Further to our earlier article about solar roof top panels (February Tid-bits) another recent VCAT decision (John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors [2013] VCAT 1258) has shed some more light on the issue of whether or not the overshadowing of solar panels is adequate grounds for refusing to grant a planning permit.
In making its decision the Tribunal relied on an earlier decision (Chen v Melbourne CC & Ors [2012] VCAT 1909) and extrapolated on the principles established by that case.
Currently, whilst the relevant provisions of Clause 55.03-5 (Energy Efficiency) require a proposal to:
Achieve and protect energy efficient dwellings and residential buildings; and
Buildings should be sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced;
There are no detailed provisions to provide specific guidance in determining impacts on solar panels. In this case, as with Chen the member reiterated that whilst each application will need to be assessed on a case by case basis there is a need for more clear guidance within statewide provisions to determine what constitutes acceptable impacts on solar collection devices.
In the recent case, the Tribunal upheld the council’s decision to refuse a planning permit for a multi-dwelling development on the grounds of ‘neighbourhood character’ but did not find that unreasonable overshadowing of neighbouring solar panels had occurred.
The application-in-point proposed the construction of 12 dwellings and the tribunal relied on the following factors in determining whether the proposal would cause unreasonable overshadowing impacts on the adjacent roof top solar panels:
- (primary factor) The ultimate test is one of ‘reasonableness’, not avoiding overshadowing altogether.
- (primary factor) What constitutes ‘legitimate expectations’ in light of the strategic planning controls and policies affecting the subject land?
- (primary factor) Have the relevant solar panels been placed in an unreasonably vulnerable position on the host building?
- Whether the position of the solar panels on the host building is due to constraints arising from heritage planning controls or a heritage covenant?
- What model of solar panels are involved? eg. whether the individual panels are designed to work in parallel with each other or as a combined group?
- How much supporting evidence any one party has provided? (eg. photos, vertical shadow diagrams and/or a professional report by a solar consultant), to advance their case about the likely extent of overshadowing?
- How long ago were the existing adjacent solar panels installed on the host building?
The Tribunal member also recommended that; For the removal of any doubt, the Tribunal must ‘take the site and neighbouring properties’ as they are, and it is not enough for neighbours to merely flag the possibility of installing solar panels at some future stage.
In determining that the affected panels had been placed in an unreasonably vulnerable position the Tribunal noted, that the solar panels were placed on a carport roof but the carport was located in a position that was vulnerable and susceptible to the impacts of development on a neighbouring property.
The member concluded that:
While efforts to embrace and effectively utilise alternative and environmentally friendly energy sources deserve strong support, it is also important that the infrastructure be installed in a way that does not unreasonably prejudice the use and development of nearby land in a way that is supported by policy and the purpose of the zone.
In balancing the effects of development on existing dwelling uses the member noted that those installing panels need to site them appropriately as to not be unduly affected by potential and reasonable future development on adjacent sites.
So locate your solar panels carefully or they might just become roof ornaments.