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Sustainability Laws Trump Strata By-laws!

Solar power capacity increased tenfold between 2009 and 2011 in Australia. It then quadrupled by 2016. This all occurred at a time when the price of carbon and the Kyoto Protocol were hot topics, and a café latte with smashed avocado on toast became a favourite choice for breakfast. But the government knew that it would take more than favourable public sentiment for renewable energy to be properly taken up. It intervened to break down barriers to solar power installations in strata schemes.

On 1 January 2010 Chapter 8A was added to the Building Act 1975 (Qld) (the Building Act) to support sustainable housing. The purpose of this change was explained in this way:

The bill will stop body corporates and developers from restricting the use of sustainable and affordable design measures… [and] introduces a nation-leading sustainability declaration to help raise awareness and drive the housing market to reflect the true value of sustainable housing features.”

In other words, these changes would prevent bodies corporate from prohibiting or restricting sustainable housing measures simply because they would detract from the aesthetics of a building.

Sustainable housing measures recognised by the Building Act include roofing colour, window tinting, solar hot water systems and solar panels.

You may recall that it was around the time of these changes (2010/11) that significant government incentives were introduced to encourage a switch to sustainable (particularly, energy efficient) building improvements.  For example, rebates were offered for the installation of solar panels, and then attractive rates were paid for homeowners to feed excess energy production back into the grid.  The take up on these incentives would obviously be hampered if there were roadblocks in a significant share of the housing market: strata schemes.

There were not many by-laws in place that directly conflicted with these changes. By-laws already could not prohibit lawful activities – they could only regulate them. In other words, a by-law cannot ban pets, but it can require body corporate approval before bringing the pet into the scheme.

Due to misunderstandings as to the extent and effect of these changes, two common issues developed:

  1. Some owners saw these changes as an opportunity to install solar panels over a significant portion of a building’s roof.  That would create problems because the proposed installation meant that there would be inadequate room for other owners to do the same, or was in excess of what their lot required
  2. Committees were (rightly) concerned at the prospect of the external appearance of a building being ruined by the installation of black solar panels.

The first issue turned on existing protections in the BCCM Act: an owner / occupier has the right to use the common property so long as it does not interfere unreasonably with the exercise of the same rights held by other owners / occupiers. However, it is not enough to merely allege that the panels would take up too much room or prevent others from doing the same. There needs to be some evidence that the proposal is excessive or would interfere with others who want to take up the same opportunity.[1]

Again, there have never been many (if any) by-laws that specifically prohibited the installation of sustainable housing features. But there are many by-laws across Queensland designed to protect the external appearance of a scheme, such as:

  • The occupier of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.
  • Any window coverings shall be off-white or of similar colour approved by the committee from time to time.

The installation of sustainable housing features has been given greater priority over the interests of bodies corporate to protect the aesthetics of their schemes. But a by-law that regulates sustainable housing measures may be valid and enforceable if it is supported by reasons other than simply to enhance or preserve the external appearance of the building, or there are reasonable grounds for the refusal of consent.

The manner in which these competing interests may be balanced was explained in Emerald Lakes – The Cove [2012] QBCCMCmr 423:

“In this day and age it is inevitable that various items of utility infrastructure such as air-conditioners, pay television systems, solar water heaters and photovoltaic cells will be retrofitted to units and it is common for conduit to be present on the exterior of buildings. The visual effect is usually ameliorated by ensuring it is painted the same colour as the wall to which it is attached. In my view, the committee decision to approve the installation of conduit, on condition that it is painted the same colour as the wall to which it is attached, is objectively reasonable.”

This will not apply to all sustainable housing features. We do not wish to encourage committees to require solar panels to be painted a shade of orange to match the terracotta-style roof tiles before they are installed. That may defeat the purpose of the installation, which would go against the intent and effect of these sustainable housing laws.

Committees should consider each proposal on its individual merits, and owners wanting to install these features should give from thought to how their desired improvement could be sympathetically incorporated into the external appearance of a building (even if it makes it a little more expensive).

This article was contributed by Jason Carlson of Grace Lawyers.

[1] See for example Juneau [2016] QBCCMCmr 153.

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  1. Natalie

    Very glad this article focused on the importance the Australian government places on sustainable planning.