A Win for Energy Efficiency

Regular readers will recall previous Tidbit articles that have discussed the extent to which a proposed development can impact the energy efficiency of a neighbouring property.

Previous VCAT decisions including:  Chen v Melbourne CC (Red Dot) [2012] VCAT 1909, John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Red Dot) [2013] VCAT 1258, and Buckerfield Architects v Stonnington CC [2014] VCAT 2099 have established the following generally guidance for decision makers.

Any assessment of the impact of a proposal on the energy efficiency of the neighbouring property should

  • Ultimately be a test of ‘reasonableness’. It is not a matter of avoiding impact altogether.
  • Consider ‘legitimate expectations’ in light of the strategic planning controls and policies affecting the subject land, i.e. the stronger the policy support for increased development/density/height the lower the protection afforded neighbouring dwellings.
  • Consider whether the affected property has been designed in a manner that makes it unreasonably vulnerable to impacts.
    In a recent VCAT decision, Deodato v Moreland CC [2014] 1583, the Tribunal has upheld that the impact of a two storey development, within a General Residential Zone, unreasonably affected the energy efficiency of the neighbouring property.  The proposal was for four two storey dwellings.

Points of particular interest in this case include:

  • Expert evidence presented on behalf of the affected property owner noted that the affected dwelling exhibited a 7.5 star NatHERS rating – well above the 6 Star requirement;
  • The expert evidence concluded that the impact of the proposal would reduce the 7.5 star rating to 6.9 stars;
  • The expert evidence included two scenarios/changes to plans and an assessment of those changes on the affected property;
  • The Tribunal determined to impose the most conservative of the proposed scenarios (as contained in the expert evidence). This scenario effectively required a redesign of two of the proposed dwellings and resulted in a reduction in the affect property’s NatHERS rating from 7.5 stars to 7.4 stars.

In this instance the City of Moreland has some of the strongest ESD policy in the State and the Tribunal relied heavily upon this in determining to require changes.

Permit applicants need to be aware that more and more affected parties are relying upon energy efficiency impacts to argue against development. And if the Deodato case is any indicator VCAT is beginning to take their concerns seriously.

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