCmr 419; Macleay Tower & Villas [2017] QBCCMCmr 12; Hilton Park [2017] QBCCMCmr 249; Admiralty Towers II [2019] QBCCMCmr 567; The Lanes Residences West Village [2024] QBCCMCmr 334

[11] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168

[12] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 74

[13] Hilton Park [2017] QBCCMCmr 249 at 19-23

[14] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 45-80

[15] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 49-50

[16] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 44

[17] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 44

[18] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 45

[19] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 45-46

[20] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 61 citing The Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50

[21] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 55

[22] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 55-58

[23] Section 4(a), (c) and (g) of the Act

[24] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 65

[25] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 73

[26] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 72

[27] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at 31-33

[28] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 46

[29] The Lanes Residences West Village [2024] QBCCMCmr 33; Copacabana [2025] QBCCMCmr 8 at 67

[30] First Avenue Mooloolaba [2011] QBCCMCmr 241 at 16; Macleay Tower & Villas [2017] QBCCMCmr 12 at 11-12; Southern Cross Atrium Apartments [2019] QBCCMCmr 365 at 47; The Lanes Residences West Village [2024] QBCCMCmr 334 at 24

[31] Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 84

[32] Section 14A of the Acts Interpretations Act 1954; Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 168 at 59 and 74