This is a harsh decision for a homeowner who wanted to install solar panels on their roof for maximum energy efficiency.
The case is Bettson Properties Pty Ltd and Tobsta Pty Ltd v Pauline Audrey Tyler  QCA 176.
This case should be a warning for those intending to install solar panels or hot water systems on their building if there is a building covenant or rules preventing same. A developer may want to control the installation of solar panels to preserve the value and appearance of the estate development.
Bettson were property developers and Tyler a homeowner in an estate with building covenants.
The building covenant conditions required that the buyer submit to the developer its plans for the size, number, and location of any solar panels. The installation of solar panels could not occur without consent in writing from the developer, who could disapprove it if it ruined the visual impact of the development.
Contrary to the building covenant, Tyler installed solar panels on the roof without submitting any plans or obtaining consent.
The panels were installed on the north eastern quadrant of the roof because the contractor’s advice was that it was the best location to maximise the panel's efficiency.
That part of the roof faces the street and was visible from various places within the estate.
The developer formed the view that the panel's location on the roof had an adverse impact and was in breach of the building covenant.
There was evidence from a solar panel expert that if the solar panels were relocated to the south eastern quadrant of the roof, they would still be viable but would be up to 20% less efficient.
The developer was concerned that “…the value of the estate and land and houses in it would be diminished, resulting in significant but not easily quantifiable lost revenue for the (developers) and lost capital value for owners of houses in the estate".
The developer took the property owner to court to enforce the building covenant but was unsuccessful on the ground that the building covenant was invalidated by the provisions in Part 2 of Chapter 8A of the Building Act 1975 (QLD). However the developer appealed and won.
The Building Act contains provisions that support sustainable housing including the installation of solar panels. In particular, section 246Q is to the effect that a contract (in this case a building covenant) will have no force or effect to the extent that the restriction applies merely to enhance or preserve the external appearance of the building and prevents a person from installing solar panels on the roof or other external surface of the building.
Section 246S is to the effect that if consent is required, consent cannot be withheld merely to enhance or preserve the external appearance of the building, if withholding the consent prevents the person from installing solar panels.
In the result, the appeal court decided that the developer did not prevent the homeowner from installing solar panels. The panels could be installed on the other side of the house and just because they were less efficient on the other side of the house, it did not offend the provisions of the Building Act.
The court declared the homeowner was in breach of the covenant, ordered the homeowner to relocate the solar panels and pay the developer's legal costs.
For more information contact Evan Sarinas
This publication is intended as general information only and not specific legal advice. All liability is specifically disclaimed for reliance on same. Seek professional legal advice.
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