Windsong Caloundra [2025] QBCCMCmr 273 (12 August 2025)

Windsong Caloundra [2025] QBCCMCmr 273

Body Corporate for Windsong Caloundra (applicant)

Jacqueline Houston and Jean-Michel De Robillard, owners of Lot 33 (respondents)

BY-LAWS - whether the respondents breached the by-laws by changing the paint colour of a wall and installing new light fittings on their balcony.

Act, ss 94, 100, 182-188

Within 6 months of the date of this order, the owners of Lot 33 must repaint the side wall on the front balcony of Lot 33 in the original paint colour, unless within that time the Body Corporate for Windsong Caloundra approves the current paint colour.
The application is otherwise dismissed.

[1] This application is about whether changes made to a lot contravene the by-laws.
[2] The owners of Lot 33 (the respondents) painted a wall on one end of their front balcony in a darker colour and changed the light fittings on the balcony. The body corporate says this changed the external appearance of their lot in contravention of the by-laws because the changes were not approved. By-Law 8.1 requires that an occupier of a lot must not make changes to the external appearance of the lot without body corporate written approval, unless the change is minor and does not detract from the amenity of the lot and its surrounds.
[3] The body corporate issued a by-law contravention notice to the respondents in July 2024. The respondents subsequently sought retrospective approval for the alterations, but that was refused in November 2024. The body corporate says the external appearance of the lot remains altered, in contravention of the by-laws. It now seeks an order to address the issue.

[4] Windsong Caloundra community titles scheme 32570 (Windsong Caloundra) is a 39-lot scheme in Caloundra. The scheme is registered as survey plans 162689 and 174594. The community management statement (CMS) shows that the Accommodation Module applies.
[5] The application seeks the following order:

The Body Corporate requests the owners of Unit 33 to re-instate the balcony to its original state, including re-painting of the wall and replacement of the light fittings.

[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] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

[7] The applicant applied for conciliation against the respondents in December 2024.[3] The parties participated in conciliation in January 2025, but no agreement was reached.
[8] This application was lodged on 24 March 2025, pursuant to a committee resolution decided on the same day.
[9] The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[4] The application was subsequently amended.[5]
[10] The Commissioner invited submissions from the respondents and all owners.[6] The respondents made a submission, and 10 submissions were made by other owners. The body corporate did not elect to obtain or respond to the submissions.[7]
[11] The application was referred to department adjudication.[8]
[12] I have now investigated the dispute, including reviewing the application and submissions.[9]

[13] The respondents dispute statements in the application and object to the body corporate's handling of the matter. They detail some background and particularly canvass the following:

a) Their lot is on Level 10, some 7 levels above the highest entry level into the building. It is not possible to see into their balcony from any other lot or from the ground level. Neither the wall nor the light fittings can be seen from anywhere on scheme land. > > b) Their experiences on other matters led them to feel that the body corporate's approach was to reject requests as a matter of course rather than consider them on their merits. > > c) They repainted the balcony wall from off-white to a contrasting dark grey in February 2022. They did so without consulting the body corporate, to avoid difficulties for all. > > d) The wall change was unnoticed for almost 2 years until early 2024 and was only picked up by intrusive photographs of the changed light fittings. The body corporate thinks the wall is black, not dark grey, which confirms how difficult it is to see the actual colour. The wall is permanently in shade and mostly hidden by sliding shutters and furnishings. > > e) In September 2023 one of two original light fittings on the balcony failed and they replaced both. They consider them to be small and unobtrusive. > > f) The reference to external appearance in the by-law should be taken to mean a change capable of being seen with the naked eye from the outside of the lot. Their changes are barely visible to anyone outside the lot even using a zoom lens. > > g) The changes made are minor and do not detract from the amenity of the lot and its surrounds. The body corporate has offered no basis for claiming they do. > > h) They accept the desirability of maintaining substantial consistency in the appearance of the building, but there are many variations in the external appearance of other lots. The stated objective of maintaining uniformity is being applied selectively against them.

At least one other lot has a fan/light combination ceiling fitting which is very different to the original oyster-style light fitting that the body corporate wants them to keep.

j) The end wall on the balconies of every second level seems to have been painted in a grey colour which, although not as dark as their grey, is darker than the body corporate's stated preference for their lot and is far more visible than their wall. > > k) There is no prescribed colour scheme and no restriction on replacement light fittings.

The body corporate did not act reasonably in its consideration of their request for retrospective approval as it did not consider the merits.

[14] Of the 10 submissions made by other owners (one of whom is the onsite manager), 8 support the application and want the respondents' lot to be returned to its original state.
[15] These submissions raised concerns regarding the failure to seek approval before the changes were made and the future implications if the changes are allowed to remain. They want the by-laws to be upheld. One submitter says that while the changes may seem minor, allowing them to remain could set a precedent. The submitters expressed the view that if everyone was allowed to paint their units any colour, it would detract from the building's appearance and devalue the property. They want to keep the carefully chosen colour palette agreed on at a general meeting. One submitter comments that they do not consider the colour change to a significantly darker colour to be minor. Another says the dark coloured wall is noticeably different to the rest of the building, and the moveable shutters do not cover all of the wall. They also say original light fittings should be replaced with similar and approved light fittings.
[16] Two other owner submissions do not support the application. One says a light fitting as plain and simple as existing lights and fans should not be an issue. They acknowledge the wall colour is not the same but say it is in the same colour palette. The other says the dark wall cannot be seen from the ground without a camera and they question the issue with the light fitting. The submitters propose alternative ways of handling the matter.

[17] The issue here is whether respondents made changes to their Lot 33 in breach of the by-laws.
[18] It does not appear to be disputed that the changes were made to a balcony that is within boundaries of Lot 33, as shown on the survey plan. The balcony extends the full width of the lot. It has glass balustrades and is partly enclosed by full height movable shutters.

[19] The legislation itself does not require owners and occupiers to obtain body corporate approval to make changes to their lots. However, a body corporate can adopt by-laws regulating the use and enjoyment of lots, which can include regulating alterations to lots.[10]
[20] The current CMS for Windsong Caloundra includes the following:[11]
1. Appearance of Lot

8.1 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.

[21] There are two elements to this by-law. First, if the external appearance of a lot is not changed (even if there has been a change to the lot), the by-law is not applicable. But the by-law does not limit a change in appearance as being from any particular location, such as from other lots or common property, or from outside the scheme. Second, the by-law exempts changes that are minor and do not detract from the amenity of the lot and surrounds from requiring approval.
[22] By-laws such as By-law 8.1 are often described by adjudicators as 'permissive'. An occupier is not prohibited from making substantive changes to the external appearance of their lot under this by-law. Rather, they must just obtain approval to do so. The body corporate must act reasonably in deciding request for approval under the by-law.[12] Where a by-law allows something to be done subject to approval, there is no automatic right to approval, but the body corporate cannot automatically refuse all requests. It must consider each request on its merits.
[23] The primary considerations for the body corporate in deciding a request for approval under By-law 8.1 would likely include the reason for the alteration and the nature and effect of it on the external appearance of the lot. Although an occupier should apply for approval before making changes, it would arguably not be reasonable for the body corporate to refuse a request for retrospective approval simply because approval was not sought in advance. If an occupier considers that approval has been unreasonably refused, the onus will be on that person to challenge the body corporate's decision.

[24] Under the Act, all owners and occupiers are bound by the CMS and the by-laws in it.[13]
[25] A body corporate must enforce the CMS, including the by-laws.[14] As with all its functions, a body corporate must act reasonably including in making or not making decisions about the enforcement of its by-laws.
[26] The legislation sets out the process for pursuing an alleged by-law breach.[15] The first formal step for a body corporate is to issue a by-law contravention notice to the person it alleges is breaching the by-law. The notice should detail the by-law it alleges is being breached and details of the alleged contravention. If the alleged breach is not remedied, the body corporate can apply for dispute resolution against the person it asserts is breaching the by-law.
[27] I am satisfied the body corporate complied with the statutory process for enforcing by-laws.

[28] The body corporate asserts the owners of Lot 33 have breached By-law 8.1 by making the changes to their balcony without body corporate approval.
[29] The respondents say they painted the balcony wall dark grey in February 2022 and changed balcony light fittings in September 2023. It is not disputed that the respondents did not seek body corporate approval before making the changes and have not received approval since.
[30] The body corporate first raised the changes with the respondents in January 2024, with extensive subsequent correspondence. In July 2024 a contravention notice was issued to the respondents. The respondents applied to the committee in November 2024 for retrospective approval of both the light fixtures and the wall colour. The body corporate denied this request.
[31] I will consider both the light fixtures and the wall colour separately in terms of whether they have changed the external appearance of Lot 33 such that they are covered by By-law 8.1, and, if so, whether they were exempt from the requirement for approval.

[32] The body corporate says the new light fittings are significantly different from the light fittings on other balconies. They believe this change breaches the by-law because the respondents do not have written approval for it.
[33] The respondents believe the new light fittings are a minor change and so did not require approval. They submit that the light fittings cannot be seen from outside the lot and do not detract from the amenity of the lot or its surrounds. They also say another owner changed an original light fitting to a fan light.
[34] From the limited evidence provided, it does seem to be difficult to see the relatively small light fittings from outside the lot. However, on balance, I accept that they are perceptible. Accordingly, while the light fittings are inside the lot, I consider the change of the light fittings constituted an alteration to the external appearance of the lot.
[35] However, it also appears from the limited evidence that the change in the external appearance of Lot 33 arising from the changed light fittings is very slight. Accordingly, I consider the change was minor. Moreover, the body corporate does not argue or substantiate how the change to the light fittings detract from the amenity of Lot 33 or its surrounds.
[36] Accordingly, on the evidence, I consider that while the changed light fittings did change the external appearance of Lot 33, it was not a change that required body corporate approval.

[37] The body corporate says the balcony wall was originally painted a light colour, 'whisper white', but then was painted black. They assert the colour change breached the by-law because it occurred without body corporate approval.
[38] The respondents believe the change is minor as it is barely perceptible and hidden by other aspects of the balcony, such that it also did not require body corporate approval. They submit that the change in colour does not detract from the amenity of the lot or its surrounds.
[39] I am satisfied from the albeit limited evidence that the changed wall colour is perceptible from outside the lot when the shutters are moved away from that end of the balcony. It appears the corresponding walls on other lots are painted in much lighter colours. Accordingly, although the balcony wall is inside the lot balcony, I am satisfied there was a change to the external appearance of the lot.
[40] It is evident the wall was changed from a very light colour to a very dark colour, regardless of whether that was black or dark grey. The extent of difference in colours, particularly compared to adjacent lots and the rest of the building, is not a minor change in my view. The fact that the new colour may be in the same 'colour palette' does not reduce the extent of the change.
[41] Where I am satisfied the change was not minor, it is not necessary to also determine whether the change detracted from the amenity of Lot 33 or the surrounds.
[42] I am satisfied the change to the colour of the wall on the front balcony of Lot 33 required the written approval of the body corporate. It follows that unless and until the change is approved by the body corporate, the respondents are in breach of By-law 8.1.
[43] The respondents assert the body corporate did not act reasonably in refusing approval for the changes in November 2024. The respondents did not challenge the decision at the time. While the respondents object to the decision in their submission, it is beyond the scope of the orders sought in this application for me to investigate or make findings on whether the decision was validly made. However, it remains open to the respondents to formally dispute the body corporate's decision to deny their request for approval to change the colour of the wall.

[44] I am satisfied the respondents altered the external appearance of their Lot 33, by painting an external wall on their balcony in a significantly different colour, without body corporate approval. That contravenes By-law 8.1. In the circumstances, I am satisfied that an order requiring the respondents to return the wall to its original colour, unless the colour change is approved by the body corporate, is warranted.
[45] Where there is no apparent urgency in this matter, I will allow 6 months for the respondents to repaint their balcony wall. In that time, the respondents could decide to submit a new request for approval, or ask the committee to reconsider the previous request, having regard to the reasons for this decision. If they do so, the committee should consider the merits of the request, including the visual impact of the change. If the request is again refused, the respondents could challenge that if they assert it was not validly decided. If approval is not given, and if any challenge is not successful, the respondents will need to repaint the wall.
[46] While I accept that the change to the light fittings on the Lot 33 balcony also altered the external appearance of the lot, I consider that change was minor such that it did not require approval. The application in that respect is dismissed.

[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