Installation of solar panels leads to court dispute

The recent Queensland Supreme Court decision of Bettson Properties Pty Ltd & Anor v Tyler [2018] QSC 153 held that a restrictive covenant that went against the sustainable housing provisions in the Building Act 1975 were unenforceable.

 

Developer’s restrictive covenant required consent before installing solar panels

A developer sold a proposed lot in an estate on which the new owner built a residence. The contract of sale contained a restrictive covenant requiring the developer’s consent to the installation of any solar panels. The developer could refuse consent where the developer considered that the proposed installation would “cause visual impact” or not be “aesthetically pleasing”.

 

Owner installed solar panels without seeking consent from developer

The owner erected solar panels on the roof without the developer’s consent. When the owner sought retrospective approval, the developer told her she had to move the panels to a less visible place on the roof as they were not aesthetically pleasing. The evidence showed that a less visible place would mean that the panels would not function effectively.

 

Did the covenant offend sustainable building legislation?

The owner argued the covenant was unenforceable because of the sustainable housing provisions in Part 2 of Chapter 8A of the Building Act 1975. These provisions prohibit residential development building covenants from restricting owners from implementing a range of sustainable building features such as solar panels.

Section 246(Q)(2) provides that a restriction will be unenforceable to the extent a restriction —
“(a) applies merely to enhance or preserve the external appearance of the building; and
(b) prevents a person from installing … [solar panels] on the roof..”.

The developer argued that the covenant did not offend s 246(Q)(2) because it did not prevent the owner from installing solar panels on the roof. The covenant simply reserved to the developer the decision on the size, number and location of the panels on the roof.

 

Court found the restrictive covenant was unenforceable

The court found in favour of the owner and held that the word “prevents”, as used in s 246Q(2)(b), should be taken to mean “hinders” or “impedes”. The court found that the covenant sought to hinder or impede the location on which the solar panels were placed, so it offended the sustainable housing provisions in the Building Act 1975 and was unenforceable. The court commented that the developer’s construction of s 246Q if accepted, would lead to the absurd result that the owner might have to install solar panels in an area of perpetual shade.

 

Do you need help or advice about a restrictive covenant?

At Bell Legal Group we have skilled and experienced lawyers ready to help you with your legal queries and needs including concerns with property law and restrictive covenants. Call us on 07 5597 3366  or complete the ‘Contact Us’ form below.

 

Please note that this article was written by Margaret Miller, partner of Bell Legal Group, for information purposes only. It is not nor is it intended to be legal advice and should not be relied upon as such.