PLANNING SCHEME - interpretation or consideration of VPP provision

Clause 55.03-5 - Energy efficiency objective and Standard B10.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Clearer guidance for determining acceptable thresholds for overshadowing impacts on solar panels on neighbouring land.

This case involves a review of a decision for two double storey dwellings.

An issue raised by a neighbouring property owner concerns the shadow impacts upon solar panels mounted on the roof of their dwelling.

While there is some general guidance to be found in existing planning scheme policies promoting sustainability and under Clause 55.03-5, such guidance is quite limited and typically results in decisions about the acceptability or otherwise of shadow impacts being made on an ad-hoc basis.

With the increasing use of solar panels, it would be desirable for consistent statewide provisions by which to assess impacts through the introduction of clearer guidelines and standards capable of providing greater certainty to all stakeholders.

Melbourne Planning Scheme; Application under Section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit; Residential 1 Zone; Two double storey dwellings; Neighbourhood character; Visual impact; Impact on neighbouring solar panels.

L & V Hayes, K & R Brodie, K Gulle, L Borghouts, S Martinuzzo, M & M Taylor-Sands, F Cubitt, D Selzer, K Harley, R Mueller, S Anderson, R & L Bielby, A & F McKay, L Rushbrook, D Fitt, M Reeves & K Murton, V Wong, V & G Edwards, B & C Ward, K Busch, T & J Byard, L Wolff, S & D Malone.

Chen v Melbourne CC & Ors (includes Summary) (Red Dot) [2012] VCAT 1909

1. Pursuant to s. 60 of the Victorian Civil and Administrative Tribunal Act 1998, Steve Martinuzzo, Fiona Cubitt and Jacqueline & Theodore Byard are joined as parties to this proceeding.
2. Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Act 1998, the permit application is amended to substitute for the permit application plans the following plans filed with the Tribunal:

Sheets 01 to 14 inclusive, Revision C Job No. 20100096.

1. The decision of the Responsible Authority is affirmed. In permit application TP-2010-1011 no permit is granted.

Mr David Song, town planner, Bowden Song Planning Pty Ltd.

Construction of two double storey dwellings, sited one behind the other with secluded private open space for each separating the two dwellings.

Unit 1 is to have 3 bedrooms and no on-site car parking while Unit 2 is to have 2 bedrooms, a media room (which may be used as a 3rd bedroom) and is provided with a double garage with access from a laneway at the rear (ROW). Portions of both dwellings are sited on boundaries, particularly Unit 2 at the rear.

Both dwellings have skillion roofs while Unit 1 also has a hipped element at the front. External materials include colorbond roofing, face brickwork, weatherboard and feature 'woodform' cladding.

Section 77 of the Planning and Environment Act 1987.

• Residential 1 Zone (R1Z).
• No overlay controls affect the site.

• Clause 32.01-4 - Construction of two or more dwellings on a lot (R1Z).
• Clause 52.06 - reduction in carparking.

Clauses 10, 11, 15, 16, 18, 21.02, 21.04, 21.05, 21.08, 22.17, 52.06, 55 and 65.

Located on the south-east side of Bayswater Road, this 349sq.m site has a frontage of 7.4m, rear boundary dimension of 7.6m and depth of 46.82m. The site has a gentle slope down towards the front. The land is developed with a single storey weatherboard cottage.

Byard v Melbourne CC [2012] VCAT 623

I inspected the site and surrounds on the afternoon of Wednesday 7 November 2012.

1. Renyuan Chen has sought planning permission from Melbourne Council for the construction of two double storey dwellings on a 349sq.m lot in Kensington which would replace the existing weatherboard dwelling. Although no overlay controls affect the site, a number of nearby properties are affected by a heritage overlay, including the two adjoining properties on either side of the review site.
2. The Council refused to grant a permit on grounds that the proposal fails to respond to neighbourhood character, is an overdevelopment and would adversely impact upon the amenity of neighbouring residential properties.
3. Objections from 51 people were lodged with the Council and a number of nearby residents are now parties to this proceeding. They oppose this proposal for similar reasons to the Council as well as raising concerns about car parking, vehicle access and traffic.
4. The key issues for consideration in this case are as follows:
   • Would the design and siting of the dwellings be respectful of its context and acceptable in neighbourhood character terms, particularly in relation to neighbouring backyards?
   • Would the development result in unacceptable off-site amenity impacts?
   • Are the proposed carparking and access arrangements acceptable?
5. The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered the statements of grounds lodged by parties not present at the hearing and all submissions presented with regard to the applicable policies and provisions of the Melbourne Planning Scheme, I have decided that a permit should not be granted. My reasons follow.

1. Metropolitan housing policies encourage housing diversity, urban consolidation, and more affordable housing. There is a particular emphasis on the provision of more intensive housing close to public transport and Central Activities Districts, Principal and Major Activity Centres[1].
2. Local policies seek to give effect to these objectives whilst recognising that "different parts of the municipality have to be managed differently and that development potential varies markedly". The local context is described as the key to understanding whether or not a proposal will be acceptable.[2]
3. In the case of Kensington, this suburb is described as a "stable" area where little growth is envisaged in relation to new housing development, signalling an intent to preserve the specific historical layout, character and ambience of this area.[3] The policy direction in this area is for sympathetic residential infill that respects and complements the existing low scale built form and character of the area including heritage qualities.[4]
4. The policy titled 'Urban Design outside the Capital City Zone' at Clause 22.17 is also relevant to this application. It has objectives that seek development that complements the scale, siting, massing and bulk of adjoining and nearby buildings and reduces unacceptable building bulk.

1. Amendment C162 will modify the Municipal Strategic Statement at Clause 21. The amendment has been adopted by the Council and submitted to the Minister for Planning for approval. The amendment is therefore seriously entertained and I must give it considerable weight.
2. At Clause 21.04, the review site would fall within the "Stable residential area". Such areas are said to be valued for their existing character and limited change will continue to occur so that new and altered buildings fit in.
3. I find that this policy in its amended form strengthens and is consistent with the existing local policy framework in relation to Kensington.

1. In essence, the existing and proposed policy framework contemplates some additional development, noting that this site, just 5km from the Melbourne CAD, is also well positioned in relation to a long established range of services and facilities including railway stations at Kensington and South Kensington, local shops, open space and primary schools. There is no question that this proposal would contribute in some way towards housing policy objectives of urban consolidation, diversity and to a lesser extent affordability. These considerations weigh in favour of a permit as submitted by Mr De Giovanni.
2. However, in this part of Kensington, the policy framework also seeks respectful built form that maintains and enhances residential amenity and does not bring about substantial change in neighbourhood character terms. In this case, I find that there is greater weight to be placed on retaining the existing neighbourhood character than policies which promote additional housing in established urban areas.
3. This proposal does not respond appropriately to the policy direction on neighbourhood character for reasons to which I now turn.

1. Mr De Giovanni submitted that the absence of any heritage controls over the site affords a development opportunity that warrants a departure from the policy direction seeking limited change to the character of this area. Notwithstanding, he highlighted the variable scale and style of dwellings in Bayswater Road which includes both single and double storey development from various eras.
2. He emphasised that when viewed from the street, the development will have a single storey appearance because of Unit 1's roof design which substantially masks views of the recessed upper level and Unit 2. The siting of the dwellings whose areas of secluded open space are centrally located was also said to be a favourable attribute of the proposal allowing a substantial gap between both dwellings, opportunities for tree planting and a respectful response to the character of each adjoining backyard. The response was said to be one that is contextually acceptable in this inner city location.

1. There is some variability to the character of Bayswater Road as observed by Member Sibonis in the case of Byard v Melbourne CC where he said:

[6] I agree with the Council's submission that Bayswater Road is a varied streetscape in terms of height, siting and style. There are examples of dwellings ranging from the Victorian period through to the latter part of the last century. These include traditional cottages, multi level blocks of walk-up flats and more recent infill 'townhouse' style development. Buildings are generally of a single or two-storey height, with some examples of three-storey flats also present within the immediate environs of the review site.

1. While the character of Bayswater Road is variable, that is primarily the case at the Epsom Road end. Near this review site, where development is more homogenous and more influential, the prevailing character is overwhelmingly that of Victorian era timber dwellings consistent in their scale (primarily single storey), form and siting. In the streetscape, they exert a fine grain character.
2. In terms of the backyard character, this too is quite consistent with a very open spacious feel - a character that can be well appreciated from the review site, the dwellings either side at No.'s 29 and 31 Bayswater Road, the ROW and particularly from the pocket park further some 30m south-west of the review site. It is true that some outbuildings are present but these are usually modest structures. While sometimes visible from neighbouring land above fences they typically do not have a dominating presence.
3. In making these observations I acknowledge that oblique views of a Federation era dwelling which includes upper level attic style projections are visible at No. 28 Bangalore Street from the backyard of the review site and neighbouring properties in Bayswater Road. Two storey elements are however setback a considerable distance from the rear boundary (about 11m) and do not have a substantial volume.
4. While there are no heritage controls affecting the review site, the heritage values of neighbouring and surrounding land clearly influence the surrounding pattern of development and neighbourhood character.
5. I agree with Mr De Giovanni's submission that Unit 1's presentation is generally respectful of the streetscape. Some oblique views of Unit 1's side walls and more distant views of Unit 2 on the south-west side will be apparent from the street above and between neighbouring dwellings. However, the degree of exposure of these two storey elements is limited and is not the reason I would refuse the grant of a permit.
6. Rather, it is the proposal's visual impacts upon neighbouring backyards that is my primary concern. In saying this, it is an accepted principle that the assessment of neighbourhood character goes beyond streetscape to include what is often termed the backyard realm.
7. I find that Unit 2's siting and design is not respectful of the open spacious character punctuated by vegetation above fences that is an intrinsic part of this area's backyard character. Of the 16.8m length of Unit 2, walls on boundaries extend for a distance of 13.5m on each side. When coupled with the upper level footprint and limited side setbacks, this dwelling would present an unacceptable degree of visual bulk that is uncharacteristic of any development in backyards which is otherwise low scale and modestly proportioned. Interface with 29 Bayswater Road
8. I acknowledge that partial demolition and a single storey rear addition to the dwelling at No. 29 Bayswater Road has commenced. Plans of these modifications were tabled at the hearing and I have taken them into account in making my findings. In particular, I find that while a large setback to the rear boundary (and thus a large backyard space) will remain, the new addition would extend beyond the footprint of proposed Unit 1. This will to some extent limit the visual impacts of Unit 1's 2 storey form from the backyard of No. 29.
9. There are however a number of shortcomings with the two units in combination and with the visual impact of Unit 2.
10. At the interface with No. 29 Bayswater Road, the ResCode standards in relation to walls on boundaries and side and rear setbacks are not met. Specifically, the combined length of walls on the north-east side (Units 1 and 2) is 28.5m. This exceeds Standard B18 at Clause 55.04-2 by approximately 9.3m. Even excluding Unit 1's courtyard wall on the boundary which has a height of 2.375m, a non-compliance with this standard of 6.1m would occur.
11. Having considered the decision guidelines under this standard, I find that this design response does not meet the corresponding objective which is:

To ensure that the location, length and height of a wall on a boundary respects the existing or preferred neighbourhood character and limits the impact on the amenity of existing dwellings.

1. While the extent to which walls are located on boundaries might be regarded as an acceptable response in some inner city locations where narrower lots are not uncommon, in the particular context of this site, that approach is not acceptable here.
2. I also have some concerns with the bulky presentation of Unit 2's upper level which has a constant setback of 1.86m at this interface, spanning a distance of nearly 16m. While the side setback for a wall with a height of between 5.9m and 6.2m is numerically compliant with Standard B17 at Clause 55.04-1, compliance with this standard is poor indicator of a proposal's acceptability in terms of building bulk. My concerns about the visual bulk of this upper level are exacerbated by a combination of the following factors:
   • the extent to which the lower level footprint is sited on the boundary,
   • the limited space for any tree planting along the common boundary to soften the appearance of Unit 2. I consider that any tree planting within the light court is not suitable for this purpose given the intended purpose of this area (i.e. for light access) and the narrow dimensions of this space (1.2m wide).
   • The degree to which the upper level footprint extends deep into the backyard realm. The upper level extends to within 0.465m of the rear boundary in part with the projecting bay/screen window element sited on the rear boundary - neither of which would be compliant with the Standard and objective for rear setbacks at Clause 55.04-1. Nor is the extent of 2-storey form so deep into the backyard realm a characteristic feature of residential development in this part of Bayswater Road or Bangalore Street on the opposite side of the ROW.

1. The concerns that I have outlined above in respect of the visual bulk and extent of double storey form in the backyard realm also apply to the interface with the Martinuzzo's and Ms Cubitt's property at No. 33 Bayswater Road. I note that the upper level setbacks at this interface are more varied than the other side. However, this does not overcome my concerns with introducing such a large upper level footprint in the backyard realm. Moreover, this variation has been achieved in part through a setback of just 0.54m to the master bedroom's ensuite and walk in robe from the side boundary. With a wall height of approximately 6.4m, this part of the building is not compliant with Standard B17 (Clause 55.04-1). The difference in levels between the two sites, such that the review site sits approximately 0.5m higher than No. 33 Bayswater Road contributes to my concerns with the visual impact of Unit 2.
2. I appreciate that a new shed and carport structure with a partial high sloping roof form is proposed at the rear of No. 33 and that structural additions and alterations are this neighbouring dwelling are nearing completion. I have also taken into account the location of the new outbuilding and conclude that the scale, form and bulk of Unit 2 would be incongruous with existing development and would have a dominating visual impact when viewed from this neighbouring backyard.

Overshadowing of backyard and courtyard at No. 33 Bayswater Road

1. Notwithstanding numeric compliance with Standard B21, there will be a considerable increase in the amount of overshadowing that would occur in respect of the backyard at No. 33 Bayswater Road and the courtyard. In isolation this might otherwise not be regarded as problematic. In combination and together with other off-site impacts, particularly in relation to visual bulk, it is suggestive of an overdevelopment and a proposal that has not responded sensitively to existing conditions on neighbouring land.

Visual impact from courtyard and indoor areas of No. 33 Bayswater Road

1. I also consider that Unit 1's upper level is poorly sited and when viewed from the courtyard and hallway window facing the review site would introduce unacceptable levels of visual bulk and would be intrusive. I note also that the stairwell wall is setback 1.12m and extends to a height of 6.04m which does not comply with the minimum 1.73m setback suggested under Standard B17.

1. Overshadowing of solar panels as a consequence of new neighbouring development proposals is becoming an issue of increasing frequency before the Tribunal. This trend is likely to continue.
2. The sustainable use of resources is a key theme which permeates the State and local planning policy frameworks.[5] Local policies in particular promote the reduction in greenhouse gas emissions. In areas like this one where substantial change in built form is not encouraged, a strategy[6] is to:

Minimise the impact of new buildings and works on any active solar collecting device on adjoining buildings ...

1. The primary assessment criteria in the planning scheme is to be found at Clause 55.03-5. Energy efficiency objectives are:

To achieve and protect energy efficient dwellings and residential buildings.

To ensure the orientation and layout of development reduce fossil fuel energy use and make appropriate use of daylight and solar energy.

1. Amongst other things, Standard B10 includes the following:

• Oriented to make appropriate use of solar energy.
• Sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not unreasonably reduced.

1. Turning to the impacts of this proposal, there are 14 solar panels arranged in two groups of seven on the north-east facing roof of No. 33 Bayswater Road. These would be partially overshadowed by Unit 1 between 9am and until after midday at the equinox. A letter tabled by Mr Martinuzzo from a solar and sustainability consultant[7] states that the panels are designed to produce most energy from the morning light and "in effect if the top row is in the full sun but the lower rows are not, neither two strings will produce any power". The estimated total loss of the solar system would be between 50-70%.
2. Although the author of this letter was not called to give evidence, there is no other material before me refuting the conclusion that a loss of 50-70% would occur.
3. If this information is correct, I consider that this degree of loss is unreasonable and the proposal does not seek to minimise its impacts on an existing solar collecting device, contrary to Clauses 55.03-5 and 22.07-1 of the planning scheme.
4. In saying this I also observe that there is no quantifiable guidance available at the present time with which to form a judgement about whether the impacts of a proposal upon neighbouring solar collecting devices will be acceptable or not. Such judgements are occurring on an ad-hoc, case-by-case basis. It would appear timely for there to be consistent and clear guidance on a statewide basis to create greater certainty about what might be regarded as acceptable impacts. This would be of great benefit to affected landowners, proponents of new developments and decision makers.

1. Any increase in noise as a consequence of normal day-to-day residential activity does not justify refusal of this proposal in an urban environment like this one.
2. Overlooking can or will be limited through the use of suitable screening devices.

1. Residents expressed concerns about the lack of on-site car parking for Unit 1 and the convenience of accessing Unit 2's garage from the ROW.
2. Given the site's reasonable proximity to public transport and ability for one car to park along the site frontage, I would not refuse the grant of a permit on this basis.
3. In relation to access to Unit 2's garage, I accept that the arrangement is tight but nonetheless it is workable.

Do any other matters warrant rejection of this proposal?

1. The narrow width of the pedestrian path of 1.1m, the distance of Unit 2 from the street nearly 30m into the site, together with the need to travel through the main area of secluded private open space of Unit 2 is a poor design response. I find that the arrangement offers little in the way of a sense of address and legibility to the street as well as being cumbersome from a functional perspective, particularly for visitors.

1. This proposal is inconsistent with the policy framework which asks that infill development is sympathetic to and complements the existing low scale built form and character of the area including its heritage qualities. In particular, the development would be visually intrusive in the back yard realm.
2. For the reasons I have set out, the decision of the Responsible Authority is affirmed.
3. I will direct that no permit is to be granted.

Application under s. 77 of Planning and Environment Act 1987 for two double storey dwellings. Impact of proposal on neighbouring roof top solar panels.

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PLANNING SCHEME - interpretation or consideration of VPP provision

Clause 55.03-5 - Energy efficiency objective and Standard B10.

CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is required or desirable

Clearer guidance for determining acceptability thresholds for overshadowing impacts on solar panels on neighbouring land.

This case involves a review of a decision for two double storey dwellings.

An issue raised by a neighbouring property owner concerns the shadow impacts upon solar panels mounted on the roof of their dwelling.

While there is some general guidance to be found in existing planning scheme policies promoting sustainability and under Clause 55.03-5, such guidance is quite limited and typically results in decisions about the acceptability or otherwise of shadow impacts being made on an ad-hoc basis.

With the increasing use of solar panels, it would be desirable for consistent statewide provisions with which to assess impacts through the introduction of clearer guidelines and standards capable of providing greater certainty to all stakeholders.

[1] See Clause 11 of all Victorian Planning Schemes.

[2] Clause 21.03-1 of Melbourne Planning Scheme.

[3] See Clauses 21.02-3 and 21.04 of Melbourne Planning Scheme.

[4] See Clauses 21.05-2 including Map 10 and Clause 21.08-19 including Figure 21 of Melbourne Planning Scheme.

[5] See for example Clauses 14, 15.02 and 21.07 of the Melbourne Planning Scheme.

[6] Strategy 1.1 at Clause 21.07-1 of Melbourne Planning Scheme.

[7] Letter from Meryn van Elburg from Enviroshop Solar.