Published: 20 July 2010.

Contributed by Liat Walker & Ros Janes of Success Law

Since our article in March 2010 titled ‘Sustainability and By-laws – The Nitty Gritty’ which covered the Building and Other Legislation Act 2009 and its impact on the Building Act 1975 and the Body Corporate and Community Management Act 1997, there has been a further amendment to this legislation.

The ‘ban the banners’ provisions which commenced on 1 January 2010 rendered some by-laws and other instruments invalid in the interests of sustainable building practices.

Due to extensive lobbying by the property development sector in response to this new legislation, these provisions have been amended to remove the ban on restrictions relating to amenity issues, whilst retaining the provisions that relate to environmental issues.

The Building and Other Legislation Amendment Bill 2010 commenced on 23 May 2010, and removes the previous ban from 1 January 2010 on covenants and other relevant instruments that -

• prohibit a person from occupying a house or townhouse before landscaping, fencing, driveways or similar work is completed
• require the construction of a house or townhouse or any landscaping, fencing, driveways or similar work to be completed within a stated period
• require more than 1 garage 
• merely for the purpose of enhancing or preserving the external appearance of the building -
• require a minimum pitch for the roof of a house or townhouse, or
• prohibit the use of a specific material or type of surface finish for the roof or external walls of a house or townhouse or garage.

This means that any existing by-laws for bodies corporate that pertain to any of the above are now enforceable and can be created under a new community management statement.
However, the following by-laws and covenants will remain invalid from 1 January 2010 –

• prohibition or restriction of light roof colours
• prohibition or restriction of energy efficient windows or window treatments
• requirement of a minimum number of bathrooms or bedrooms for a house or townhouse
• requirement of a minimum floor area for a house or townhouse, but not a minimum frontage unless it has the effect of construction of a less energy efficient building
• requirement of a house or townhouse or garage to be orientated in a particular way, if orientating the building in that way has the effect of construction of a less energy efficient building
• prohibition or restriction of the installation of a solar hot water system or photovoltaic cells on the roof or other external surface of a building, merely for the purpose of enhancing or preserving the external appearance of the building.

These amendments are most relevant to ‘gated community’ style schemes, particularly those that have landscaping and architectural codes put in place by the developer.

The amendments will give some powers back to bodies corporate in relation to the manner in which they can control the amenity of the scheme. Bodies corporate should obtain legal advice when reviewing their by-laws to ensure they comply with the new rules.

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