Rising cost-of-living expenses and an environmentally conscious community have ignited a surge in demand for sustainable and energy-efficient solutions across Queensland.

According to the Department of Energy and Climate around 850,000 homes and small businesses are connected to solar energy across the state.  Queensland boasts the highest rate of residential rooftop solar installations in the nation.

With that number expected to continue to rapidly rise, this article will explore the regulatory framework regarding the installation of solar panels and solar hot water systems (solar infrastructure) in those Queensland bodies corporate that fall under the Building Units and Group Titles Act 1980 (the BUGT Act).

Amendments to the Building Act 1975

Amendments, commonly known as ‘ban the banners’ provisions, were introduced to the Building Act 1975 (the Building Act) in 2010 to support sustainable housing and enable homeowners to install solar panels or a solar hot water system without regard for aesthetic considerations.

However, the Court of Appeal in Bettson Properties Pty Ltd & Anor v Tyler [2019] QCA 176 highlighted the need for further reforms to reinforce the original policy intent of the 2010 provisions.

Amendments to the Building Act in 2022 clarified the 2010 provisions by restricting the reasons a body corporate or a developer can – through a ‘relevant instrument’ such as the by-laws, including any development control by-laws – prohibit the installation of solar infrastructure on a roof or other external surface of a ‘prescribed building’.

According to the Building Act, if a roof or other external surface of a prescribed building is common property, a body corporate cannot, under a relevant instrument prohibit the installation of – or restrict the location of – solar infrastructure on that roof or other external surface, or withhold their consent to install solar infrastructure in these areas, unless:

• it is necessary to preserve the building’s structural integrity; or
• there is insufficient space on the roof or other external surface for the installation of solar infrastructure by each lot owner; or
• in relation to a solar hot water system – it is necessary to prevent noise from piping causing unreasonable interference with a person’s use or enjoyment of the building.

Installing solar panels in a building units plan body corporate

For bodies corporate registered under a building units plan of subdivision, the roof and the outside of the building are typically common property.

Even though the by-laws cannot prohibit the installation of solar infrastructure, owners must also be mindful of their obligations under the body corporate legislation, which requires any improvements to the common property by the lot owner to be authorised by the body corporate.

Improvements by a lot owner to the common property must be authorised by resolution without dissent at a general meeting under Section 37A of the BUGT Act.

Failure to obtain the appropriate body corporate approval may result in unnecessary disputes over unauthorised improvements.

Responsibilities of owners for their improvements to the common property

There is sometimes a reluctance to approve these installations on common property because of a misconception that it may lead to additional body corporate expenses.

However, the body corporate legislation requires an improvement by an owner which is authorised by the body corporate to be maintained in good condition by the owner (unless excused by the body corporate).

A further safeguard against body corporate liability is the ability to impose conditions upon the approval. For example, a condition may be that if works need to be carried out on the common property roof, the owner would be responsible for any costs associated with the temporary removal of their solar infrastructure.

When imposing any conditions, the body corporate must always bear in mind its legislative obligation to act reasonably when making decisions.

Installing solar panels in a group titles plan body corporate

Conversely, for bodies corporate registered under a group titles plan of subdivision, the roof and the outside of the building are part of a lot.

Under the Building Act, if an owner in a prescribed building is seeking to install solar infrastructure on their roof or another external surface of their lot, they will not be affected by a relevant instrument that prohibits the installation of solar infrastructure or restricts its location in these areas.

Nonetheless, an owner will still need to obtain consent for the installation, if required to do so, under a relevant instrument. For example, the subsidiary body corporate may have a by-law that requires body corporate approval to make a change to the external appearance of a lot. The development control by-laws also regulate quality of design and development within the residential areas and the owner should ensure they have sought the appropriate approval with the higher-level body corporate. Failure to obtain body corporate consent in this situation may mean an owner is breaching the by-laws.

If an owner seeks body corporate approval for the installation of solar infrastructure under a relevant instrument such as the by-laws, the body corporate cannot unreasonably withhold its consent.

Limitation on the operation of the Building Act, chapter 8A, part 2 

Importantly, the Building Act does not give owners unfettered rights to install solar infrastructure on the roof or other external surfaces of a prescribed building.

In addition to the limited reasons discussed earlier for which an installation can be prohibited, or consent can be withheld in relation to a common property roof or other external surface, the Building Act specifies that part 2 does not entitle owners to install solar infrastructure in a way that unreasonably prevents or interferes with a person’s use and enjoyment of any part of the building.

This sentiment is further supported by a similar section in the body corporate legislation which provides that the occupier of a lot must not use the lot, or the common property, in a way that interferes unreasonably with the use or enjoyment of another lot or the common property under Section 51(1)(b) and (c) of the BUGT Act.

Consequently, owners should consider whether an installation could have a negative impact on others in the scheme – for example, if the solar panels would cause a significant glare into another lot.

This reminder is particularly important for owners seeking to install solar infrastructure purely on their lot, as they may understandably assume that there are no other considerations beyond obtaining body corporate consent which may be required under a by-law.

Considering statutory easement rights

Another relevant consideration when installing solar infrastructure is the possible existence of an implied easement which may allow for the location or provision of utility services and utility infrastructure.

Section 17 of the BUGT Act provides for implied easements for services and Section 18 of the BUGT Act provides that the ancillary rights and obligations to make the easement effective will apply.

The referee, in the context of installing solar infrastructure, stated that it is relevant to note the legislative provisions regarding implied easements in the decision of Washingtonia [2024] QBCCMCmr 156 (23 April 2024), in which the applicant sought approval for solar panels installed on a common property roof.

The referee remarked:

[35] This provision gives owners an implied easement for the passage or provision of certain utility infrastructure to provide services to their lot. I consider it would include the provision of solar electricity to a lot and enable utility infrastructure on common property to provide that service. However, the utility infrastructure covered by the implied easement is limited to pipes, poles, wires, cables or ducts. As such, it would not include plant and equipment such as solar panels but would include cabling and ducting associated with the solar panels.

Requirement for exclusive use or a lease

A common question asked about improvements to common property is whether an owner is required to seek exclusive use or a lease when they also seek authorisation to make the improvement to common property.

Section 30 of the BUGT Act provides that the body corporate can, with written consent of the owners involved and by resolution without dissent, make a by-law giving the owner of a specified lot/s exclusive use and enjoyment or other special privileges over common property.

The body corporate can also authorise a lease over common property under Section 22 of the BUGT Act.

As stated above, the implied easement provisions give an owner the right to install pipes, poles, wires, cables or ducts necessary to provide a solar power service to their lot without the requirement for exclusive use or leases.

However, the right to a service easement under Section 17 of the BUGT Act does not include rights to install plant and equipment parts of a solar panel installation.

In relation to exclusive use, a referee has stated (in the order linked above):

[38] In the context of a dispute under the BCCM Act, the Queensland Court of Appeal considered the capacity of a body corporate to approve an improvement to common property. The Court said that where an improvement had the effect of granting the use of part of the common property to a lot owner exclusively and for an unlimited period, it could not be treated separately from the legislative provisions regarding the disposition of common property. The Court found the common property in question in that dispute would be enjoyed exclusively and indefinitely by the lot owner and so amounted to a disposition of common property that needed to be resolved by a resolution without dissent. I see no reason why this approach would not apply equally to common property for plans created under the BUGT Act.

[39] The ability to dispose of common property under the BUGT Act, including to allocate it exclusively and permanently or for an extended time, usually requires a grant of rights under exclusive use by-law or a lease over the common property.
Anyone wanting to install solar infrastructure should check their registered by-laws to see if any apply.

Where the body corporate refuses consent for the installation of solar infrastructure 

If the body corporate refuses an owner’s application for the installation of solar infrastructure, the owner may lodge an application for a referee’s order through our office. 

Alternatively, if you would like further information about the application of the Building Act provisions and avenues for dispute resolution under this legislation, you can contact the Queensland Building and Construction Commission or seek independent legal advice.

We hope this article improves your understanding of the extensive legislative framework surrounding the installation of solar infrastructure in a body corporate under the BUGT Act and reduces the likelihood of disputes arising on this subject.

If you have any other Body Corporate questions, please contact the Office of the Commissioner for Body Corporate and Community Management by phone on 1800 060 119 or by submitting an online enquiry at ASK A BODY CORPOATE QUESTION.  

Article contributed by the Commissioner for Body Corporate and Community Management

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