QLD: Q&A Permission for Installing Solar Panels in Body Corporate

This article is about installing solar panels on body corporate unit roofs in Queensland, covering items like whether permission is required from the body corporate or who is responsible if the solar panels get damaged.

Table of Contents:

• QUESTION: Does the QLD Solar in Strata Webinar with Stratum Legal need an update? In June 2022, an amendment to the Queensland Build ACT 1975 binds the body corporate and any by-laws it passes.
• QUESTION: If lot owners install solar panels, should any associated increases in the body corporate insurance be the owner’s responsibility?
• QUESTION: What is the approval process for installing solar panels on common property roofs to reduce common property area electricity costs of running the pool equipment etc? The solar panels will be installed on car wash bays or common outdoor area roofs. Can the body corporate committee approve this or does it have to be approved by all owners?
• QUESTION: Due to solar installation and electrical regulations, my solar company has asked to install a main switch in our meter box. Who should pay for this?
• QUESTION: I’m seeking permission to install solar for my apartment. As the quote for the work is over $3000, a general meeting is required. To speed up the approval process, can I break my submission up into separate quotes, all below $3000?
• QUESTION: A new adjudication seems to make it very difficult to get consent for solar panel installations in tower constructions where there are many lots underneath a relatively small roof. Is this correct?
• QUESTION: I’ve been asked by the body corporate to have my solar panels inspected every year. Is this mandatory or can I say it isn’t reasonable?
• QUESTION: What controls does a Body Corporate have regarding the types, sizes and power of solar systems installed by individual villas?
• QUESTION: As a top floor unit owner, can I resist having common solar panels installed on my roof? The roof has existing roof problems and I’m concerned about leaks.
• QUESTION: Is setting a precedent a valid reason to deny lot owners permission for solar installation or would the BC committee first need to put a bylaw in place?
• QUESTION: We’d like to install solar and sell the excess to lot owners. We’ve been advised that a body corporate cannot make a profit. How do we get around this?
• QUESTION: I’ve purchased a unit off the plan, yet to build. Plans in marketing show solar installation post build is to be decided by the Owners Corporation. Is there anything we should be aware of now to facilitate the post build install, or even better, is there any chance of doing install whilst doing the initial build?
• QUESTION: If there is a 2 or 3 story building, there is not going to be enough roof space for all parties. Is it going to then have to be a first in first serve?
• QUESTION: If all of the roof is taken up by one lot, does that mean there should be an easement registered against the property, and should there be something in the bylaws as well? How important is it for the decision making process to be documented?
• QUESTION: Can the committee restrict how many solar panels we can put on the roof? At the moment we are restricted to only 8, but there is room for a lot more. As a lot owner, can I ask why?
• WEBINAR: Solar in Strata | Michael Kleinschmidt, Bugden Allen Graham Lawyers | May 2021
• QUESTION: My complex has advised I can only install up to 10 panels for solar power. I’m wanting to install 19 panels. Can my body corporate limit the number of panels on my property? I won’t be covering body corporate common property or my neighbour’s lot.
• QUESTION: I live in a Queensland strata complex with around 50 units and townhouses. I recently put a solar system on the roof which got damaged by hail a few months later. Is the repair of this damage covered under the strata title?
• QUESTION: I live in a complex of 4 units. If I was to install solar panels on my roof which would not impact on any of the other units would they be insured by our Body Corporate Insurance?
• QUESTION: We are seeking approval to install solar panels on our roof. We have emailed the body corporate for approval but they tell us we need to wait until the AGM in around a year. How is this fair?
• QUESTION: Are we allowed to install roof solar panels for our unit and/or do we need body corporate permission?

Question: Does the QLD Solar in Strata Webinar with Stratum Legal need an update? In June 2022, an amendment to the Queensland Build ACT 1975 binds the body corporate and any by-laws it passes.

Answer: Section 246Q remained unchanged until 2022, when a minor change was made to the section title, along with two major changes of substance.

The ‘Ban the Banners’ amendments to the Building Act were passed in 2009 and took effect in early 2010. They included rendering inoperable certain by-laws that were used as, in effect, developer mandated building covenants.

Restrictions on occupation before the new homeowner completed landscaping, etc., permitted roof colours, or the locations of solar PV or hot water systems on the roof were all rendered inoperable if the restriction was about preserving or enhancing the external appearance of the building only. In the case of solar PV or hot water, the by-law also had the effect of preventing the installation of the solar PV or hot water system.

Fast forward a few months to 2010, and after industry backlash, Ban the Banners was significantly watered down. The relevant provision, for our purposes, Section 246Q, was cut down to cover only ‘relevant instruments’ (including by-laws) that restricted the location of solar PV or hot water only for reasons of enhancing or preserving the external appearance of the building and which had the effect of preventing the installation of solar PV or a solar hot water system.

Section 246Q remained unchanged until 2022, when a minor change was made to the section title, along with two major changes of substance.

The first was that the by-laws concerned must relate to the roof or external surface of the common property of a prescribed building (being a class 1a or 2 building or a class 10a building attached to a class 1a or 2 building).

Second, the old ‘amenity plus prevention of installation test’ was deleted and replaced with three alternatives. The effect is that if any one of the alternatives applied, then the restriction in the by-law would have effect only to the extent permitted in the relevant alternative.

The first alternative was that the restriction in the by-law was necessary to preserve the building’s structural integrity – obvious enough and very sensible!

The second alternative was that there was not enough roof or external space for all lot owners to have their own systems, and if so, then the restriction in the by-law was allowed to be a prohibition. In other words, if there is not enough space for everyone, a body corporate, through a by-law, can prevent anyone from installing solar PV or a solar hot water system. I personally think this is a great idea because, in these cases, the lot owners, through the body corporate, can seek to implement a fair allocation system OR a body corporate owned solution.

The third alternative relates only to solar hot water systems. A by-law restricting them can have an effect, but only to ensure that noise from the piping does not cause unreasonable interference with a person’s use and enjoyment of the building.

Now that we are clear on the law, my recollection is that nothing in this video is inconsistent with that law. Of course, if I am wrong, I’d be delighted to work with Lookupstrata to add an update at the end, to bring viewers up to date on these provisions.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #706.

Question: If lot owners install solar panels, should any associated increases in the body corporate insurance be the owner’s responsibility?

Installing solar on villa and townhouse strata units is common. What are owner’s ongoing legal obligations?

Although it is “their” half of the roof, what about solar panels catching on fire, damaging the roof or, detaching and damaging cars in the visitor lot, etc in a cyclone?

Should the body corporate pay more for additional insurance to cover these rare but possible events, or should this extra cost be the unit owner’s responsibility?

Answer: In most instances, building valuations already include allowances for minor adjustments, making it unnecessary to increase the insured sum after installing solar panels.

Solar panels supplying the service solely to the lot, including the associated pipes and wiring, are the lot owner’s responsibility to maintain even if the system is on common property.

From an insurance perspective, solar panels that are permanently affixed to the building are considered fixtures and fall under the coverage of the strata insurance policy. In the event of a fire or any damage, the policy treats them similarly to other electrical components of the building. Likewise, if a solar panel were to detach, the policy handles it like a roof sheet or tiles falling off.

In the case of any incident involving the solar panels, a claim can be directed to the insurer for legal liability consideration. Legal liability claims are assessed on a case-by-case basis by insurers, solicitors, and potentially judges if the claim goes to court. These claims are never straightforward, and liability is determined based on the specific circumstances of each case.

The policy extends to cover claims made against the body corporate and not the lot owner. It is important to note that the body corporate and lot owner can be jointly or individually named as a respondent on a claim. Consequently, lot owners should consider obtaining landlord or contents insurance with public liability coverage to safeguard their personal liabilities.

Insurance policies are tailored to offer comprehensive coverage for solar panels, leaving little room for extensive considerations. The primary concern often revolves around whether the insured sum should be revised to account for the panels. However, in most instances, building valuations already include allowances for minor adjustments, making it unnecessary to increase the insured sum after the installation of solar panels.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the December 2023 edition of The QLD Strata Magazine.

Question: What is the approval process for installing solar panels on common property roofs to reduce common property area electricity costs of running the pool equipment etc? The solar panels will be installed on car wash bays or common outdoor area roofs. Can the body corporate committee approve this or does it have to be approved by all owners?

Answer: Solar installations may be approved without an ordinary resolution depending on the cost of the project.

Committees responsible for Queensland schemes registered under the standard module and accommodation module may approve solar installations without an ordinary resolution if the improvement to common property is within their basic improvement spending limit and the installation cost does not exceed $200 per lot.

If the proposed installation is more costly than this, an ordinary resolution of the body corporate must be obtained. The main consideration would be the use of the area; whether the installation changes the use, the cost of the installation or inhibits future use.

Regarding committee member liability, they must act in good faith and in the best interest of the body corporate. To minimise any backlash, they must have done their due diligence and uphold the bylaws, Act and code of conduct.

Generally, the cost of installing well sized solar panels is recovered in a few years, presenting ongoing savings to the common property electricity bills. If the proposed installation could pose a risk to the safety, would be aesthetically displeasing, or could be contentious in any way, it is recommended the committee approach all owners for approval and seek advice from energy consultants to provide support regarding their decision.

Sarah Price
Altogether Group
E:[email protected]

This post appears in the May 2023 edition of The QLD Strata Magazine.

Question: Due to solar installation and electrical regulations, my solar company has asked to install a main switch in our meter box. Who should pay for this?

Due to solar installation and electrical regulations, my solar company has asked to install one main switch to the switch box for a group of four lots. The switch box is on the outside brick wall of one of the lots.

The main switch will allow the switchboard to be turned off in case of an emergency or so an electrician can work safely inside the switchboard.

Who should be responsible for this upgrade expense? Would it be the responsibility of the body corporate or should the bill be shared by all four owners receiving electricity via our meter box?

Answer: This cost should be at the expense of the requester of the works.

In general, the body corporate and, if applicable, the embedded retailer are jointly responsible for ensuring the safe operation of the site.

If a consumer instigates works within the network and the installation of additional work is required for compliantly installing this additional equipment such as a building Main Switch (which the enquiry appears to suggest is required) then this cost should be at the expense of the requester of the works. This is on the basis that the original installation may not have required this item when installed to comply with installation standards applicable at the time. The installation of solar, in this case, is the catalyst for the addition of the switch described.

The exception to this is where the reason for the installation of the additional equipment is directly related to an unsafe condition of the network. In this example, the body corporate would be responsible for rectifying the unsafe issue.

Allan Parker
Altogether Group
E: [email protected]

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: I’m seeking permission to install solar for my apartment. As the quote for the work is over $3000, a general meeting is required. To speed up the approval process, can I break my submission up into separate quotes, all below $3000?

I submitted a Lot Improvement request including a quotation to our BC manager to have a solar power system installed. I was informed that because the quote was over $3000, Queensland BC legislation dictates that a minuted general meeting would need to be convened in order to have the request approved.

My solution to this would be to obtain two quotes, one for $2999 that would cover the installation of solar panels on the roof and any other work to be done on common property. The other quote would be for the inverter and cabling which would be internal to my unit and hence would not require BC approval. Would this approach be viable?

My goal is to have the solar power system in place asap so as to save money on air-conditioning during the summer months. The BC committee is renowned for its unwillingness to spend money. The BC management company charges to organise the meeting and associated documentation. The likely outcome would be that my request would be held over and added as an agenda item to the next AGM in March 2023.

Answer: Follow the legislation. Either make your submission and wait until the next general meeting or offer to pay for a general meeting now. 

The currently legislation around renovation is not user-friendly and needs to be changed.

As indicated, renovations under $3000 can be approved by the Committee, but after that a general meeting is required. However, $3000 doesn’t go far these days so many renovation projects require a general meeting under the law. That’s a problem because general meetings tend to be infrequent – many schemes may only have an Annual General Meeting so owners might have to wait a while for an approval. They are also expensive. If you want a general meeting called now to approve your renovation, you may be asked to pay for it yourself and the costs for this can run up quickly as owners have to be informed, meetings booked, notices issued and so on.

This situation works against the interests of body corporates. Schemes know owners want to do renovations and they should be, and generally are, supportive of this. What body corporates need from owners is a clear record of what work is being done and attribution for responsibility of that work. That way, if there is a problem with renovation work done by the owner the body corporate has a good evidence trail to keep the costs of fixing that with the lot owner. If an owner does works without seeking approval, or works outside the scope of any approval the body corporate is in a strong position to get the owner to undertake rectification.

The current system works against achieving those goals and too often the outcome is that owners either ignore it or, as you are doing here, try to apply unnecessary and unsatisfactory work arounds.

As such, the straight forward answer to the question is that you should just follow the legislation. Make your submission and wait until the next general meeting. Or offer to pay for a general meeting now. Those are the legal avenues available to you.

However, it would not be surprising if you find these options unsatisfactory. Maybe you can wait to have the quote approved, but your contractor can’t. Your AGM is in March but the contractors prices might have changed by then. Your submission might be invalid if you submit a quote that is only applicable until January. Because it is solar you might be entitled to a subsidy now that would not be available next year. Delays do little to resolve these issues.

What if you pay? It’s a viable option, but a project that might cost $6000 could now cost $7000. It’s a lot of extra margin for an installation the body corporate is likely to approve – if you can get owners to even vote at all.

Faced with these scenarios it is not surprising owners look for alternatives. The idea of splitting up the invoices is interesting. Maybe it could work if there were no objections, although it might be hard to come up with a good answer if someone thought this should be treated as the one project. My guess too is that the work you view as internal only – wiring – is likely to touch on body corporate property at some stage and so should be approved by the body corporate.

One alternative favoured by some body corporates would be to allow you to undertake the works now and have them retro-actively approved at the next general meeting. Of course, this doesn’t strictly adhere to the law, but it is a means by which you can get the works done and the body corporate can have them approved. The big question with doing it this way is what happens if the body corporate rejects your proposal at the AGM? Do you have to undo the works? Does the body corporate have to take legal action against you to make you undo them? Or do you have to take legal action against the body corporate to have the works approved? Most of the time this option works OK, but it can get messy when these things go wrong.

The upshot is that there probably isn’t a satisfactory answer to your question. Ideally the legislation would be changed to make it easier and more effective for both owners and body corporates, but Queensland is proving particularly slow in adapting to the changing demands of a rapidly expanding industry so don’t expect help from legislators any time soon. Maybe you could address your issues to your local MP or the SCA – the more people who do so the more momentum there is for change.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #629.

Question: A new adjudication seems to make it very difficult to get consent for solar panel installations in tower constructions where there are many lots underneath a relatively small roof. Is this correct?

A very recent Adjudication* per Gardenia Village [2022] QBCCMCmr 349 highlights recent amendments to s.246S of the Building Act 1975 concerning the installation of solar panels etc on common property roofs regardless of aesthetics.

While the amendments are a response to an earlier Qld Court of Appeal which did not reflect the policy intentions for solar panel installations, the new s.246S seems to go beyond what was needed to clarify policy; it seemingly introduces a new avenue for withholding consent via s.246S(2)(b)(ii) ie the body corporate may refuse consent to one owner if there is not enough space for every owner even though the applicant is not seeking to monopolise the roof space.

If this is correct, this could make it very difficult to get consent in tower constructions where there are many lots underneath a relatively small roof. Looks like an “All in or None in” or “Dog in the Manger” Rule which could be readily abused by Committees who do not want solar panels for aesthetic reasons. Your thoughts?

*This adjudication is yet to be published.

Answer: If you are a member of a committee – get ahead of this but be consistent with your decision making!

This decision by Adjudicator Miskinis is a useful clarification of the recent changes to the ‘Ban the Banners’ provisions of the Building Act 1975. Those changes were made to respond to a Court of Appeal decision in Bettson Properties Pty Ltd & Anor v Tyler [2019] QCA 176. For some commentary on the Court of Appeal decision, check out my article ‘Ban the Banners, or not?’ published in November 2019.

Before the recent amendments, a Body Corporate ‘can not withhold consent … (1) 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’. The ‘loophole’ in Bettson was that the external appearance to be preserved was the ‘development’ not just the ‘building’. So, Parliament narrowed down the grounds upon which a Body Corporate can validly refuse permission to install solar PV or hotwater. The new test is:

1. The consent relates to the roof or other external surface of the building and it is common property – in the case of Gardenia Village the roof was ‘on title’ so the Body Corporate failed on this element.
   
   AND
2. The consent is withheld for only one or more of the following reasons:
   
   1. To preserve the structural integrity of the building.
   2. If there is not enough space for all lot owners to install solar PV or hotwater – then to stop a lot owner from installing solar PV or hotwater.
   3. If the consent relates to solar hotwater, then the refusal is necessary, to the extent necessary, to stop an unreasonable interference with a persons use and enjoyment of the building arising due to noise associated with the piping.

The first thing to note about this new test is that any installation ‘on title’ is not covered. So, standard format plan lot owners rejoice because your Body Corporate cannot make a by-law that can stop your installation. Next, the grounds for a valid refusal are very narrow and the quality of evidence required to justify a reasonable (and thus defensible) decision will be pretty high. For example, for the first limb, a report from a structural engineer, or very experienced and appropriately licensed builder. For the third limb, the noise is likely to arise after the install, in the form of water hammer.

A well drafted by-law would recognise this, and the consent to install would be given on the basis that noise to a certain volume or standard, or of a certain type (water hammer) does not occur. Further, if it does occur, then the consent is revoked if the problem cannot be fixed, within a certain reasonable time. As for the final limb, this is going to be problematic. Yes, the intention is to ensure that everyone gets to use the common property roof or, at least in theory, nobody does. The new provision does not stop ‘first in best dressed’ because it does not mandate a refusal of consent; it only permits it.

Another significant issue arising is that not all installations are the same, in terms of size and area used. Bodies corporate that are on the ball would survey all the available space (whether it currently has panels on it or not), work out each owners notional share, take into account prime versus sub-prime locations (for example efficiency traded off against area to enable equivalent power generation), and take some advice about the fairest way to share out the space; for example if the entire area can generate x KwH per annum, then y KwH per annum for each lot, where y is to x as each lot’s ISLE is to the total of the ISLE. Of course, being a paid pessimist, my prediction of what is likely to occur is that the lot owners that can afford to get their panels in first will get approved until there is no room left. At that stage, the refusals will start to come. Then, WW3 will erupt, because some lot owners will be missing out.

So, my parting shot – if you are a member of a committee – get ahead of this! Audit your current approvals, survey your available space, get some advice, work out fair allocations, publish the results to all owners, grandfather the existing approvals using a new by-law (so that as panels are replaced the new ones are consistent with the lot owner’s fair allocation) and most importantly, be consistent with your decision making.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #608.

Question: I’ve been asked by the body corporate to have my solar panels inspected every year. Is this mandatory or can I say it isn’t reasonable?

I have solar panels on the roof above my top floor apartment in Brisbane. Approval was given by the Body Corporate with the proviso that the panels get inspected regularly, but no actual time frame was listed.

I have now been asked to have the panels inspected every year but I can’t find any QLD Legislation that makes it mandatory to do so.

I have checked twice with our Strata Insurance company, and they say that regular inspection is OK. They class this as being around every 3 years as long as there are not any obvious problems like leaf blockages etc, which we don’t have.

Our roof gets an annual Safety Inspection and certification, and the solar panels are automatically checked out as part of that, including items such as anchor points.

Do I also need to get my own inspections every year at the request of the Committee?

Answer: Talk to an expert, get some correspondence from them and flick it through to the committee.

Now going back to that approval. At the end of the day, approval is a privilege, it’s not a right and so treat it like a privilege. Having solar there, even though you’ve spent the money, treat it like a privilege.

In the absence of standards, talk to an expert, is what I usually do. A plumber is an expert. A solar installer can be an expert as well. An electrical engineer can be an expert. I know that, for example, you should be cleaning panels annually, because it impacts upon their efficiency and that varies based on where you are and whether or not you’re going to get salt or dust or all the other stuff. I’d start there.

If it was, for example, annually, which I think kind of feels right and that’s just a feeling it’s not based on any legal principle, what do you do? There are solar companies who will come in annually and do a safety check and clean and you can get a little bit of correspondence from them and flick it through to the committee. I like to get ahead of that stuff before it becomes a problem, establish a course of conduct. If seven years down the track, someone on the committee says that shouldn’t be there, it’s an eyesore. You’ve got seven years of history of doing that and then they turn around and say ‘I’ve found in the conditions, inspection should be done once every quarter’, for example. Well, you’ve got seven years of history of doing it your way and then all of a sudden some idiot saying it’s got to be done quarterly. Well, justify that. Say “I’ve got my justification. Where’s yours?”

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

Question: What controls does a Body Corporate have regarding the types, sizes and power of solar systems installed by individual villas?

Answer: You can put in place a bylaw that regulates the use and enjoyment of a lot.

There is a provision in the Body Corporate Community Management Act and this is about interfering with utility services. There’s a general provision that says you shall not cause a nuisance or an unreasonable interference with another person’s lot. There’s another section that says, ‘You shall not interfere with utility services or utility infrastructure’. If you go overloading the system by installing a horse have a solar PV system on your roof and you’re causing systemic problems outside of your lot, that will probably get caught by that. And that’s an offence provision from memory, so you can get prosecuted for it.

Of course, the obvious answer, the less fun answer is that you can put in place a bylaw that regulates the use and enjoyment of a lot. That’s where you might be able to turn around and say ‘Look, we’ve had an electrical engineer look at everything, for safety’. These things generate big voltages, depending on how they’re put together. It’s not unusual to have fire starting in poor installations with poor insulation in various places. So, for safety reasons, and for reasons of electrical engineering of the infrastructure, you could put into a bylaw that actually spoke to that, ‘You can have any system you like, as long as it doesn’t generate more than — kilovolts or put some reasons in’. The reasons will be this is not to do with aesthetics, it would be reasons to do with the electrical system set up in the scheme and safety. That’s a valid bylaw. If you draft it properly, it’s a valid bylaw all day long.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

Strata News #510.

Question: As a top floor unit owner, can I resist having common solar panels installed on my roof? The roof has existing roof problems and I’m concerned about leaks.

Can I resist having common solar panels installed on my roof as I’m the owner on the top floor unit where proposed panels are to be installed.

There are already roofing problems elsewhere that have not been repaired. I don’t wish to be a candidate for this in the future. Can I say no and have my wishes legally upheld?

Answer: The lot owner is to commission an independent report about the leaks and about the structural issues which anticipates solar installation.

This is going to come down to is that a common property roof, or is it a lot owner’s roof?

Now if it’s a lot owners roof, putting in great big solar PV array in, particularly where there’s a history of structural problems or leaking, (which is a common complaint with mobile phone towers, radio installations and satellite dishes), you’re going to get into that unreasonable interference territory pretty much straightaway.

If it’s a common property roof though, you just don’t want them there because there’s a structural problem or there’s been leaks, that’s kind of two different problems. The first one is get the body corporate to fix up the structural problems and the leaks. The second one is let’s have a look at PV. If the first problem is disposed of the second problem shouldn’t be a problem. Unfortunately I’ve had to beat somebody bodies corporate over the head with a stick many times to actually get them to understand that it’s their job to properly maintain common property, whether they have the money or not. Some bodies corporate adopt a business mindset.

If the issues have to be brought together, a really good approach for that lot owner is to commission an independent report about the leaks and about the structural issues which anticipates solar installation. Then if a decision has been made by the body corporate to go and do the installation, and they do decision to proceed, then you’ve got really good grounds to go to the adjudicators office and say, ‘”No! The reason for the ‘no’ is ‘I did this report. I gave it to the body corporate. I told them what the issues were. There’s a trailing issue in relation to structural problems and water leaks and this is going to make it worse. That’s not my opinion. That’s the opinion of this expert.” Go with a counter attack: “The body corporate needs to actually go and maintain the roof space first. Then if they should be spending money on that, rather than spending money on this PV, because my roof leaks.”

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #510.

Question: Is setting a precedent a valid reason to deny lot owners permission for solar installation or would the BC committee first need to put a bylaw in place?

I live in an 11 Unit complex which comprises a mix of townhouses and units. Some lot owners have no access to roof space. All roof space within the entire complex is common property.

A townhouse owner wishes to install 14 solar panels on his roof. I’ve read about structural integrity, bylaws re solar (which aren’t in place), etc but wonder whether the Body Corporate Committee can refuse permission on the grounds that allowing the townhouse lot owner to install the solar panels would set a precedent for other lot owners to do the same?

Is setting a precedent a valid reason to deny permission or would the Body Corporate Committee first need to put in place a bylaw which sets parameters for solar installation and also make provision for the lot owners who don’t have roof space?

Answer: ‘Precedent’ is only likely to be ‘binding’ (or at least persuasive) if the decision which sets it is lawful and reasonable.

It sounds like this scheme is created under a building format plan. Assuming it is, then the roof space should be common property.

If we assume that the common property is not the subject of exclusive use, then the owner will need permission to make the improvement to the common property (the roof) for the benefit of their lot.

Absent a by-law granting and regulating that permission, the usual principles will apply; is the improvement minor (less than the specified amount; i.e. $3,000 or less), does it detract from the appearance of a lot or the common property and will the approval promote a breach of the owners duties as an occupier?

There is no criteria there which goes to ‘if we grant this approval, then we have to give the same approval to everyone else, which we cannot do because there is not enough roof space, ergo we grant no approval to anyone’.

A Body Corporate does have to act reasonably in making its decisions and if that is the only factor in the decision making then to me that would be unreasonable. A reasonable approach may be to say ‘there is a total of 500sqm of roof space, of which 330sqm is useable for solar PV. A proposal is more likely to be approved if it is limited to 30sqm of roof space, so that all 11 owners get the same amount of roof space and the proposed installation does not impair the ability of other owners to install panels if they wish’.

This is a grossly simplified example, because typically cells can only be economically installed on the roof of the building in which the lot is situated. The example however makes the point that ‘precedent’ is only likely to be ‘binding’ (or at least persuasive) if the decision which sets it is lawful and reasonable.

That will depend, in every case, on the circumstances of the scheme. As always you should obtain independent legal advice. This comment is not and is not intended to be legal advice to you or anyone else. ‘

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: We’d like to install solar and sell the excess to lot owners. We’ve been advised that a body corporate cannot make a profit. How do we get around this?

We would like to install solar in our complex in QLD, together with an embedded network to sell power to units in the complex.

After the investment cost is paid, the ‘free’ solar power will generate a surplus we intend to put into Body Corporate funds. Some lot owners have advised we cannot do this because ‘a body corporate cannot make a profit’.

Have you come across this problem and found any solutions? It seems a disincentive to invest in solar for QLD strata.

Answer: The rule in Queensland is that a body corporate may not carry on a business. However, bodies corporate may engage in business activities to the extent necessary to carry out their functions.

The rule in Queensland is that a body corporate may not carry on a business.

However, bodies corporate may engage in business activities to the extent necessary to carry out their functions.

A general function of a body corporate is to administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme.

Selling excess power back to the grid is unlikely to be viewed as carrying on a business; including because any property owner can do it.

Selling excess power to third parties outside the scheme land may be viewed as carrying on a business.

…. and then there are all the scenarios in between!

The precise circumstances of the proposed activities will dictate whether they offend the QLD Legislation.

As always, I recommend that you take legal advice on point.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #497.

Question: I’ve purchased a unit off the plan, yet to build. Plans in marketing show solar installation post build is to be decided by the Owners Corporation. Is there anything we should be aware of now to facilitate the post build install, or even better, is there any chance of doing install whilst doing the initial build?

Answer: Get the body corporate owners role as soon as possible, get in touch with the owners, start talking about solar, start talking about options.

The directly answer the question, ‘Is there anything we should be aware of to facilitate post bill install’, get that body corporate owners role as soon as possible, get in touch with the owners. Start talking about solar, start talking about options. Have a look at the survey plan. Ask ‘Are there any areas of common property where we could put a battery or a set of batteries?’, because that’s really something you should be thinking about. Doesn’t have to be the first stage it might be stage later, you might think about a progressive installation of solar as body corporate funds come in.

There are lots of things that you can do. The biggest one is to get on the committee if you can so you’ve got your finger on the pulse. Make sure you’re getting copies of minutes from the body corporate manager from committee meetings in general meetings, and correspond with the body court committee if you’re not on it ask ‘Hey, guys, are we going to get solar? Can we talk about it? We want to make sure that there’s a good setup put in place and it’s fair and equitable and everybody gets a good run out of it’.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #496.

Question: If there is a 2 or 3 story building, there is not going to be enough roof space for all parties. Is it going to then have to be a first in first serve?

Answer: Be an active body corporate so this doesn’t occur.

This is where it comes down to passive bodies corporates and active bodies corporates.

The short answer that question is no. The long answer is to avoid it becoming first in best dressed:

1. get active,
2. get on the committee and run an agenda of ‘let’s put a solid bylaw in place’, or go and do some research and find one,
3. put it forward to the committee and say, ‘This shouldn’t be first in best dressed it should be either body corporate will do it and take responsibility for it and take the benefits of it’.

There is some really interesting, ways of doing that.

My own community title scheme is a bit of a testbed for me. One of the things I’m looking at is, we’re going to loan money for the body corporate to buy the system, to put it on the roof to supply the common property, to sell it to a lot owners on a first in best dressed basis, but we’re going to charge it at the retail rate less the percentage, which is more than the repayments on the loan so the loan gets repaid. So, we’re getting a little bit of a discount on our power because it’s all commercial lots. That will help repay. When we get to the end of the repayment period, it’s for a corporate asset. Then, we will still sell the electricity. The idea won’t be to make a profit and I’ll have to fine tune that, but we might make some improvements like putting some battery storage in and those sort of things. By that stage, we’ll probably have electric cars downstairs that are being charged.

So yes, get productive, preferably get on the committee get the issue in front of people because it will either be:

1. body corporate buys and it puts it in,
2. or body corporate sets up the framework, so that people can then do their own
3. or it’s going to be the Wild West.

Either, first in best dressed – I’m a cattle baron. This is my land and you can go to hell – or here’s a fair system that you can all work within, or body corporate is going to do it all.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in the July 2021 edition of The QLD Strata Magazine.

Question: If all of the roof is taken up by one lot, does that mean there should be an easement registered against the property, and should there be something in the bylaws as well? How important is it for the decision making process to be documented?

Answer: Go back and have a look at the approval and see what it says

This happens from time to time and it’s usually because someone’s gotten in first. I find it’s really unfair.

That lot owner has taken advantage of the easement in favour of the lot for establishing and maintaining utility infrastructure. So, the keeping it there is covered by the easement. Now, there’s a little quibble there in terms of a limitation on that easement right, because if you dig into that easement right, there’s a restriction in relation to the reasonable use and enjoyment by other people. And so there’s a crack there were some light may be able to get in, that’s the start of it.

The second thing is that you still need the approval to put it there in the first place. So you go back and have a look at the approval and see what it says. If it says, ‘For this installation, or on these terms and conditions’, you’d be looking over that with a microscope, asking ‘Are they in compliance with the conditions?’, ‘Is there another crack there that we can pull apart?’ I think it’s just horribly irresponsible that if it’s a shared roof, that one person gets it all just because they’re first in. And to me, that’s a failure of governance by the body corporate, to actually address that.

That’s the sort of question where you really need to dig into that proviso in the statutory easement, and how it’s affecting other people. And you need to dig into the approval to find out whether or not there’s some space to get in there and have a look. The other thing is, PV cells are not forever, they have an effective lifespan and if you’re clever, you can get ahead of that and put bylaws in place that actually will deal with the renewal. So if somebody then says, ‘Right, I’ve got the whole roof, and I’m going to put new cells in’, and there’s a bylaws that is framed correctly so that it’s prospective, you may well be able to catch that before it happens again.

As with anything in bodies corporate, if you’re not documenting it all, including from a committee and body corporate position to justify what they’ve done. You know, good legal advice will tell you, you just can’t go and do the aesthetic stuff all the time. I think that’s a bit of an old view now, most people are with it, it’s an Australian thing. We’re big adopters, and anyone who’s complaining about PV cells on the their roof these days really needs to pull their head in, to be perfectly frank.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #488.

Question: Can the committee restrict how many solar panels we can put on the roof? At the moment we are restricted to only 8, but there is room for a lot more. As a lot owner, can I ask why?

Answer: The committee’s decision may be for a valid reason.

The committee can’t do anything independently of itself, unless that’s actually set up under a provision. If we’re talking about a lot owner who wants to go and put solar PV on the roof, it’s a minor improvement. It’s not going to detract from appearance, and it’s otherwise a committee decision, then the committee might say ‘No’, for another reason. For another valid reason.

This sort of question usually indicates that there’s a solar bylaw in place, because the body corporate has thought about it and they’ve said, ‘To make sure that there’s a fair sharing of the roof space, and based on the amount of weight the roof can take, everybody’s limited to eight cells of maximum size’. Now, that would be a valid bylaw, because it’s not about aesthetic appearance only, it’s about a fair sharing of the resource. It’s the committee who’s in power to make a decision to approve under that bylaw, then that should be okay. It’s about, then, giving an approval pursuant to the bylaw, because the bylaw is structured in a way to make sure that it’s fair, and that there’s no structural overloading of the roof.

That question is very much going to depend on where that’s coming from. If it’s under an existing bylaw, more than likely, if there’s no existing bylaw, but it’s a minor improvement, then it’s a committee decision. As long as they’ve got valid reasons for it, they may be able to do this.

When you do something like this, I like to leave a paper trail. Get a report from an engineer, for example, or a solar company with an engineer, and you commissioned it. If the body corporate attitude is, ‘Let’s let people put their own systems in because we don’t want to.”. Then what you could do is get yourself a good solid company and or, an engineer, and then turn around and say ‘Righteo guys. How do we do this fairly? And let’s design a bylaw around that’, and then have the report on the body corporate records to support the bylaw. So the reasoning is there.

If someone comes in later, and says, “I want 32 kilowatts and you can all go to hell, and I’ve got plenty of money, and I’m going to take this all the way to the court of appeal”, you can turn around and say, well, here’s the reason that we did it the way that we did.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in the June 2021 edition of The QLD Strata Magazine.

WEBINAR: Solar in Strata

During the session, Michael references three flow charts about installing solar in Queensland:

• Installing Solar – as a Body Corporate
• Installing Solar – as a Lot Owner on Lot or Exclusive Use
• Installing Solar – as a Lot Owner on Common Property

The flow charts can be accessed here.

Michael also mentions a useful article, which can be accessed here: Ban the Banners, or not? Installation of Solar PV Cells in Strata

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This WEBINAR was recorded on 25 May 2021.

Question: My complex has advised I can only install up to 10 panels for solar power. I’m wanting to install 19 panels. Can my body corporate limit the number of panels on my property? I won’t be covering body corporate common property or my neighbour’s lot.

Answer: It will depend on your by-laws and also what is already in place on the roof.

It will depend on your by-laws and also what is already in place on the roof. It sounds like you may have a by-law and that it is aimed at sharing the roof space fairly.

The best thing to do is get a copy of your by-laws and then gets some legal advice.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #445.

Question: I live in a Queensland strata complex with around 50 units and townhouses. I recently put a solar system on the roof which got damaged by hail a few months later. Is the repair of this damage covered under the strata title?

Answer: Strata schemes would usually pass a by-law prior to an individual owner putting a solar system on a common area roof stipulating that this solar system is the sole responsibility of the individual owner.

In most cases, strata schemes would pass a by-law prior to an individual owner putting a solar system on a common area roof, which would stipulate that this solar system is the sole responsibility of the individual owner after it is installed.

If there is damage to other parts of the common area roof due to the hail and the solar system needs to be temporarily removed and re-installed in order to allow general roof repairs to occur, usually the solar by-law would make the cost of uninstalling and re-installing the solar system the responsibility of the owner.

Brent Clark
Wattblock
E: [email protected]
P: 02 9977 1801

This post appears in Strata News #445.

Question: I live in a complex of 4 units. If I was to install solar panels on my roof which would not impact on any of the other units would they be insured by our Body Corporate Insurance?

Answer: This issue revolves around whether it is your roof or not.

This issue revolves around whether it is your roof or not.

If it is your roof (on title) then your panels should be on your insurance (make sure you tell your insurer about the panels).

If the roof is common property, then your panels will be an improvement to common property (make sure you tell the Body Corporate’s insurer about the panels).

They should then be covered by the Body Corporate insurance.

If so, and the premium has to go up to cover them, then the Body Corporate can require you to pay that extra premium.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #442.

Question: We are seeking approval to install solar panels on our roof. We have emailed the body corporate for approval but they tell us we need to wait until the AGM in around a year. How is this fair?

I’m an owner occupier in a QLD strata complex. We have received a quotation for solar panels and we are very eager to get this installation done asap so we can use our air conditioner this coming summer. We sent an email to the Body Corporate to ask if we had the go ahead as all the panels will be on our own property and not close to or near any common property or other units. Most of the units surrounding us have already got Solar panels.

We’ve just heard back from the body corporate. They have stated that since the total investment is over $3000 we need to submit a form and then permission will only be discussed at the AGM which is towards the end of next year. Honestly, is that even fair? How can you be penalized for wanting to use renewable energy? All of the costs are ours. We just need a yes.

Can they make us wait until the next AGM or is there some way they can submit the application to all the members for approval via email? Why do you have to wait for a General meeting.

Any assistance will be greatly appreciated.

Answer: If the roof is common property, you have to wait for the AGM, or see if you can request / arrange an EGM sooner.

The $3,000 sounds like the limit for a ‘minor improvement’ to the common property, by a lot owner.

I would check whether your roof is common property or on your title.

If the former, you have to wait for the AGM, or see if you can request / arrange an EGM sooner.

If the latter, then a general meeting should not be required.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #434.

Question: Are we allowed to install roof solar panels for our unit and/or do we need body corporate permission?

We live in a complex of 10 unit blocks, each block comprising of 8 units (4 upstairs and 4 downstairs). 

Are we allowed to install roof solar panels for our unit and/or do we need body corporate permission?

Answer: Most of the time you are able to find the answer by using the following process.

Thank you for your question in relation to installing rooftop solar panels. Most of the time you are able to find the answer by using the following process.

First, work out where the solar panels are proposed to go. In particular, the rooftop could be part of someone’s lot or alternatively the common property. If the installation location is common property, then it may also be subject to an exclusive use by-law, a lease or licence. The way to find this out is to obtain a copy of the Community Management Statement for your scheme and a copy of the survey plan/s. The survey plan/s describe the lots in the building and the common property. You then locate, on those plans, where the installation location is.

If the installation location is a part of someone’s lot, then only that lot owner can install solar panels on that area of rooftop (though they can agree to make the area available to others if they wish). If the installation location is common property then first you check if it subject to an easement; grab a title search of the common property to see if there are any easements. If there is no easement, the next thing to check is whether the area is covered by an exclusive use by-law. If so, then the by-law will generally decide the issue; that is, who has the benefit of the exclusive use and what the area can be used for.

If the installation area is on common property but not subject to an easement, or an exclusive use by-law, the next thing to check is the body corporate records; to see if the area is covered by a lease or licence. Sometimes leases or licences of the rooftop are granted to, for example, telecommunications companies (for Wi-Fi repeaters and the like). Assuming the installation location is clear of all of these interests… then you can move on!

An owner who wants to use (otherwise unallocated) rooftop common property, will typically need two things; a right to install solar panels onto the common property in the installation location and a right to keep them there.

The right to install the solar panels on the common property is usually governed by the regulation module; particularly as an “improvement to common property”. Improvements are generally permissible if they are under a certain value (for example $3,000 in the Standard Module) and there are no significant amenity impacts. If the improvement meets these conditions, then the Committee can consent to the installation proposal. If not, then depending on the regulation module an ordinary resolution in a general meeting will be required.

The installation approval can be given with conditions; for example maintenance of the solar panels, what happens when they are removed, regular inspections, use of licensed contractors to install etc.

Assuming that the authority to install is obtained, you also need a continuing right to keep the solar panels in place. That could be in the form of an exclusive use by-law over the installation location (which requires a resolution without dissent in a general meeting) or a lease or license (depending on the term either a resolution without dissent or a special resolution given at a general meeting). These are pretty high barriers. Fortuitously, however, solar panels are utility infrastructure. That is, the infrastructure used for the provision of utility services, (electricity) to your lot.

Under the Land Titles Act 1994 there is a statutory easement in favour of your lot and against the common property (and indeed against the other lots) for the supply of utility services (electricity) to your lot and also for the establishing and maintaining of utility infrastructure reasonably necessary to supply the utility services (electricity). This easement will in most cases extend to solar panel installation on a common property rooftop in favour of a lot for the supply of electricity.

Easement rights “run with the land” and are therefore effectively open-ended; they come to an end when either the legislation changes or the solar panels are removed by you or your successors.

Sometimes Community Titles Schemes have by-laws which regulate the installation of solar panels, particularly where there is insufficient roof space for each lot in the scheme to have its’ own installation. Those sorts of by-laws usually regulate installation on a “first come, first served” basis and impose approval requirements. It is important to check your Community Management Statement to see whether there is such a by-law in place or indeed any other by-law which may impact the installation proposal.

Of course, the above is a general overview. You can see that there are a number of variables that you do need to check very carefully. As always, it is best to seek formal legal advice as early as possible in the process.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in Strata News #417.

Have a question about permission for solar panel installation in Queensland or something to add to the article? Leave a comment below.

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