Tika v Yarra CC [2018] VCAT 894 highlights the importance of accurate information to properly assess off-site impacts, including overshadowing of neighbouring secluded private open space (SPOS) under Standard B21 of Clause 55.04-5. This was a proposal for two 3-storey dwellings on a 235sqm lot in Richmond. Errors were identified in the plans relating to the conditions of the neighbours’ land and therefore the extent of shadow proposed to the neighbours’ SPOS.
The applicant had significantly over-estimated the SPOS on both the application site and the neighbours’ site, habitable room windows and glazed doors were incorrectly shown, neighbours’ dwellings were labelled as outbuildings, tree details were incorrect and the footprint of neighbours’ buildings was wrong.
In its decision the Tribunal noted:
- the absence of accurate information makes it very difficult to undertake an accurate and properly informed assessment of a proposal’s impacts;
- for decision makers, the provision of accurate information is an essential element on the path to making the correct or preferable decision. It is appropriate and necessary for the responsible authority and Tribunal on review to critically assess with some rigour whether the information provided is accurate before accepting that material and subsequently applying it during the decision-making process.
This case refers to Monarco Nominees Pty Ltd v Glen Eira CC [2015] VCAT 1403 in which the Tribunal sought to clarify the operation and implementation of Clause 55.04-5 Overshadowing open space objective, and found:
- It needs to be determined whether at least 75% or 40 square metres with a minimum dimension of 3 metres, whichever is the lesser area, of the neighbouring secluded private open space currently receives a minimum of five hours of sunlight between 9.00am and 3.00pm on 22 September.
- the assessment must consider the shadows cast on the open space area by existing structures, including the dwelling on that land.
- the question which needs to be asked is whether at each hour, does the open space currently receive sunlight, if so, how much, and does the area equate to 40 square metres or 75% of the open space with a minimum dimension of 3 metres, whichever is lesser?
- Only when an assessment of the amount of sunlight received by the adjoining secluded private open space is undertaken in this manner can it be determined whether the requirements of the Standard will be met. If the assessment of the existing shadows reveals that the amount of sunlight received is less than the requirements of the Standard (that is, that a 40 square metre area [or the alternative lesser reference area] does not receive sunlight for 5 hours between 9.00am and 3.00pm), then, in order to meet the Standard, the sunlight should not be further reduced.
In Tika v Yarra CC the Tribunal considered that the case raised too many unresolved issues and could not be fairly and efficiently remedied at that stage, and subsequently refused the appeal.
It is important that proposals provide correct information regarding the layout and conditions of neighbouring properties, ideally prepared by a surveyor and including heights to AHD of structures and ground levels (so that neighbours’ existing shadows can be accurately calculated). Shadow diagrams should include the total area of neighbouring open spaces as well as illustrations and annotations that confirm; the area of existing shadows, the area of the proposed shadows with any increase or decrease clearly highlighted. In addition, the impact on any windows overshadowed should be explained via sectional diagrams. Failure to appropriately provide relevant information can be grounds for refusal.
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