Bettson Properties Pty Ltd v Tyler

The appeal, Bettson Properties Pty Ltd v Tyler, was heard by the Queensland Court of Appeal, which involved a dispute between Bettson Properties Pty Ltd, the appellant, and Tyler, the respondent. The central issue was whether a contractual provision requiring consent from the appellant for the installation of solar panels on a residential property was valid, given the Building Act 1975 (Qld). Specifically, the appellant argued that the respondent had breached a clause in their contract by installing solar panels without obtaining the required consent. The respondent contended that sections 246Q and 246S of the Building Act 1975 (Qld) rendered the contractual provision ineffective, as they purported to regulate the placement of solar panels on roofs.

The court needed to determine whether sections 246Q and 246S of the Building Act 1975 (Qld) deprived the contractual provision of its force and effect. The appellants argued that section 246S applied exclusively to provisions that explicitly restrict the location of solar panels, while section 246Q applied to those that required consent for installation. They further argued that the term "prevents" in these sections should be interpreted as making installation "impossible" or "impractical." The court examined whether the clause in question and the withholding of consent by the appellants constituted "prevention" within the meaning of these sections. The court also considered the purpose and effect of sections 246Q and 246S, concluding that the clause in question was governed by section 246S, and section 246Q did not apply.

The court found that the term "prevents" in sections 246Q and 246S of the Building Act 1975 (Qld) did not encompass the effect of the contractual provision in question or the withholding of consent by the appellants. The court held that the respondent's installation of solar panels without consent breached the contractual clause. Consequently, the court allowed the appeal, set aside the orders made by the Trial Division, and declared that the respondent had breached the contractual clause by installing solar panels without consent. The court ordered the respondent to remove or relocate the solar panels to a specified location on the roof and directed the respondent to pay the appellants' costs of the proceedings. The appellants were granted liberty to apply for further orders to enforce the injunction. The court also gave the parties leave to exchange outlines of their submissions concerning the appropriateness of the costs order and the form of orders regarding the solar panels.