I wish that I could advise Lot A that they a better chance of success than they hope for, but unfortunately I cannot do so.
Lot A must prove that the Body Corporate has been “unreasonable” in its decision making. To date the Body Corporate have made no “unreasonable” decisions regarding this matter. Whether the owner of Lot B is being “unreasonable” is not within the jurisdiction of the Act or the Tribunal to determine.
An exclusive use right is a valuable right and one that is extremely difficult to remove from an unwilling party. https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/by-laws/exclusive-use-by-law
The exclusive use boundaries have not ever been changed therefore they do not need to be “restored”. Lot B is perfectly within their rights to have full use and enjoyment of all of their exclusive use area.
I am not of the same opinion as JT that a fence between two exclusive use areas in Qld would require a resolution without dissent. Perhaps JT is referring to NSW legislation which is possibly quite different.
Lot B was obviously aware of the boundary when they purchased their Lot. It is very unfortunate that Lot A purchased their Lot without being fully aware of the boundary of the allocated exclusive use area.
There are three ways in which such a fence can be approved in Qld: (1) via the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and the requirements that a sufficient dividing fence be erected on a boundary should one owner request it and with both owners sharing the cost (see https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/avoiding-fence-tree-and-building-disputes/your-responsibility-as-a-fence-owner ), and/or (2) the BCCMA and the Committee’s ability to assent (up to a limit of $3000) to improvements to common property by a Lot Owner, or (3) assent by ordinary resolution at a general meeting.
The owner of Lot B could probably chose either of the options listed above.
See here for an explanation of a Lot Owner’s Improvements to Common Property: https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance-and-improvements/improving-common-property-and-lots.
“Improvements by a lot owner
An owner can make an improvement to common property if approved by the committee, or the body corporate at a general meeting.
The committee can approve an improvement by an owner if the:
- total cost is less than $3,000
- improvement does not detract from the appearance of a lot
- body corporate is satisfied that the use and enjoyment of the improvement is not likely to be a breach of the owner’s duties as an occupier (e.g. by causing a nuisance to others in the scheme).
If the committee cannot approve the work it must be authorised by ordinary resolution at a general meeting.
The owner must:
- comply with any conditions of approval
and
- maintain the improvement.
When an improvement is made to the common property by a lot owner they must give the body corporate details of the type of work and value of the improvement.”