The Body Corporate and Community Management Act 1997 (Qld) (“BCCM”) was amended by the Body Corporate and Community Management and Other Legislation Amendment Act 2023 (Qld) (“Amending Act”), which commenced on 1 May 2024 by proclamation.[1] The Amending Act introduced a number of significant new provisions to the BCCM. This two-part article series provides a brief overview, examination and discussion of some of four major changes consisting of termination of community title schemes, vehicle towing, pet approvals, and use of smoking products and what these potentially mean for practitioners and their clients. Part 1 focuses on vehicle towing, pet approvals, and use of smoking products.

Vehicle Towing

The BCCM has also been amended to provide additional powers to body corporates in relation to the towing of vehicles from common property of a scheme. This was introduced to address the issue of vehicles parking in situations where the vehicle blocks the entry or exit of the scheme, a lot, or access to utility infrastructure.[1] Sub-section 163A(1) of the BCCM now states that nothing in the BCCM prevents a body corporate from towing a vehicle from common property for the scheme under another Act or otherwise according to law.

Further, sub-section 163A(2) of the BCCM now provides that if a vehicle owned or operated by the owner or occupier of a lot and parked in contravention of a by-law is towed by the body corporate, the body corporate is not required to comply with a requirement under Chapter 3, Part 5, Division 4 of the BCCM which previously required the body corporate to follow a procedure to enforce the by-law by issuing a contravention notice, commencing proceedings in the Magistrates Court, or making a dispute resolution application under chapter 6 of the BCCM. The impediment to bodies corporate towing a vehicle owned or operated by an owner or occupier of a lot in a timely manner has therefore been removed.

In essence, the amendments allow for a body corporate to tow a vehicle from common property in a timely manner without having to engage in the drawn-out dispute resolution process. This is especially helpful and efficient in circumstances, for instance, where a vehicle might be blocking access in a manner that emergency services are unable to access the scheme. 

If a body corporate does tow a vehicle, an owner or occupier still has the right to dispute that action. If the body corporate's decision to tow the vehicle is found to be unreasonable or unlawful then the body corporate might still be liable under section 94 of the BCCM.

Pet Approvals

In relation to CTS by-laws pertaining to the keeping of pets and animals, the Explanatory Notes observed that:

While there is no explicit guidance in the BCCM Act about how a body corporate may regulate animals, decisions of adjudicators, QCAT, and courts have resulted in a well-established body of interpretation about how the general provisions about by-laws in the BCCM Act and the requirements for bodies corporate to act reasonably apply in relation to animals. These decisions have established that by-laws that prohibit pets, or restrict the size, type or quantity of pets, are unreasonable. Also, to act reasonably, bodies corporate must consider each request to keep an animal on its merits, considering all relevant facts and circumstances and ignoring irrelevant factors.

…

… there is continued evidence that some bodies corporate have invalid by-laws that prohibit pets and that some bodies corporate are unreasonably refusing requests to keep an animal. This presents a significant barrier to lot owners and occupiers being able to have a pet.[2]

Section 169B of the BCCM provides that a by-law must not prohibit the keeping or bringing of an animal on a lot or common property, or restrict the number, type or size of an animal an occupier of a lot may keep or bring on the lot or common property,[3] but the by-law may require written approval of the body corporate for the keeping or bringing of animals on a lot or common property.[4]

Upon receiving a request for approval, a body corporate must decide whether to grant approval and specify any conditions of approval (in writing) that are reasonable and appropriate, and cannot unreasonably withhold their approval for an owner to keep a pet.[5] The body corporate’s response to the request must be provided within 21 days from the date it received the request. A refusal to approve an owner’s or occupier’s request to keep or bring an animal on a lot or common property on the grounds that no pets or animals are allowed is unreasonable.[6] In essence, this amendment targets those body corporates that blanketly prohibit pets or unreasonably refuse requests to keep an animal.

Sub-section 169B(6) provides a list of acceptable reasons which a body corporate may, if satisfied on reasonable grounds, rely upon for refusing an animal approval request including: 

a.         keeping the animal would pose an unacceptable risk to the health and safety of an owner or occupier of a lot because they are unwilling or unable to keep the animal in accordance with reasonable conditions that address the risk or the risk could not reasonably be managed. An example is that an owner or an occupier has a severe allergy to a particular type of animal and the risk of exposure cannot be managed;

b.         keeping the animal would contravene a law (e.g. a local law limiting the number of animals per lot);

c.         keeping the animal would unreasonably interfere with another occupier’s use and enjoyment of the lot or common property and the interference could not reasonably be managed by conditions;

d.         keeping the animal would unreasonably interfere with native fauna on the scheme land and it could not be reasonably managed by conditions;

e.         the occupier does not agree to reasonable conditions proposed by the body corporate for keeping the animal.

The body corporate’s approval may be withdrawn if the relevant occupier does not comply with conditions stipulated in writing by the body corporate for the keeping or bringing of an animal on a lot or common property.[7]

Use of Smoking Products

In relation to second-hand smoke in CTSs, the Explanatory Notes noted that:

Second-hand smoke is a significant issue of concern for residents in community titles schemes, particularly as smoke from neighbouring lots can penetrate into other lots or the common property, given the typically close proximity of lots in these schemes. The significant negative impacts of exposure to second-hand smoke are well established. Second-hand smoke can also be an annoyance to residents in community titles schemes, particularly in terms of the smell.[8]

It further observed that prior to the amendments, section 167 of the BCCM required owners and occupiers to refrain from using their lot or the common property in a way that caused a nuisance or hazard, or unreasonably interfered with the use and enjoyment of another lot or the common property. However, disputes about second-hand smoke emanating from one lot into another under section 167 of the BCCM focused on whether smoking was a nuisance, and “in many cases have been unsuccessful based on insufficient evidence to meet the test of nuisance at law.”[9]

To address these concerns, the BCCM was amended to include a new sub-section 167(2), which states that an occupier contravenes the section if the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property and another occupier or invitee is regularly exposed to smoke or emission from the smoking product in their own lot or on the common property.

A body corporate now has enhanced powers to make by-laws relating to the use of smoking products. This includes the ability to prohibit or restrict smoking on common property or outdoor areas including balconies.[10] This is a significant change that will help modernise CTS by-laws and bring them in line with the aim of Queensland's smoking laws, which is to create a culture that reduces exposure to tobacco and other smoking products and second-hand smoke, which in turn supports smokers to quit and discourages people from starting smoking.

A new section 169A(2) clarifies any concerns about the enforceability of by-laws enacted pursuant to sub-section 169A(1) by specifically stating, “to remove any doubt, it is declared that a by-law that prohibits or restricts the smoking or inhaling of all or some smoking products on any area mentioned in subsection (1) is not, having regard to the interest of all owners and occupiers of lots included in the scheme), oppressive or unreasonable.”

Footnotes

[1] Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – Explanatory Notes, 5.

[2] Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – Explanatory Notes, 4 – 5.

[3] Body Corporate and Community Management Act 1997 (Qld) s 169B(2).

[4] Body Corporate and Community Management Act 1997 (Qld) s 169B(3).

[5] Body Corporate and Community Management Act 1997 (Qld) s 169B(4).

[6] Body Corporate and Community Management Act 1997 (Qld) s 169B(5).

[7] Body Corporate and Community Management Act 1997 (Qld) s 169B(7).

[8] Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – Explanatory Notes, 3.

[9] Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – Explanatory Notes, 4.

[10] Body Corporate and Community Management Act 1997 (Qld) s 169A(1).

References & Further Reading

A.     Legislation

Body Corporate and Community Management Act 1997 (Qld).

Body Corporate and Community Management and Other Legislation Amendment Act 2023 (Qld)

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Act 2024 (Qld)

B.    Other

Body Corporate and Community Management and Other Legislation Amendment Bill 2023.

Body Corporate and Community Management and Other Legislation Amendment Bill 2023 – Explanatory Notes.

Proclamation—Body Corporate and Community Management and Other Legislation Amendment Act 2023 (commencing remaining provisions) (Qld)

Liability limited by a scheme approved under professional standards legislation.