New Restrictions on Building Covenants, By-laws and Architectural Codes

The Queensland government has enacted its so called 'Ban the Banners' legislation with the passing of the Building and Other Legislation Amendment Act 2009. The intention of the new provisions (entitled 'Supporting Sustainable Housing') is to prevent bodies corporate and developers who regulate buildings in estates from stopping owners incorporating sustainable features in their houses.

What types of instruments are affected?

The legislation regulates a number of instruments such as:

• Building covenants in housing estates
• Community management statements (including both by-laws and architectural codes)
• Building management statements

by invalidating various provisions which the government has identified as contrary to the goal of sustainable housing.

What provisions are prohibited?

The following provisions are of no force or effect:

• Light coloured rooves: provisions prohibiting the use of a light coloured roof on a house or an enclosed garage attached to a house ('light coloured' means a colour which would achieve a solar absorptance value for the upper surface of the roof of not more than 0.55)
• Energy efficient windows: a provision prohibiting energy efficient windows or window treatment in a house or unit building or an attached garage
• Occupation before completion of landscaping etc: a provision prohibiting a person from occupying a house before particular landscaping, fencing, driveways or similar work associated with the construction of the house is completed
• Minimum floor areas: a provision requiring a minimum floor area for a house or a minimum number of bathrooms or bedrooms
• Completion of construction: a provision requiring construction of a house or any landscaping, fencing, driveways or similar work associated with the construction of the building, to be completed within a stated period
• Garages: a provision requiring more than 1 garage ancillary to a house.

The following provisions are of no force or effect to the extent the prohibition merely applies to enhance or preserve the external appearance of the building (ie the prohibition would need to be justified on grounds other than mere aesthetics):

• Roof pitch: a provision requiring a minimum pitch for the roof of a house
• Orientation: a provision requiring a house or an enclosed garage attached to a house to be orientated on a parcel of land in a particular way
• Surface finishes: a provision prohibiting the use of a specific material or type of surface finish for the roof or external walls of a house or an enclosed garage attached
• Solar hot water systems/PVCs: a provision prohibiting the installation of a solar hot water system or photovoltaic cells on the roof or other external surface of a house or unit building or attached garage.

Restriction and consent provisions

A provision restricting (as opposed to a total prohibition on) occupation before completion of landscaping or restrictions on surface finishes and solar hot water systems/PVCs have no force or effect (and a body corporate or other entity may not withhold consent) to the extent the restriction merely applies to enhance or preserve the external appearance of the building.

Restrictions on light coloured rooves and energy efficient windows may be effective (and a body corporate or other entity may withhold consent) if the colour or windows:

• do not minimise potential adverse effects on the external appearance of the building; or
• unreasonably prevent or interfere with a person's use and enjoyment of the building or another building.

For example, a by-law or covenant may specify a particular light roof colour from a range of possible light roof colours be used for aesthetic, uniformity purposes or to ensure the roof finish has low reflectivity in cases where neighbours may be affected by glare.

A body corporate may withhold consent to installing a solar hot water system or PVCs if they would unreasonably prevent or interfere with a person's use and enjoyment of part of a building.

Transitional Provisions

Other than provisions prohibiting the installation of a solar hot water system or photovoltaic cells, the new laws will generally not affect contracts or instruments made or entered into before 1 January 2010.

Whilst this is clear for contractual covenants, the meaning is less clear for by laws or architectural codes in a CMS. This is because technically a CMS can never be amended – a new CMS has to be adopted every time something in the CMS is changed. If, after 1 January 2010 a body corporate adopts a new CMS because of (say) a transposition of car spaces between two owners, does a by law prohibiting light coloured rooves which was already in the CMS before 1 January 2010 become invalid? The Explanatory Memorandum to the legislation indicates the intention is that, if a by-law is in force prior to 1 January 2010, the new legislation does not affect it. However, as the relevant section (246N) seems to focus on whether the CMS was "made or entered into" before or after 1 January 2010 it seems more likely that the by-law will become invalid as a result of a new CMS being adopted.

Secondly, it not clear when a CMS is "made or entered into" - is this the date of the body corporate resolution, the date of sealing of the CMS by the body corporate or the date the CMS is recorded in the land registry [the latter is the date a CMS has legal effect]?

What needs to be done

Developers and bodies corporate will need to consider the potential effect of the new legislation when acting pursuant to existing covenants and by laws. In appropriate cases, it may be appropriate to modify existing by laws and covenants to bring them into line with the new regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.