Vento [2025] QBCCMCmr 250 (18 July 2025)

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

BY-LAWS - The body corporate alleges that the respondent's staff and customers are breaching the by-laws by being noisy late at night, smoking near the building, disposing of waste improperly, and making unauthorised changes to the appearance of the lot by installing signs and security measures. It seeks orders to compel compliance with the by-laws.

Act, ss 59(2)(d)(i), 183(4)(e)(i)&(6).

1. The respondent must remove the security shutter, bollards, and new signs from lot 29 within three months unless the body corporate permits them to remain.
2. The application is otherwise dismissed.

• [1] The respondent operates a shop in lot 29 that offers "smokes, board games, snacks, drinks". The body corporate says it stays open until 2am, generating noise and cigarette smoke that drift into the surrounding residential lots and leaving cigarette butts strewn in garden beds.
• [2] The body corporate also says the respondent has filled common bins with unflattened cardboard boxes, left rubbish outside the bins, and installed signs, a security shutter, and bollards without approval.
• [3] The body corporate claims breaches of the by-laws and seeks orders in the following terms:

The Body Corporate is seeking an order that the tenants do not create noise that will affect the peaceful enjoyment of another lot.

The Committee is seeking that the store inform there patrons at night to be mindful of the surrounding units. Also they are to speak with them when smoking within 5 mtrs of the front door and about the proper disposal of rubbish at the building.

The occupier to break down boxes so they are flat prior to placing them into the communal bins.

The occupier to remove any waste (mostly cigarette butts) from the communal area in front of the premises.

Occupier to directed individual away from the building when smoking so that it doesn't drift into other units.

The occupier to remove the unapproved alterations to the lot which include:

• [4] The respondent made no submission in response, though the body corporate submitted copies of correspondence with the owner of the lot (named as an affected party above) in which the owner:
  1. said the alterations were made within the lot, were security measures, and had nothing to do with the lot's appearance
  2. claimed the new signs had been placed in the same locations as previous signs
  3. questioned the legal imperative not to smoke outside a shop
  4. speculated that a motorcycle that had been heard revving and riding off late at night might have belonged to a tradesperson who was due to finish work soon
  5. otherwise claimed ignorance of the noise said to emanate from the shop during the night, and
  6. suggested the cardboard boxes might have been removed from the bins by others.

• [5] The body corporate says staff and patrons of the shop play music and talk loudly until 2am, including on a balcony of the lot, in contravention of by-law 1:

The occupier of a lot must not create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property.

• [6] The body corporate submitted email correspondence from an owner and amongst some committee members complaining of noise from lot 29, though some of the complaints related to construction noise last year, and some emails suggested the noise had abated or music was no longer being played. The same owner, another owner, and a committee member also mentioned late night noise very briefly in their submissions, but with little detail of frequency or severity. No other submissions were received, notwithstanding that with 29 lots over six levels in a single building, many lots are close to lot 29.
• [7] This is insufficient evidence that the respondent is making noise likely to interfere with the peaceful enjoyment of other lots or the common property. I cannot be sure of the volume or frequency of the noise, whether it is being made by the respondent or their customers, or even whether it is being created on scheme land or by customers on the footpath.
• [8] In any event, I am only asked to make an order that would echo the requirements of the by-law in similar general language. The respondent is already subject to that legal obligation,[1] and the body corporate can already enforce it before the Magistrates Court if it has sufficient evidence of failure to comply with a by-law contravention notice.[2]

• [9] The body corporate says "on more than one occasion":
  1. the respondent's patrons have smoked at the front of the building talking loudly, and
  2. individuals have driven loud vehicles and sped off quickly.
• [10] It claims breaches of by-law 6 and asks that I order the respondent to:
  1. inform its patrons to be mindful of the surrounding units at night
  2. speak to its patrons if they are smoking within five metres of the building, and
  3. speak to its patrons about the proper disposal of rubbish at Vento.
• [11] By-law 6 states:

An occupier of a lot must take reasonable steps to ensure that the occupier's invitees do not behave in a way likely to interfere with the peaceful enjoyment of another lot or the common property.

• [12] I have little evidence of the steps the respondent has taken to manage the behaviour of its invitees, except that it apparently placed bins with ashtrays outside the shop which seems a reasonable measure to address the disposal of waste in surrounding garden beds. The fact that customers have smoked and talked out the front of the building, or driven off loudly, does not necessarily mean the respondent has not taken reasonable steps to address their behaviour. The respondent would have little ability to control their behaviour once they leave the shop and scheme land. For all I know, the respondent may speak to them about the issues of concern to the body corporate or may have signs up about them. That would not guarantee compliance.
• [13] I am not satisfied of the claimed contravention of by-law 6.

• [14] The body corporate claims the respondent is breaching by-law 10 by placing boxes in bins without flattening them, and by leaving boxes alongside the bins. It submitted a photograph of cardboard boxes on what looks to be the patio of lot 29 alongside Sanders Street.
• [15] By-law 10 says:

(1) Unless the body corporate provides some other way of garbage disposal, the occupier of a lot must keep a receptacle for garbage in a clean and dry condition and adequately covered on the lot, or on a part of the common property designated by the body corporate for the purpose.

(a) comply with all local government local laws about disposal of garbage; and

(b) ensure that the occupier does not, in disposing of garbage, adversely affect the health, hygiene or comfort of the occupiers of other lots.

• [16] The solitary image of a box on lot 29's patio does not demonstrate the claimed contravention. But even if I take the body corporate's word that the respondent is failing to flatten boxes or is leaving them alongside the communal bins, that does not indicate that the respondent is failing to keep a clean, dry, covered garbage receptacle in lot 29 as required by by-law 10(1). Nor does it establish a breach of local laws, or indicate that the health, hygiene, or comfort of other occupiers is being adversely affected contrary to by-law 10(2).
• [17] The body corporate also claims that the respondent's customers' disposal of cigarette butts in garden beds is a contravention of by-law 7, which says:

The occupier of a lot must not leave rubbish or other materials on the common property in a way or place likely to interfere with the enjoyment of the common property by someone else.

• [18] But the respondent cannot be in breach of by-law 7 because its customers dispose of cigarette waste improperly. The body corporate is not suggesting that the respondent is leaving the waste in the garden beds, while the respondent's customers are not occupiers, not respondents to this application, and not subject to by-law 7.

• [19] The body corporate asks that the respondent directs its customers away from the building when they are smoking. It does not cite a legal basis, but by-law 6 seems the best fit. That argument has already been addressed above under "behaviour of invitees".

• [20] The respondent installed a security shutter, bollards, and new signs in a window of the lot and on a pillar that looks to be within the patio on Sanders Street. They are evident in the body corporate's photographs, and they were acknowledged by the owner of the lot in correspondence with the body corporate.
• [21] By-law 8 provides:

(1) 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.

(2) The occupier of a lot must not, without the body corporate's written approval -

(b) display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible from another lot or the common property, or from outside the scheme land.

• [22] There look to be three black metal bollards with yellow reflective strips at their tops fixed in a line near the boundary between the patio and the adjacent footpath. The security shutter is also black metal and obscures the entire façade of the shop when closed. These are not minor changes to the lot's appearance and required the body corporate's approval pursuant to by-law 8(1).
• [23] Similarly, approval was required for the new signs pursuant to by-law 8(2). It is immaterial whether they are in the same place as previous signs. An occupier may not display a sign that is visible from outside the lot without the body corporate's written approval. The body corporate has never approved the specific signs the respondent is now displaying.

• [24] There is insufficient evidence of the alleged by-law contraventions in relation to noise, smoking, and rubbish disposal.
• [25] The respondent has changed the appearance of the lot without body corporate approval in contravention of by-law 8 though. I will allow the respondent three months to obtain body corporate approval by resolution of the committee or a general meeting, or it must reverse the changes.

[1] Act, s 59(2)(d)(i).

[2] Act, s 183(4)(e)(i) & (6).