If you live in a unit complex and particularly if you are on the committee of a Body Corporate, you may have been under the impression that there is no stopping any and all solar hot water heaters or solar panels (solar power) being installed on common property, due to the amendments in 2010 to the Building Act 1975 (“Building Act”).
However, this is not necessarily the case.
There were amendments in 2010 to the Building Act 1975 (“Building Act”) to implement policy to ensure environmentally sustainable measures could be accessed by residents of unit complexes.
Under Section 246O of the Building Act any instrument attempting to prohibit the installation of solar hot water systems or photo voltaic cells on the roof would have no force or effect to the extent the prohibition applies “merely to enhance or preserve the external appearance of the building”.
In addition the Building Act also provides under Section 246S that if the consent of an entity is required under a “relevant instrument” to install a solar hot water system or photo voltaic cells on the roof or other external surface of the building then the entity is taken to be required not to withhold consent if the consent is withheld “merely to enhance or preserve the external appearance of the building”.
A “relevant instrument” includes a community management statement, including any by-laws and any provisions of any architectural and landscape code adopted under the community management statement.
As a result, a committee for a Body Corporate cannot withhold consent to any request to install such equipment on the roof or external surface of the building, if the refusal is merely to “enhance or preserve the external appearance of the building”.
To be clear, a requirement under a community management statement that an owner must obtain written approval from the committee before installing any solar panels will not be valid if the consent is to be withheld only on considerations of appearance.
As a result, this leaves the legislation open to the interpretation that, provided any conditions applied to the installation do not, in effect, prevent the person installing the solar panels on the roof, conditions may in fact be imposed on the installation.
This has now been confirmed in a number of decisions given by adjudicators of the Office of the Body Corporate and Community Management Commissioner.
In summary, If an owner applies to install solar panels or a solar hot water system (“Solar Equipment”) consent cannot normally be withheld if the lack of consent prevents a person from installing Solar Equipment on the roof or other external surface of the building (Building Act Section 246S, Section 246T). It is open to the Body Corporate to approve the installation on certain conditions, for example that that the installation is in a colour sympathetic to the complex.
Any by-law will be ineffective which prohibits the installation of Solar Equipment on the common property to the extent that the prohibition applied merely to enhance or preserve the external appearance of the building. This does not stop the Body Corporate requiring that the installation of the Solar Equipment be carried out in such a manner that ensures it is not visible from other areas of scheme land. If this is possible then consent may be given that is conditional upon this.
However, care must still be taken in prescribing conditions. Reasonable conditions to be imposed include conditions such that the colour scheme blends in as closely as possible with the existing structure or that the Solar Equipment be positioned in such a fashion as to minimise the impact of the visual nature of the installation. It may be that conditions going so far as to require additional structures (such as parapet walls to completely block the view of the Solar Equipment) may be of such expense that the expense will, effectively, prevent the installation of the solar panels by imposing too harsh a burden on the unit owner.
Any unreasonable conditions imposed on the consent to the installation merely to preserve the external appearance of the building could be seen to be, in effect, a prohibition and in turn this would be invalid.
If you have any concerns regarding installation of Solar Equipment in your unit complex, either as a unit owner or as a member of the committee, please contact Jane Macdonnell at McColm Matsinger Lawyers for further information.