Covenants and body corporate by-laws for sustainability
Since 1 January 2010, covenants and body corporate by-laws have been prevented from:
- banning energy efficient features or fixtures
- requiring specific design elements in houses, townhouses, units or enclosed garages.
Householders and builders have been able to benefit from greater choice of sustainable building features and designs including:
- light roof colours
- energy efficient windows or window treatment (e.g. tinting)
- number of bedrooms or bathrooms
- orientation of a house
- efficient floor areas.
The body corporate provisions for energy efficient dwellings are regulated through the Building Act 1975 (Chapter 8A, part 2).
Positioning of residential solar infrastructure – 'ban the banners'
The original policy intent of the 'ban the banners' policy was to ensure developer covenants and body corporate by-laws could not inhibit the installation of solar hot water systems or solar panels, including by restricting where the panels or hot water systems could be located, on the roof of a home or garage, solely on the basis of aesthetics.
A court decision affected the efficacy of the provisions, making it necessary to amend the provisions to clarify the original policy intent.
The amendments included in the Building and Other Legislation Amendment Bill 2022, which came into effect on 10 June 2022, affect class 1 buildings (detached houses and town houses) and class 2 buildings (apartments and units) differently.
Homeowners seeking to install solar infrastructure on a roof that is not common property (class 1 buildings)
Under the new provisions, homeowners seeking to install solar infrastructure on a roof or other external surface of their home or garage are not affected by a relevant instrument (e.g. a covenant) that inhibits the installation of solar infrastructure, if the surface is not common property.
Homeowners who are required by a relevant instrument to obtain consent before undertaking building work, including the installation of solar infrastructure, should comply with that requirement to avoid breaching their contractual obligations.
Homeowners who previously requested consent from a developer before the new laws came into force, and the consent was withheld, should ask the developer to reconsider giving consent.
Under the new provisions, the developer is not allowed to withhold the consent.
Any court order or similar constraint that enforced the developer's original refusal to give consent cease to have effect.
Homeowners who ask a developer to give consent, or to reconsider giving consent, and the developer does not give consent within a reasonable time, can choose to rely on the amended 'ban the banner' provisions and install the solar infrastructure without consent.
Alternatively, homeowners can seek a court declaration that it is lawful for them to install the infrastructure.
- For homes with a value of less than $750,000, the application for a declaration can be made to the District Court of Queensland.
- For a home with a value of more than $750,000, the application for a declaration can be made to the Supreme Court of Queensland.
Homeowners seeking to install solar infrastructure on a roof that is common property (class 2 buildings)
Homeowners of a unit in an apartment building seeking to install solar infrastructure on a roof or other external surface that is common property and a relevant instrument (e.g. a body corporate by-law) requires them to obtain consent from the body corporate before installing the infrastructure, should ask for the consent.
The ability of the body corporate to withhold consent for the installation is very restricted.
The body corporate is only allowed to withhold consent:
- to the extent necessary to preserve the building's structural integrity
- or
- if there is insufficient space on the roof or other external surface for the owner of each other unit in the building to also install solar infrastructure on the surface
- or
- if the consent relates to a solar hot water system, to the extent necessary to prevent noise from piping associated with the system causing unreasonable interference with a person's use or enjoyment of the building.
Unit owners who asked their body corporate for consent before the new laws came into force and the consent was withheld solely because the infrastructure would make the building less attractive, should ask the body corporate to reconsider giving consent.
Any court order or similar constraint that enforced the body corporate’s original refusal to give consent ceases to have effect.
Unit owners who ask a body corporate to give consent, or reconsider giving consent, and the body corporate does not make a decision within a reasonable time, can contact the Office of the Commissioner for Body Corporate and Community Management (OCBCCM).
Unit owners may also contact OCBCCM if they ask a body corporate to give consent, or reconsider giving consent, and the body corporate decides to withhold the consent.
The OCBCCM provides a dispute resolution service for matters relating to property that is included within the community title scheme. In broad terms, the OCBCCM has a 4-stage process for resolving disputes:
- Stage 1 – Self-resolution – the unit holder should make reasonable attempts to resolve the dispute with the body corporate directly
- Stage 2 – Conciliation – the unit holder can apply to the OCBCCM for the appointment of a conciliator, an independent third person employed by the Department of Justice and Attorney-General, who will try and help the unit holder and the body corporate resolve the dispute
- Stage 3 – Adjudication – if the dispute is not resolved through self-resolution or through conciliation, the unit holder can apply to the OCBCCM for an adjudication of the dispute
- Stage 4 – if either the unit holder or the body corporate is dissatisfied with the outcome of the adjudication, it can appeal the decision of the adjudicator to the Queensland Civil and Administrative Tribunal under section 289 of the Body Corporate and Community Management Act 1997. However, the appeal can only be on a question of law.
These legislative amendments commenced on assent (i.e. on 10 June 2022).