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

BY-LAWS - whether an owner constructed a fence in breach of the by-laws - whether there is a continuing dispute.

Act, ss 94, 270

• [1] This application is about a fence constructed by the owner of Lot 9 in February 2024.
• [2] The applicant says the owner did not apply for approval for the fence until after it was erected, and the fence was not approved, in breach of By-law 8 which requires approval for changes to the external appearance of a lot. The applicant also says the fence does not comply with specification for fencing on exclusive use areas under By-law 12.2, is partly on the exclusive use area of Lot 10, and affects water flow onto Lots 7 and 8. The applicant says she was unsuccessful in getting the committee to enforce the by-laws or the owner of Lot 9 to comply.
• [3] The substantive issue in this application is about whether the fence constructed by the owner of Lot 9 should be removed. However, there are preliminary questions to be considered including whether there is a continuing dispute.

• [4] Valley View community titles scheme 9095 (Valley View) is a 10-lot scheme at Mudgeeraba. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 6121.
• [5] This application substantively seeking the following:

An order requiring Lot 9 to remove the fence erected by Lot 9 that:

• Is unapproved by the committee;
• Breaches multiple By-Laws; ...
• Is partially erected on another lot owner's exclusive use area

• [6] 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] Prima facie, I have jurisdiction to determine this matter.[2]

• [7] In March 2024 the body corporate, represented by the applicant, brought a conciliation application against the owner of Lot 9 about the fence and other issues.[3] An agreement was reached in June on some matters, but it appears the fence issue was unresolved.
• [8] In August 2024 the applicant brought a conciliation application against the body corporate seeking action relating to drainage issues arising from the disputed fence.[4] A conciliated agreement was reached in September.
• [9] In September 2024 the applicant applied again for conciliation against the body corporate, seeking that the committee enforce the by-laws and have the unapproved fence removed.[5] No agreement was reached on that application at a conciliation session in October.
• [10] Also in September 2024, the body corporate applied for adjudication against the Lot 9 owner seeking that she remove sleepers at the base of the fence.[6] That application was rejected.
• [11] This application was lodged on 20 October 2024. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[7] which was amended.[8]
• [12] The Commissioner invited submissions from the committee and all owners.[9] Four submissions were received. The applicant did not obtain or respond to the submissions.[10]
• [13] The application was referred to department adjudication.[11] I have investigated the dispute.[12]
• [14] This application was lodged by the applicant in her capacity as the owner of Lot 8. In early January 2025 the owner of Lot 9 asserted that Lot 8 had been sold. A member of the Commissioner's office contacted the applicant, who indicated the lot was not sold and she wanted the application to proceed. At that time the applicant was still the registered owner of Lot 8. However, Titles Queensland records show that the ownership of Lot 8 was then transferred on 10 February 2025. The owner of Lot 9 also advised the applicant had vacated the lot. I wrote to the applicant asking if she wished to proceed with the application and, if so, the basis on which the order sought was still relevant or required. I did not receive a response.

• [15] The committee notes that (at the time of the submission) both the applicant and the owner of Lot 9 were members of the committee. It says the remaining 3 committee members had been working to find a balance between what the owners of Lots 8 and 9 wanted and what was best for the body corporate as a whole. But it says the applicant refused to meet to discuss matters.
• [16] It says by-law contravention notices were sent by the body corporate manager at the request of the applicant and without the knowledge or consent of other committee members. Also, it says the request for approval of the fence was initially passed by the committee before the remainder of the committee became aware of the contravention notices and by-law issue.
• [17] The submission acknowledges the fence is not as per the by-laws. However, it says the fence looks similar to other timber fences in the scheme. While the fence is treated pine and not the specified hardwood, it says it looks very similar and treated pine is less susceptible to termite infestation. While many fences at the scheme have palings to the ground, and this fence has horizontal sleepers at the base, it says there is not much difference from established fences. The fence is 1,800 mm, while the specification is 1,500 mm, but the owner said there was an existing 1,800 mm partition fence and she continued at the same height. The committee also notes the owner has an approved dog and with a 1,500 mm fence there is an increased risk of the dog escaping and posing a risk to other dogs in the scheme and wildlife. The submission further says there are other long-established fences in the complex that do not comply with the by-law specifications, including wire fences and fences in difference colours.
• [18] The submission refers to the applicant claim that drainage issues are made worse by the fence. It says it obtained an independent stormwater report in October 2024 which concluded that the fence and sleepers at the base 'do not greatly affect the flow of stormwater'.
• [19] The owner of Lot 9 acknowledges that not understanding the by-laws is not an excuse but says this was misplaced trust in advice from the selling agent that she could fence the exclusive use area, rather than a blatant disregard for the rules. She says the fence was constructed with safety and privacy in mind, having regard to her personal circumstances. She also noted a broad range of fence types, none of which match the by-laws. She also considered council requirements for fencing an area for animals. She says there was already a partial fence when she purchased and no dispute about the height of it, and so she built a continuation of the existing fence. She says the other committee members were happy to retrospectively approve the fence and take no action, but the applicant did not agree.
• [20] The owner says the builder who constructed the fence noted a water drainage area close to the boundary and advised leaving that area clear so as not to affect the water flow. This was confirmed in the report, which said her sleepers had little if any bearing on drainage issues. She noted that flooding of Lot 8 had been an issue for years prior to her fence. She also says the body corporate has resolved to complete works to improve drainage around Lots 7 to 10.
• [21] The owner says she is being singled out due to a misunderstanding of her intentions. She says the entire complex is a mix of fences that do not meet the by-laws. She believes that the community is okay for the committee to not take action or her fence or any of the non-compliant fences as they are all in place, professionally built, and fit for pursue. She says she is happy to paint the fence in an approved body corporate colour to assist it to blend in more but did not want to commit to the cost until this issue was resolved.
• [22] The owner of Lot 1 says she has no issue with the fence. She says it only takes away the view into the Lot 9 backyard and is not excessive. The submitter says she could not work out why the applicant had such concern. A surveyor described the fence as 'more or less on the defined line' and the submitter accepts the owner was not intentionally trying to acquire more exclusive use area. The submission discusses various votes related to the dispute. She voted against proceeding adjudication; after viewing the fence and reading the surveyor's report she could not see any reason to continue. While the fence does not meet the by-laws, she says neither do many other fences, including the applicant's. There is a 'hodgepodge' of fences as fences have been replaced over the years based on individual needs and budgets.
• [23] The owners of Lot 6 oppose the application. They say the fence has been professionally built, looks great, enhances the area, and is in accordance with the guidelines.

• [24] The applicant was a lot owner with standing to bring this application at the time the application was lodged.[13] Accordingly, the application can continue notwithstanding that the applicant is no longer a lot owner.[14]
• [25] However, section 270(1)(e) of the Act provides for an adjudicator to dismiss an application if they are satisfied a party to the application is no longer a person mentioned in section 227(1) of the Act for the dispute, and the outcome sought by the application is no longer relevant or required. The applicant is clearly no longer an owner at Valley View, and it does not appear that she continues to be an occupier. She has not demonstrated that the order sought in this application is still relevant or required by her. Given the circumstances, it is difficult to see how she could have a continuing interest in whether the fence remains or not.
• [26] Also, section 270(1)(d) of the Act provides for an adjudicator to dismiss an application if an applicant fails, without reasonable excuse, to comply with a requirement of an adjudicator pursuant to the investigative provisions of the Act.[15] I wrote to the applicant seeking information as to the basis for the application but received no response.
• [27] Further, the application is against the body corporate but seeks an order that Lot 9 remove the fence. Where the owner of Lot 9 was not named as the respondent to the application, I do not consider it would be appropriate to make an order against the owner of Lot 9.
• [28] Having regard to all the circumstances, I am satisfied the application should be dismissed.
• [29] It is a matter for the body corporate to consider whether it wishes to pursue any further action regarding the fence. It does appear the fence may not strictly comply with the specifications for fencing in By-law 12.2. The Act requires a body corporate to enforce the CMS including the by-laws.[16] However, the body corporate must also act reasonably.[17] It may be unreasonable to pursue strict compliance with the fencing specifications for one lot if those requirements have not been enforced against other lots, particularly if there is no evidence that the fence as constructed adversely affects the scheme or the use of any other lot. It is also open to the body corporate to resolve to amend By-law 12 if the fencing specifications in that by-law do not meet the needs or preferences of owners.[18]

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

[18] A resolution without dissent would be required to record a new CMS, pursuant to section 62 of the Act.