In this matter Burns J considered the effect of Pt 2 of Ch 8A of the Building Act 1975 which affects the enforceability of covenants that prohibit or restrict the use of a range of sustainable building features, including solar panels. The case turned on the validity of a covenant in a contract of sale for a residential lot. The covenant allowed the Seller to reject requests to install solar panels where the panels caused visual impact or were not aesthetically pleasing. Burns J concluded that the covenant hindered or impeded the respondent from installing solar panels. It was, therefore, of no force or effect by reason of s 246Q.
4 July 2018
The applicants were the developers of a residential and commercial development. . The applicants sold a proposed lot to the respondent who erected a house on the land. .
The contract of sale included the following term as cl 1.26:
“The Buyer shall submit to the Seller, plans for covenant approval indicating the size, number and location of any solar panels. Any panels that are considered by the Seller to cause visual impact or are not aesthetically pleasing, will not be approved.
The Buyer shall not proceed with affixing solar panels to any roof or structure until it has received the consent in writing for the same from the Seller and then only in accordance with the terms of the Seller’s consent.” .
In January 2017, without obtaining the applicants’ consent, the respondent installed solar panels on the roof of her home. . The applicants subsequently became aware of the installation and wrote to the respondent alleging that she was in breach of cl 1.26, and calling upon her to relocate the solar panels. . The respondent subsequently sought a retrospective approval but this was refused “on the basis that the solar panels are located in a position that causes an adverse visual impact for other residents in the estate, and is not aesthetically pleasing to other residents in the estate.” . The applicants requested that the respondent relocate the solar panels to a different part of the roof. .
The applicants sought a declaration that the solar panels were installed in breach of cl 1.26 and a mandatory injunction requiring the respondent to relocate them to a different part of the roof. . At issue was the effect of Pt 2 of Ch 8A of the Building Act 1975 which affects the enforceability of covenants that prohibit or restrict the use of a range of sustainable building features, including photovoltaic cells (“solar panels”). . The relevant provisions included:
- Section 246O, which concerns covenants “prohibiting the installation of … photovoltaic cells on the roof”: s 246O(1)(d). Such a covenant “has no force or effect to the extent the prohibition applies merely to enhance or preserve the external appearance of the building”: s 246O(3).
- Section 246Q, which applies to covenants “restricting the location on the roof … where … photovoltaic cells may be installed.” Such a covenant has no force or effect to the extent the restriction “(a) applies merely to enhance or preserve the external appearance of the building”, and (b) “prevents a person from installing … photovoltaic cells on the roof”: s 246Q(2).
- Section 246S, which applies where “the consent of an entity is required to install … photovoltaic cells on the roof or other external surface of a prescribed building.” In such a case an entity cannot withhold consent “merely to enhance or preserve the external appearance of the building, if withholding the consent prevents a person from installing … photovoltaic cells on the roof”: s 246S(2).
Burns J held that s 246O did not apply because although cl 1.26 operated to restrict the size, number or location of solar panels on a roof, it did not of itself prohibit the installation of solar panels. .
However, s 246Q applied to covenants which restricted the location on the roof where solar panels may be installed. . His Honour said that it was “obvious that s 246Q applies to cl 1.26”. . The effect of this was that the covenant had no force and effect. –. The applicants had tried to argue that although the restriction applied merely to enhance or preserve the external appearance of the building, it did not (as s 246Q(2)(b) required) prevent a person from installing solar panels because it only dictated their location. . Burns J rejected this argument for a number reasons, chief of which was that, if the construction were correct, s 246O would have no work to do. –. His Honour also held that the word “prevents” should be taken to mean “hinders or impedes” rather than “prohibits”. .
It followed that because cl 1.26 restricted the location on the roof where solar panels may be installed in circumstances where the panels were considered by the applicants to cause a visual impact or were not aesthetically pleasing, it was a covenant that hindered or impeded the respondent from installing solar panels. . It was, therefore, of no force or effect by reason of s 246Q. .
While his Honour considered that the clause was invalid, Burns J indicated if it were valid, he would have held that s 246S applied. –. The application was dismissed. .