QLD: Q&A Oppressive or Unreasonable Strata Bylaws

These articles are about the reasonableness of QLD strata bylaws.

Table of Contents:

• QUESTION: With a building by-law requiring timber plantation shutters and disallowing glass alternatives, could the negative impacts of reduced light and increased mould risk, particularly during wet weather, render the by-law unreasonable and open to challenge?
• QUESTION: With the changes to the BCCM Act, what is the step-by-step process for approving a by-law review and approval of new by-laws for registration?
• QUESTION: A resident received an email saying our by-laws prevent parking of commercial vehicles. He owns a ute. Is this by-law reasonable?
• QUESTION: Our body corporate has a by-law restricting children from riding bicycles or skateboards on common property. Is this by-law unreasonable? How can we get it changed?
• QUESTION: In the event that an owner wishes to vary the wording of one or more of the individual by-laws, can this be done as a motion with alternatives prior to voting on the by-laws as a whole?
• QUESTION: We have had new bylaws drawn up to be presented as a motion at the AGM. I have a few questions about the best way to present the motion/s?
• QUESTION: Our visitor parking bylaw seems to be unreasonable and unenforceable. Does that mean people can park anywhere?
• QUESTION: When applying for an air conditioning unit approval, I received an ordinary air conditioning resolution sheet. Some of the conditions sound unreasonable.
• QUESTION: Does the committee have the power to review by-laws in conformity with the current laws and legislation pertaining to body corporate in Queensland?
• QUESTION: Our strata bylaws have a pet with approval policy that states “the dog is not permitted to make noise or otherwise cause a nuisance”. Is a statement regarding noise oppressive? How is it possible for a dog to make no noise?
• QUESTION: Unit owners have asked permission to install an awning or sun shade on their balconies. The committee members are against any form of shading altogether. Is this reasonable?
• QUESTION: Our Body Corporate Manager has often strongly recommended that we do not change ByLaws. I would be interested in your comments.
• QUESTION: Our developer put in place a by-law stipulating that any alterations to the flooring must not exceed 50dB. Is 50dB a reasonable standard for apartment flooring?
• QUESTION: On my secluded rooftop deck I have a fire pit. A lot owner has put forward a motion to ban all forms of naked flames. Would a bylaw banning naked flames be lawful, especially when this is an exclusive use area?
• QUESTION: What rights does the Committee have to stop residents from using a facility if they are not obeying the By-Laws to do with conduct?
• QUESTION: Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on a set day of the week, or is this unreasonable?
• QUESTION: We are having a running battle with our Body Corporate Committee about pet ownership. Is it unreasonable to have a ban on dogs over 10 kg at our scheme?
• QUESTION: Is it reasonable for a strata bylaw to state awnings can only be purchased by a single supplier? Surely we can only enforce that colour must be in line with the scheme?
• QUESTION: Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?
• QUESTION: One of our Strata Title By-Laws seems unreasonable. Although we are allowed pets, the pet must not be walked or carried through the foyer. The alternative route is not suitable for me due to health reasons.
• QUESTION: The Committee in QLD is currently reviewing our twenty year old by-laws in an attempt to address some of the matters which are becoming problematic – building security and community power.
• QUESTION: Can we stop a resident from using the facilities if they potentially pose a health risk?

Question: With a building by-law requiring timber plantation shutters and disallowing glass alternatives, could the negative impacts of reduced light and increased mould risk, particularly during wet weather, render the by-law unreasonable and open to challenge?

We want to purchase a lot in a building with timber plantation shutters to significant parts of the property. The by-laws state that, to preserve the outdoor appearance of the buildings, the shutters cannot be replaced by glass louvres or windows. During inclement weather or overnight, residents have no choice but to close the shutters, making it unreasonably dark and more conducive to mould growth, especially during current wet conditions.

Is this by-law unreasonable? Could the by-law be challenged? We assume this by-law is a reaction to past owner requests. We want to buy one of these properties. We think it would be more reasonable to allow some consistent glass louvre or window options for residents who wish to change.

Answer: Aside from ‘soft’ aesthetic reasons, ‘hard’ factors may motivate a body corporate not only to keep such a by-law in place.

We appreciate that, from a lot owner’s standpoint, a by-law restricting seemingly practical improvements could be perceived as unreasonable. However, there are a number of reasons why such a by-law may exist in the first place, and further, why a body corporate might not want to relax it…  

Shutters or louvres have enjoyed an architectural revival, especially with respect to balconies and patios. Indeed, the ‘lanai’ has become a popular alternative treatment to the more traditional open balcony. Developers often pay serious money for well designed, useful and aesthetically pleasing treatments to high value areas such as indoor / outdoor living spaces, especially when they are visible from outside the community titles scheme. It’s not unusual for those developers to protect the original ‘design intention’ through by-laws and for bodies corporate that are then subsequently controlled by lot owners who liked the design (and indeed may have ‘bought in’ because of it), to seek to enforce those by-laws, strictly.

Aside from ‘soft’ aesthetic reasons, there are also a number of ‘hard’ factors that may motivate a body corporate not only to keep such a by-law in place or put one in place itself and then to strictly enforce it. To list a few:

1. There may be town planning restrictions. Installing glass louvres or otherwise enclosing a balcony / patio is often a restricted activity contrary to the development approval for the premises, including because it increases the gross floor area for the building. As such, it may constitute a breach of the planning regulations for an owner to make these types of improvements without the necessary approvals. For example, for a property within the Brisbane City Council catchment area, enclosing balconies and patios are subject to an impact assessable development application. As the owner of the premises, the body corporate is ultimately responsible for a breach of the development conditions, and so, it has a vested interest in regulating the activity.
2. The work could give rise to a disposal of part of the common property. For example, in Danseur v the Body Corporate for Cairns Aquarius CTS 1439 & ANOR [2022] QCATA, the Appeal Tribunal found that an owner enlarging a window in the front facing wall of the lot amounted to a disposition of common property, which required a resolution without dissent. Replacing timber louvres with glass may be low risk, but installing a window instead may ‘cross the line’.
3. There may be adverse impacts on neighbouring lots’ amenities, including visual impacts, glare, and interruption of airflow. These issues mostly arise when a building has an articulated façade, with shutters providing for adjustable levels of privacy and protection from the elements. It is easy to see how replacing opaque shutters with glass ones may affect privacy, just as replacing louvres with fixed windows interrupts airflow.
4. Enclosure of the balcony / patio may result in a breach of fire safety regulations and may impact the body corporate’s insurance. Balconies, patios and even ordinary window systems are designed and selected with fire safety, including fire separation, in mind. While the Grenfell Tower disaster was caused by combustible cladding, the fire vector was up the side of the building. External elements, such as louvres, could create a similar fire vector.  

The good news is that most schemes have by-laws that only restrict, rather than prohibit, improvements being made by lot owners. So, in the normal course, it would be difficult, but not impossible, for a lot owner to obtain approval to make improvements designed to enhance the utility of their lot. By-laws drafted in this way are generally viewed as reasonable by the courts, particularly where there are good reasons for them being adopted.

As with most pre-purchase issues in community title, the starting point is to decide whether the issue is a deal breaker. If so, then the contract of purchase should be conditional upon the necessary body corporate approval being obtained before settlement. An experienced strata lawyer can help with that or with seeking approval after settlement if the application is to be made then. Most conveyancers do not appreciate the intricacies of by-laws, body corporate approval processes and rights of review of body corporate decisions.

Fortuitously, good strata lawyers are easy to find – simply go to the website of the Australian College of Strata Lawyers.

Michael Kleinschmidt
Bugden Allen
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #745.

Question: With the changes to the BCCM Act, what is the step-by-step process for approving a by-law review and approval of new by-laws for registration?

With the changes to the BCCM Act, what is the step-by-step process for approving a by-law review and approval of new by-laws for registration? Can a body corporate committee write the by-laws or is a lawyer required? Does the body corporate or the committee approve the change of by-laws?

We are mainly concerned about:

• Approval for a review.
• Quotes for solicitors.
• Authorisation of a solicitor.
• Internal review of proposed by-laws.
• Final approval for registration. Is this a special resolution?

Answer: You are much better getting a lawyer who knows what they are doing to do it for you.

I think the easy answer is that it’s a special resolution. In terms of the process, it is really up to each committee. As you would expect (with a substantial lack of impartiality on my part), you are much better off getting a lawyer who knows what they are doing to do it for you. You can get quotes, and the committee can usually decide to engage lawyers. The final by-laws need to go to a general meeting for approval of owners.

Lawyers always operate on instructions, so beyond the engagement of lawyers, the lawyers should take instructions from the client about what is important to them and why. They should draft by-laws for the committee’s consideration and comment before the by-laws are put to a general meeting.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #675.

Question: A resident received an email saying our by-laws prevent parking of commercial vehicles. He owns a ute. Is this by-law reasonable?

My friend has a work ute. He does not carry anything in the back tray. He parked the ute on his neighbour’s driveway, and then he and his neighbour received an email saying the by-laws prevent parking of commercial vehicles. Is this by-law reasonable and enforceable?

“No commercial vehicle, truck or recreational vehicle, including a boat or trailer (other than a four wheel drive), is allowed to be parked anywhere that is visible from another lot or the common property, i.e. in a lock up garage is acceptable, but on a driveway or a parking pad within a lot is not.”

Answer: First, check whether the area of driveway forms part of the common property or the lot.

The first thing to check here is whether the area of driveway forms part of the common property or the lot.

If it is on the common property, there is a separate and probably more difficult issue, in that the common property cannot be used for parking on an ongoing basis without some form of use right.

Use right aside, the by-law is capable of being reasonable. Prior adjudicators have upheld such by-laws in circumstances where there has been a focus on a consistent and well-kept visual amenity. One example is Champagne Boulevard, which prevented a caravan from being parked on a lot’s driveway that was visible from the street.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: Our body corporate has a by-law restricting children from riding bicycles or skateboards on common property. Is this by-law unreasonable? How can we get it changed?

I have purchased a strata property in the Moreton Bay region. On reading the by-laws, I discovered a by-law specifically relating to:

2. Children playing on common property. Lot owner is personally responsible for the conduct of children at all times while playing on common property. This responsibility shall include ensuring said children:
   1. 2.2 Do not ride skateboards, skates, go-carts, bicycles or similar apparatus at any time.

Is this by-law unreasonable because it specifically targets children and no age range applies? My 12-year-old owns a bike and scooter. According to this by-law, they will not be able to ride either.

When I asked the strata manager about this by-law, I was told it was the developer’s by-law; it was a standard by-law across Queensland; and that it was to protect the body corporate against any claim of liability.

How can I get an unreasonable by-law like this changed? I was informed all motions/agenda items for the AGM had to be submitted by the end of January. I settled the property beginning of April, and AGM is not scheduled yet.

Answer: Very generally, a by-law that outright prohibits something would, in most cases, be invalid.

It is not possible to be definitive and say this is ‘unreasonable’. What I can say is that, very generally, a by-law that outright prohibits something would, in most cases, be invalid. Then you have the practicalities to consider: how would these by-laws get policed? If, for example, it is not your child but a friend of your child’s, then who will identify that? Who measures the noise? Is there a register? And what is a ‘child’ here anyway? It isn’t defined in the by-laws you have sent through.

This leads to your question about how by-laws get changed. They get changed at a general meeting and usually require approximately two-thirds support to get passed. Owners are entitled to put motions to a general meeting. If you do not make the timing cut-off for your AGM, you could look at having an extraordinary general meeting called, which requires the signatures of 25% of owners. So, in other words, if you do not make the AGM cut-off, you will have to start canvassing support from other owners to get the outcomes you want.

This is general information only and is not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the August 2023 edition of The QLD Strata Magazine.

Question: In the event that an owner wishes to vary the wording of one or more of the individual by-laws, can this be done as a motion with alternatives prior to voting on the by-laws as a whole?

It seems to be the norm to replace by-laws as a whole rather than deal with each by-law separately. As a result, there is simply one motion to adopt all by-laws.

If an owner wishes to vary the wording of one or more of the individual by-laws, can this be done as a motion with alternatives prior to voting on the by-laws as a whole? If not, what options are there?

Answer: The right way to do that would be to throw up, in one motion, all of the uncontested by-laws. Then make the one(s) under consideration, motions with alternatives.

If you aren’t on the committee, I would suggest engaging with the committee about the issues concerning you in a wholesale review.

Otherwise, you could fire in the motion that you want with respect to the by-law in issue and then the committee would have to make sure they structure that in the right way with alternatives. I think the right way to do that would be to throw up, in one motion, all the uncontested by-laws and then make the one(s) in issue, motions with alternatives.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the April 2023 edition of The QLD Strata Magazine.

Question: We have had new bylaws drawn up to be presented as a motion at the AGM. I have a few questions about the best way to present the motion/s?

Our committee has had a new set of bylaws drawn up by a solicitor.
These are going to be subject to a motion or motions at our forthcoming AGM.

1. are all the various changes to the bylaws to be listed at the AGM as one motion or individually?
2. if the various motions are grouped onto say ten seperate motions and one of those single changes is rejected are the other changes in the motion classed as having failed?
3. If a change to the new by laws fails, does the committee in force the old by Law?
4. can the committee amend various new by law clauses right up to the time of them circulating of the printed voting papers?
5. What is the time limit between the date of the finish of the committee year and the requirement for the AGM ? Can an exemption be granted by the commission?

Answer: This is ultimately up to the committee about how they would prefer to present the new by-laws to be considered by owners.

In response to each query:

1. This is ultimately up to the committee about how they would prefer to present the new by-laws to be considered by owners.
2. Yes
3. Yes
4. Yes
5. The annual general meeting must be held within 3 months of the body corporate’s end of financial year. However, a failure to do so will not necessarily invalidate the meeting. There is no need to obtain an exemption from the Commissioner’s Office if this date is going to be missed.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #585.

Question: Our visitor parking bylaw seems to be unreasonable and unenforceable. Does that mean people can park anywhere?

I have a specific example of a bylaw that seems unreasonable/oppressive/unworkable.

If a bylaw is “invalid” then what applies instead? Would the Body Corporate Commissioner say that as the current by-law is “invalid”, it can’t be broken as no action at all could be enforced?

Here is our bylaw:

2. Vehicles
   
   1. The occupier of a lot must not, without the body corporate’s written approval

      1. park a vehicle, or allow a vehicle to stand, on the common property
      2. permit an invitee to park a vehicle, or allow a vehicle to stand, on the common property
   2. and (c) …..standard working for approvals and cancellation of approvals…

Visitor parking spaces are not mentioned in the CMS – though we have 8 visitor parking spaces on the common property. We are in Cairns, with no council-imposed visitor parking minimum applicable.

It seems no-one is allowed to park anywhere on the common property, even in the visitor parks, without written approval!

So – what enforceable parking restrictions are currently in place? Can anyone park literally anywhere (at the ends of buildings, behind other vehicles) with no recourse (unless blocking access, which would be subjective)?

Answer: The Body Corporate and/or the Committee would not be acting reasonably if it were to enforce an invalid by-law

While the Body Corporate has a duty to enforce its by-laws, the Body Corporate and the Committee are required to act reasonably. In our opinion, it is arguable that the Body Corporate and/or the Committee would not be acting reasonably if it were to enforce an invalid by-law.

The current by-law 2 prohibits an occupier from parking, or permitting its visitors to park, on the common property, without written approval of the Body Corporate. In our opinion, by-law 2 is poorly worded and arguably permits visitors to park anywhere on the common property but prohibits an occupier from allowing its visitors to park in the visitor designated car parks without written approval. Accordingly, we strongly recommend that:

1. by-law 2 is removed and replaced with a by-law which ensures that:
   
   1. visitors are directed to park in the visitor designated car parks; and
   2. an occupier can permit its visitors to park in the visitor designated car parks without written approval; and
2. until by-law 2 is rectified, the Body Corporate provides a blanket approval to all owners in the Scheme allowing them to permit their visitors to park in the visitor designated car parks without written approval. Usually an approval of this nature would need to take into account Council restrictions regarding the use of visitor parking. However, I note that you have advised that there are no Council restrictions.

To remove and replace by-law 2, the Body Corporate will be required to:

1. obtain approval of owners at a general meeting or obtain an adjudicator’s order from the Commissioner’s Office; and
   

2. register a new community management statement.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in the July 2021 edition of The QLD Strata Magazine.

Question: When applying for an air conditioning unit approval, I received an ordinary air conditioning resolution sheet. Some of the conditions sound unreasonable.

When applying for an air conditioning unit approval, I received an ordinary air conditioning resolution sheet.

Two conditions on the form concern me. One states that each lot can only have one air conditioning unit. This sounds unreasonable to me. Can I argue against this as I’m in a top floor apartment and it gets very hot under the tin roof?

Another condition states that the condenser unit can only be placed in the basement, however, our block has no basement.

Answer: The committee is entitled to approve your installation with reasonable conditions.

I’m not sure what an ‘ordinary resolution air conditioning sheet’ is. For the purposes of this response I’m going to assume it is guidance provided to you by your body corporate manager or committee about the approval process for your air-conditioner.

The committee is entitled to approve your installation with reasonable conditions. If there is no basement in which to place your condenser, then it’s just about impossible to see how that condition is ‘reasonable’ and I would suggest you discuss with the committee – this may be a typo, for example.

On the issue or 1 or more air-conditioners, if this is just a ‘policy’ of the committee then that’s problematic as blanket rules or policies are generally not reasonable. Every case must be considered on its merits. If you want more than 1 air-conditioner then you might like to obtain the quotes and provide details about how that will work and where the condensers will be placed, so that your request can be properly considered. It then also depends if you are proposing the condensers be on common property or not and whether they are going to breach by-laws or nuisance provisions.

Ultimately you’d need to go through the process of seeking approval and if it is knocked back or conditions are unreasonable in your view, you can challenge that through my former Office.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #487.

Question: Does the committee have the power to review by-laws in conformity with the current laws and legislation pertaining to body corporate in Queensland?

Does the committee have the power to review/amend/change a by-law in conformity with the current laws and legislation pertaining to body corporate in Queensland?

The secretary of the committee told us at the AGM that only lawyers can draft and change the current by-laws.

Answer: The Committee itself cannot pass a by-law but it usually plays a leading role in reviewing existing by-laws and proposing new ones.

By-laws have to be approved by owners at a general meeting by a special resolution or resolution without dissent.

The Committee itself cannot pass a by-law but it usually plays a leading role in reviewing existing by-laws and proposing new ones. Typically the Committee might conceive of the by-law, engage a lawyer to draft a proposal then call a general meeting for the matter to be voted on.

It is not a requirement that a by-law has to be drafted by a lawyer but in most cases, it makes sense to engage one to do this work to ensure the by-law is correctly written. It’s a small cost for a binding regulation that will govern your property for an extended period of time. And, it’s always better to get a specialist strata lawyer to do this work. They have the experience and understanding to help ensure that the law is compliant and effective.

If an individual owner is proposing a by-law for their benefit it is not unreasonable to ask that an independent lawyer draft or review this proposal and that the applicant pay for the costs.

It’s worth remembering that while by-laws can be quite flexible in their intent and outcome there are a number of restrictions stating that by-laws cannot:

• Be inconsistent with the Act or any other legislation.
• Stop or restrict a sale, lease, transfer, mortgage or other dealing with a lot.
• Discriminate between types of occupiers.
• Be unreasonable, when the interests of all owners and occupiers in the scheme and the use of the common property are considered.
• Restrict the type of residential use of a residential lot.
• Impose a monetary liability on an owner or occupier (except in an exclusive use by-law).
• Stop an owner or occupier from installing solar hot water or solar power on their lot because it affects the look of the building.
• Stop a person with a disability from having a guide, hearing or assistance dog on the scheme.

Any by-law proposals need to be considered in that context or they could be challenged in the courts.

For more information please see the Queensland Government website: Queensland Government – Making by-laws

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the May 2021 edition of The QLD Strata Magazine.

Question: Our strata bylaws have a pet with approval policy that states “the dog is not permitted to make noise or otherwise cause a nuisance”. Is a statement regarding noise oppressive? How is it possible for a dog to make no noise?

Our strata bylaws have a pet with approval policy. We have been given approval subject to a separate list of conditions, one of which we feel is unreasonable and oppressive.

It states “The dog is not permitted to make noise or otherwise cause a nuisance, such that it interferes unreasonably with any person’s use or enjoyment of another Lot or common property”. 

We feel the first part of this statement regarding noise is oppressive, how is it possible for a dog to make no noise?

Answer: Absolutes are rarely appropriate in a body corporate context and you’re right, a dog rarely if ever will not bark – it’s what they do!

Absolutes are rarely appropriate in a body corporate context and you’re right, a dog rarely if ever will not bark – it’s what they do! As always, it’s about the details: how often, what times and how much might it disturb others? Conditions can indeed be unreasonable, as several adjudicators’ orders have found. That said and looking at the condition you’ve presented, I think the first part of the statement needs to be read in conjunction with the second. In other words, it looks as though what it might be saying is ‘The dog is not permitted to make noise…such that it interferes unreasonably with any person’s use or enjoyment of another Lot or common property’.

If my reading is accurate, then what’s being presented to you may well be reasonable, as you’re being asked to ensure your dog doesn’t ‘unreasonably interfere’ as a result of the noise it makes. If you’re concerned you might want to ask a few more questions about what this means in practice and does the committee have any experience of how this has worked with other animals.

If you and the committee can’t agree on the conditions then you can dispute them through my former Office. You’d need to demonstrate why it is unreasonable. I’d suggest having a look at previous adjudicators’ orders in this regard.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Unit owners have asked permission to install an awning or sun shade on their balconies. The committee members are against any form of shading altogether. Is this reasonable?

I am on the committee of a fairly new Body Corporate in a Gold Coast high-rise. Several unit owners have asked permission from the committee to install some form of sun shade on their balconies. We have fairly large balconies, and unfortunately in the summer months it’s unbearable to sit outside because of the sun blaring onto the balconies. 

The committee has always denied any application for shading, including umbrellas, shutters and outside blinds. I have argued that perhaps we should look into an appropriate kind of shading and make this a standard for owners to install if they wish. This way, the shading would be uninformed and in a colour that blends in with the building. Regardless, the majority of committee members are against any form of shading altogether. 

Lot owners are not able to enjoy their balconies and argue that they bought into this particular building because of the large-sized balconies where they envisaged spending their time enjoying the outside of their own lots. Owners also complain that their balcony furniture and furnishings are being bleached by the sun. 

I feel the committee is being unreasonable with their blanket ‘NO’ to any form of shading, preventing owners from the enjoyment of their balconies and their outdoor furniture. Am I wrong in my view?

Answer: A blanket decision – be it prohibition or permission – is generally a pretty strong indicator that it’s also unreasonable.

You’re not wrong. A blanket decision – be it prohibition or permission – is generally a pretty strong indicator that it’s also unreasonable. Why? Because if you apply a blanket policy, you are, by definition, not taking into account the particular circumstances of each case. Which is precisely what being reasonably is all about.

There are a variety of ways in which a committee could regulate the placement of awnings, such that they continue to have some control while still giving owners flexibility, on which you might like to seek some legal advice.

A blanket no runs the very real risk of legal challenge through the Commissioner’s Office.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Our Body Corporate Manager has often strongly recommended that we do not change ByLaws. I would be interested in your comments.

I notice that LookUpStrata frequently mentions changing by-laws on their blog. 

Our Body Corporate Manager has often strongly recommended that we do not change ByLaws as we could open a whole ‘can of worms’, particularly building regulations as our buildings are 15-16 years old and building regulations have changed in that time. 

We have been advised that we would need many reports (building reports, etc.) which would be very costly. I would be interested in your comments.

Answer: It might cost money, but it is money well spent if it is going to prevent far more costs and stress in the future.

Surely the excuse provided to you for not changing by-laws applies equally if not moreso to changing them. If indeed building regulations have changed a lot over the years, wouldn’t your body corporate want to be compliant with them? If there’s an accident causing injury – or worse – and the cause was something on common property not kept to the required standard, I’m pretty sure that “we didn’t do it because we were told it would open a can of worms” would not cut it as an excuse.

Yes it might cost money, but it is money well spent if it is going to prevent far more costs and stress in the future. Remember also that by-laws regulate some of the more emotive and stressful conduct issues which happen in a body corporate, such as pets, parking and nuisance. If your by-laws on these issues are out of date or unlawful, then it means the body corporate will have few if any options to deal with these issues when they occur.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #388.

Question: Our developer put in place a by-law stipulating that any alterations to the flooring must not exceed 50dB. Is 50dB a reasonable standard for apartment flooring?

Several occupants in our recently completed apartment building have complained about acoustic noise transferring from other apartments, usually from above and limited to those with tiled floors. The developer/builder (same organisation) have tested several apartments, some have failed and others are very high ie. between 55dB and 62dB. They have committed to remediating the failed apartments but no comment so far on those that are well above 50dB.

The problem is the developer/builder, also being the original owner, put in place the by-laws and included one stipulating that any alterations to the flooring must not exceed 50dB, which is far more appropriate for a multi-story apartment than the NCC code of 62dB. This suggests that they themselves had intended to install flooring that did not exceed 50dB.

Is 50dB a reasonable standard for apartment flooring? Also, where does the original owner’s by-law leave the body corporate in terms of enforcing the standard BCCM Act 1997 ‘occupiers right to peace and enjoyment’ by-law? If one by-law makes reference to not exceeding 50dB with flooring and the occupiers know for a fact that the apartment above does, what then? Is the ‘offending’ lot owner responsible for the remedy or the builder/developer?

Answer: Your first step should be a comprehensive check of your by-laws.

Your first step should be a comprehensive check of your by-laws. Assuming what by-laws are in place is fraught with danger, I’ve many times seen committees assume they know what by-laws are in force only to then find out they were not. Chances are also that there might be some other by-laws that need review.

Beyond that and putting aside the decibel specifics, which I’m simply not qualified to answer, it really boils down to 2 actions:

1. If current by-laws are not fit for the person and don’t address a situation: seek to have them changed at a general meeting by way of a new Community Management Statement and passed by special resolution
2. If a by-law is seemingly being breached: seek to have the breach addressed by enforcing the by-law. That’s the committee job and if they can’t or won’t do that, then an individual owner or occupier can.

In both of the above dot points, if there is an impasse, or the problem continues, there are avenues to challenge and resolve in my former Office. There are plenty of adjudicators’ orders on this topic. It’s relevant to note that I know of at least one adjudication order which has said that it’s not a defence for someone to say “well I’m only doing day to day things, nothing out of the ordinary” when it comes to noise transference.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #388.

Question: On my secluded rooftop deck I have a fire pit. A lot owner has put forward a motion to ban all forms of naked flames. Would a bylaw banning naked flames be lawful, especially when this is an exclusive use area?

In my lot I have a rooftop deck which is solely exclusive use. It is separated by thick concrete walls and not visible to other lot owners. I have a fire pit on the deck which is fully enclosed and on a safe insulated base.

One owner has put a motion forward to ban all forms of naked flames on balconies or rooftop decks.

Would this bylaw be lawful given this is not common property but an exclusive use area?

Answer: By-laws are meant to be regulatory, not prohibitive and they are also not meant to be unreasonable or oppressive.

By-laws are meant to be regulatory not prohibitive and they are also not meant to be unreasonable or oppressive.

The process around exclusive use by-laws is quite involved. Your query doesn’t make clear if this motion is meant to apply to all lots or just yours via an exclusive use by-law. Assuming it’s exclusive use, then have a look at the provisions of section 171 of the Standard Module. You’ll see a resolution without dissent is required. So while the owner can propose the motion it is unlikely it would carry and indeed quite likely the chair should rule it out of order.

My query to you, though, is to ask yourself why another owner is putting forward a motion like this which seems to be quite specific to you? Is there an issue that you and the body corporate need to consider? Are there, for example, issues about fires on the scheme? Have there been complaints and are they legitimate? It might be worth your while to make the enquiries to find out the answers to these questions to prevent situations like this from occurring again. It might be as simple as you explaining to that owner what you note in your query about things being safe and insulated.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #384.

Question: What rights does the Committee have to stop residents from using a facility if they are not obeying the By-Laws to do with conduct?

I’m Chairman on Body Corporate in a Complex on the Gold Coast, QLD. I’m trying to find a specific By-Law about who is entitled to use the indoor Community Pool/Spa in the Complex.

If renters and owners can use these facilities, what rights does the Committee have to stop either party from entering that facility due to not obeying the By-Laws to do with conduct in that area?

Answer: The short answer is no, there’s no option.

From your query it seems as though you’re considering an option where if, for example, there’s been a breach of by-laws about pool use, then someone can be restricted or even prohibited from using the pool thereafter.

The short answer is no, there’s no option. Moreover, how would this actually work? Would there be an ongoing ‘tally’ of breaches or a 3 strikes and you’re out approach? Could someone who has breached ‘redeem’ themselves and then get access privileges back? Do breaches roll over in a specified period, or do breaches get expunged from the person’s record over a period of time? If it’s only a minor breach, does that mean they get only a minor restriction in use of the pool? Who determines this? Is there due process? Does the breached party get a right of reply and ability to put forward their case in a meeting?

You might think all of the above are silly or facetious points, but I can assure you they are things you’d need to consider if you wanted your proposal to actually work. Your better bet is reviewing your by-laws to ensure they are lawful and enforceable and meet your needs. Otherwise you’ll be subject to challenges and frankly, a lot of disharmony.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #376.

Question: Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on a set day of the week, or is this unreasonable?

At the next general meeting, the Body Corporate is going to propose a general motion which contains in part “No removal activity is to occur on a Tuesday”. This is part of an overall general motion for Removal and Delivery of Household items.

Can a Body corporate general motion ban an owner or occupier from moving into or out of their apartment on any day of the week or is this unreasonable?

Answer: Setting removals to only 1 day per week is arbitrary and it is when by-laws become arbitrary that typically, they run into trouble.

Why not “no removals on a Friday”? Or a Sunday? Or a day of the week ending in ‘y’? Or why not prohibit removals to only occur on the Summer Solstice, or when there is dancing around a maypole in the common area?

My point is that setting removals to only 1 day per week is arbitrary and it is when by-laws become arbitrary that typically, they run into trouble.

Bear in mind that only an adjudicator in the Commissioner’s Office can determine whether a by-law is reasonable or not and that can only occur upon application by a party to challenge that by-law. That said, based on previous adjudication orders, it is very likely that this by-law would be found to be invalid. Bodies corporate firstly should not be in the business of prohibiting things and secondly should not be in the business of setting some arbitrary limits on things. The by-law as you’ve presented it is similar to pet by-laws in which a 10kg limit is set, and those type of by-laws have usually been found to be invalid.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #371.

Question: We are having a running battle with our Body Corporate Committee about pet ownership. Is it unreasonable to have a ban on dogs over 10 kg at our scheme?

Answer: Without knowing the specifics of the matter, if the committee’s only issue is the dog’s weight, that is not a reasonable objection. This is a well held position in the Commissioner’s Office.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #309.

Question: Is it reasonable for a strata bylaw to state awnings can only be purchased by a single supplier? Surely we can only enforce that colour must be in line with the scheme?

We have a strict Body Corporate Committee. I recently joined to try and provide a little balance. They want to enforce a bylaw that requires lot owners to use a specific brand of awning material supplied by a member’s extended family.

The by law states “prior to installation of any awning/pergola the owner must obtain approval from the committee and any approval will be given providing the colour and design complies with the criteria set down by the committee from time to time”.

I believe we can recommend colour palates to suit, or a general reply to owners that the colour must be in line with the current colour scheme but surely we can’t force them to go with one supplier?

Answer: It all depends on whether it is reasonable.

It all depends on whether it is reasonable.

If there is an alternative contractor and material available which keeps the amenity of the scheme consistent, then I don’t think it would be reasonable to force the one contractor to be used. So I agree with the original question poster.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #282.

Question: Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?

Concerning oppressive and/or unreasonable by-laws.

Our QLD registered body corporate committee passed a resolution at a meeting in mid 2014 (registered on CMS in late 2015) saying all new flooring to replace existing flooring must meet 5 star AAAC rating (Lntw <=45 dB).

This was subsequently changed to 4 star AAAC through resolution (Lntw <=50 dB) earlier this year given nothing but carpet on underlay could meet or exceed specified acoustic rating. This latest change is probably not yet registered on CMS.

I have tried to explain to the Body Corporate committee that flooring acoustics is an imprecise science and that, for any owner to guarantee proposed new flooring meets the by-law, owners may require several acoustic tests at considerable cost. Indeed, several thousands of dollars may be spent without laying any new flooring.

The chairman of our committee himself and a number of other apartments have non-compliant flooring (some apartments were previously tested at body corporate expense for the purposes of the by-law consideration). In some circumstances, approval wasn’t sought or gained through committee, however, we’re now advised those who installed non-compliant flooring did so between the passing of the resolution in 2014 and the new by-law registration in 2015 or installed non-compliant flooring prior to the by-law being passed by the committee. We understand and accept the by-law shouldn’t act retrospectively against them.

The building managers have our preferred product installed which easily reaches 3 star AAAC rating of Lntw <=55 dB (5mm loose lay vinyl planking laid on pressure sensitive adhesive over concrete sub-floor) and reside in the apartment below us. They occupy the only apartment that would hear any noise emanating through our flooring.

We currently holiday let our apartment and wish to replace flooring (carpet on underlay) in our living/dining/kitchen areas but are finding anything but carpet or cork are not guaranteed to satisfy the existing by-law/yet to be registered change to by-law.

Is it worth our while trying to pursue this matter through the Commissioner on the oppressive/ unreasonable Qld strata bylaws platform or should we simply install a product we really don’t want?

Answer: We think the industry has taken a wrong turn on this specific issue.

We think the industry has taken a wrong turn on this specific issue.

Our belief is that the floor rating specifications are completely irrelevant and shouldn’t even be in a by-law. The purpose of the flooring by-law (as opposed to rating) is to regulate interferences of noise from one lot to another – which is the age-old nuisance argument.

It is not the type of floor covering that protects from the nuisance, it is the use of the floor itself. You could have a floor with a massively strong rating and if a kid went bouncing a basketball around on it at all hours it is going to transmit noise – and that is what should be regulated.

In our view, the by-law should only require body corporate approval on any flooring installations. The committee can then impose reasonable conditions on the installation and subsequent use. Having a hard and fast rule about any particular type of rating doesn’t make that rating reasonable. It all depends on the circumstances.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

Question: One of our Strata Title By-Laws seems unreasonable. Although we are allowed pets, the pet must not be walked or carried through the foyer. The alternative route is not suitable for me due to health reasons.

I live in a strata unit in Queensland which allows pets but one bylaw says no pet is able to walk or be carried from the lift through the foyer but must be taken outside via the basement car park up the steps or winding busy driveway without a handrail.

I have difficulty with steps etc because of severe arthritis in my knee. What is the legal position on this? Is the bylaw reasonable? How would I be best to challenge the situation?

Answer: In Queensland, the starting point is that a by-law must not be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots included in the scheme.

In Queensland, the starting point is that a by-law must not be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots included in the scheme.

To determine whether or not a by-law that restricts pets from the foyer is invalid requires an understanding of the body corporate’s reasons for including that by-law.

It depends on the circumstances and whether the committee can justify those conditions as reasonable but most of the time they would not be able to be enforced.

I would start with writing to the committee to seek their views on whether they would enforce the by-law. If they are taking the view that they would enforce it – then I would submit a motion to change the by-law at the next general meeting.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #235.

Question: The Committee in QLD is currently reviewing our twenty year old by-laws in an attempt to address some of the matters which are becoming problematic – building security and community power.

We live in a block of fifteen units on the Sunshine Coast which has a mix of holiday rentals, permanent rentals, owner-occupied, and lockups.

The Body Corporate Committee in QLD is currently reviewing the strata title by-laws, which have not been updated for approximately twenty years, in an attempt to address some of the matters which are becoming problematic.

Apart from the ever-present dramas of Parking and Pets, we are hoping to address the issues of Building Security, and the use of Community Power.

We have a “policy” in place that requires occupiers to keep garage and (building) entry doors locked, and another which prohibits the use of high load appliances (fridges, freezers, clothes dryers etc) in garages where power points are on the “community” electricity circuit.

The committee is anxious to have these items covered in the new strata title by-laws, and we are wondering if there other bodies corporate that have done so successfully?

Answer: The strata title by-law about building security is capable of being considered valid – if it is consistent with the requirements where owners and occupiers must not create a hazard.

To me, the by-law concerning community power is not a strata title by-law issue but one that falls within the body corporate providing a service to owners (electricity supply). To do that there needs to be a service agreement in place and there is a myriad of rules regulating that supply of electricity.

I think the strata title by-law about building security is capable of being considered valid – if it is consistent with the requirements of section 167 of the Act where owners and occupiers must not create a hazard. If leaving garage doors unlocked creates a hazard then it probably passes the test, but if not, the body corporate might be going too far with it.

But by putting it in the by-laws the committee needs to consider the practical implications of enforcing it – is the committee going to go around checking that doors are locked? If not, there is probably no utility in having the by-law.

I think the better way of managing this would be for owners to use the power connected through their lot or for the usage to be specifically metered.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #221.

Question: Can we stop a resident from using the facilities if they potentially pose a health risk?

A resident has an obvious skin condition which covers a large part of the body area. Regardless, they insist on using our pool and spa facilities.

The other residents are concerned and many now no longer use the amenities because of this.

Do we, the committee, have a right to ask the person not to use the pool and spa due to potential public health risk to others until they can provide a suitable medical certificate stating they pose no health risk to others.

We have attempted to limit activity by use of signage in pool and spa areas.

What rights do we have at law to restrain a person with a potential ‘health risk’ condition from using our facilities?

Answer: It comes down to the “use” of the common property

As always, it comes down to the “use” of the common property.

Rather than Qld strata bylaws that restrict certain types of people or a particular person from using the facilities (which has unreasonable written all over it), there is probably more utility in looking at the interference by-laws.

The extent of those by-laws is set out in section 167 of the Act and essentially prevents an unreasonable interference to other occupiers. Unreasonable interference would include creating a health risk to other occupiers.

That would mean that if:

1. There is a health risk in the person using the facilities – the person would be prevented from using the facilities.
2. There is no health risk – the person would not be prevented from using the facilities (and rightly so).

Rather than jumping straight into by-law enforcement of Act contravention mode – a polite letter to the owner might be the most amicable way to deal with it.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #106.

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