Solar Infrastructure in Community Titles Schemes

Rising cost-of-living expenses and an environmentally conscious community have ignited a surge in demand for sustainable and energy-efficient solutions across Queensland.

Already, with more than 790,000 homes and small businesses connected to solar energy across the state, Queensland boasts the highest rate of residential rooftop solar installations in the nation.

With that number expected to continue to rapidly rise, this article will explore the regulatory framework regarding the installation of solar panels and solar hot water systems (solar infrastructure) in Queensland community titles schemes.

Amendments to the Building Act 1975

Amendments, commonly known as ‘ban the banners’ provisions, were introduced to the Building Act 1975 (the Building Act) in 2010 to support sustainable housing and enable homeowners to install solar panels or a solar hot water system without regard to aesthetic considerations.

However, the Court of Appeal in Bettson Properties Pty Ltd & Anor v Tyler [2019] QCA 176 highlighted the need for further reforms to reinforce the original policy intent of the 2010 provisions.

Amendments to the Building Act in 2022 clarified the 2010 provisions by restricting the reasons a body corporate or a developer can – through a ‘relevant instrument’ such as the by-laws or any architectural and landscape code in the community management statement – prohibit the installation of solar infrastructure on a roof or other external surface of a ‘prescribed building’.

Installing solar panels in a building format plan scheme

For bodies corporate registered under a building format plan of subdivision (formerly, a building unit plan), the roof and the outside of the building are typically common property.

According to the Building Act, if a roof or other external surface of a prescribed building is common property, a body corporate cannot, under a relevant instrument:

  • prohibit the installation of – or restrict the location of – solar infrastructure on that roof or other external surface, or withhold their consent to install solar infrastructure in these areas, unless:
    • it is necessary to preserve the building’s structural integrity; or
    • there is insufficient space on the roof or other external surface for the installation of solar infrastructure by each lot owner; or
    • in relation to a solar hot water system – it is necessary to prevent noise from piping causing unreasonable interference with a person’s use or enjoyment of the building.

 

However, these provisions are not a ‘green light’ for owners to install their solar infrastructure.

Owners must also be mindful of their obligations under the body corporate legislation, which requires any improvements to the common property for the benefit of their lot to be authorised by the body corporate – either by the committee (where certain criteria is satisfied) or by ordinary resolution at a general meeting.

Failure to obtain the appropriate body corporate approval may result in unnecessary disputes over unauthorised improvements.

Responsibilities of owners for their improvements to the common property

There is sometimes a reluctance to approve these installations on common property because of a misconception that it may lead to additional body corporate expenses.

However, the body corporate legislation requires an improvement by an owner which is authorised by the body corporate to be maintained in good condition by the owner (unless excused by the body corporate).

A further safeguard against body corporate liability is the ability to impose conditions upon the approval. For example, a condition may be that if works need to be carried out on the common property roof, the owner would be responsible for any costs associated with the temporary removal of their solar infrastructure.

When imposing any conditions, the body corporate must always bear in mind its legislative obligation to make reasonable decisions.

Details about improvements to common property by owners and any conditions made upon the approval should be kept by the body corporate in a register of common property authorisations.

Installing solar panels in a standard format plan scheme

Conversely, for bodies corporate registered under a standard format plan of subdivision (formerly, a group title plan), the roof and the outside of the building are part of a lot.

Under the Building Act, if an owner in a prescribed building is seeking to install solar infrastructure on their roof or another external surface of their lot, they will not be affected by a relevant instrument that prohibits the installation of solar infrastructure or restricts its location in these areas.

Nonetheless, an owner will still need to obtain consent for the installation, if required to do so, under a relevant instrument. For example, a by-law may require body corporate approval to make a change to the external appearance of a lot. Failure to obtain body corporate consent in this situation may mean an owner is breaching the by-laws.

If an owner seeks body corporate approval for the installation of solar infrastructure under a relevant instrument such as the by-laws, the body corporate cannot unreasonably withhold its consent.

Limitation on the operation of the Building Act, chapter 8A, part 2  

Importantly, the Building Act does not give owners unfettered rights to install solar infrastructure on the roof or other external surfaces of a prescribed building.

In addition to the limited reasons discussed earlier for which an installation can be prohibited, or consent can be withheld in relation to a common property roof or other external surface, the Building Act specifies that part 2 does not entitle owners to install solar infrastructure in a way that unreasonably prevents or interferes with a person’s use and enjoyment of any part of the building.

This sentiment is further supported by a similar section in the body corporate legislation which provides that the occupier of a lot must not use the lot, or the common property, in a way that interferes unreasonably with the use or enjoyment of another lot or the common property.

Consequently, owners should consider whether an installation could have a negative impact on others in the scheme – for example, if the solar panels would cause a significant glare into another lot.

This reminder is particularly important for owners seeking to install solar infrastructure purely on their lot, as they may understandably assume that there are no other considerations beyond obtaining body corporate consent (if required under a by-law).

Considering statutory easement rights

Another relevant consideration when installing solar infrastructure is the possible existence of a statutory easement under the Land Title Act 1994 (Land Title Act), which may allow an owner to enter or use the common property or another lot for accessing utility services and utility infrastructure.

Chapter 2, part 7 of the Body Corporate and Community Management Act 1997 provides for the application of statutory easements that may exist under the Land Title Act.

An instructive consideration of statutory easement rights, in the context of installing solar infrastructure, was in the decision of Neptune Point [2022] QBCCMCmr 34, in which the applicant sought retrospective approval for solar panels installed on a common property roof.

The adjudicator observed that the interaction between the statutory easement provisions and the provisions regarding improvements to common property can be confusing, and that “a claimed statutory easement does not displace the requirement to obtain body corporate approval where required under the regulations or a by-law”.

The adjudicator further remarked:

Accordingly, a body corporate should consider the statutory easement provisions when deciding whether to approve an improvement involving the installation of utility infrastructure to service a lot. The body corporate should consider if the infrastructure is reasonably necessary to supply the service, and whether the manner of installation would unreasonably interfere with the use and enjoyment of lots or common property.

Improvements that affect insurance premiums

If the installation of solar infrastructure on common property or a lot is likely to increase the body corporate’s insurance premium, an owner must notify the body corporate about the nature and value of the improvement as soon as possible after the work is substantially completed.

If the body corporate’s insurance premium increases due to an owner’s improvement, the owner may be asked to pay more towards the premium.

Body corporate by-laws contrary to the Building Act

Section 180(8) of the Body Corporate and Community Management Act 1997 specifies that a by-law must not include a provision that has no force or effect under chapter 8A, part 2 of the Building Act.

For example, if a body corporate records a by-law that restricts the installation of solar infrastructure to maintain uniformity of appearance throughout the scheme, it may result in a dispute application being lodged through our office regarding the validity of the by-law.

Where the body corporate refuses consent for the installation of solar infrastructure 

If the body corporate refuses an owner’s application for the installation of solar infrastructure, the owner may, after sufficient efforts have been made to resolve the matter internally, lodge a dispute application through our office.

Alternatively, if you would like further information about the application of the Building Act provisions and avenues for dispute resolution under this legislation, you can contact the Queensland Building and Construction Commission or seek independent legal advice.

We hope this article improves your understanding of the extensive legislative framework surrounding the installation of solar infrastructure in community titles schemes and reduces the likelihood of avoidable disputes arising on this subject.

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