Edwards v Gower [2026] QCATA 55

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwards v Gower [2026] QCATA 55 PARTIES: MICHAEL EDWARDS (first appellant) And CHRISTINE EDWARDS (second appellant) v SHAWN GOWER (first respondent) And MEGAN GOWER (second respondent) APPLICATION NO/S: APL153-24 ORIGINATING APPLICATION NO/S: BCCM1111-2023 MATTER TYPE: Appeals DECISION MADE: 9 March 2026 HEARD AT: Brisbane DECISION OF: Senior Member Lember Member Mott ORDERS: The decision in BCCM1111-2003 made 17 April 2024 is confirmed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – body corporate and community management – whether clothesline installed in breach of architectural code and by-laws – whether code and by-laws are valid – whether error of law Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) s 6 Body Corporate and Community Management Act 1997 (Qld) s 94, s 97, s 242, s 289, s 294 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 13, s 20 -- 1 of 10 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 32, s 146 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Calypso Bay Residential Land [2023] QBCCMCmr 317 (14 August 2023) Calypso Bay Residential Land [2024] QBCCMCmr 151 (17 April 2024) Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 442-443 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Appellant: Respondent: Self-represented. Self-represented. REASONS FOR DECISION What is this application about? [1] As succinctly put by the Adjudicator from the Office of the Commissioner for Body Corporate and Community Management (BCCM) in their decision the subject of this appeal:1 ‘the applicants in this matter are aggrieved by their view of their neighbours’ clothesline from the applicants’ living room’. [2] By an application filed 30 May 2024, the Edwards’ appeal the Adjudicator’s decision to dismiss their application to have the offending clothesline removed from view, made on the bases that: (a) The Residential Guidelines to which the BCCM Adjudicator had regard in making their decision was an incorrect version of the document that applied at the time the decision was made, leading the Adjudicator into error, the correct version being ‘CMS – RESIDENTIAL LAND (Stage 7B) – 15.08.2022’. The applicants say that the Adjudicator’s jurisdiction was limited to the Schedule D CMS residential guidelines, and not the updated, unapproved version; (b) The applicable Residential Guidelines that, among other things, dictate the permitted location of a clothesline within the Scheme, improperly delegate the body-corporate’s decision-making authority to the architectural review committee, conflicting with section 97 of the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act), and, therefore, the by-laws that enforce the Guidelines are invalid; 1 Calypso Bay Residential Land [2024] QBCCMCmr 151 (17 April 2024). -- 2 of 10 -- 3 (c) Even if the delegation and the by-law are not invalid, the Design Assessment Panel’s (DAP’s) decision to issue a relaxation for the clothesline conflicted with the community management scheme (CMS) for the scheme and ought not to have been made; (d) The Adjudicator failed to direct amendments to the CMS to address the identified conflict between the CMS and “s 79” of the BCCM Act – the Appeal Tribunal assumes this is intended as a reference to section 97 and proceeds accordingly; and (e) The Adjudicator failed to consider evidence that the dividing fence between the lots was not the minimum height prescribed in the Residential Guidelines and therefore erred in ordering that the fence be rebuilt to minimum height, as a resolution to the issue of the clothesline being visible from the neighbouring lot. [3] The Body Corporate submits that the decision of the BCCM Adjudicator was correct and that the appeal should be dismissed.2 Legislative framework - appeal [4] Section 289(2) of the BCCM Act allows a person aggrieved by an Adjudicator’s order to appeal to the Tribunal on a question of law. [5] A question of law includes whether: (a) The decision maker below has identified and applied the relevant legal test. (b) The decision maker has failed to consider factors they were bound to consider by statute or by implication from the subject matter, scope, and purpose of the Act.3 (c) The decision maker has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts.4 Only jurisdictional facts are relevant to the ‘no evidence’ ground. These are facts essential to the decision-making process as opposed to underlying facts to be adjudicated upon in the course of the enquiry.5 (d) The decision maker has made a decision which is manifestly unreasonable by failing to give adequate weight to a relevant factor of great importance or given excessive weight to a relevant factor of no great importance.6 (e) there has been a lack of procedural fairness of a breach of natural justice.7 [6] In deciding an appeal, in addition to the jurisdiction and powers of the Appeal Tribunal under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act), the Tribunal may also exercise all the jurisdiction and powers of an Adjudicator under the BCCM Act.8 2 Submissions filed 3 February 2025. 3 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41. 4 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. 5 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 442-443. 6 Ibid., 40-42. 7 Kioa v West (1985) 159 CLR 550, 612. 8 Body Corporate and Community Management Act 1997 (Qld) s 294. -- 3 of 10 -- 4 [7] Under section 146 of the QCAT Act, the Appeal Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration— (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii) with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate. Material before the Appeal Tribunal [8] The Tribunal Directions made on 2 September 2024 noted that the contents of the Appeal Book were limited to the material before the BCCM Adjudicator and prevented either party from filing further material or evidence to be considered before the Appeal Tribunal. Factual background to the dispute [9] It is not disputed that: (a) The relevant community title scheme is the ‘Calypso Bay Residential Land CTS 35062’ (Scheme) which is a subsidiary scheme to the ‘Calypso Bay Principal CTS 35061’ and is comprised of 175 lots within a standard format plan subdivision. (b) The By-Laws for the Scheme are contained in Schedule C to the Community Management Statement for the Scheme, bearing titles office registration number 723036300 (CMS), and relevantly provide that: (i) In clause 1.2, ‘definitions’ that the Design Assessment Panel (DAP) means the committee appointed in accordance with the provisions of the Residential Guidelines, that the Residential Guidelines means the residential guidelines as amended from time to time in Schedule D of the CMS. (ii) In clause 4.1 that an owner of a lot must comply with the Residential Guidelines that apply to its lot and the lawful conditions of all approvals issued by the DAP in connection with its lot. (iii) In clause 4.2 that the Body Corporate must take all reasonable and lawful steps to enforce the Residential Guidelines. (iv) In clause 13.6 that the owner of a lot may make improvements to an Exclusive Use Area and install fixtures and fittings on it requires for the reasonable enjoyment of the lot provided that prior written consent is obtained from the Body Corporate, who may not unreasonably withhold consent where the improvement, fixture or fitting does not detract from the amenity of the local area or compromise the structural integrity of the Exclusive Use Area. -- 4 of 10 -- 5 (c) The ‘Residential Guidelines’ for the Scheme are contained in Schedule D to the CMS and relevantly provide that: (i) Per clause 1.1, the DAP is a body established for the purpose of examining and deciding proposals, including those for fences or clotheslines, and that the aim of the DAP ‘is not to be dictatorial in its approach, but to ensure that a harmonious environment for all residents is achieved through an interactive processing of approvals’ per clause 1.2. (ii) Per clause 2.3, the DAP committee must approve works to a lot before they commence, where works relevantly include fencing and clotheslines. (iii) Per clause 4.4, unless otherwise approved by the DAP, fencing must be constructed in the finish, materials and quality set out in the Guidelines, including shared boundary fencing that must be 1.8m high as measured perpendicular to the Natural Surface Level or where the lot slopes, a height varying from 1.5m to 2.0m. However, for Town Lots (which it is understood the lots relevant to the dispute are), clause 5.9 provides that fences must be 2.0m high to provide additional privacy on a shared boundary. (iv) Per clause 3.8(g), clothes drying lines must be located with the Service Court, screened from view from outside the lot, and wall-mounted, where service court means the area of the lot used for accommodation of utilities such as hot water units, bins, air conditioning units, pumps and clotheslines. (v) Per clause 6.4(c), if any provision of the Residential Guidelines is held to be unenforceable, that provision will be severed from the Residential Guidelines and all other provisions will remain in full force and effect. (vi) Per clause 6.5, the DAP may waive or relax compliance with any Guidelines in any way it considers appropriate provide that it is in keeping with the aim of establishing a modern, well-designed residential community. (d) The ‘Residential Guidelines’ contained in Schedule D to the CMS conflict with what are referred to as the ‘new Residential Guidelines’ in filed material, as distributed by the sales team for the developer of the community. The ‘new Residential Guidelines’: (i) provide that clotheslines must not be visible from the street or a canal, but do not provide that they must not be visible from a neighbouring lot, and (ii) have not been adopted as a new CMS. (e) According to a pre-installation approval dated 14 October 2020,9 the DAP- approved location for the clothesline was for it to be affixed to the boundary fence, below fence height. 9 The date is difficult to read on the scanned copy filed, but nothing turns on this. -- 5 of 10 -- 6 (f) Rather, upon installation, the offending clothesline was attached to the Gowers’ lot against a wall, at a height above the boundary fence, rendering it visible from the Edwards’ living room. (g) The Gowers obtained retrospective DAP approval for the clothesline as installed (i.e., a relaxation of the Residential Guidelines). [10] The Edwards’ say the boundary fence is 1.7m, not 1.8m high on the Gowers’ side of the fence. The correct measurement above Natural Surface Level does not appear to be supported by any evidence other than statements made by Mr Edwards. The first instance decision [11] The application sought orders that the clothesline be removed from view, on the basis that its current placement was a breach of by-law 4 contained in Schedule C of the CMS, and of clause 3.8(g) of the ‘Residential Guidelines’ contained in Schedule D of the CMS. [12] The learned BCCM Adjudicator noted as follows: (a) The Residential Guidelines act to unilaterally delegate the body corporate’s decision-making powers to an architectural review committee, which conflicts with s 97 of the BCCM Act. This also renders the by-law, which seeks to enforce the guidelines, invalid to the extent of the inconsistency. (b) In any event, if the delegation and by-law were not invalid, the respondents’ clothesline has been approved (albeit retrospectively) and so is not currently in breach of the CMS. This is this case even under the correct version of the Residential Guidelines because they afford a level of discretion to the DAP. The grounds of appeal [13] The immediate difficulty for the Edwards is that they have not, at least expressly, identified an error of law upon which the appeal is grounded, and their application and submissions read as an impermissible attempt to relitigate their failed application to the BCCM. [14] We nonetheless address their submissions as follows: The BCCM Adjudicator gave excessive weight to the incorrect version of the Residential Guidelines that applied at the time the decision was made, and none to the correct version of the document, which lead the Adjudicator into error. [15] The Edwards’ appear to argue that, had the learned Adjudicator relied on the correct version of the Residential Guidelines, they would not, and could not, have concluded that the clothesline had been approved and was not currently in breach of the CMS (paragraphs [3(b)] and [41] of the decision). [16] There is no merit in this ground of appeal. [17] Firstly, the decision did not turn on this point. The decision turned on a finding that the delegation of decision-making powers for lot improvements to the DAP was impermissible, as was by-law 4, to the extent it conflicted with section 97 of the BCCM Act. The application itself had sought to enforce by-law 4 by requiring the Gowers to comply with the Residential Guidelines. To so comply, the Gowers required an approval from the DAP, which was an impermissible delegation of authority by the body corporate. -- 6 of 10 -- 7 [18] Secondly, there is, in our view, no error in the Adjudicator’s finding with respect to the application of section 97 of the BCCM Act, which expressly and succinctly states that: A body corporate can not delegate its powers. [19] We agree with the Adjudicator’s statement that ‘there is no basis for finding that the DAP is making recommendations to the body corporate’ – nothing in the language of the Residential Guidelines indicate that the DAP is acting in a way that only recommends, as opposed to decides, applications relating to lot improvements pursuant to the guidelines. We note the express wording of clause 1.1 of the Residential Guidelines is that the DAP is the established for the purpose of examining and ‘deciding’ upon compliance with the Residential Guidelines. [20] Thirdly, the Adjudicator did not appear to rely on the ‘new Residential Guidelines’ in making their decision – at paragraph [44] of the reasons for decision, the Adjudicator expressly acknowledges that the updated guide does not form part of the CMS but noted that the correct version nonetheless afforded a level of discretion to the DAP in giving relaxations, because it is expressly required the DAP not to be ‘dictatorial’ in its decision-making. This finding was open to the Adjudicator having regard to the express terms of clauses 1.2 and 6.5 of the Residential Guidelines. The discretionary ability to waive compliance would extend to the body corporate committee, the appropriate decision-maker for approvals and relaxations. The Residential Guidelines improperly delegate the body-corporate’s decision- making authority to the architectural review committee, conflicting with s 97 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), and, therefore, the by-laws that enforce the Guidelines are invalid. The Adjudicator failed to direct amendments to the CMS to address the identified conflict between the CMS and s 97 of the BCCM Act. [21] As stated, we agree with the finding that the Residential Guidelines invalidly delegate decision-making authority to the DAP on conflict with section 97 of the BCCM Act and, to the extent of the inconsistency, section 97 prevails. [22] Does it necessarily follow that the by-laws that enforce the Residential Guidelines are also invalid? We do not consider that it does. By-law 4.1(a) requires an Occupier to comply with all Residential Guidelines that apply to its lot. It is independent of by- law 4.1(b) that requires DAP approval for works and not impacted by any inconsistency with section 97. [23] In our view, the inconsistency that impacts by-law 4.1(b) and relevant Residential Guidelines is any reference to approval by the DAP. The reference to the DAP is severed by operation of section 97 and 6.4(c) of the Residential Guidelines, which operatively returns responsibility for considering and deciding applications for approval to the Body Corporate committee. [24] On this point, we respectfully find the Adjudicator fell into error in finding that the by-laws that enforce the Residential Guidelines are invalid. They are invalid only to the extent of inconsistency with section 97, and, therefore, by-law 4.1(a) is not invalid and requires compliance with the Residential Guidelines. [25] We are not convinced, however, that it follows that because of this error the decision the subject of this appeal should be set aside. -- 7 of 10 -- 8 [26] Section 276 of the BCCM Act empowers the Adjudicator in a dispute to make orders that are ‘just and equitable in the circumstances’ to resolve a dispute, in the context of a community titles scheme, that includes disputes about a contravention of the BCCM Act or a CMS, and about the exercise of rights or powers, or the performance of duties, under the BCCM Act or a CMS. [27] Under Residential Guideline 2.1(c), all ‘Works’ must be approved by the Body Corporate committee before commencing and the House Design Guidelines within which the requirements for locating clotheslines are contained are enforceable. However, by the express terms of Residential Guideline 1.1, the committee must not be dictatorial in its approach, and waivers and relaxations may be given in any way that the committee considers appropriate in keeping with the aim of establishing a modern, well designed residential community. [28] The express objective of Residential Guideline 3.8 is to ensure that the Service Court is ‘screened and functional’. One of the ‘solutions’ to that guideline included the requirement to locate clotheslines within the Service Court, screened from view and be wall mounted unless it would be impractical to do so, in which case the line could be mounted to the boundary fence. [29] There was evidence before the Adjudicator that it is proposed, for the scheme, that ‘screening’ is from the street or canal, rather than from neighbouring lots, but this proposed change to the CMS has not yet been adopted in a formal way. Further evidence supported a finding that it was impractical for the clothesline to be mounted to the fence or otherwise relocated because it would obstruct the opening of doors. There was evidence that the Edwards’ conceded a ‘partial’ blocking but that they insisted ‘most items’ could still be hung. The partial blocking of doorways and the partial use of a clothesline for some, but not all, items is an unreasonable impediment to put on a lot owner in the circumstances and dismissing the application was, in our view, open to the Adjudicator as a ‘fair and just’ outcome of the evidence before them. [30] We further note that in Calypso Bay Residential Land [2023] QBCCMCmr 317 (14 August 2023), that committee was of the view that to the extent that the Residential Guidelines apply, and the committee is empowered to enforce them, they are not so prescriptive as to require a clothesline to be installed only in an approved location if that would be impracticable, and it would be impracticable in this case. [31] In short, nothing in the evidence before the Adjudicator, and therefore before the Appeal Tribunal, suggests that the failure by the Adjudicator to direct the Gowers to comply with Residential Guideline 3.8 was inconsistent with their powers under section 276 of the BCCM Act nor made in error in a consideration of all of the evidence before them. [32] On the question of the failure of the Adjudicator to direct amendments to the CMS to address the conflict, we note that the Body Corporate was not a party to the application before the commission. It would be problematic to order amendments to a community management statement in a dispute between lot owners in the absence of submissions from the Body Corporate and all affected lot owners in the proceeding. [33] In any event, given the operation of Residential Guideline 6.4(c) in severing invalid provisions from the remaining guidelines, the CMS does not require amendment. As stated, decision making for approvals and relaxations returns to the Body Corporate committee and lot owners must nonetheless comply with the standards for improvements set out therein. -- 8 of 10 -- 9 [34] It is a separate matter to bring an application against the Body Corporate requiring it to take all reasonable and lawful steps to enforce the Residential Guidelines and, as mentioned, this was attempted in Calypso Bay Residential Land [2023] QBCCMCmr 317 (14 August 2023) wherein the Edwards unsuccessfully sought an order that the Body Corporate enforce the by-laws against the Gowers. [35] In that case, the Adjudicator observed at [13] that: Essentially, it seems that the committee (as a whole) is not satisfied that it has power to require the clothesline to be relocated and, if it does have the power, it may not be reasonable for it to do so. [36] This suggests that even if they considered that they had the power to direct the Gowers with respect to the clothesline, the Body Corporate committee were cognisant of their section 94(2) obligation to act reasonably in performing its general functions and obligations under the BCCM Act and declined to act on the basis that it was not reasonable to do so in the circumstances. [37] Enforcing compliance with the standards can be done by request to the Body Corporate, in which case it will be for the Body Corporate to then enforce those standards. The committee elected not to do so in this case, concerned that enforcing this rule against the Gowers may well fall foul of section 94(2). Subsequently, the DAP granted a relaxation to the Gowers as the Residential Guidelines empower the DAP – and if ultra vires, then the body corporate – with a discretion to grant such a relaxation. [38] It follows that there is no error by the BCCM Adjudicator in failing to ‘direct amendments to the CMS’ in a case where they were not asked to do so, and it was, in any event, unnecessary. The Adjudicator failed to consider evidence that the dividing fence between the lots was not the minimum height prescribed in the Residential Guidelines and therefore erred in failing to order that the fence be rebuilt to minimum height, as a resolution to the issue of the clothesline being visible from the neighbouring lot. [39] Mr Edwards argues that ‘in part the Applicant’s appeal deals with an extension to a dividing fence’.10 Respectfully, it does not. It is apparent that Mr Edwards considers an adjustment to the height of the boundary fence an acceptable and desirable outcome to resolve his concerns about the visible clothesline. To that end, he filed a Notice to Contribute to Dividing fence dated 24 January 2025 with his appeal submissions on 3 February 2025. [40] As mentioned, there is no scope for the Appeal Tribunal to consider new evidence in this proceeding, nor can it wade into a dividing fence dispute that is more properly a matter for the Tribunal’s minor civil disputes jurisdiction.11 [41] Further, even in the Tribunal’s minor civil dispute jurisdiction, for the Tribunal to order a contribution by the Gowers to fence work, the Edwards would need to establish that the existing fence was a not a ‘sufficient dividing fence’12, where a 10 Submissions of the appellant filed 3 February 2025. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 11, 12. 12 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 20(1). -- 9 of 10 -- 10 ‘sufficient dividing fence’ relevantly means a fence between adjoining land that is ‘between a minimum of 0.5m and a maximum of 1.8m in height’.13 [42] The BCCM Adjudicator did not err in failing to consider evidence that the dividing fence between the lots was not the minimum height prescribed in the Residential Guidelines. Decision [43] As the grounds of appeal do not, in our view, establish an error of law by the BCCM Adjudicator, for the reasons given, the application for leave to appeal or appeal filed on 30 May 2024 does not succeed, and the decision in BCCM1111-2003 made 17 April 2024 is therefore confirmed. 13 Ibid, s 13((a)(a)(i). -- 10 of 10 --