In a bid to improve sustainability in the building sector, all
Queensland house, townhouse and unit vendors are now required to
complete sustainability declarations under amendments to the
Building Act 1975 ("the Act"). Having taken effect from 1
January 2010, the Building and Other Legislation Amendment Act 2009
adds to existing building requirements and is aimed at informing
potential purchasers about building features including energy and
water use, access and safety. The amendments also affect bodies
corporate and developers. The 'ban the banners' provisions
seek to prevent developers from enforcing:
Covenants in building contracts that restrict the use of
sustainable features in favour of aesthetics; and
Covenants that require certain building size minimums.
What are the sustainability declarations and how do they affect
The aims of requiring sustainability declarations are to
increase awareness of sustainable building features, encourage
vendors to use sustainable building features to improve the value
of their property and encourage purchasers to compare the
sustainability of properties.
A vendor (or agent) has the following obligations in relation to
declarations under the Act:
To complete, to the best of their ability and knowledge, the
questions set out in the sustainability declaration form available
from the Department of Infrastructure and Planning;
To sign the declaration form, ensuring it is completed with
reasonable skill and care with no false or misleading
To ensure sale advertisements refer to the sustainability
declaration (newspaper and magazine advertisements and 'for
sale' signs are excluded) and that the declaration is displayed
conspicuously at open inspections;
To provide a copy of the declaration to a prospective buyer
when requested; and
To update the declaration if relevant changes are made to the
property during the marketing period.
Non-compliance carries penalties of up to $2000 (or $10,000 for
agents). Also, a vendor would be liable to compensate a purchaser
for any loss suffered due to false or misleading information in the
declaration. However, a purchaser is not entitled to terminate a
contract on the basis of false or incomplete information in the
What are the 'ban on the banners' provisions and how do
they affect developers?
This part of the legislation seeks to prevent developers from
hampering the construction of sustainable building features. This
is done by rendering covenants that require, for example, aesthetic
instead of sustainable features unenforceable. All provisions,
except for those dealing with solar hot water systems and other
photovoltaic cells, apply to contracts entered into on or after 1
January. Requirements not to restrict approval of photovoltaic
cells apply to contracts that took effect or were entered into
before 1 January.
In summary, covenants restricting the following are
Window treatments (e.g. tinting);
Specific types of materials and finishes for external walls and
Solar hot water systems and other photovoltaic cells, merely
for preserving the external appearance of the building.
Covenants and by-laws will also not be able to require:
Minimum floor areas;
Minimum number of bedrooms and bathrooms;
More than one garage;
Minimum roof pitches; and
Driveways, fencing and landscaping to be in place before
occupation, or within a certain period of time.
These changes are subject to the requirement that any roof
colour or window tint must not be too reflective so that it causes
unreasonable interference with adjoining neighbours' use and
enjoyment of their property. Further, any restrictions on the
placement of solar hot water systems that are designed to ensure
that other systems can be installed, or that the roof can support a
storage tank, remain effective
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.
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