Gardenia Village [2022] QBCCMCmr 369 highlights recent amendments to the Building Act 1975 which generally ensure unit owners may install solar infrastructure in their preferred location on the roof and without regard to appearances.

The Scheme

The Village is regulated by the Standard Module Regulation, it was created under a Standard Format plan of subdivision, and is comprised of 10 stand-alone villas all set back from the lots’ boundaries.

In June 2021, the owner applicant (a newcomer to the village) sought permission from the committee to install solar panels etc on the northern slope of their villa’s roof.

The committee, some of whom have lived at the Village for more than 30 years and wish “to maintain the character of the Village”, rejected the owner’s request.

They preferred the panels be located on the southern side where they would be out of sight of people using the pool.  The applicant’s experts advised against this, outlining that north-facing solar panel installation is the optimum position and that a southern aspect would mean significant reduction in efficiency.

The committee had already sought guidance from their body corporate manager who advised:

• “2by4” Improvements: Because the installation involved an “Improvement to common property by an owner” and that the committee could only approve such an improvement costing less than $3,000, the proposed improvement, being valued at more than $3,000, would require approval by an AGM; and
• By-Law 12 Consent to Alter Appearance: Although their By-Law 12 may not prohibit or prevent the installation, the committee [and presumably the AGM] may require the panels be installed in a location preferred by the committee for aesthetic reasons without offending any of the Building Act’s restrictions on withholding consent.

  “2by4” Improvements?

There are key four tests which must be established here: improvement (rather than maintenance); to common property; by an owner; for an owner.  Fail one and the rest become redundant.

Because the Village is registered on a Standard Format plan, the proposed roof-top solar panel installation is within the applicant’s lot and not on common property.

Therefore the proposed infrastructure cannot be an Improvement to common property, and despite the BCM’s advice to the contrary and regardless of how much the installation cost, approval by an AGM was not necessary.

By-Law 12:  Consent Required?

The Village’s By-Law 12 provides that:

No proprietor is permitted to paint or alter the external appearance of his/her villa without the consent of the committee…

Installing solar panels on a roof would potentially alter the external appearance of the villa;  committee consent was thereby required under By-Law 12.

Committee’s Consent Required -v- Building Act’s Restrictions on Withholding Consent

For some time now the Building Act has restricted a body corporate’s ability to withhold consent for certain  activities involving installation of solar infrastructures on roofs, in particular where consent is withheld  “merely to enhance or preserve the external appearance of a building”.

And recent amendments to the Building Act have been introduced to remove any doubt about the policy intent of the legislation that has arisen as a result of the decision by the Queensland Court of Appeal in 2019… Bettson Properties P/L & Anor v Tyler [2019] QCA 176*

These amendments were assented to on 10 June 2022 with retrospective effect back to 1 January 2010.

Therein lies the potential frustration faced by any committee consumed by appearances: one law allows the committee to insist the owner gets consent from the committee, another law insists the committee gives that consent to the owner… even when if it does not wish to.

Solve One Problem…Create Another?

Unfortunately however, the recent amendments may have unforeseen consequences which could lead to more disputes in our strata world, especially for tower complexes.

The new s.246S provides that if consent is required to install solar infrastructure on the roof or other external surface of a building, “consent may not be withheld”.  Seems straightforward enough and if it stopped there, there would not be any problems.  But s.264S goes on to say:

UNLESS the consent is withheld in relation to common property roof or external surface and only:

(i) to protect the building’s structural integrity [eg it is too heavy]; or

(ii) there is insufficient space for solar infrastructure to be installed by every owner in the building…; or

(iii) to prevent noise from piping causing unreasonable interference to others.

This means the committee may withhold consent, but only in very limited circumstances….none of which have anything to do with appearances.

All In or None In?

Too heavy, too noisy, that we can understand when dealing with improvements to common property.  But to allow the committee to withhold consent to one owner because there is not enough space for all owners seems problematic, especially if no other owner wants to install solar infrastructure, or even when the owner applicant is not trying to monopolise the whole area but just wants a reasonable slice of the pie.

The potential for abuse by committees opposed to solar panels for anyone, for any reason, would be obvious.  A classic example of institutionalised Dog in the Manger.

This problem will certainly manifest in those tower complexes where the area of the common property roof is relatively small compared with the number of lots below.  There will never be enough slices of the pie to accommodate everyone.

We look forward to guidance from either the Commissioner’s Office or the strata lawyers in our midst for clarification of the intent, and effect, of this provision.  And if you doubt there may ever be a gap between policy intent and legislative drafting, please refer back to the QCA’s Bettson decision.

And Finally…Reasonableness

Reasonableness is something which should always be considered when reviewing decisions either by the body corporate in general meeting or by the committee.

It is appropriate that reasonableness is addressed by Adjudicator R Miskinis in Gardenia Village.

At the 2021 AGM, the body corporate was asked to approve Motion 12 which had been submitted by a committee member.  It proposed that the body corporate “prohibit solar heaters and panels on the roof aspect facing the pool.”  Motion 12 was challenged at the AGM by the applicant and another owner, but the Chairman declined to rule it out of order.

Adjudicator Miskinis found that the Chairman should have ruled Motion 12 out of order because it was unenforceable.

If the Chairman had done the right thing with Motion 12, this would have allowed the body corporate to approve the applicant’s Motion 15 which proposed she be allowed to install solar panels on her villa’s north-facing roof.  Instead, the Chairperson ruled Motion 15 out of order because the committee member’s Motion 12 had purportedly already decided the issue.  It  is this type of conduct – favouring a preferred motion by inserting it higher up on the Agenda order ahead of a less-favoured motion then voiding the lesser one for redundancy – which caused “alternative” motions and now “same issue” motions to be co-located.

According to Adjudicator Miskinis, “The question of reasonableness is whether the decision was objectively reasonable.  In this day and age it is inevitable that various items of utility infrastructure such as solar hot water systems… will be retrofitted to the exterior of building.”   Ultimately, the  Adjudicator did not delve further into the question of reasonableness,  presumably because it was not necessary to do so…the Building Act prohibited the withholding of consent.  But there are a number of tell-tale signs scattered through the Adjudication which suggest that if the withholding of consent was otherwise lawful, it nevertheless may  have been deemed unreasonable in the circumstances.  But we will never know for sure…