This case considered whether a provision in the Building Act 1975 would operate to deprive a contractual term of force and effect. The contractual term required the purchaser of a lot in a housing estate to obtain the seller’s consent before installing solar panels. The Building Act provision provided that consent must be provided in such circumstances if withholding consent “prevents a person from installing” solar panels. The primary judge gave a liberal construction to the provision, concluding that it covered a situation where the requirement hindered or restricted the installation of solar panels (as in this case). The Court of Appeal allowed the appeal, concluding that the provision only applied where withholding consent makes it “impossible, impracticable or impractical” to install. In this case the appellants were only willing to grant consent if the solar panels were in a location that would render them up to 20 per cent less efficient. The Court concluded that the Act’s provision would not be enlivened in this circumstance; accordingly, the contractual term was not deprived of effect.
Sofronoff P and Fraser JA and Mullins J
6 September 2019
The appellant and the respondent entered into a contract by which the respondent purchased a lot in a housing estate. . One of the terms of the contract was that if the respondent wished to install any solar panels, it would require the appellant’s consent. . The purpose of this restriction was to prevent the installation of solar panels that would “cause a visual impact or are not aesthetically pleasing”. . Subsequently, the respondent installed solar panels on a part of the roof that was visible from various places within the estate. . Despite the appellants’ request, the respondent refused to relocate the panels to another part of the roof (which would make the solar panels up to 20 percent less efficient). –.
At first instance the appellant sought injunctive and other relief to enforce the contractual term. . However, the application was dismissed on ground that the term was deprived of force by reason of a provision in the Building Act 1975 (“the Act”). . The appellant contends that the primary judge was wrong to reach that conclusion, because his Honour gave too broad a construction to the relevant provision – in particular, to the meaning of the word “prevents”.
The primary judge’s construction of the Building Act 1975 provisions
The key provision applicable to the circumstances in this case is s 246S(2), which provides that under a contract of the kind in this case (or other “relevant instrument”), if the consent of an entity is required to install a solar hot water system or photovoltaic cells on the roof or external surface of a building:
“The entity can not withhold consent … merely to enhance or preserve the external appearance of the building, if withholding the consent prevents a person from installing a solar hot water system or photovoltaic cells on the roof or other external surface of the building.” (Underlining added for emphasis).
The appellants conceded that the purpose of the contractual term was merely to enhance or preserve the external appearance of the building. . Accordingly, the key issue was whether the contractual term “prevented” them from installing the solar panels on their roof, such that the appellants’ consent could not be withheld.
The primary judge construed the word “prevents” (underlined above) as meaning “hinders” or “impedes”. . His Honour noted the observation of McMurdo P in Gittos v Surfers Paradise Rock & Roll Café Ltd & Anor  QCA 306 that the meaning of “prevent” varies according to the context. . His Honour considered that the alternative construction advanced by the appellants below – that it only referred to a total prohibition – would “produce the absurd result that they [the appellants] could require the respondent … to install the solar panels in an area of perpetual shade without a contravention [of the Act]”. . His Honour also found support for this conclusion in certain contextual features; firstly, a stronger word – “prohibits” – was used in related provisions, indicating that “prevents” entailed a lesser restriction. Secondly, the Explanatory Notes stated that the “policy aims to stop bodies corporate and developers from restricting the use of sustainable building elements and features” (emphasis added). .
The Court of Appeal’s conclusion
The Court of Appeal (per Fraser JA, Sofronoff P and Mullins J agreeing) allowed the appeal, concluding that the expression “prevents a person from installing” in s 246S of the Act connotes only “makes it impossible, impracticable or impractical for the person to install”. . Since the provision allows restrictions to retain their force and effect except where it “prevents” the installation of solar panels, that word “cannot comprehend every restriction upon the location where solar panels may be installed on a roof”. . The Court considered that it was “difficult to accept” that the legislative purpose extended to proscribe restrictions on the withholding of consent for lesser restrictions. . To the extent that the explanatory notes suggested a “more expansive scope” of operation for the provision, they involved a “degree of inaccuracy”. The clear meaning of the provision could not be displaced by the explanatory notes. .
Although their Honours considered that the provision could extend to a circumstance in which the requirement for consent made the installation of solar panels “impractical”, the “respondent did not prove that this is such a case”. . The evidence was that at the location required by the appellants, the solar panels would still “remain viable although they will operate somewhat less efficiently” (compared to where they had been installed). . That did not reach the threshold of restriction required to enliven s 246S of the Act, so as to deprive the contractual term of effect. .
Accordingly, the appeal was allowed; a declaration was made that the respondent had breached the contract; and orders were made requiring the removal of the solar panels (or relocation with the appellant’s consent). .