In 2012 the Victorian Civil and Administrative Tribunal’s decision in Chen v Melbourne CC (Red Dot), VCAT 1909, kick-started a discussion about the overshadowing, from proposed development, of solar panels installed on neighbouring sites. Since that time a number of decisions have solidified the Tribunal’s position on the matter and provided additional guidance for permit applicants.
Practitioners will be aware that the relevant provisions of Clause 55.03-5 (Energy Efficiency) requires a proposal to:
- Achieve and protect energy efficient dwellings and residential buildings; and
- Ensure buildings be sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced;
There are no further provisions within the Victorian Planning Provisions (VPP) that provide meaningful guidance for determining appropriate impacts on solar panels.
In the Chen case it was estimated that the proposed shadows would reduce the efficiency of the solar collecting panels by between 50% and 70%. In that matter the Tribunal concluded that this extent of loss was unreasonable and contrary to the objectives of the planning scheme. The Tribunal went on to raise concerns that no state-wide provisions existed to guide decisions makers in determining what constitutes an unreasonable impact on solar panels.
In John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Red Dot) [2013] VCAT 1258, the Tribunal articulates various factors as being useful reference points (as applicable) for decision makers attempting to assess the appropriateness of shadow impacts on solar collector systems. A list of those factors is provided below:
- (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 above factors make it clear that each case will be assessed on its own merits.
In Buckerfield Architects v Stonnington CC [2014] VCAT 2099, Clause 1 represented the permit applicant in an appeal against Council’s decision to refuse a 6 storey apartment complex located in the Chapel Street Activity Centre.
The site immediately abutting the subject site included a recently constructed 4 storey building with an array of PV solar panels mounted on its roof. At the hearing expert evidence presented on behalf of the PV panel owners concluded that the proposed shadowing would reduce the solar collection system’s capacity by approximately 50% per annum.
Assessing the proposal against the guidelines set out in the John Gurry & Assoc case the Tribunal stated:
26. … I consider that the key relevant question is, “What constitutes ‘legitimate expectations’ in light of the strategic controls and policies affecting the subject land?”
27. In this case, the future building heights are clearly expressed in the DDO7 which applies to this area. The DDO7 clearly states that the preferred maximum building height is 19 metres. The subject site and adjoining land were covered by the DDO7 at the time the solar array was installed at 6 Princes Close. When deciding to install a solar energy system (including making a decision about whether to install a system in the first instance; the type of system to be installed; and the location of the system) I find that it would have been reasonable to anticipate the construction of a building up to 19 metres high on the subject site (that is, a building taller than the building at 6 Princes Close). Given the clear built form outcomes sought by the DDO7, I think it would be unreasonable to require the subject building to be a lesser height on the basis of its impact on the existing solar array at 6 Princes Close.
By approving the 6 storey apartment complex the Tribunal has clearly indicated that it will support (in appropriate circumstances) proposals that result in significant impact to neighbouring solar panels on sites that have strong policy support for increased building heights. Conversely, permit applicants should be aware that greater weight is likely to be given to ‘protecting’ solar collection systems within the residential hinterland, where little or no policy support exists for significantly higher built forms and increased densities.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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