What is a Building Covenant?

Building covenants are commonly used by developers in new residential estates to ensure the houses meet a certain standard of quality and design and allow buyers to have some confidence that other houses in the neighbourhood will meet the same standard.

Building covenants can range from basic to highly detailed. They can cover design, materials, colour schemes, and even the placement of solar panels and hot water systems.

Can Building Covenants prevent me from installing solar electricity or hot water equipment?

In 2010, the Queensland Government amended the Building Act 1975 (Qld) to prevent building covenants, CMSs, and other similar documents from restricting owners implementing energy efficient features into their homes, including installing solar power and hot water equipment.

In 2019, the enforceability of these protections regarding solar power and hot water were challenged in the case of Bettson Properties Ptd Ltd & Anor v Tyler.

In response to this, the Queensland Government recently made further amendments to the Building Act 1975 via the Building and Other Legislation Amendment Bill 2022 to reinforce the protections for homeowners against such covenants.

At the time of this article the positions for Property Classes 1 and 2 are as follows:

For Freestanding (Class 1) Properties

Home owners can now install solar infrastructure on their homes or garages if the surface is not common property. That said they must still request consent if they are required by the contracts, building covenants or by laws. However, the developer just can not refuse consent. If previously denied consent, homeowners can request reconsideration. If consent is not given within a reasonable timeframe, homeowners can install the infrastructure or seek a court declaration. The District Court of Queensland can be used for homes under $750,000 in value, while the Supreme Court of Queensland is used for homes over $750,000.

For Apartment (Class 2) Properties

If homeowners of a unit in an apartment building wish to install solar infrastructure on common property, they must first obtain consent from the body corporate as required by relevant instruments such as by-laws. The body corporate can only withhold consent if necessary to maintain the building’s structural integrity, if there isn’t enough space for all unit owners to install solar infrastructure, or if the infrastructure would cause unreasonable noise. Homeowners who previously had consent withheld solely for aesthetic reasons can request reconsideration. If the body corporate does not respond within a reasonable time, homeowners can contact the Office of the Commissioner for Body Corporate and Community Management.

Owners of a Lot on a Building Format Plan may not need to seek the consent of their body corporate if they wholly own their roof space, regardless of any by-laws to the contrary. See the following recent Body Corporate Adjudication which considered this question: Gardenia Village [2022] QBCCMCmr 349.

What does this mean for developers?

Developers should carefully consider the exceptions of the Building Act amendments and draft their building covenants and by-laws carefully.  For instance, a developer may not withhold their consent to install solar panels on a Class 1 property, but they might still require the owner to submit a request and comply with the other covenants/design guidelines for the estate. This gives the developer the opportunity to review the proposed build as a whole and work with owners to negotiate an outcome.

Where to from here?

If you are a homeowner or a developer seeking clarification on your rights about building covenants and by-laws, contact Pacific Law to obtain advice about your particular situation. Give us a call at (07) 5443 4744 or email us at info@pacificlaw.com.au.