Image: sdblack0
Pauline Tyler has won a legal battle, but not the war against a developer that took her to Queensland’s Supreme Court over her home’s solar panel installation.
Pauline Tyler had a solar power system installed on her new house at Griffin Crest, near Moreton Bay. The subdivision’s developer objected to the way she went about it, stating Ms. Tyler was in breach of contract.
Ms. Tyler didn’t seek permission from the developer first and the contract for her land states:
“The Buyer shall submit to the Seller, plans for covenant approval indicating the size, number and location of any solar panels. Any panels that are considered by the Seller to cause visual impact or are not aesthetically pleasing, will not be approved. The Buyer shall not proceed with affixing solar panels to any roof or structure until it has received the consent in writing for the same from the Seller and then only in accordance with the terms of the Seller’s consent.”
While Ms. Tyler sought a retrospective approval, this was knocked back on the grounds the panels were causing an adverse visual impact for other residents in the estate. Whether there is any actual evidence of residents complaining about the aesthetics of her solar panels isn’t clear.
Here’s how the solar panels look from the road:
Image: Pauline Tyler
Apparently, Ms. Tyler would have been permitted to shift the installation to the back of the house (southern side), but in most Australian installation scenarios south is the worst direction solar panels can face.
Contract, Meet Law
That contract wording may seem to make matters pretty cut and dried. But while you can put anything you like in a contract, that doesn’t necessarily make it legal or enforceable.
Ms. Tyler dug in her heels, as did the developer, and the case wound up in the Supreme Court – with the judge ruling in her favour last month.
Since 1 January 2010, Building Act 1975 (Qld) has supported sustainable housing in the state by banning body corporates and developers from restricting the use of certain sustainable design measures.
Pt 2 of Ch 8A of the Act details prohibitions or requirements in a contract that have no force or effect. Among those are 246O:
“prohibiting the installation of a solar hot water system or photovoltaic cells on the roof or other external surface of a prescribed building.”
..in a case where:
“the prohibition applies merely to enhance or preserve the external appearance of the building”
However, this wasn’t the clincher for the judge. It was 246Q:
“the effect of restricting the location on the roof or other external surface of a prescribed building where a solar hot water system or photovoltaic cells may be installed.”
.. in a case where the restriction:
(a) applies merely to enhance or preserve the external appearance of the building; and (b) prevents a person from installing a solar hot water system or photovoltaic cells on the roof or other external surface of the building.”
Even if that hadn’t applied, the judge said 246S would have – that deals with withholding consent and it preventing a person from installing a solar hot water or solar power system.
Ms. Tyler may have won, but it was a bittersweet victory due to being left out of pocket thousands of dollars, even with costs awarded. It also turned out to be a brief victory as the developer isn’t done yet – the ruling is being appealed.
Law Vs. Justice
Ms. Tyler finds herself in the position of again having to cough up a bunch of cash in order to keep fighting. A fundraiser page has been set up to assist with the legal costs, which will be substantial.
“Individual solar ownership is at risk here, the government changed the law to make sure this exact situation did not happen, but this developer thinks they are above the law and it appears justice is only accessible to those who can afford it,” states the page.
Unfortunately, law and justice can be very different things at times and the party with the deepest pockets can win through appeals that exhaust the financial resources of the other party.
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I expect that the Queensland state attorney general should be represented as a party in this case, and, in so doing, covering the costs of Pauline Tyler, as the developer is clearly challenging the state legislation.
Then, the developer could also be liable for, and, depending on the applicable state legislation and rules of the supreme court, required, before proceeding further, to lodge security for the expected costs of all parties involved, which would be equitable in the circumstances.
Brett, I tried to get the Attorney General involved, numerous attempts to contact her (Yvette D’arth) when this all started, she avoided me completely.
I would like to correct the facts that I DID ask for approval from the developer for the installation. As others in the estate did by installing first, seeking approval later when it was brought to our attention the small paragraph in the covenant that I missed.
It was the first year (2017) that I petitioned the government requesting the wording of the legislation be changed. If they had acted on it then I wouldn’t have been dragged through the appeal. Instead they sat on it for 4 years and used the election to rectify their errors in the legislation, April 2022, and I will point out that De Brenni took credit for the changes. ? When Oxmar won the appeal, I got a letter from Phil Murphy (Oxmar CEO) suggesting I sue my legal team, referring me to a solicitor (which was a mate of his) at a reasonable price. No one mentioned that either! So as I’ve said on ACA “I may have lost the battle, but I won the war”. I’m really keen to hear of anyone who waited for this victory so they too could install solar where the sun shines.
Good luck to all.
The “Terrior” aptly named by Tim Mander MP
Why is everyone so coy and not mentioning who the Partys are? It is on the court documents.
BETTSON PROPERTIES PTY LTD ACN 009 873 152 AND
TOBSTA PTY LTD ACN 078 818 014
vs
Tyler
I don,t think they (builder or property developer ) should have the right to do this sort of contract in the first place at least not where solar panels are concerned after all who owns the house and land if you brought it !!! , this is done not for any other reason than greed so the person down the road or across the other side of the estate MIGHT make an extra five cents on sale of a property.
you might as well live in a hi rise with a corporate body and pay fees every year or maybe when you buy a car you have to sign a contract that you wont drive it or drive it from the passenger seat so the driver seat wont wear out so the person who buys my second hand car can’t use somebody else’s car as means to buy mine cheaper.
The worlds coming to bad place when you can’t buy a tin of peas without somebody having the right to tell you how to eat it.
DUH! …. I predicted this months and/or years ago. And it’ll get worse Wait until thy start taxing sunlight…. as the did with TV reception back in the day.
And while Ms. Tyler has had a victory of sorts (in principle at least) it should never be forgotten that the laws CAN and often ARE rejigged (including in retrospect) to suit the interests of the most influential lobbyist.
…..meanwhile, will somebody point out to that apparently influential censor (EM?) that the solar panels installed by Ms Tyler actually produce WATTS ~ NOT kilowatt-HOURS. 😉