COMMON PROPERTY - whether works carried out on common property were improvements - whether there was a contravention of by-laws - whether body corporate approval is required - whether orders should be made to reinstate the common property.

Act, s94(2); Standard Module, s187

1. The respondents, Gabriel and Norma Gutierrez, must submit a motion to the next general meeting to seek body corporate approval for the stone cladding applied to the exterior wall facing common property. If approval is not granted, the cladding must be removed and the wall reinstated to its original condition within 3 months of the meeting.
2. The respondents must not carry out any further cladding to the walls on common property without body corporate approval.
3. The respondents must plant 7 Italian Cypress Pine trees in the common property garden where the original trees were removed, within 3 months of the date of this order.
4. The application is otherwise dismissed.

• [1] The application relates to works carried out on common property.
• [2] Vauclause Villas is a 2-lot scheme. It has a shared driveway with landscaping and a paved pathway on either side that leads to the owners' respective exclusive use areas. The applicant (owner of Lot 1) disputes various works that the respondents (owners of Lot 2) have undertaken on common property without body corporate approval including:
  1. Application of stone cladding to exterior walls;
  2. Laying of ceramic tiles over paved pathway;
  3. Removal of Cypress Pine trees; and
  4. Other landscaping alterations.
• [3] The applicant says these unapproved works are a contravention of the by-laws and have caused significant detriment to the overall appearance and symmetry of the property.
• [4] The applicant seeks orders for the common property to be reinstated.

• [5] Vauclause Villas is comprised of 2 lots and common property. The scheme is created under Survey Plan 147583 which is a building format plan of subdivision (BFP). The community management statement (CMS) records that the scheme is regulated by the Standard Module.
• [6] On 17 June 2025, I made an interim order that pending final determination of this application, the respondents must not apply any further stone cladding to the walls on common property.
• [7] The application seeks final orders that the respondents:
  1. Cease applying stone cladding to the walls of the common area, remove the cladding already applied and rectify any damage caused;
  2. Remove the ceramic tiles laid over the paving on common property and reinstate the surface;
  3. Plant 7 new Cypress Pine trees to replace the ones that were removed; and
  4. Replant the perennial ground cover plants (Liriope) that were removed and remove the Indian Rubber tree and 6 large pot plants from common property.
• [8] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between lot owners about a claimed or anticipated contravention of the Act or CMS.[2]

• [9] I will consider each of the disputed works in turn.

• [10] It is undisputed that the respondents have applied stone cladding to an exterior wall on common property without body corporate approval.
• [11] Section 187 of the Standard Module provides that the body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to common property for the benefit of the owner's lot. 'Improvement' is defined in the Act to include the erection of a building; a structural change; and a non-structural change, including for example, the installation of air conditioning.[3]
• [12] The respondents say that the cladding was initiated following persistent structural cracking on the wall of their entry gate and on the scheme's boundary wall. They submit that they acted on professional advice and selected a stone solution to prevent further crack propagation, improve durability and conceal the defects. As such, the respondents argue that the cladding is not an improvement to common property, but that it constitutes maintenance that the body corporate is responsible for.
• [13] I note the letter from the respondents' contractor, Solent Building and Carpentry Pty Ltd identified that the walls are in average condition for their age with some significant expansion cracking. Two different remedies were suggested:

a) cut out the affected area, tooth out the bricks, rebuild and then re-render and paint; or > > b) clean out the bed joints, insert HeliBars, make good the render and paint, or clad with the stone used by the gate.

• [14] The applicant disputes the respondents' assertion that the work was necessary maintenance. He says the respondents have proceeded with the cladding but have ignored the recommendation that Helibars be inserted first to stabilise the wall. The applicant believes the respondents have applied the cladding primarily for decorative purposes. Despite the respondents' claim of minimal visual impact, the applicant says the stone cladding is very different to the current painted, rendered concrete finish in colour, texture, surface pattern and reflectivity.
• [15] The difference between 'maintenance' and 'improvement' has been considered at length in a number of adjudicators' and judicial decisions. Replacing something like-for-like is typically considered maintenance. There may also be circumstances where replacing something with its modern equivalent, but not strictly like-for-like, will also be considered maintenance.[4] However, additions or changes that go beyond what is necessary to maintain common property may amount to an improvement. To take the illustration of a fence replacement, if a body corporate replaced a dilapidated timber fence on common property with a new timber fence of the same or similar style, that would be considered maintenance. However, if the body corporate took the opportunity to upgrade the fence (for example to a metal fence), that kind of change may amount to an improvement.[5]
• [16] On the evidence submitted, I am more inclined to consider the stone cladding an improvement to common property. While the wall may have required some level of maintenance to address the ongoing cracking, in my view, the stone cladding is a decorative change that goes beyond what is necessary to maintain it.
• [17] Even if I am wrong and the cladding is maintenance, the respondents are still not authorised to carry out that work without body corporate approval. Maintenance of common property is a body corporate responsibility. It is to be undertaken by the body corporate, not as unilaterally decided by one lot owner. Further, as By-law 5 provides, an occupier must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property. Accordingly, regardless of whether the works constitute an improvement or maintenance, body corporate approval is required.
• [18] For completeness, I note the applicant also argues that the works are a contravention of By-law 8(1) which states:

The occupier of a lot must not, without the body corporate's written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

• [19] By-law 8 applies to the external appearance of the lot. The application of stone cladding on the wall is not a change to the external appearance of the lot. Rather it is a change to common property. As such, I do not consider there to be a breach of By-law 8.
• [20] If the respondents wish to proceed with the cladding, they must obtain body corporate approval. While I note the applicant has already expressed that he will not be granting retrospective approval, I consider it just and equitable in the circumstances to give the respondents an opportunity to submit a motion to the next general meeting to seek body corporate approval. If approval is not granted, the cladding must be removed.

• [21] The applicant asserts that the respondents have laid ceramic tiles over part of the common property paving without approval in breach of by-laws 5(1) and 8(1). He says the tiles are unsightly because they are a different colour (grey) to the remainder of the common area (beige), have a different pattern, and are at a different height to the other paving creating an unsightly lip. Further, the applicant says he does not believe the respondent holds a licence though he claims to have experience as a tiler. The applicant seeks an order that the tiles be removed, and the area restored so the paving is of uniform finish and appearance.
• [22] The respondents say they tiled a small section of the concrete pathway based on professional advice that this would prevent further cracking. They say they were unaware at the time that this area is common property or that they were in breach of the by-laws. The respondents maintain that the work is visually consistent with the rest of the property, is not readily visible from the applicant's lot and was carried out to preserve the function and safety of the path. They do not consider the tiling to be a breach of the by-laws as it was done for maintenance purposes and any changes are minor and do not detract from the amenity of the lot or surroundings. The respondents request that the tiling be allowed to remain.
• [23] The applicant rejects the respondents' assertion that the tiling was necessary maintenance and required for safety. He says there may be occasional hairline cracks, but these do not cause structural or safety issues. In any event, application of ceramic tiles will not stabilise underlying concrete. Further, rather than improving safety, the applicant says the tiling presents a possible trip hazard at the lip where it borders the untiled surface.
• [24] For the same reasons given above in relation to the stone cladding, I consider the ceramic tiling that the respondents have applied to be an unauthorised improvement to common property in contravention of section 187 of the Standard Module. There is no evidence that the paving is in disrepair and even if there was, I am of the view that laying ceramic tiles over the pavers is primarily an aesthetic improvement rather than a maintenance measure. Further, even if it could be argued that the tiling is maintenance (which I do not accept on the evidence), body corporate approval is still required pursuant to By-law 5.
• [25] Accordingly, the respondents should submit a motion for retrospective approval. On the submitted evidence, there does not seem to be any reasonable basis for the request to be refused. The applicant appears to be of the firmly held belief that the 2 sides of the property must be uniform and symmetrical but there is no legal basis for this. Both under the legislation and the by-laws, an owner can make changes to the common property, and to the external appearance of their lot, provided they have consent to do so. It is up to the body corporate to reasonably consider such a request. Unlike the stone cladding, the tiling of the footpath is a much more subtle change. The footpath is set amongst the respondents' gardens and seems hardly visible from the applicant's lot or from the front of the property. The "unsightly" lip that the applicant complains of also appears inconspicuous and only affects the respondents' side of the driveway.
• [26] In the circumstances, I am not satisfied it would be just and equitable to order that the tiles be removed when the evidences does not establish any reasonable basis for approval not to be granted.

• [27] The applicant alleges that the respondents removed 7 Cypress Pine trees from common property without approval, in contravention of the by-laws. By-law 4 provides that the occupier of a lot must not, without body corporate approval, damage a lawn, garden, tree, shrub, plant or flower on the common property.
• [28] The respondents say they removed the pine trees which were over 5 metres in height due to concerns about safety and the impact of the tree roots on the wall. However, they have since offered to replant 7 Italian Cypress Pines (or a similar non-invasive alternative) approximately 1 metre in height following completion of the wall works.
• [29] The applicant says restoration of uniformity and symmetry to the complex will only be achieved if the mature Cypress pines on his side are also removed and replaced with identical trees to those the respondents have agreed to plant. The applicant says it is also important to use advanced trees that are at least 2 metres in height so that they will grow to a height that he can enjoy in his life time.
• [30] I am satisfied that the respondents breached By-law 4 by removing the 7 Cypress Pines from common property without body corporate approval. It is also arguably an unauthorised improvement to common property as a change can include adding, removing or swapping something.[6] I will order that the respondents replant 7 Italian Cypress Pines in the area where the original trees were removed. However, I see no basis to order that they be of a certain arbitrary height, or that the respondents also pay for the replacement of the same trees on the applicant's side of the common property. As I expressed earlier, there is no legal entitlement to a symmetrical looking complex. If the applicant wants the trees to be identical, he is at liberty to replant the same trees at his cost.

• [31] The applicant says the respondents removed ground cover landscaping plants ("Liriope") from common property without approval in contravention of By-law 4. The applicant wants these to be replanted. The respondents say the Liriope were removed because the spikes on those plants were causing injury. They propose to maintain the garden beds weed-free rather than replanting the Liriope as ground cover.
• [32] Whatever reason the respondents had for removing the Liriope, in my view, the respondents did not damage the gardens. Rather, it appears to me that both owners have been maintaining their side of the garden, whether expressly or impliedly, on or behalf of the body corporate. In such circumstances, there needs to be a degree of flexibility in how the gardens are maintained. The applicant's plant preferences may not be the same as the respondents'. Their tastes and standards may also differ. To suggest that the gardens and landscaping must be retained exactly as they are, ensuring that they are symmetrical at all times, cannot be justified. In the circumstances, I see no basis to order that the Liriope be replanted. As an alternative, the body corporate may wish to consider engaging a gardener if they wish to achieve consistency in maintaining the common areas. That is a matter for the parties to decide.
• [33] The applicant also wants the respondents to remove an Indian Rubber tree they have planted on common property as he says it will grow to 40 metres in height, invade the pipework and damage the wall against which it has been planted. The respondents have agreed to remove the Indian Rubber tree. There is no dispute about this.
• [34] Lastly the applicant seeks removal of 6 large pot plants that the respondents have put on common property which the applicant asserts is a contravention of By-law 8. The respondents say the pot plants are small, moveable and kept tidy and request that they remain as they have no lasting visual or structural impact.
• [35] I do not consider the placement of the pot plants on common property to be a breach By-law 8. As explained earlier, By-law 8 relates to making changes to the external appearance of the lot, not to changes on common property. Further, the placement of moveable pot plants is a minor change that does not involve any damage to or alteration of the common property, nor does it otherwise detract from the amenity of the scheme. I see no basis to order that the pot plants be removed.

• [36] The respondents must seek body corporate approval if they wish to retain and proceed with further stone cladding of the exterior walls on common property. The body corporate must act reasonably in considering that request. The respondents must also replant 7 Italian Cypress Pines as agreed.
• [37] The application is otherwise dismissed.
• [38] I take this opportunity to remind the parties of their mutual obligations as owners in a community titles scheme. This includes seeking permission before undertaking any substantive changes on common property or doing anything that considerably alters the appearance of the scheme. However, there is also a level of give and take required for community living. Not every minor change needs to be challenged. At all times, the body corporate has a statutory obligation to act reasonably. One of the objects of the Act is to balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes.[7] I encourage the parties to move forward with this objective in mind for harmonious community living.

[1] Sections 227 and 228 of the Act

[4] See Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264

[5] Per Adjudicator Rosemann in Carmel by the Sea [2020] QBCCMCmr 559 at [33]

[6] Section 36 of the Acts Interpretation Act 1954

[7] Section 4(a) of the Act