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SOLAR PANELS IN STRATA: THINGS TO KNOW FOR BODIES CORPORATE AND LOT OWNERS

Now more than ever before, Bodies Corporate and Lot Owners are considering solar panels. This is largely due to rising electricity prices and cost-of-living pressures. Deciding whether to purchase and install solar panels can be difficult for standalone homeowners. For Bodies Corporate and their Lot Owners, the decision is even more complicated due to the operation and effect of Queensland legislation, especially following recent amendments made to the Building Act 1975. This article will look at the main things Bodies Corporate and Lot Owners need to know if they are considering solar panels.

Solar panels cannot be prohibited

Some Bodies Corporate we advise ask whether solar panels can be prohibited. This is usually due to concerns they have that the solar panels will harm the external appearance of their Scheme and reduce its value.

Bodies Corporate cannot lawfully prohibit solar panels, but:

1. reasonable conditions may be imposed on Lot Owners as part of the installation; and

2. in some circumstances, the Body Corporate may lawfully and reasonably refuse the installation.

Location

The most important part of any solar panel installation is knowing where the solar panels will be installed, including all associated infrastructure.

Typically, solar panels are installed on the roof and associated infrastructure will run down from the roof along external walls.

Therefore, knowing who owns and/or is responsible for repairing and maintaining the roof and external walls is very important.

Solar panels on Common Property

Where the Body Corporate is a building format plan of subdivision or ‘BFP’, the Body Corporate is usually the owner of the roof and the external walls and is responsible for repairing and maintaining both.

Therefore, if a Body Corporate or a Lot Owner want to install solar panels on a BFP, this will usually be treated as an improvement to the Common Property, meaning the Body Corporate will need to consider:

1. who is making the improvement;

2. how much will the improvement cost; and

3. who will benefit from the improvement.

The legislation concerning improvements is well-established and if Bodies Corporate and Lot Owners need advice about this, they should contact us.

Solar panels on lots

Where the Body Corporate is a standard format plan of subdivision or ‘SFP’, the Lot Owner owns the roof and the external walls that form part of their lot.

Typically, Bodies Corporate have by-laws that regulate the appearance of lots whereby the external appearance of a lot cannot be altered, other than if approved by the Body Corporate. These by-laws are designed to avoid scenarios where (for example) a Lot Owner paints the exterior of their lot Barbie pink colour. However, such by-laws have also been used in the past to regulate and prohibit solar panels.

Gardenia Village [2022] QBCCMCmr 349 

The decision in Gardenia Village [2022] QBCCMCmr 349 is important for several reasons, but mainly because of its analysis of the new section 246S of the Building Act 1975.

The Body Corporate for Gardenia Village is an SFP. Michelle Kam, a Lot Owner, wanted to install solar panels on her Lot. The Body Corporate had the usual appearance by-law as follows:

No proprietor is permitted to paint or alter the external appearance of his/ her villa without the consent of the Committee of the Body Corporate.

The Body Corporate refused Ms Kam’s request primarily because the solar panels would alter the external appearance of her Lot. Mr Kam complained to the Office of the Commissioner for Body Corporate and Community Management and, ultimately, won.

In summary, Adjudicator Miskinis found that a Body Corporate could not refuse Ms Kam’s request to install solar panels on her Lot solely because the solar panels altered the appearance of her Lot and may make it look “less attractive”.

When can solar panels be refused?

All Bodies Corporate in Queensland established by the Body Corporate and Community Management Act 1997 must act reasonably in anything they do, including when making any decision concerning solar panels.

This means that Bodies Corporate, acting reasonably and lawfully, can refuse solar panels, particularly when the Scheme is a BFP, but this will usually require establishing that:

1. the structural integrity of the building upon which the solar panels are installed will be impaired (usually because of the weight);

2. there is insufficient space on the roof or external walls for each Lot Owner to install solar panels and solar hot water systems; or

3. the noise caused by the installation will unreasonably interfere with a person’s use or enjoyment of the building; and

4. the refusal is reasonable in all the circumstances.

Final Comments

Disputes concerning the installation, operation and maintenance of solar panels within Bodies Corporate are already on the rise, as demonstrated by the decision in Gardenia Village [2022] QBCCMCmr 349.

Section 246S of the Building Act 1975, which was only added to the Building Act 1975 in around June 2022, is also likely to give rise to disputes due to the many exceptions that Bodies Corporate may rely upon to refuse a solar panel installation.

Indeed, we are currently acting for a Body Corporate that is considering whether they should refuse a solar panel installation because they have been advised that their building cannot support the additional weight if every Lot Owner installs solar panels, even though there is only one request currently before it.

If your Body Corporate requires further advice and assistance in relation to solar panels, please contact us at HWL Ebsworth Lawyers.

Article Contributed by Mario Esera, HWL Ebsworth Lawyers

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