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

BY-LAWS - whether the respondents breached the by-laws by installing a black blind on their balcony - whether they must remove the blind.

Act, ss 59, 94, 100, 182-186.

1. Within 14 days of the date of this order, and at their own expense, the owners of Lot 2, Roberta and Ronald Brazier, must remove the dark-coloured blind installed on their balcony.
2. The owners of Lot 2, Roberta and Ronald Brazier, must not reinstate the dark-coloured blind or install any alternative blind on their balcony except with the approval in writing of the Body Corporate for Whitecrests by the Sea.

• [1] This application is about a blind installed by the respondents, the owners of Lot 2, on their balcony without body corporate approval. The applicant body corporate wants the blind removed or replaced on the basis that it is contravening the scheme's by-laws and detracts from the appearance of the scheme.

• [2] Whitecrests by the Sea community titles scheme 26046 is a 6-lot scheme at Miami. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as survey plan 108049.
• [3] The application seeks the following order:

Request for lot owner to replace or remove blind, so as it does not continue to contravene current scheme by-laws and detract from the appearance of the scheme.

• [4] 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 determine this matter under the dispute resolution provisions.[2]

• [5] The body corporate initially applied for conciliation in August 2024.[3] The parties participated in a conciliation session in November 2024, but did not reach an agreement.
• [6] This application was then lodged on 21 January 2025. The Commissioner's delegate sought clarification on some aspects of the application,[4] which was subsequently amended.[5]
• [7] The Commissioner invited submissions from the respondents and all owners.[6] Three submissions were received. The body corporate obtained and responded to the submissions.[7]
• [8] The application was referred to department adjudication.[8] I have now investigated the dispute, including reviewing the application and submissions.[9]

• [9] The respondents say they sought a quote for a blind on their small rear patio and the supplier recommended a dark mesh to provide protection from the harsh afternoon western sun. They say they had no reason to doubt the professional opinion and accepted the advice. The respondents say the blind provides protection from the sun and weather but also from dirty water hosed from another lot.
• [10] The respondents describe the location of the patio and its outlook. They say the blind is marginally visible from outside Lot 1, and no other owner can see it from their lot. They say they tried to explain why the dark blind was installed and its benefits, but other owners were not interested. They also offered to raise the blind if there was an event in the area where the blind is visible. They say the frame is white and not noticeable when the blind is up. They say the building has different visual aspects, including blinds, shutters, windows, furniture and plants.
• [11] The respondents object to the conduct of other owners on this issue and other matters in the past. The submission canvases a wide range of other issues at the scheme.
• [12] The respondents' son also made a submission, in his capacity as a committee member. He comments on the committee and discusses a range of other issues. He says this is a petty action about a small rear balcony that is not visible from any road around the building. He says it is logical to use dark mesh to combat the harsh afternoon sun. He describes items visible on other balconies. He says the blind has no impact on the appearance of the building.
• [13] Another owner who is also a committee member notes the rear of the building faces the western sun and owners have sought to protect their homes in various ways. He describes installations for other lots and says each sought permission and guidance from the committee on allowable colours. He says the respondents served on the committee and are aware of the by-laws and the approval system. Accordingly, it was a surprise when they installed a large black blind. He says that, following complaints, the committee asked the respondents to seek retrospective approval. While other owners have no problem with the sun protection, the black colour breached the by-laws and they requested it be changed. Despite repeated requests, the respondents refused. He says the rear of the building contains a communal BBQ area and herb and citrus gardens and is now overshadowed by a black blind.
• [14] In response to the opposing submissions, the chairperson rejects and objects to claims made by the respondents' son. He says all owners have installed sun protection to the rear of their units over time, and all but the respondents complied with the by-laws. He says they take pride in their building, but its clean white lines have been despoiled by the black blind on the rear balcony. He says they see the blind every day, it is ugly, and needs to be removed.

• [15] The issue in dispute is whether the respondents have installed a blind in breach of the by-laws.

• [16] The parties do not indicate when the disputed blind was installed. However, at a meeting on 30 January 2023 the committee resolved to issue a letter to the respondents inviting them to submit an application for the unapproved blinds that were visible from common property. A letter was sent the next day asserting a breach of By-laws 23 and 34 and providing a 'lot improvement application' form for the respondents to complete and return.
• [17] At a further meeting on 13 March 2023 the committee resolved to approve the lot improvement for the blind subject to conditions including that 'the blinds to be white/cream and not black'. The respondents were advised of the decision on 20 March 2023.
• [18] The body corporate wrote to the respondents on 6 June 2023 asserting a breach of By-laws 23 and 34. It said the committee discussed the breach with the respondents at its last meeting and provided a generous amount of time for the offending blind to be removed or replaced. It said if it did not receive a plan to remove the blind by 20 June it would take legal action.
• [19] On 29 June 2023 the committee resolved to issue a by-law contravention notice and apply for conciliation. It appears a contravention notice citing By-law 23 was issued in August 2023.
• [20] It was not then until 16 September 2024 that the body corporate wrote again to the respondents citing By-laws 23 and 34 and providing another by-law contravention notice citing By-law 23. A committee resolution on the same date authorised the contravention notice and a dispute resolution application.
• [21] The body corporate applied for conciliation but that did not resolve the dispute. This application was then lodged and authorised by a committee resolution on 13 February 2025.

• [22] It does not appear to be disputed that the blind in question was installed within the boundaries of a balcony that forms part of Lot 2. The legislation does not of itself restrict alterations to lots. However, such alterations may be regulated by by-laws.
• [23] The current CMS for Whitecrests by the Sea includes the following by-laws that may be relevant to this dispute:[10]

A proprietor of occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his lot in such a way to be visible from the common property or any other lot.

(a) A proprietor or occupier of a lot (other than Lot 6) shall not construct or permit construction or erection of any pergola, screen, external blind, awning or other structure of any kind upon a lot or common property with the approval in writing of the Body Corporate. The proprietor of Lot 6 shall be entitled at any time to construct any structure on the roof of the building PROVIDED THAT such structure has the approval (where necessary) of the Local Authority.

(b) ...

The manner and style of any fit out or renovation of any lot must have the prior written approval of the Body Corporate. The Body Corporate shall be entitled to request copies of such plans and specifications as it might consider necessary to enable it to grants its approval and the proprietor of a lot shall comply with all such requests.

A proprietor shall not install, renovate and/or replace a curtain, vertical blind, other door or window coverings without having the colour and design of same approved by the Committee. In giving such approvals, the Committee shall ensure so far as practicable that curtains, vertical blinds and other window coverings and window tinting used in all units presents a uniform appearance when viewed from common property or any other lot.

• [24] These by-laws demonstrate the body corporate's requirement for approval of alterations to the building and its concern for regulating the appearance of the building, including external blinds.

• [25] The CMS for a community titles scheme, including its by-laws, is binding on the body corporate and each member of the body corporate.[11] As part of its general functions, the Act imposes an obligation on the body corporate to enforce the by-laws recorded in the CMS.[12]
• [26] If a body corporate reasonably believes an owner or occupier has contravened a by-law, it can decide to issue a by-law contravention notice.[13] The notice must state certain things, including the nature of the breach, and be given to the person believed to be breaching the by-law. If the contravention notice does not resolve the matter, the body corporate can pursue the dispute through an application to the Commissioner's office or to take action in the Magistrates Court for the offence of failing to comply with the contravention notice.
• [27] I am satisfied the body corporate followed the statutory procedures for enforcing its by-laws.

• [28] The respondents do not dispute that they installed a dark-coloured blind on the balcony of their Lot 2. The respondents do not dispute that they installed the blind without body corporate approval. A retrospective application for approval was made. While the respondents were then given approval for a blind, it was on the condition that it be white or cream and not black. It is not disputed that the respondents have not removed the dark-coloured blind or replaced it with one that is white or cream. Accordingly, the installed blind remains unapproved.
• [29] I am satisfied that, regardless of its location, style, colour or visibility, the installation of an external blind on a lot requires written approval of the body corporate under By-law 23(a). According, I am satisfied that the respondents contravened, and continue to contravene, By-law 23(a) by having a dark-coloured external blind on Lot 2 without body corporate approval.
• [30] It is arguable that the installation of the blind constitutes the 'fit out or renovation' of Lot 2, such that the manner and style of the installation also required body corporate approval under By-law 24. However, I am not satisfied By-law 34 was breached. The disputed blind is a roller style and is not a curtain or a vertical blind, and it covers the opening on a balcony rather than being a door covering or a window covering.

• [31] The respondents object to the conduct of the committee and other owners on a range of matters, including this issue. However, I consider any of the matters referred to that are not directly related to this blind, or the installation of similar items on lots, are not relevant to the issues to be decided in this application. I will not have regard to those other matters. The respondents can pursue those matters separately if required.
• [32] The respondents do not evidence that they challenged the decision of the committee in March 2023 to approve their blind only if it was cream or white. Similarly, it is not apparent that the respondents formally disputed any of the committee decisions to issue contravention notices or lodge disputes resolution applications. An application to challenge any of those resolutions should have been lodged within 3 months of the date of the decision.[14] It may be that the respondents believe the committee failed to act reasonably in not approving the installed, dark-coloured blind or in pursing the by-law breach against them. Although that is not stated in their submission or the submitted material, I will address those matters for completeness.
• [33] As with all its functions, a body corporate must act reasonably in enforcing the by-laws and in making decisions.[15] The committee must also act reasonably in making decisions.[16] The test for whether a decision is reasonable is objective.[17] It is a question of fact, having regard to all the circumstances.[18] Reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[19] Importantly, the person challenging a decision bears the onus of proof that the body corporate failed to act reasonably.
• [34] As the respondents have not explicitly challenged the validity of any body corporate decision regarding their blind, they have not substantiated why any of those decisions should be viewed as unreasonable. However, I will comment on the apparent issues.
• [35] The respondents refer to the need for a blind to protect their balcony from the harsh sun. However, it is clear that the body corporate supports owners installing such weather protection and it has expressly approved a blind for the respondents' balcony.
• [36] The respondents say a dark-colour blind was recommended to them. However, they have not provided evidence of that recommendation or that the supplier was aware of the context of the installation (including the blind was to be installed in predominantly white or cream coloured building). In submitted correspondence, the respondents said black would look 'smart' on other lots and white would show dirt and may look grey over time. But while a dark-colour blind may be preferred by the respondents or their supplier, the respondents do not provide evidence that it was not possible for them to install a white or cream blind or that a white or cream blind would be ineffectual. The respondents do not establish that it is unreasonable for the committee not to agree to the colour they prefer.
• [37] The respondents refer to the blind as being 'marginally' visible. While the appearance of an alteration to a lot is one matter for consideration when its approval is being decided, it is not the only consideration. In any event, the respondents do not dispute that the blind is visible (at least when pulled down) from outside their lot. A photograph included in the application shows the dark blind is visible. It seems to me to have has a starkly different appearance from its surrounds and from other lots.
• [38] The respondents do not evidence that any other lot has a dark-coloured blind or similar external installation. Reference is made to other visible items at the scheme. However, the respondents do not establish that the body corporate approved the installation of items on other lots under the by-laws that are similar to their blind or are otherwise visually discordant. As such, they do not establish that it was unreasonable for the body corporate to refuse to approve their current blind because other similar items have been approved.
• [39] The respondents say they offered to raise the blind if there was an event on common property. However, it seems impractical for all to expect other owners or occupiers, or the committee, to have to ask the respondents to raise their blind whenever they want to use common property in sight of the blind. The body corporate could have chosen to approve the current blind on that condition, but the respondents do not establish that it was unreasonable not to.
• [40] Accordingly, if the respondents contend that the body corporate failed to act reasonably in not approving the current dark-coloured blind and in only approving a white or cream blind (if that is their position), to date they have not substantiated that.
• [41] Where the respondents have not evidenced that the body corporate acted unreasonably about the approval of the blind, the respondents have not evidenced (if it is their position) that the body corporate acted unreasonably in pursuing this matter. The respondents installed a blind without approval in breach of the by-laws. The body corporate has a statutory obligation to enforce the by-laws and appears to have simply acted on that basis.

• [42] I am satisfied the respondents installed a dark-coloured blind on their lot without body corporate approval, which constitutes a breach of the by-laws. In the circumstances, I am satisfied that an order requiring the respondents to remove the current blind is warranted. I will allow 14 days for this to occur. The respondents must not install the same or an alternative blind unless it has first been approved in writing by the body corporate.

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

[4] Section 241 of the Act

[5] Section 245 of the Act

[6] Section 243 of the Act

[7] Sections 246 and 244 of the Act

[8] Section 248 of the Act

[10] Recorded 21 May 2002, Titles dealing number 705636828

[11] Section 59(a) of the Act

[12] Section 94(1)(b) of the Act

[13] Section 182 and 183 of the Act

[14] Section 242 of the Act

[15] Section 94(2) of the Act

[16] Section 100(5) of the Act

[17] Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

[18] Waters v Public Transport Corporation [1991] HCA 49

[19] 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