Body Corporate orders removal of solar panels

A recent newspaper article reported that a body corporate had ordered a resident to remove solar panels the body corporate claimed were unsightly.

 

But …. In 2018 Queensland’s Supreme Court allowed a resident to keep her solar panels against the wishes of the body corporate

A similar situation came before the Supreme Court in July 2018 in the case of Bettson Properties Pty Ltd & Anor v Tyler [2018] QSC 153.

In that case, the applicant had incorporated a number of covenants into its contract of sale for a residential estate development which required the Buyer to first obtain written consent and only to install solar panels where directed by the Seller. The covenant stated that if the panels “cause visual impact or are not aesthetically pleasing”, they would not be approved.

The respondent installed solar panels without first obtaining consent in a highly visible location that the applicant claimed adversely affected the aesthetics of the location. The applicant wrote to the buyer directing her to immediately remove the panels and relocate them to a specific different position on the roof. The respondent was advised the suggested relocation site would result in a 15% – 20% reduction in effectiveness. When the respondent refused to comply, the applicant sought orders from the Supreme Court for the removal and relocation of the solar panels.

The Supreme Court discussed the 2009 amendments to the Building Act 1975 (Qld) which were legislated to support “sustainable housing”. The amendments targeted body corporate by-laws, residential development building covenants and similar rules that sought to restrict owners from using a range of sustainable building features.

The amendments provided that covenants or by-laws that prohibit or restrict the installation of solar panels on the roof or other external surface of a prescribed building merely for the purpose of preserving the external appearance were of no force and effect. Additionally, where consent was required to install solar panels, the consent could not be withheld merely to enhance or preserve the external appearance of a building.

The Supreme Court dismissed the application and the respondent was free to leave the solar panels where she had installed them.

 

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