QLD: Q&A Appearance of Lot. What constitutes a breach?

Qld lot owners are concerned about the appearance of the lot and what would constitute a breach.

Table of Contents:

• QUESTION: Does our by-law give the committee the authority to dictate the style of individual lots, even when the update doesn’t affect other residents?


• QUESTION: Is it a requirement that Large Waste Bins in a Residential Strata Complex need to be located within an Enclosure and not to be left in an open space.


• QUESTION: Clotheslines in our lot are visible from the outside of the building. Does this mean that everybody who hangs washing on the clotheslines is in breach of the by-laws by changing the appearance of the lot?


• QUESTION: A recent newsletter pointedly reminds residents not to use balconies as storerooms, but does not refer to any bylaw or specific breach. Is this enforceable?


• QUESTION: One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member.


• QUESTION: We have a body corporate chairperson who treats the common property garden area as if it was his exclusive use area and it is full of his unsightly items. What about the appearance of the lot? What do we do now?


• QUESTION: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?

Question: Does our by-law give the committee the authority to dictate the style of individual lots, even when the update doesn’t affect other residents?

I have a unit regulated under the Body Corporate and Community Management (Standard Module) Regulation 2020. There are 48 duplex or triplex lots. The units are basic bungalows with box gables, wooden picket fences and no outstanding architectural features or style.

Our ‘Appearance of Lots’ by-law includes:

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, including the building paintwork (see by law 12),


2. The occupier must not, without the body corporate’s written approval:-
   
   1. display a sign, advertisement, placard, washing, bedding or any other cloth article if the article is visible from another lot or the common property or from outside the scheme land.
   
   
   2. erect any external blinds.
   
   
   3. make any structural alterations to a lot.
   
   
   4. install air conditioning units, spa/swimming pool pump and filter motors or any other potential noise creating equipment.
   
   
   5. The body corporate must not unreasonably refuse a request made pursuant to this by law.

By-law 12, referred to above, was assessed as unlawful in a preliminary by-law review.

I have requested permission to replace a broken down timber picket gate inside the boundary of my lot with a black metal gate. The committee argument that it does not fit the ‘heritage character, style and colour of the complex’. A request to have a grey shade professionally installed on the patio gable was met with the same response.

How can these requests impact the amenity of other owners? The committee knows that my next-door neighbour has given me written consent. No other unit occupier will see the changes.

Does the by-law authorise our committee to be the ‘style police’? I believe their approach is overreaching their authority.

Answer: The body corporate does have a legitimate role in ensuring uniformity of appearance

While I can appreciate what you are saying about wanting to make improvements to your lot, the body corporate has a legitimate role in ensuring uniformity of appearance. It could be argued that property values might be negatively impacted in a scheme without a uniform appearance. It is not a question of ‘style police’ or ‘dictating’ things’ – these are emotive terms that I suggest you avoid using.

That said, a body corporate is required to ‘act reasonably’ in its decision-making and should apply a reasonable lens to your request. You have mentioned several factors that could be taken into consideration by the committee when considering your request. If the committee has already declined your improvement request concerning the by-law you cite, you can potentially ask for a reconsideration. If that still fails, you could challenge the decision in the Commissioner’s Office.

You would need to demonstrate why the committee decision was unreasonable. Focus on ensuring your specific situation has as much objective information as possible to satisfy the by-law requirements. The committee’s use of the term ‘heritage’ is interesting. Does that mean your scheme has some kind of heritage ‘feel’? If so, you might want to focus on how to satisfy the committee’s concerns on this point.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #718.

Question: Is it a requirement that Large Waste Bins in a Residential Strata Complex need to be located within an Enclosure and not to be left in an open space.

Answer: There is no requirement for this under body corporate legislation. You may want to consider how any appearance of the lot by laws could apply here.

There is no requirement for this under body corporate legislation. It’s possible that you could have a by-law around how bins are kept but that would be site specific and you would need to review your by-laws to confirm. Depending on the situation, you may also want to consider how any appearance of the lot by laws could apply here.

Requirements around bins are more likely to be put in place by the people doing the collection or maintenance of the area. That may be council, a private collection company or any caretakers you have on site. They may have reasonable conditions under which waste collection at your site is arranged and that could include that they need the bins to be enclosed so that they can be maintained in a clean and safe manner.

Reading behind the question this sounds like there may be a communication issue here. Instead of considering the matter from a legal perspective, it may be good to speak to the relevant people and see if there is a reason why the bins at your site are in an enclosed area.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #482.

Question: Clotheslines in our lot are visible from the outside of the building. Does this mean that everybody who hangs washing on the clotheslines is in breach of the by-laws by changing the appearance of the lot?

Each lot in our low set villas has a small deck as part of the lot. Each deck includes a clothesline that was installed when the complex was built nearly 20 years ago.

Our by-laws mentioned appearance of the lot. Does this mean that everybody who uses the clotheslines is in breach of the by-laws because washing is visible from the other lots or from the common property?

Answer: The standard appearance of lot bylaw gives quite a bit of flexibility.

The standard Schedule 4 By-Law on the appearance of the lot states:

Appearance of lot

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—
   
   1. hang washing, bedding, or another cloth article if the article is visible from another lot or the common property, or from outside the scheme land; or
   
   
   2. 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.


3. Subsection (2)(b) does not apply to a real estate advertising sign for the sale or letting of the lot if the sign is of a reasonable size.


4. This section does not apply to a lot created under a standard format plan of subdivision. Note— Under the Building Act 1975, sections 246R and 246S, a body corporate can not withhold consent for particular activities stated in the sections that might change the external appearance of a lot.

This gives quite a bit of flexibility for how this law can be applied as it allows for discretion from scheme to scheme to permit practices such as the visible hanging of washing if the body corporate approves and provides notice in writing.

Your scheme may have that by-law or have a different wording so please check carefully. If you have the standard by-law then the next step would be to determine if you are happy with the washing to be hung outside or if it should be placed out of view. This could be done at either a committee meeting or general meeting. If you are happy for it to be outside a minute noting this could be taken as written permission. If you want it moved inside and that is a breach of the by-law then breach notices should be given to the relevant owners as a first step towards correcting their behaviour. Otherwise, if your by-laws don’t suit the needs of the plan you should look to change them to a version that does.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #473.

Question: A recent newsletter pointedly reminds residents not to use balconies as storerooms, but does not refer to any bylaw or specific breach. Is this enforceable?

We are tenants in a complex on the Gold Coast and have read the following in our internal newsletter:

“Balconies are not BCF stores or storerooms. All camping, sporting, fishing equipment, bikes, boards, dead plants and boxes must be removed immediately.” This has been distributed to every letterbox and does not refer to a bylaw or specific breach. I’m curious if this is actually enforceable.

We have a LARGE ground floor balcony which almost doubles our internal living space. We’re an active family and have bikes, bodyboards and scooters on the balcony, all NEATLY stored in a corner out of view of 99% of the complex and any passersby – all up taking up about 5% of the total balcony space.

Some people on upper floors with much smaller balconies do have an untidy clutter of furniture, surfboards and the like and “appearance of lot” would come into play. Ours on the other hand is tidy and virtually no one can see any of it.

Answer: It really does come down to the by-laws applicable to the building.

It really does come down to the by-laws applicable to the building. If there’s a by-law regulating appearance and storage, then you may have an issue. Even if there wasn’t a by-law, there may be an issue under the nuisance provisions of body corporate legislation. ‘Nuisance’ can include something visual.

That said, looking at the actual notice you’ve received, it’s problematic, to say the least. Is that all it says? Is it signed by anyone? Is it from one person or the committee? I note you’ve said it doesn’t refer to any by-law. This looks very much like a non-compliant notice. Even a compliant notice about a by-law breach doesn’t usually contain reference to ‘immediate’ removal of items, as in a by-law breach process, you’d have a period of time in which to respond to the allegations being made.

You might like to take this up with your committee and request ‘clarification’ on where this notice comes from. You can ignore it if you like, although it does sound as though there might be a problem at your building and involving other people, which might benefit from some early and informal resolution.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #455.

Question: One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member.

I am on the committee for our 12 individual lot community title scheme. One of the lot owners has breached our common property bylaws on a number of occasions. The committee cannot agree on issuing contravention notices as the lot owner in question is also a committee member and holds sway over a couple of other members.

There have been a few attempts to have a ‘conversation’ with the lot owner but not once have they taken responsibility for their actions and they just come back and say that they are putting the areas in question back to how they were before. This is a problem in itself as their version of how it was is a lot different to how other committee members view it and it is not just replacing as their actions have generated other problems which they seem oblivious to.

The other committee members are concerned that if problems arise in the future from a sub standard of ‘fixing’ and the other problems are not addressed then the whole body corporate will be asked to wear the cost.

Answer: When there’s an alleged breach of by-laws and the person allegedly breaching is a committee member then yes, that’s tricky.

When there’s an alleged breach of by-laws and the person allegedly breaching is a committee member then yes, that’s tricky.

That said, it’s not impossible and ultimately it’s all about following the standard process which applies to any owner or occupier. The committee must firstly make a decision. You say the committee ‘cannot agree’. Has the matter actually been put to a vote or has it been a discussion only? If it’s the latter then that will not suffice, it must be put to a vote of the committee. Like any by-law breach allegation, the decision the committee must make is whether they will issue the contravention notice and in order for them to do that they must also be satisfied, there’s enough evidence to warrant it.

They’re the only decision to make. If the committee doesn’t think there’s enough evidence – your email suggests otherwise – they don’t issue.

Once the committee decision is made – which will either be an issue or not an issue – then everything follows from that. Any owner or occupier can require the committee to enforce the by-laws, if they haven’t already and then as a committee, the next step is to seek by-law enforcement through the Commissioner’s Office.

I may sound like a broken record, but if nothing gets done here then the issue will remain unresolved and potentially get worse.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #381.

Question: We have a body corporate chairperson who treats the common property garden area as if it was his exclusive use area and it is full of his unsightly items. What about the appearance of the lot? What do we do now?

We have a body corporate chairperson who treats the common property garden area outside his ground-floor unit as if it was his exclusive use area. He has pots on it, we have reindeer, plastic kangaroos leftover from last Christmas and it is very unsightly.

The was told to remove the items by the previous body corporate committee. He agreed to remove the items but nothing has been done.

What about the appearance of the lot? What do we do now? We have a new committee who have been hand-picked by the chairperson and his best friend the facilities manager.

Answer: Complete a BCCM Form 1.

I suspect that this would be a breach of the scheme’s by-laws (but would need to read them to double check). If the owner would like action taken they should complete a BCCM Form 1 and send it to the committee.

The committee will then need to choose whether or not to take by-law enforcement action. If the committee chooses not to, the owner can then seek to enforce the by-laws without the intervention of the committee (but needs to give the committee the opportunity to do so first).

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #287.

Question: We put a cat enclosure on our balcony and received a breach notice under the Appearance of Lot bylaw. Isn’t a cat enclosure just like outdoor furniture? Why is no-one else in breach?

I have a question as a tenant in a multi-unit complex. Our units are highly visible to the street and other units due to the layout. Several of them have glass fronts to the balconies and the bottom floor has open staircases up to the apartment doors. Due to this layout, every balcony has furniture and other items visible from the street and other lots. We put a cat enclosure on our balcony and received a breach notice under the following bylaw:

Appearance of Lot

An occupier must not hang any washing, towel, bedding, clothing or other articles or display any sign, advertisement, placard, banner, pamphlet or like on any part of its Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.

We requested permission to keep the cat enclosure but I’m not sure where in that bylaw we are actually in breach and we’re anticipating being denied.

If we are in breach because we have outdoor furniture then due to the design of the units every single property is in breach. Do we have redress under fair application (nobody else seems to have been given this notice), that outdoor furniture isn’t covered or the fact that the bylaw is not feasible practically if applied in that manner?

Answer: The committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.

All occupiers need to comply with the by-laws and the committee must act reasonably in enforcing any breaches – so the committee can’t selectively enforce the by-laws as it would be unreasonable to single out particular owners.

So the committee must either enforce all breaches (which is their obligation) or take the same approach to all breaches

Depending on the size and visibility a cat enclosure would be capable of breaching that by-law.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #203.

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