A recent adjudicator’s order has again highlighted the complexities of living in community titles schemes—particularly when a lot owner undertakes lot improvements that encroach upon, alter, or effectively dispose of common property. The dispute at Kapalun Sun Court, a 17-lot scheme, shows just how complicated questions of “who owns what” can become when structural changes affect shared assets, building infrastructure, and regulated airspace.

At the heart of the issue were significant modifications made by a lot owner to their rooftop terrace. These works raised important questions for all bodies corporate:

• Who owns the airspace?
• What are the boundaries of a lot compared to common property?
• What approvals are required before altering structural elements?
• And how do Development Approvals (DA) and local council requirements fit into the picture?

These are essential issues for all strata residents—because what one owner changes may impact everyone.

What Happened at Kapalun Sun Court?

A lot owner undertook structural modifications to their rooftop terrace without approval from the committee, local Council, or the scheme’s insurer. The works included:

• Widening entrance doors by cutting into a dividing fire wall.
• Core drilling through the roof slab and structural walls.
• Allegedly altering shared utility infrastructure.
• Enclosing common property airspace by increasing ceiling height.

These were not minor lot improvements. Because they were done without consent, the works:

• Affected neighbouring owners’ rights and amenity.
• Potentially increased insurance risks and premiums.
• Changed the value and configuration of common property.
• Contravened the approved Building Format Plan (BFP).
• Breached the existing Development Approval (DA).
• Triggered enforcement action from the Council.

This is a textbook example of how bypassing the required processes can create significant legal, financial, and structural consequences—not just for the owner involved, but for the entire scheme.

Understanding the Building Format Plan (BFP)

A Building Format Plan (BFP) is central to defining boundaries in many Queensland community titles schemes registered under the Body Corporate and Community Management Act 1997 (BCCMA).

A BFP sets out:

• The boundaries of individual lots.
• The location and extent of common property.
• The vertical limits of ownership (including regulated airspace).
• Responsibility for maintenance and repairs.

In this matter, the BFP clearly restricted the maximum rooftop development height to 2.5 metres, and any airspace above that height was common property.

However, the owner constructed their rooftop structure to 3 metres, effectively enclosing 0.5 metres of common property airspace into their private lot—without any licence, exclusive use approval, or recorded change to the Community Management Statement (CMS).

The adjudicator found this to be a clear encroachment, and ordered that:

• The lot owner must restore the rooftop terrace to its original state.
• Works must be completed within six months.
• Compliance is required before May 2026.

Further legal activity is likely as the compliance deadline approaches.

Development Approval (DA), Material Use (MU), and Council Enforcement

The structural improvements also triggered concerns from the local Council. Because the works increased usable living space, this constituted a material change of use (MU) and required a dual occupancy certificate.

The Council issued verbal and written “Stop Work” notices, which were ignored. After completion, the owner also denied Council access to inspect the works.

These breaches are now before the Gold Coast Magistrates Court.

This situation underscores a crucial point:

Even if a body corporate approves works, Council approvals may still be required and ignoring them can lead to serious penalties.

What Would Have Been Required for Lawful Approval?

If the owner had sought proper approvals—including MU and the required certificates—the body corporate would have needed to consider several legislative steps under the BCCMA:

1. General Meeting Approval (Restricted Issue)

Structural works affecting common property or building integrity must be approved by the body corporate at a general meeting. An ordinary resolution typically applies, but the required resolution may vary depending on the impact.

2. Compliance With Planning Requirements

The body corporate must ensure the proposed works comply with planning and development regulations. Retrospective approvals may require:

• Ordinary resolution.
• Special resolution.
• Or, in some cases, a resolution without dissent.

Given the scale of this rooftop alteration, the latter is likely.

3. Licence for Exclusive Use of Airspace & CMS Change

Enclosing common property airspace requires:

• A licence or formal exclusive use allocation.
• A CMS amendment lodged with the Titles Office.
• Approval at a general meeting.
• A resolution type that depends on the impact and value of the common property.

4. Conditions of Approval

The body corporate may impose conditions, including reinstatement obligations, engineering certification, or cost recovery for legal and professional advice.

Converting Common Property Into a Body Corporate Asset

The BCCMA permits a body corporate to convert components of common property into separate assets—for example, by subdividing volumetric space. Once converted and detached from the balance of common property, the asset can be:

• Licensed.
• Sold.
• Leased.

The resolution required depends on its market value. Significant assets usually require a resolution without dissent.

This is why unauthorised appropriation of airspace, even if only half a metre, is treated seriously.

Key Takeaways for Committees and Owners

1. Know your boundaries—literally.

A Building Format Plan clearly defines lot boundaries, structural limits, and common property. Always consult it before approving or undertaking works.

2. Airspace is property too.

Increasing ceiling height or enclosing space may amount to disposing of common property and requires formal approval and CMS changes.

3. Approvals must come from both the body corporate AND Council.

The two systems operate independently. Body corporate consent does not replace planning approval.

4. Unapproved works can lead to legal, financial, and insurance consequences.

Ignoring stop-work notices or refusing inspections escalates matters and may lead to court action.

5. Committees must follow correct legislative processes.

Depending on the scale and impact, resolutions may require ordinary, special, or even without dissent approval.

6. Prevention is far cheaper than enforcement.

A clear and well-communicated improvement approval process protects everyone—owners, committee members, and the scheme as a whole.

Article Contributed by Nicky Lonergan, Chief Executive Officer at Archers the Strata Professionals.

The post WHEN LOT IMPROVEMENTS ENCROACH ON COMMON PROPERTY: LESSONS FROM A RECENT ADJUDICATOR’S ORDER appeared first on Smart Strata | Body Corporate Management.