New covenant and body corporate by–law rules (Queensland only)
Since 1 January 2010, new and some existing covenants and body corporate by–laws have been prevented from banning energy efficient features or fixtures and requiring certain design elements in houses, townhouses, units or enclosed garages. The law on these issues was further amended on 23 May 2010.
What is a covenant?
Developers commonly use covenants in the contracts of sale, by–laws or community title schemes to control home designs in residential estates and unit complexes.
Covenants and by–laws can restrict or prohibit the use of energy efficient or sustainable building features and initial buyers are typically required to pass on these requirements to later buyers.
Why were the ‘ban the banners’ provisions introduced?
The ‘ban the banners’ initiatives assist Queenslanders in reducing their carbon footprint by allowing home owners and builders to choose sustainable building features and designs.
These laws impact positively on housing affordability by allowing owners to choose home sizes and materials that suit their needs.
Sustainable features, such as solar hot water systems and light coloured roofs, also help reduce ongoing operational energy costs.
How do the new laws apply?
All covenants and by–laws made before 1 January 2010, will remain unaffected by the legislation, except in relation to solar hot water systems and photovoltaic cells. The law relating to solar hot water systems and photovoltaic cells apply to all covenants and by–laws regardless of when the covenant or by–law took effect. All covenants and by–laws made from 1 January 2010 to 22 May 2010, will be covered by the original legislation in its unamended form. All covenants and by–laws made on or after 23 May 2010, will be covered by the legislation in its amended form.
How do I know if there is a covenant or body corporate by–law in place?
The existence of a covenant or by–law will usually be identified by checking contract terms or by appropriate searches of by–laws. These checks and searches will usually be conducted by a solicitor acting for the purchaser.
Will the new laws override local planning schemes?
The new laws only prohibit covenants and by–laws from banning identified design and energy efficient features. The new laws do not override local government planning schemes which may require minimum standards to meet the community’s expectation for residential areas. For example, planning schemes can prohibit the occupation of a caravan or shed for residential purposes. It is recommended that you check with your local council about any planning restrictions that may be in place for your property.
Can my neighbours build any size home and use any material?
As a minimum, the Building Code of Australia requires a house to have a kitchen, bathroom, toilet and laundry. These standards place practical limits on how small a home can be.
Also, the building must still comply with the performance requirements of the Building Code of Australia and any local government planning scheme requirements such as visual amenity or streetscape requirements.
Source: Department of Infrastructure and Planning www.dip.qld.gov.au