REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

APPLICATION - significant, interesting or unusual use or development; application of policy, provision or principle; or circumstances

Discussion of how the planning decision maker should consider the potential overshadowing by a proposed development of existing adjacent solar panels, with some relevant factors suggested.

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

Affirmation of the Chen v Melbourne CC recommendation that there be a proper State-wide statutory assessment framework for planning decision makers to utilise, in terms of what constitutes 'acceptable impacts' where a proposed development might cause overshadowing of existing adjacent solar panels.

1. This proceeding involves 14 proposed dwellings on a relatively large site in Moonee Ponds. Where the Applicant has sought review of Council's Notice of Refusal to Grant a Permit, the Tribunal has refused the proposal, primarily on 'neighbourhood character' grounds.

1. This decision has been red-dotted because the Tribunal was required to consider the potential overshadowing of existing solar panels on an adjacent dwelling. In the absence of a comprehensive statutory framework for assessing this issue, each decision turns on its own facts. This decision nominates various factors as being useful reference points (as applicable) for planning decision makers dealing with this type of 'potential overshadowing of existing neighbouring panels' planning dispute:

• (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?
• How much supporting evidence any one party has provided?
• How long ago were the existing adjacent solar panels installed on the host building?

The decision includes more detailed discussion of the three primary factors listed above.

Section 77 of the Planning and Environment Act 1987, Moonee Valley Planning Scheme, generous irregular shaped lot, proposal for the construction of 14 dwellings and car parking dispensation for two visitor spaces, Council has issued Notice of Refusal, issues of the potential overshadowing of existing solar panels on an adjacent dwelling, car parking dispensation, neighbourhood character and potential external amenity impacts, permit refused.

Anthea White, Cathy Horton-Crundall, Gerard Horton-Crundall, Gavan Moody, Peter & Glenys Dettmann, Dean Griggs

John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258

1. The decision of the Responsible Authority is affirmed.
2. In permit application No. MV 652 2011, no permit is granted.

Mr Russell Hocking (consultant planner). Mr Hocking called expert traffic engineering evidence from Ms Deborah Donald.

The following neighbours presented in person - Anthea White, Cathy and Gerard Horton-Crundall, Gavan Moody and Dean Griggs.

The construction of 14 dwellings and car parking dispensation for two visitor spaces.

Section 77 of the Planning and Environment Act 1987 (merits review).

Clause 32.01-4 - the construction of two or more dwellings on a lot.

The subject land is roughly a wedge-shaped lot, being unusually large at 1890 sqm. It backs on to a large public reserve. It is currently improved by 10 older and modest single storey dwellings, more occupying the middle and eastern areas of the site. The western area is vacant and apparently has been used during some periods for car parking by the occupants of the existing dwellings. This is an established residential area.

The Tribunal inspected the site and surrounds after the hearing.

Surrowee Pty Ltd & ACF Inc v Melbourne CC (VCAT Ref. P50111/2001), Knox City Council v Tulcany [2004] VSC 375, Healy v Surf Coast SC (VCAT Ref. P362/2005), Harris v Port Phillip CC (VCAT Ref. P1909 2006), Bowden v Greater Geelong CC [2007] VCAT 1334, Kirkman v Hobsons Bay CC [2010] VCAT 1463, Chen v Melbourne CC (Red dot) [2012] VCAT 1909.

1. It is proposed to redevelop the subject land at 11-17 Evans Street in Moonee Ponds for fourteen dwellings, plus car parking dispensation for two visitor parking spaces. Objections have been received, including a concern that existing adjacent solar panels would be overshadowed by the new development. In the context of the Council Delegate Planner recommending the approval of the proposal, Council has issued a Notice of Refusal to Grant a Permit, with the Applicant seeking the Tribunal's review of same.
2. With the review site lying relatively close to the Moonee Ponds Creek to the north, it is common ground that the review site lies within an area of Aboriginal Cultural Heritage Sensitivity. The Permit Application materials included an Aboriginal Heritage Report[1], discussing the aboriginal heritage investigations made and putting forward the conclusion that the site is sufficiently disturbed that no Cultural Heritage Management Plan (CHMP) is required under the Aboriginal Heritage Regulations 2007.
3. The hearing of this matter came before me on 17 May 2013. Over the day I received submissions from the persons listed above, plus I received the expert traffic evidence of Ms Donald. As part of the preliminary matters at the beginning of the hearing, it was expressly confirmed that no other party took issue with the Applicant's position that the site is sufficiently disturbed that no CHMP is required (and I am satisfied with this position). I inspected the site and surrounds after the hearing.
4. It was common ground that whilst the formal application plans remain those plans date stamped "1 March 2012", the Tribunal could in its discretion also consider the potential further design changes discussed at page 14 of the Delegate Report and set out in the draft Condition 1 sub-clauses, as well as the following change recommended by the expert traffic witness Ms Donald (which is what I have done). Ms Donald suggested that in relation to the new Dwelling 10, its front garage and front door be 'flipped' to improve the turning movement in and out of the more easterly car parking space in this garage.
5. The key issues in this review have been:
   • Ms White's 'overshadowing of existing solar panels' objection.
   • Car parking dispensation issues.
   • External amenity issues.
   • Neighbourhood character issues.
6. In summary, I see no significant concerns with the alleged 'overshadowing of solar panels', and I consider the necessary 'car parking dispensation for two visitor spaces' to be reasonable. In relation to potential external amenity impacts, I consider that a less imposing interface is required between the new Dwelling 10 vis-à-vis the closest neighbouring properties. However I am satisfied this is capable of being resolved through design changes implemented by the permit conditions. The key issue on which the whole proceeding has turned is the height and extent of continuous upper level built form of the development that would present to both Evans Street and the rear reserve, which I consider excessive and an unacceptably poor neighbourhood character outcome. Hence I have affirmed Council's Notice of Refusal.
7. My discussion of the 'overshadowing of solar panels' issue includes not only resolving this aspect of the planning dispute before me, but also consideration (as a general guide) of 'relevant factors to consider' when this issue becomes contentious.
8. My reasons follow.

1. I have indicated above that the eastern side neighbour Ms White expressed concerns about the proposed closest new two storey dwelling (Dwelling 10) overshadowing the existing solar panels located on the rear of her single storey No. 19 Evans Street period dwelling. Ms White's solar panels have been installed in an east-west manner across the lower skillion roof at the rear of her dwelling. This east-west orientation means that these panels sit at right-angles to the common side boundary.
2. In response, Mr Hocking for the Applicant submitted that if one reviews the relevant shadow diagrams and bearing in mind that the east-facing upper wall of the proposed Dwelling 10 would be stepped in by two metres, Dwelling 10 would cause minimal overshadowing of these solar panels as at 22 September[2]. He also highlighted that these solar panels had not existed at the time the permit application for this proposal was lodged with Council.
3. During my site inspection, I walked around the backyard of the White property and took note of the location of the solar panels. In response to my query at this point, Ms White confirmed that the panels were only installed in recent months[3].
4. The State planning policy framework says very little of assistance about the role of solar panels and how much impact upon them by new developments is acceptable. Clause 19.01-1 features provisions dealing with the provision of renewable energy, with the relevant objective being "To promote the provision of renewable energy in a manner that ensures appropriate siting and design considerations are met". Whilst the accompanying strategies include "Facilitate renewable energy development in appropriate locations", generally the relevant text is very generic and does not take the debate much further for our purposes here. To the Tribunal's knowledge, similarly there is little (if any) specific guidance on this issue at the local policy level in Victoria.
5. There is a considerable body of previous Tribunal decisions reviewing the acceptability or otherwise of a proposed new (typically two or three level) building causing some degree of overshadowing of the windows and/or outdoor secluded private open space of an abutting neighbouring property. See for example Harris v Port Phillip CC[4] and Kirkman v Hobsons Bay CC[5].
6. However as far as I know there are very few previous Tribunal decisions specifically dealing with the tension between proposed new development and how that development might overshadow existing adjacent solar panels.
7. Two early cases grappling with this particular issue are Bowden v Greater Geelong CC[6] from 2007 (see my discussion of this case further below) and the 2002 decision of Surrowee Pty Ltd & ACF Inc v Melbourne CC[7]. This Surrowee case involved a proposed 8 level serviced apartment building, to be built adjacent to the now well known "60L Green Building" in Carlton that was being constructed at that stage. It was common ground that the 60L Green Building was intended to be a 'demonstration project' in terms of sustainable built form, including the use of solar panels on its roof. The Tribunal ultimately found that the degree of impact of the proposal on the 60L Green Building would be within reasonable parameters.
8. In the context of greater take up of solar water heating/solar power generation in recent times, and a correspondingly greater public debate about the role of different forms of sustainable energy, the 2013 red dot decision of Chen v Melbourne CC[8] provided some helpful discussion on this issue of 'potential overshadowing of solar panels'.

1. Chen involved the proposed construction of two double storey dwellings in a residential area. The Tribunal refused the proposal, primarily on the basis it would be a poor neighbourhood character outcome. However a further issue arising was that a side neighbouring property featured 14 solar panels. In this regard, the Tribunal stated as follows (for convenience, I have excluded footnotes).
   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 9.00 am and until after midday on the equinox. A letter tabled by Mr Martinuzzo from a solar and sustainability consultant 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 it 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.
2. Until any new statutory assessment framework is put in place, the Tribunal's decision making about what constitutes 'acceptable impacts' remains by necessity done on a case-by-case basis.
3. I endorse Member Taranto's observation in Chen that 'consistent and clear guidance on a statewide basis'[9] would make the situation much easier for all stake-holders. Having such a framework would provide a more coherent and consistent approach, with much less uncertainty about what constitutes 'acceptable impacts'.
4. However until such framework is provided, it seems helpful for the Tribunal to suggest some relevant factors to be considered (having regard to the submissions made to me in this case about this issue). In other words, while:
   • each dispute will ultimately turn on its own facts;
   • not all factors will necessarily be relevant in any one instance; and
   • different weight might apply to those factors that are relevant

I have set out below some suggested factors to be considered in disputes regarding the potential overshadowing of existing adjacent solar panels.

1. 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.

Relevant factors to consider with 'potential overshadowing of existing adjacent solar panels'

1. Where a dispute arises about the potential overshadowing of existing adjacent solar panels by a proposed new development, as a general guide, the following seem useful key factors to consider:
   • The ultimate test is 'reasonableness', rather than avoiding any overshadowing altogether.
   • What constitutes 'legitimate expectations' in light of the strategic planning controls and policies affecting the subject land?
   • Have the relevant solar panels been placed in an unreasonably vulnerable position on the host building?
2. These three key factors are discussed in more detail further below.
3. Other less central but still helpful factors to consider as applicable may include:
   • 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?

Further discussion of three primary 'overshadowing of solar panels' factors

1. Consistent with the Surrowee decision, given the range of factors to be balanced which may be pulling in different directions, it would be inappropriate and unrealistic to make the test that (where tensions arise) any one new building needs to completely avoid overshadowing any adjacent existing solar panels. Rather, any overshadowing impacts on the adjacent existing solar panels must be reasonable. Using a test of 'what is reasonable' is also consistent with the position set by the Victorian Supreme Court decision of Knox City Council v Tulcany Pty Ltd[10] that the ultimate test for the approval of any one planning proposal is not that it needs to be optimal, but rather that it must be 'acceptable'.

'Legitimate expectations' in light of the strategic planning context

1. Where a dispute arises about the potential overshadowing of existing solar panels, it seems important to understand whether the strategic planning controls and policies affecting the subject land point to this being a go-go area, or a go-slow area, or something in-between. If for example the review site falls within a residential hinterland location which features zoning controls and/or local policies aiming for a more minimal level of built form change, there are greater constraints on 'legitimate development expectations' and it is easier to give more weight to protecting sunlight to existing solar panels.
2. The reverse applies to review sites in or near activity centres, public transport nodes or nominated urban villages, where the planning framework[11] is overtly supporting substantially higher residential densities and 'change is coming'. In this second scenario, the 'legitimate expectations' of the neighbours need to be tempered, given the need to balance the neighbours' 'access to sunlight' expectations with the overt policy encouragement for more intense built form.
3. This need to consider potential overshadowing of existing adjacent solar panels in a 'bigger picture' planning policy context is well described in the Surrowee decision as follows:
   1. 86. We add that there is an obvious irony in the case presented by the Applicant. It is argued that the intensity of development adjacent to the 60L Green Building should be restricted, however, the South Carlton precinct is being encouraged for intensive development in response, inter alia, to broader goals including the environmental benefits of urban consolidation. We do not accept the submissions of Mr Southall that urban consolidation is restricted to residential development forms, rather, much of the focus of the State Planning Policy Framework and many of the Council documents tendered to us (eg Carlton ILAP) is on promoting environmental sustainability through a range of complementary actions including higher density development (without distinguishing land use types) in appropriate locations where, for example, access to public transport is excellent.

Have the solar panels been placed in an unreasonably vulnerable position?

1. I endorse the general approach taken by Member Cimino in the Bowden v Greater Geelong CC[12] decision of assessing the appropriateness or otherwise of the positioning of any adjacent existing solar panels on the host building. The Bowden case involved a proposed two storey dwelling in the Newtown area. A key issue was the extent of anticipated overshadowing of solar panels on the carport of one of the abutting properties (owned by Mr Bowden). In this regard, Member Cimino made the following findings (again excluding footnotes for convenience).
   1. The second aspect of the overshadowing issue relates to the impact on the solar panels on the carport roof that are part of the pool's heating system. It is clear that the proposed dwelling will cast shadows over those panels. Based on the shadow diagrams presented, at about 3.00 pm, the proposed dwelling would cast shadows over about 25 per cent of the panel area on the carport. There would be no shadow before midday with shadows at 1.00 pm and 2.00 pm being less than at 3.00 pm. All of this does not take into account the shadowing impact of existing vegetation near the boundary, some of which I observed to be reasonably dense even in mid winter.
   2. On reviewing Clause 54, it seems to me that there are no specific provisions that deal with this type of issue. Unlike the pool, the panels are located on the roof of the carport and do not form part of the open space. The provisions of Clause 44.04-5 and Standard A14 do not apply. Accordingly, the consideration of this issue relies on a judgement being made as to whether the extent of the impact is reasonable in the circumstances.
   3. ......
   4. In this case, the solar panels have been installed in a convenient place; that is, on the carport roof. However, the carport is located in a position that is vulnerable or susceptible to the impacts of development on the neighbouring property. 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.
2. I consider the balancing exercise described in [26] above to be an important and helpful one. While the greater use of solar water heating and solar power are important examples of sustainable energy, it should not become 'open slather' in terms of where solar panels are placed on a host building and how close these panels are to the nearest property boundaries. For example, whilst it might be cheaper and more convenient to install solar panels on that part of a host building:
   • (horizontally) extending close to, or running parallel with, a property boundary; or
   • (vertically) at a lower section of the roof of the host building

this choice might also be open to the type of concerns discussed by Member Cimino at [26].

1. This 'balancing of interests' between two landowners is similar in concept to the approach taken by the Tribunal in Healy v Surf Coast SC[13]. That case involved the vexed issue of 'the sharing of views', where a proposed new building would impact on the viewlines of an existing one. The Tribunal at [21] identified several criteria to be considered. In particular, the Tribunal confirmed that there is no legal or absolute right to a view, and that (amongst other factors) it needs to be assessed "...whether those objecting have taken all appropriate steps to optimise development of their own properties".

Findings with 'overshadowing of existing solar panels' objection raised by Ms White

1. Returning to the facts before me and the 'overshadowing of solar panels' objection made by Ms White, I make the following findings, applying the factors set out above as applicable.
2. The key practical consideration here seems the orientation of the solar panels on Ms White's property vis-à-vis the location of the closest new dwelling (Dwelling 10). That is, Ms White's panels have been laid out in an east-west manner across the lower (north-facing) skillion roof section at the rear of her dwelling. As this east-west orientation is at right-angles to the common side boundary, it has the inherent benefit that the middle and eastern group of solar panels are situated much further away from the common side boundary with the review site.
3. Given this orientation, and bearing in mind that the closest upper level wall of Dwelling 10 would be set back from the common boundary by two metres, it is difficult to see that there will be any overshadowing impacts at all for those solar panels situated on the eastern section of the rear of Ms White's roof. In relation to those solar panels sitting closer to the common boundary, in all the circumstances I agree with Mr Hocking that:
   • the indications are that (working with the 22 September shadow diagrams provided) even the closer panels are unlikely to experience any overshadowing impacts between 9 am and 3 pm; and
   • if there is some degree of late afternoon overshadowing of the closer panels as at 22 September, in all the circumstances, this is within reasonable parameters.
4. In summary, because of the position/orientation of the adjacent existing solar panels vis-à-vis the proposed new development, I am satisfied there is no 'overshadowing of existing solar panels' issue here that would lead to an unacceptable planning outcome. On this basis, it is unnecessary for me to consider the various other relevant factors I have nominated above.

1. By way of preliminary comment, the planning framework here seems straightforward. On the one hand, the site has the advantage of Residential 1 zoning and the absence of any overlay controls that might otherwise constrain its development. There is also some degree of strategic planning policy support (particularly under Melbourne 2030 and the relevant State policies[14]) for the greater utilisation of this type of generously sized site, adjacent to open space and with relatively good access to services. On the other hand, this is not one of those sites located close to say a railway station or activity centre, where the Planning Scheme is very overtly encouraging considerably higher residential densities. Where there was some peripheral discussion of the proposed Amendment C128, I see nothing turning on this.
2. I also acknowledge that it is self-evident that the review site does have some favourable aspects, that make it suitable per se for some form of medium density housing. The existing buildings on the site are run down and ripe for replacement. With its wedge-shape and Evans Street to the south/Fanny Reserve Park to the north, the subject land only directly interfaces with two residential neighbours to the east and north-east. The site is unusually large at 1890 sqm and enjoys an excellent aspect to the north over the reserve. The interface with the reserve is assisted by the fact that the area of the reserve closest to the review site features considerable landscape screening. The existing improvements have no heritage attributes and much of the site is already cleared. It is common ground that no CHMP is required as part of the proposal. It is a plus for the proposal that there is already some degree of double storey built form in the locality. The situation with the likely 'bin collection' arrangements seems unremarkable - there should be plenty of available footpath area for up to 28 bins to be put out for Council collection.
3. I will now deal with the three remaining key issues identified in my introduction.

1. Both Council and the neighbours objected to the proposed car parking dispensation of two visitor car spaces - they consider two on-site visitor parking spaces are essential. In doing so, they relied on the unusual configuration of this section of Evans Street, which does something of a 'dog-leg' as part of extending both sides of the review site. Concerns were also raised about the existing demand for on-street parking near the review site, particularly where parents are dropping off or picking up children vis-à-vis the primary school to the south. Pedestrian safety issues were raised, particularly in relation to people walking or bike riding in and out of the reserve entrance which abuts the western end of the review site.
2. In response, the Applicant relied on the evidence of its expert traffic engineer Ms Donald. Ms Donald's evidence in summary was that this is a relatively low traffic area, that (despite its unusual layout) vehicles can readily move through this section of Evans Street, and that there is a generous amount of spare on-street car parking capacity (so as to make the proposed visitor car parking dispensation reasonable). Ms Donald regarded the concerns raised about the existing on-street parking demands generated by the school and about 'pedestrian safety' as exaggerated.
3. Turning now to my findings, I regard the combination of Ms Donald's evidence and my own impressions from my site inspection as satisfying me that the necessary car parking dispensation and traffic aspects of the proposal are reasonable. While it would have been preferable for Ms Donald's written report to have included more detailed 'parking survey' information, what was strongly reinforced by my site inspection is that:
   • This is very much a quiet local street in a 'residential pocket' area, not a significant vehicle thoroughfare - I agree with Ms Donald that the indications are that traffic levels are relatively low. The quite generous width for this section of Evans Street at about 9 metres is a plus for this aspect of the proposal.
   • Most existing dwellings have their own on-site parking.
   • There is a very long street frontage alongside the southern boundary of the review site, which could readily accommodate on-street parking of around 8-9 cars. This section of Evans Street features completely unrestricted on-street parking. While recognising no one dwelling occupant has any formal claim to on-street parking in front of their property, there is a significant opportunity for very convenient on-street parking right in front of the review site.
4. In addition (whilst various assertions about parking pressures were made in submission by neighbours) neither Council nor the objectors called any expert evidence to substantiate these concerns. During my inspection the level of on-street parking occurring in this section of Evans Street was unremarkable and most of the available on-street parking directly in front of the review site was vacant. Page 7 of Ms Donald's traffic report confirms that there are nearby bus services within a walkable distance.
5. It is conceded at page 28 of the Council written submission that Council's Traffic Department did not object to the proposal. In addition the Council Delegate Planner supported granting dispensation for the two visitor parking spaces.
6. In relation to the turning circle movements for drivers using the internal driveway to get in and out of their garages, I find the situation acceptable. I note Mr Hocking's confirmation at the hearing that his client was open to Ms Donald's recommendation to 'flip' the front door and garage with the southern façade of Dwelling 10. This would make the turning circle movement easier, in terms of cars moving in and out of the Dwelling 10 garage parking space closer to the eastern boundary.
7. In relation to the additional traffic movement generated by the proposal, I am satisfied that the local street network can readily accommodate same. While Evans Street's layout is unusual and some care is needed to steer a vehicle through the necessary 90 degree turns, there are no crash statistics or other overt sign that point to a significant traffic hazard here justifying the refusal or modification of the proposal. I would expect drivers to naturally drive slowly and exercise caution in moving along this section of Evans Street and I do not see the proposal as particularly changing this basic situation.
8. The new primary crossover would have the benefit of being some distance away from the nearest street corners. Although the new Dwelling 1 and 2 joint crossover would be located close to the 'elbow' point where Evans Street (having come up from the south) turns 90 degrees to the east, the new front fencing in this location will be no higher than one metre, the relevant sightlines for approaching drivers are good and there are other existing dwellings also with crossovers close to turning points in the road where it appears all relevant drivers can adapt accordingly.
9. Where the neighbours discussed potential risks for passing pedestrians and/or children riding bikes along the footpath, I regard both of the proposed new crossovers as acceptable. In relation to the primary new crossover, there is the important positive feature that vehicles using same will be able to both enter and exit in a forward-facing direction. I otherwise agree with Ms Donald that 'cars reversing out of crossovers' is a very common aspect of suburbia and both drivers and pedestrians/bike riders need to exercise due caution.
10. Where children are either bike riding in and out of the abutting park entrance and/or walking or riding to and from the nearby primary school, I agree with Ms Donald that the reality is that such movements already involve having to travel along footpaths in front of many other nearby residential properties featuring vehicles backing out of driveways. It also seems a fair comment that in relation to existing on-street parking pressures, 'school drop-off and pick-up' times only represent a quite limited period of the whole day.

1. As mentioned, the only two direct residential interfaces of the review site are to the east and north-east. With respect to the No. 21 Evans Street north-eastern neighbouring property occupied by the Moody family, with the benefit of inspecting their back yard area, subject to two provisos, I am satisfied that it is a reasonable outcome that:
   • They have an unusually high rear paling fence, which in itself provides a high level of privacy.
   • The closest part of their back yard to the review site is more in the nature of a service area.
   • The closest new dwelling in Unit 10 has been kept to two rather than three levels high.
2. The two provisos are as follows. First, I am concerned about how close the proposed bedroom at the very northern end of the Dwelling 10 upper level extends towards the more sensitive areas of the Moody backyard. If some form of approval was to issue, I see a more suitable and respectful design approach as being that:
   • this bedroom is deleted and instead what is currently shown alongside as the 'home theatre' is converted into a replacement bedroom. The associated en suite could be re-located to the southern end of this revised bedroom, so as to free up the northern end of the revised bedroom area to still have a north-facing balcony.
   • the revised north-facing balcony just referred to be screened up to 1.7 metres, given the relatively close interface with the backyard of the Moody property. In this regard, it is inappropriate that the first floor plan does not show the location of the neighbouring properties to the east and north-east.
3. Dealing now with the interface with the No. 19 Evans Street period dwelling to the east occupied by the White family, it has a quite open back yard area, with little landscape screening on its side of the common side boundary. The paling fence along the common side boundary is a more conventional height. This back yard area largely sits alongside where the new Dwelling 10 would be located.
4. On the one hand, similarly the fact that Dwelling 10 has been kept two rather than three storeys is a positive aspect of the design. However I see some merit to the submission of Ms White that with a development site of almost 2000 sqm with only two direct residential interfaces, there should be a good opportunity to avoid "walls on boundaries" and overly dominant upper walls.
5. Following this approach, I have significant concerns about the visual bulk implications for users of the White back yard, where:
   • the eastern wall of the Dwelling 10 garage sits right on the common side boundary with the White property; and
   • the upper level of the new Dwelling 10 (even with the 'bedroom removal' modification explained above) is stepped in only two metres from the common side boundary

in the situation where there is virtually no room for any meaningful new landscaping on the review site side of this common side boundary (and where there is minimal existing landscape screening on the White side of this boundary).

1. I see these problems as likely to make the eastern side of the Dwelling 10 upper level (which has minimal articulation) excessively visually dominant when viewed from the White back yard. The Dwelling 10 garage extending right to the common boundary only makes this problem worse.
2. If the proposal were to proceed, I see a fair and reasonable design response to these problems as being that:
   • The Dwelling 10 garage be converted into a single rather than a double garage, occupying the western side of the double garage area currently shown in the application plans. This would push the closest revised garage wall further back from the common side boundary and the freed up space could be used for additional landscaping. It would also create an easier turning movement, in terms of a vehicle moving in and out of this single garage space.
   • The southern-most Dwelling 10 upper bedroom be deleted. What was the separate bathroom near the southern end of the Dwelling 10 upper level could be converted into an ensuite for the closest remaining bedroom. With the fully revised Dwelling 10 upper level now simply catering for two bedrooms which each have an en suite, ResCode only requires a single garage space and this upper level will be more visually palatable when seen from the White back yard.

1. I now turn to the critical issue on which this proceeding has turned, being whether or not the proposal would constitute an acceptable neighbourhood character outcome.
2. In this regard, I am not concerned about how the new buildings would internally present to the new internal courtyard. Because of:
   • the wedge-like shape of the subject land; and
   • the eastern elevation of Dwellings 10 and 11 being at least somewhat screened from public realm views by the intervening neighbouring properties

the key interfaces for 'neighbourhood character' purposes are to the north (the reserve) and to the south (Evans Street).

Merits of proposed northern interface to the reserve

1. Dealing first with this northern interface, I acknowledge that the very fact that there is a reserve to the north in itself makes this interface somewhat less sensitive. In addition it is a plus for the proposal that:
   • the northern elevation of the new dwellings is horizontally off-set from the northern boundary, in something of a saw-tooth or 'staggered' manner;
   • there is already some degree of landscape screening provided by the existing significant native trees in the nearby reserve area; and
   • the main play-equipment area of the reserve (which presumably is more actively used) is located more in the central area of the reserve, further away to the north-west.
2. However even allowing for these factors, I still have real concerns regarding the sheer unbroken height of the top (3rd) level of the new north-facing Dwellings 3-9. That is, whilst horizontally the design has the benefit of the 'staggering' mentioned above, the vertical treatment lacks this variation. Rather, the design approach has taken a very ambitious approach of the 3rd/top level of Dwellings 3-9 extending roughly west to east across the northern edge of the subject land, without any breaks to provide some variation. Council during the hearing criticised this uninterrupted top level as being about 80 metres wide[15] - this width estimate was not in itself queried by the Applicant.
3. Although someone standing in the reserve can see various other two storey existing dwellings, they are typically detached dwellings with substantial visual relief between taller built form, rather than a continuous row of taller buildings. Whilst the landscape screening provided by the nearby trees in the reserve might filter out some of the views of this new three level northern facade, this would be merely partial screening from certain viewing angles - the Applicant's own photo montages reinforce this.
4. In summary, I see a major risk that the design response of Dwellings 3-9 presenting an 80 metre or so long continual three storey high northern façade will be excessively visually dominant when viewed from the reserve to the north. To be clear, the northern interface should be able to accommodate a significant degree of three level built form per se - the problem here is the unrelenting nature of this third level from a vertical perspective (which I consider will look inappropriately 'fortress-like').
5. This likely prospect of a 'visually jarring' outcome is exacerbated by the northern elevation of five of these dwellings including exterior stairs providing direct rear access from the middle level balcony to the ground level courtyard. Whilst I do not question that this would improve internal amenity/functionality, it seems a 'clunky' design response in terms of being an unusual and less than ideal feature of the northern façade.

Merits of proposed southern interface to Evans Street

1. Dealing now with the proposed southern elevation where the two storey Dwellings 11-14 would present to Evans Street, I am less concerned here about height per se. It is a plus for this aspect of the proposal that there is already some degree of double storey built form in this locality. However the existing dwellings on the opposite side of Evans Street are mainly single storey. While there is a group of medium density units further east, they are all single storey. Where some of the nearby dwellings were built as double storey or have had a 2nd level added, these are single detached dwellings which frequently incorporate a significant stepping-in of the upper level, making same sit more comfortably in the streetscape.
2. By contrast, the proposed southern elevation of Dwellings 11-14 (set back horizontally between 3 and 4 metres from the southern boundary at ground level) would involve:
   • what I regard as a bare minimum ground level setback treatment;
   • some degree of sheer walls rising straight up two levels;
   • very modest south-facing upper balconies, with a depth of between 900 and 1200 mm;
   • all four of these new dwellings having a continuous upper level elevation facing Evans Street, without any proper visual separation or relief in between;
   • a very bold contemporary appearance, including three significant 'blade'-like features which extend in height above the 6.8 metre roof-line of the balance of the upper level.
3. Similar concerns arise with the proposed southern façade of Dwellings 1-3 located on the western side of the new central crossover, although the problem is mildly mitigated by there being three rather than four dwellings involved in this aspect of the design and only one blade.
4. In summary, I consider this aspect of the design response to be a very insensitive one, that is likely to visually dominate the existing neighbourhood character and sit very uncomfortably in its more low-key setting. Whilst I would not necessarily question this type of quite ambitious, bold and very contemporary design treatment in an inner city location like Fitzroy/St Kilda or on a main road location, in my view the design response with the southern facades has missed the important point that the Evans Street streetscape (whilst somewhat eclectic) is relatively low-key and requires a suitably respectful design response.
5. In particular, where:
   • Dwellings 1-3 and 11-14 take their pedestrian entrance directly off Evans Street (and therefore treat Evans Street as their 'frontage'); and
   • the dwellings on the opposite side of Evans Street are relatively low key detached dwellings with quite constrained built form

it is a strange and disrespectful design response in my view that Dwellings 1-3/11-14 would present a continuous/unrelenting upper level façade to Evans Street, without any proper attempt to soften this façade.

1. When these major concerns about the proposed southern and northern elevations of the new dwellings are considered in totality, I see these as fatal to the application. On this basis I have made orders above affirming Council's Notice of Refusal to Grant a Permit.

1. Whilst some aspects of the objections raised are either unconvincing or involve issues which can be readily resolved by way of permit conditions, my overall finding has been to refuse the proposal on the basis of its fatal 'neighbourhood character' shortcomings. Hence no permit shall issue.
2. Having resolved to affirm Council's Notice of Refusal, whilst there is no need for me to formally deal with the draft permit conditions, I make the following comments in passing. I share Council's concern that the proposed considerable use of 'home theatres' creates doubt in terms of the potential for these areas to be capable of being used as an additional bedroom. Particularly with an unusually large residential site like this, I support a more overt requirement for the new dwellings to feature rainwater harvesting and solar hot water panels. If any new primary crossover is to support two-way traffic, I agree it should be at least five metres wide.
3. Before closing, in relation to the 'potential overshadowing of adjacent existing solar panels' issue, I am conscious that there are some interesting aspects to this debate going well beyond the scope of this particular planning dispute[16]. Apart from the more obvious tensions and relevant factors already discussed above, some other more broad ranging aspects which can arise include how best to deal with proposed solar panels in heritage areas, whether 'common law' easement rights or the concept of 'nuisance' still play any role consistent with there being a 'right to sunlight'[17], alternatively whether new legislation should create a 'presumption of protection of solar access' similar to a riparian right[18], what lessons can be learned from relevant interstate and overseas jurisdictions, whether there should be any different statutory fee regime to encourage the uptake of solar systems, whether greater training is needed for planners in this area and whether new residential subdivision and development in 'greenfield locations' should more prescriptively provide for the use of solar panels and on-going access to daylight[19].
4. While there is no doubt that a more proactive and comprehensive approach is needed, these type of broader issues go well beyond the scope of VCAT's role. Rather, they should be factored into the debate about the reform of this area driven by Parliament/the Department of Transport, Planning and Local Infrastructure.

[1] See the 'Cultural Heritage Due Diligence Assessment" report dated 27 March 2013 prepared for the Applicant by Australian Cultural Heritage Management.

[2] Being the relevant ResCode-nominated day for assessing potential overshadowing of adjacent private open spaces - see Standard B21 of Clause 55 of the Planning Scheme.

[3] That is, only became operative around February 2013.

[5] [2010] VCAT 1463

[6] [2007] VCAT 1334

[8] (Red dot) [2012] VCAT 1909.

[10] [2004] VSC 375.

[11] For example, at Clause 11.01-2 of the Planning Scheme dealing with 'Activity centre planning', one of the nominated strategies is "Encourage a diversity of housing types at higher densities in and around activity centres". Similarly at Clause 16.01-2 one housing strategy is "Encourage higher density housing development on sites that are well located in relation to activity centres, employment corridors and public transport".

[12] [2007] VCAT 1334

[14] For example, in Clause 16 dealing with 'Housing', Clause 16.01-4 refers to the objective of having "...a range of housing types to meet increasingly diverse needs" and Clause 16.01-2 has strategies which include "Increase the proportion of housing in Metropolitan Melbourne to be developed within the established urban area...".

[15] See page 25 of the Council written submission.

[16] See for example "The ideal model for solar access rights' journal article by Anna Kapnoullas ((2011) 28 EPLJ 416). In addition the Australian PV Association has produced at least two relevant documents - "Best Practice Guidelines for Local Government Approval of (Solar) Photovoltaic Installations" June 2009 and "Best Practice Guidelines for Local Government Approval of Photovoltaic Installations" June 2009. Of these two PV Association documents, the latter one in particular features some discussion very relevant to the Victorian situation in its introduction and at pages 29-32.

[17] See pages 431-435 of the journal article by Ms Kapnoullas.

[18] Ms Kapnoullas discusses this point at page 429-431 of her journal article. At page 429 she states that "A riparian right is broadly defined as an entitlement to a natural resource that accrues as an incident of landownership".