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: 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, Stratum Legal | 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: 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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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
Stratum Legal
E: [email protected]
P: 07 5406 1282

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.

Embed

Read next:

• Solar on Strata [Whitepaper]: Strata Energy News
• Queensland Electricity Rebates: Am I eligible, and how do I apply?
• QLD: Q&A Can You Vote at the AGM if You Are in Breach of an Order?

Visit Strata By-Laws and Legislation OR Strata Legislation QLD.

This article has been republished with permission from the author and first appeared on the Hynes Legal website.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.