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[2001] VCAT 375
mixed. The Council's refusal decision was set aside. A permit was granted for solar panels on the north face of the roof, west of the existing chimney, subject to amended plans showing retention of the...
1 cited instrument linked from this judgment.
The Tribunal did not approve the owners' exact proposal to remove a chimney and install solar panels in front of it. It found that the chimney was an important heritage feature and that the panels would be too visible in the proposed position. It nevertheless allowed solar panels if the chimney was kept and the panels were moved behind it. The review therefore succeeded only in part.
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1,681 words · generated 28/09/2026
Forsyth and Brindley applied under s 77 of the Planning and Environment Act 1987 (Vic) for review of the City of Moreland's refusal to grant a planning permit. The property was 21 Gray Street, Brunswick, opposite Temple Park and within Heritage Overlay HO139. It was a modest, single-storey dwelling, described as late Edwardian and probably dating from the late nineteenth century. A 1990 heritage study graded it Level 4, meaning it contributed to the historic character of the heritage area ([3]-[6]).
The owners proposed to remove the chimney towards the front of the house and place 12 photovoltaic panels on the north-facing roof. The panels were described as 3.1 metres long and 2.4 metres high across the roof ([7]). Council refused the application on grounds concerning heritage policy, the building's historic character and appearance, and effects on the heritage place near Temple Park ([1]). The owners argued, among other things, that solar generation supported environmental objectives and that the chimney no longer served a practical use ([2]).
The Tribunal heard evidence from the owners' planning witnesses and Council's heritage architect. It also inspected the property and viewed another Brunswick-area dwelling with solar panels ([Appearances], [24]). The Tribunal's order set aside Council's refusal and granted a permit, but only for panels on the north-facing roof to the west of the existing chimney. A condition required revised plans showing that the chimney would remain ([Order]).
The Tribunal framed the task as achieving a “reasonable balance” between heritage conservation and environmental sustainability. It relied on the parties' agreement that this was the fundamental issue ([12]). The relevant planning provisions supported both concerns. Clause 43.01's Heritage Overlay purposes included conserving and enhancing heritage places and their significant elements, and ensuring development did not adversely affect their significance ([9]). Its decision guidelines required consideration of the significance of the place, the effects of demolition or alteration, and relevant State and local planning policies ([10]).
The Tribunal accepted the heritage evidence that the dwelling was relatively modest but substantially intact at its façade, and that its tall chimney was an important feature. It also found that the house contributed to the heritage precinct. The modest scale and style of the buildings were themselves part of the precinct's heritage significance, even though some buildings had been modified ([23]). On that evidence, removing the chimney would not assist conservation and would diminish heritage values ([27], [29]).
Visibility and scale mattered to the proposed panel location. The house's gabled roof faced the street and Temple Park. In that setting, the panels in the proposed forward position would be readily apparent. The Tribunal considered them substantial in size, more noticeable than a skylight, and not respectful of the building's architectural integrity ([25]). It noted a commonly accepted principle that new work should not visually dominate a heritage place, and that retaining visible original fabric helps the building remain legible ([25]).
The Tribunal did not treat heritage conservation as an absolute bar to modernisation or renewable energy. It expressly accepted that existing buildings must be allowed to be modernised and that environmental objectives were important ([26]). It also recognised evidence that moving the panels could reduce system performance and affect cost-effectiveness. But it concluded that the alternative location behind the chimney would have a negligible effect on the building's appearance and streetscape ([28]). The permit therefore supported the environmental purpose while requiring a compromise in panel siting and performance ([29]).
This decision applied the Moreland Planning Scheme as it stood in the proceedings. Before the review, Council's refusal meant no permit had been granted for the proposed chimney removal and panel installation ([1]). After the review, the refusal was set aside and a permit was granted for a materially different arrangement: retaining the chimney and placing the panels behind it ([Order]).
The judgment describes the applicable planning framework rather than announcing a general change to the law. It quotes the Heritage Overlay's purposes and decision guidelines, and refers to State and local planning policies, including the Moreland Scheme's environmental sustainability and heritage objectives ([8]-[11], [17]-[20]). Its reasoning is an application of those provisions to this property and evidence. It does not say that renewable energy proposals must always yield to heritage concerns, or that heritage constraints must always yield to environmental benefits.
The decision is particularly useful as an illustration of how a planning decision-maker may consider design alternatives rather than treating an application as an all-or-nothing choice. The Tribunal rejected the proposed chimney demolition and forward panel location, but allowed panels in a different position. That distinction follows from its assessment of the specific heritage contribution of the chimney, the visibility and dimensions of the panels, and the asserted operational effects of alternative layouts ([23]-[29]).
The judgment does not reproduce later amendments to the planning scheme or legislation, nor does the supplied text establish the present state of Victorian law. Its conclusions should therefore be understood as findings in this 2001 review, under the provisions and evidence described in the decision.
At [12], the Tribunal says the central issue is “achieving a reasonable balance”. In plain English, it did not treat heritage and sustainability as mutually exclusive objectives. Both mattered to the permit decision.
At [23], the Tribunal accepts that the chimney is “a feature and an important element in preserving the integrity of the building”. This explains why the chimney was not treated as a redundant object that could be removed without planning consequences. The decision links its physical presence to the building's contribution to the heritage precinct.
At [25], the Tribunal says that new works should not visually dominate a heritage place. It found the panels' dimensions and forward position would be conspicuous. This was not merely a question of whether solar panels were acceptable in principle. Their particular location and scale were material.
At [27], the Tribunal rejects removal of the chimney because it would not assist in conserving or enhancing significant elements. Put simply, the claimed practical benefit of removing it did not, in the Tribunal's assessment, outweigh the heritage harm associated with losing it.
At [28], the Tribunal distinguishes between panel layouts. The owners' evidence described reduced performance for alternatives, including an estimate of 37.5% operational loss for one layout behind the chimney. The Tribunal nevertheless considered that the behind-the-chimney location would have negligible visual impact. It treated the practical and heritage effects as part of the balance, not as interchangeable measurements.
At [29], the Tribunal concludes that solar panels could be installed while retaining the chimney. In plain English, renewable energy was acceptable here, but the heritage-sensitive design had to preserve the significant building element and alter the panel siting.
The reasoning is most closely connected to applications involving works to a building within a heritage overlay where demolition or external alteration may affect the place's significance. Relevant features in this case included the dwelling's intact façade, its contribution to a precinct, a chimney identified as an important heritage element, and proposed equipment that would be visible from the street and a nearby park ([23], [25]).
The decision also provides a specific example of an application combining heritage works with an environmental objective. The owners sought solar generation, and the Tribunal accepted that environmental sustainability was relevant under the planning framework ([17]-[20], [26]). Its approach shows the importance of evidence about alternative locations, visual effects and practical performance. The Tribunal considered the owners' evidence about shading and reduced output, alongside the heritage evidence and its own inspection ([16], [24], [28]).
It would be too broad to read the decision as establishing a universal rule for solar panels on heritage buildings. The result turned on the facts and planning provisions before the Tribunal. The judgment does not decide how panels should be treated where a building is more or less significant, where visibility differs, where another layout is unavailable, or where the relevant scheme provisions differ. Those matters would require their own assessment.
The supplied judgment contains no discussion of later decisions, and no later authorities or treatment history were provided with the source text. It is therefore not possible, on this material, to say whether later courts or tribunals followed, distinguished, approved or otherwise treated Forsyth & F Brindley v Moreland CC.
The decision itself identifies no other judicial authorities. Its analysis is grounded in the Moreland Planning Scheme, the evidence of the parties' witnesses, the Tribunal's inspection, and the particular circumstances of the property ([12]-[29]). Any research into subsequent treatment would require additional legal sources beyond this judgment.
The judgment resolves the permit application before it, but leaves questions that would depend on other facts and provisions. It does not specify how much operational loss from an alternative panel location would be acceptable, or how that loss should be measured against heritage effects. It records evidence of performance and cost implications, but gives no general threshold ([16], [28]-[29]).
It also does not set out a universal test for deciding when a roof-mounted addition visually dominates a heritage place. The Tribunal described the panels' dimensions, position and visibility in this setting, and relied on heritage evidence about the building's integrity ([23]-[25]). Different roof forms, streetscapes, heritage gradings or views could lead to a different assessment.
Finally, the judgment does not determine whether every chimney on a heritage-listed or heritage-overlay property must be retained, or whether every solar installation must be located behind existing roof features. Its conclusion was tied to the chimney's assessed contribution, the proposed panels' visibility, and the availability of a location the Tribunal considered visually acceptable ([27]-[29]). The decision is therefore best read as a fact-specific example of balancing heritage conservation and environmental sustainability under the cited scheme provisions.
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Application under s. 77 Planning and Environment Act 1987; Moreland Planning Scheme; Heritage Overlay; Removal of a Chimney; Erection of Solar Panels; Environmental Sustainability; Heritage Objectives.
The decision of the Responsible Authority is set aside. A permit is granted for the installation of solar panels to the existing dwelling at No. 21 Gray Street, Brunswick, in accordance with the endorsed plans and subject to the following conditions:
1) Before the development permitted by this permit starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the application but modified to show:
b. The siting of the solar panels on the north face of the roof, to the west of the existing chimney.
2) The development as shown on the endorsed plans must not be altered unless with the written consent of the Responsible Authority.
3) The external colour, materials and finishes shown on the endorsed plans must not be altered unless with the consent of the Responsible Authority.
4) This permit will expire if one of the following circumstances applies:
a) The development and use is/are not started within 12 months of the date of this permit.
b) The development is not completed within 24 months of the date of this permit.
The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.
Mr M Townsend of Counsel appeared on behalf of the Applicant for Review. He presented written and oral submissions and called Mr F Brindley, and Mr T Biles, Town Planner of Contour Consultants, to give evidence.
Mr E Patterson of Local Planning Services appeared on behalf of the Responsible Authority. He presented written and oral submissions and called Mr T Westmore, Heritage Architect, to give evidence.
A number of plans, photographs and other documents were tendered to the Tribunal. All material has been considered by the Tribunal and is retained on file. The witnesses were made available for cross-examination.
The site and locality were inspected subsequent to the Hearing. The Tribunal also viewed a residential property in West Brunswick where solar panels similar to those proposed had been used.
1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Ms J Forsyth and Mr F Brindley to review a decision by the City of Moreland ("the Responsible Authority") to refuse to grant a permit in application no. 2000/0144. A Notice of Refusal was issued on 2 August 2000 on the following grounds:
1. The proposal does not satisfy the purpose and objectives of the Heritage Theme of the Moreland Municipal Strategic Statement.
2. The proposed works are not in keeping with the historic character and appearance of the building.
3. The chimney demolition and removal will adversely affect the significance of the heritage place in the vicinity of Temple Park.
4. The proposed works will adversely affect the appearance of the heritage place.
5. The proposed works will adversely affect the character of the heritage place.
2. The Application for Review was lodged on 25 September 2000, on the following grounds:
1. The proposed works are in accordance with the proper and orderly planning of the area.
2. The proposed works are in accordance with the aims and objectives of State and local planning policies.
3. The proposed works are in not inconsistent with the Heritage Theme of the Moreland Municipal Strategic Statement.
4. The proposed installation of solar panel will not impact unreasonably on the view from Temple Park.
5. The proposed chimney demolition and removal will not significantly impact upon the significance of the heritage place of Temple Park.
6. The proposed works will not unreasonably detract from the streetscape view of number 18 and 21 Gray Street.
7. The proposed works are not inconsistent with the historic character and appearance of the house.
8. The proposed works will not significantly affect the appearance of the house.
9. The proposed works will not significantly affect the character of the heritage place.
10. The proposed works will contribute to a reduction in greenhouse gas emissions.
11. The chimney no longer serves any practical use.
12. Open firs in city dwellings are widely recognised as not being in accordance with good environmental practice.
13. The solar panels will provide a long term benefit to the occupants of the house and to the environment.
14. The siting of the solar panels is appropriate.
3. The site is located on the west side of Gray Street, opposite Temple Park. It has a frontage of 7.01 metres and a depth of 33.53 metres, with an approximate site area of 235 square metres.
4. The land is occupied by a single fronted, single storey dwelling. It has a gabled roof form, rendered front façade and curved verandah. The building has two tall rendered chimneys - one on the northern side of the house and one centrally located along the roof ridgeline. One is located within the front room of the house (bedroom) and the second is centrally located within the living room.
5. The Tribunal was advised that the dwelling dates from the late Edwardian period and was probably built in the late 19th century. It was graded as "Level 4" within a 1990 heritage study of Brunswick by Context Pty Ltd, as a place that contributes to the historic character of the heritage area. The house is one of a pair with No. 19 Gray Street.
7. It is proposed to demolish the existing chimney sited toward the front or eastern end of the dwelling. This is to allow solar electric photovoltaic panels to be erected on the gable roof over the front bedroom, facing north. As described by Mr Brindley at the Hearing, the 12 panels (in a 6 x 2 form) are to be a total of 3.1 metres in length, 2.4 metres high (ie. across the roof), and a thickness of around 60mm. They are placed to be on the existing corrugated iron roof sheeting.
8. The subject land is zoned Residential 1 under the provisions of the Moreland Planning Scheme ("the Scheme"). The purpose of the Zone includes:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.
9. The site is located within a Heritage Overlay (HO139). The purpose of the Heritage Overlay is:
* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* To conserve and enhance heritage places of natural and cultural significance.
* To conserve and enhance those elements which contribute to the significance of heritage places.
* To ensure that development does not adversely affect the significance of heritage places.
* To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.
10. Under the provisions of Clause 43.01, a permit is required to demolish an existing building and to carry out works. Decision guidelines include the following:
* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
* The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.
* Any applicable heritage study and any applicable conservation policy.
* Whether the location, bulk, form and appearance of the proposed building will adversely affect the significance of the heritage place.
* Whether the demolition, removal or external alteration will adversely affect the significance of the heritage place.
* Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.
11. A number of other Clauses of the Planning Scheme are relevant to the consideration of this application, including Clauses 15, 16, 19, 21, and Clause 65 (general decision guidelines).
12. In reviewing the proposal to demolish the chimney and to site solar panels on the roof of the dwelling, it is necessary to consider how the works will impact on the integrity of the existing building on the land and the values of the heritage place HO139. As required by the decision guidelines of the Scheme, the proposal must also be considered in terms of the objectives of the State and Local Planning Policy Frameworks that give importance to both heritage conservation and the achievement of environmental sustainability. The parties agreed that the fundamental issue is achieving a reasonable balance - with which the Tribunal agrees.
13. Mr Patterson stated that although the Council strongly supports the principle of environmental sustainability, it did not consider that the removal of the chimney and the siting of the solar panels to be consistent with heritage objectives. Relying on the evidence of Mr Westmore, the Council's Heritage Advisor, Mr Patterson submitted that the chimney makes a positive contribution to the heritage values of the building and that the building itself makes a contribution to the streetscape. Mr Westmore stated that the building was graded Level 4 in a 1990 heritage study. Noting the extent to which some dwellings have been altered, Mr Patterson submitted that it is important that remaining intact elements be retained. Mr Patterson indicated that the Council would support the siting of the solar panels to the rear of the roof or building.
14. In response, Mr Townsend stressed the importance of considering environmental objectives as well as heritage issues in reaching a balanced decision that allows the building to be continued to be adapted for modern use. Mr Townsend acknowledged that the Applicants "agree that chimneys should be retained if there is no compelling reason to take them down" but that "there are occasions where the arguments for demolition may exceed the chimney's contribution to streetscape character".
15. Mr Biles gave evidence that the removal of the chimney would not result in "any real diminution of the contribution the applicants home makes to the heritage values of the street". He submitted that few people, other than an expert such as a heritage architect, would notice the absent chimney. He placed weight on the modified form of houses in the street that do not have repeated and regular elements such as chimneys. Mr Biles was of the view that the solar panels are responsive to planning policy and outweigh the "minor loss of heritage".
16. Mr Brindley explained a number of other options for the siting of the solar panels that had been considered. They included different arrangements of the panels forward of the chimney, a solution involving panels behind the chimney, and the use of a framed structure to position panels over the kitchen toward the rear of the building. He explained that these options would each result in an operational loss of between 35% and 77%, primarily resulting from shading by chimneys. He stated that the current proposal is the most cost effective and efficient and that it would be less visually intrusive than a structure (at 2.9 metres in height) above the kitchen.
17. Clause 21.04-1 of the Planning Scheme refers to the Council's commitment and objectives in relation to environmental sustainability. It states:
True environmental sustainability relies, firstly, on conserving resources in a range of ways, such as reducing the use of energy and water and reducing greenhouse gas emissions. It also relies, equally, on the principle of activities continuing to function in ways that can be sustained into the far future. Environmental problems cannot be tackled in isolation from their social and economic dimensions.
Many issues of sustainability confront all countries. These range from greenhouse gas emissions to depletion of natural resources and soil degradation. All of these global problems require local solutions.
18. There is no doubt that the City of Moreland has a strong commitment to this objective. Mr Townsend's also referred to State (Clause 15 of the Scheme), National and International policies relating to environmental sustainability.
19. In addition to the heritage policy also at Clause 15 of the Scheme, the Council has defined objectives in relation to heritage. At Clause 21.03-3, it is recognised that some of the municipality's "historic built form, while retaining original features of each period, has changed with the influences of successive migrant populations and the more recent growing interest in restoration and renovation". At Clause 21.06-4 (Heritage), it is said that: "The restoration, revitalisation and re-use of buildings is environmentally responsible and can save significant resources".
20. Objective 1 of Clause 21.06-4 is "To conserve and enhance buildings, places, archaeological sites and landscapes that contribute to Moreland's rich cultural heritage". Stated strategies include:
s Protect significant buildings and the integrity of heritage areas from inappropriate demolition and development.
s Recognise the varying degrees to which individual buildings contribute to the significance of a heritage area.
s Encourage recycling and sympathetic adaptation of heritage buildings and heritage assets where appropriate.
21. The site is located within the Phillipstown heritage precinct, the statement of significance for the which describes the area as "of regional historical and architectural significance. It is the oldest settled part of Brunswick, once functioning almost as a small village with housing, industry, a hotel, shops and from the 1920s, a park". It refers to the area as retaining evidence of the small-scale brick industries established in the area, including worker's cottages.
22. The Tribunal has carefully considered this evidence and submissions. It records that the only heritage evidence before the Tribunal was that of Mr Westmore.
23. The provisions that trigger the need for a planning permit in this instance are at Clause 43.01 - the Heritage Overlay. The Tribunal accepts submissions and evidence that the building is relatively modest and substantially intact in terms of its façade. The Tribunal also accepts Mr Westmore's evidence that the tall chimney is a feature and an important element in preserving the integrity of the building. The building itself makes a contribution to the heritage values of this heritage precinct, and although many buildings in this area are modest and some are substantially modified, that unpretentious scale and style is nonetheless an important component in the heritage significance of HO139. Indeed, the Tribunal finds it interesting that even Mr Townsend and Mr Biles conceded to initially having reservations about supporting the removing the chimney.
24. In considering the location for the solar panels, the Tribunal viewed an example of solar panels on a residential property in West Brunswick. In that instance, the panels were sited with an easterly aspect facing the street and involved a larger number of panel tiles. The Tribunal found the inspection to be of great assistance in reaching its determination.
25. In the setting of the subject site, with the gabled roof form, the forward position of the panels will be readily apparent within this streetscape and particularly from various angles in Temple Park. A common principle in altering or adding to houses that have some heritage values is to ensure that the front or visible section of the dwelling is intact with additions and modifications being recessive or a subservient element. This allows the original fabric of the building to be read, or legible. A commonly accepted principle is that new works should not visually dominate a heritage place. It could be said that the solar panels are a relatively modest addition and will not be confused with the original fabric of the building. However, the Tribunal considers that the overall size of the panel elements (2.4 metres x 3.1 metres) is substantial and the forward position of the panels over the front room will be apparent in the street and clearly read as an altered element. The panels are more substantial than, for example, a skylight, and the Tribunal accepts the heritage evidence that they will not readily enhance or respect the architectural integrity of the building.
26. The Tribunal was urged by the Council to recognise that an alternative could be found for the siting of solar panels. Conversely, Mr Townsend stressed that the current proposal is the best option and would not unreasonably compromise heritage objectives. In considering what may be a reasonable balance, the Tribunal states firstly that it appreciates that existing buildings must be allowed to be modernised, and this is entirely consistent with the intent of the Scheme. Secondly, environmental goals, as set out in the Scheme, are important and a matter for consideration when examining the State and Local Planning Policy Frameworks as required by the decision guidelines of Clause 43.01.
27. Having said that and having regard to the purpose of Clause 43.01, the Tribunal does not support the demolition of the chimney as its removal would not assist in any way to conserving or enhancing elements that contribute to the significance of HO139. The Tribunal has difficulty in accepting that the siting of the solar panels in the location proposed with the removal of the chimney should over-ride what the Tribunal regards to be a consequent loss of heritage values and adverse affect on the heritage significance of the existing building and heritage place.
28. The reason for the forward position of the solar panels is to avoid the shadow cast by the chimney on the adjacent dwelling at No. 23 Gray Street and the chimney on the subject site. An option involving the panels being behind (or to the west) of the existing chimney in two rows was said by Mr Brindley to result in a 37.5% operational loss and be difficult to construct because of the proximity of the panels to the eaves. An option retaining the chimney but siting the panels to its east toward the street would have a 35% operational loss. These losses have implications in terms of the cost-effectiveness of the system. However, the Tribunal considers that the option of the siting of the panels behind the chimney would have a negligible impact on the appearance of the building and the streetscape.
29. In conclusion, the Tribunal has carefully balanced its consideration of the purpose for the Heritage Overlay, the removal of the original fabric of the building, the visibility and appearance of the solar panels and the Applicant's desire to provide an alternative power source for the dwelling. The Tribunal finds that the demolition of the chimney is not acceptable in terms of the purpose of Clause 43.01 as it would not assist to conserve or enhance elements that contribute to the significance of the heritage place, rather, it would adversely affect the values of the heritage place. The Tribunal applauds the principle behind the proposal, to utilise an alternative energy source, and finds that this can be achieved by allowing the installation of the solar panels on the north facing roof face, behind the chimney. It was suggested by Mr Townsend and Mr Biles that allowing older dwellings to be updated to contemporary standards requires some compromise. That is often true, and in this instance, while the Tribunal is mindful of the reduced operational performance of the panels it finds there to be sound heritage reasons why it is necessary for the Applicants to compromise in this regard.
For the above reasons, the Application for Review is allowed in part, and I will order that a permit issue allowing the siting of solar panels to the roof of the existing dwelling, subject to conditions.
Forsyth & F Brindley
Moreland CC [2001] VCAT 375
The Council's refusal decision was set aside. A permit was granted for solar panels on the north face of the roof, west of the existing chimney, subject to amended plans showing retention of the chimney, the approved siting, and further conditions.