2 Condition 1a) is deleted and replaced with the following:

a) The hot water system (tank) relocated behind the ridge line of the roof so as not to be visible from the street and the frame of the solar panels painted to match the roof tile colour.

1 This is an Application under Section 80 of the Planning and Environment Act 1987 by Mrs. Robin Maddever in respect to Condition 1a) of Planning Permit No. PP05/00500 which allows part demolition and construct an addition to the existing building in a Heritage Overlay in accordance with the endorsed plans. The permit relates to the installation of solar panels on the roof of No. 7 Griotte Street, Canterbury.

2 As a preliminary matter, it was noted that the proposal does not include any demolition as expressed in the description of what the permit allows, as the panels are fixed directly to the roof, with no removal of tiles required. The description of what the permit allows should accordingly be amended.

3 The relevant condition which is subject to this Application is Condition 1a):

The solar panels and hot water system relocated behind the ridge line of the roof and using a frame to gain northern exposure to the panels so that they are not visible from the street generally in accordance with the sight line diagram on page 2of the Hassett's Estate & Environs, Canterbury, Heritage Guidelines.

4 The solar panels have already been erected on the roof of the dwelling which forms part of a duplex constructed in the 1930s. The site is located on a corner, with the entrance to the subject dwelling located off Griotte Street and the entrance to the duplex located off Dorothea Street.The Panels are located on the north face of the roof, facing Dorothea Street. Mrs. Anderson is the owner of the adjoining dwelling.

5 The Applicant is Submissions, plans, photos, evidence statements and other documents submitted at the hearing have been retained on Tribunal files. I inspected the subject site and surrounds following the hearing.

6 The subject site is zoned Residential 1 under the provisions of the Stonnington Planning Scheme ("the Scheme").

7 A "Building" is defined in Section 3 of the Planning and Environment Act 1987 as follows:

a) A structure and part of a building or structure;

b) Fences, walls, outbuildings, service installations, and other appurtenances of a building;

c) A boat or pontoon permanently moored or fixed to land

I am of the opinion that the definition of a building includes solar panels of the nature proposed within the ambit of "service installations".

8 The site is included within Clause 43.01 Heritage Overlay No. 191. A permit is required to construct a building pursuant to Clause 43.01. There is a requirement for a planning permit to construct a building. No permit exemptions are provided for solar panels in Clause 43.01 or Clause 62.02.

9 The purpose of the overlay control 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 or 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 Decision guidelines set out at clause 43.01-5 relevant to this matter include giving consideration to:

• 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 location, bulk, form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and 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 The provisions of Clauses 11, 12, 14, 15.11, 15.12, 15.14and 16 in the State Planning Policy Framework apply:

• Clause 15.11 contains policy regarding Heritage conservation.

• Clause 15.12 contains policy regarding energy efficiency and seeks to encourage land use and development that is consistent with the efficient use of energy and the minimisation of greenhouse gas emissions. The general implementation of this policy includes the promotion of energy efficient building and subdivision design.

• Clause 15.14 also focuses on Renewable energy.

12 Clause 21 (Municipal Strategic Statement) also contains a range of policies pertaining to heritage conservation and urban character, particularly Clause 21.05. It also contains policy direction in relation to environmental sustainability at Clause 21.06 noting that The City of Boroondara's commitment to addressing issues of environmental concern are reflected in the 1998 -2001 Corporate Plan which states as one of its corporate objectives to: "ensure environmentally sustainable development, and preserve a quality environment for future generations."

13 Clause 22.05 Heritage Policy also applies. It has the following objectives:

•

To encourage the conservation and enhancement of areas and individual elements of heritage value in the City.

•

To ensure that any replacement/extension of heritage buildings are respectful to the heritage character of the area.

•

To minimise disturbance of sites which are known or likely to contain Aboriginal cultural heritage assets.

•

New buildings and works be compatible with the characteristics of the individual building and area, and undertaken generally in accordance with any Council prepared guidelines.

•

The design, bulk and setback of any new building be responsive to existing heritage assets.

•

Restoration, renovation, maintenance and repair of buildings which contribute to the heritage character of the area be responsive to the individual building and the character of the surrounding area.

•

Landscaping be in keeping with the character and appearance of the heritage area and heritage building/asset.

•

Applicants proposing to develop or re-zone land in areas where there is a known site, or the potential for Aboriginal archaeological sites to occur be required to include a report from a suitably qualified archaeologist demonstrating that the impact of the proposed development on Aboriginal cultural heritage values has been addressed.

•

Unless exempt from advertising under Clause 43.01-1, comment be sought from the National Trust on all planning applications for a building or place classified by the National Trust.

14 Clause 65 (General decision guidelines) also applies.

15 The land is subject to a Restrictive Covenant 1612683 which restricts the roof of any buildings "not be covered with any material other than tiles or slates". I am satisfied that the covenant does not affect the provision of services on the roof.

16 The planning scheme has a strong commitment towards environmental sustainability. There is also a strong commitment to heritage conservation both within the State and Local Planning Policy Frameworks.

17 The need to balance both environmental and heritage objectives is discussed by Member Board in Forsyth and Brindley v Moreland CC P2000/76620 15 February 2001. In this decision, Member Baird was also considering the installation of solar panels within a heritage area:

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 that 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.

18 In reviewing the Planning Scheme, I consider that the installation of solar panels is supported. Solar Panels are not necessarily excluded from heritage buildings or precincts (for example the Victoria Market a State Significant heritage building has one of the largest solar panel installations in Victoria). However, when proposed in an area affected by a Heritage Overlay, the benefits of the solar panels must be balanced against the heritage objectives of the scheme.

19 The decision of Cook v Bayside CC [2005] VCAT 121 (28 January 2005). Paragraph 36 sets out the principles of a number of decisions which establish that a decision maker's ambit of discretion is confined to a consideration of those matters related directly to the permit trigger itself. The provisions that trigger a need for a planning permit are at Clause 43.01, the Heritage Overlay. It is important to note that the objectives and decision guidelines of the overlay do not direct me to have regard to direct amenity impacts such as visual bulk which was a concern for the neighbour Mrs. Anderson, particularly given that the panels will be visible from the approach to her dwelling's front entrance. While for obvious reasons, Mrs. Anderson would like the panels not to be visible from the front of her property, I can give limited weight to amenity concerns and consider the matters set out in the Heritage Overlay as set out above. That is, in considering the location of the solar panels, I must have regard to how they might impact on the host dwelling and secondly the values of the heritage place HO 191. As outlined above, I must also have regard to the objectives of the State and Local Planning Policy Frameworks that give importance to both heritage conservation and the achievement of environmental sustainability as directed by the decision guidelines of the overlay.

20 The Heritage Overlay No. 191 applies to the Hassett's Estate & Environs. The subject site is graded "D" (representative) within a level 2 streetscape (regional importance) in the Hassett's Estate & Environs, Canterbury Guidelines. The guidelines are a reference document in Clause 22.05-4. The estate is an area identified as being of State significance for the combination of the following factors:

•

As a well-preserved and notable collection of the prevailing house styles of the 1920s- 1930s, judged among the medium sized house type, with emphasis on the Mediterranean villa style;

•

For its enhanced setting of concrete roads, landscaped medians with concrete lamp standards, and mature, related street tree planting;

•

For its demonstration of the effect of municipal by-laws on house siting, lot sizes and materials and the developing transport system;

•

For its evocation of the high quality estates aimed at the middle classes.

•

The guidelines aim to ensure that additions are not visible from the street.

I note that the guidelines do not specifically deal with service installations of the nature proposed.

21 The subject dwelling is not a contributory building but is representative of the villa style. The installation of the solar panels does not require any alterations to the host building. They are fixed to the existing roof tiles. The guidelines suggest that alterations and additions to houses in heritage places should ensure that the addition is subservient to the original heritage fabric. I consider that the panels and tank will not directly compromise the host building.

22 The key issue is the impact of the installation on the integrity of the heritage area. The solar panel installation quite large (3 metres by 1.9 metres) and together with the tank is very visible from Dorothea Street. The condition seeks to relocate the panels and hot water system (tank) to the rear of the ridge line of the roof so as not to be visible from the street in accordance with the Hassett Estate Guidelines. I consider that the installation as it exists, particularly the tank is quite visible on the roof when viewed in the context of the host building, although I note that the tank has been colour matched to the roof tiles. I am not satisfied that the existing installation as proposed is respectful of the heritage nature of the area.

23 Mr. Maddever outlined a number other options for the siting of the panels and hot water system and further options were discussed at the hearing. These included a "compromise" of leaving the panels in position and relocation the tank component or moving all the installation to various locations on the rear roof, some where the installation would remain partially visible. Council and Mrs. Anderson indicated a preference for "Position C" which was central to the two wing roof areas on a large frame to allow it to face north. While I have considered the other options discussed, I have focussed my consideration on the "compromise" and "C" positions.

24 Firstly, I consider that visibility alone is not necessary detrimental to the historic character of a heritage area. From my inspection of the area, I noted three other solar panel installations including the one in Alta Street discussed extensively at the Hearing. The key point here is all of these other installations were visible from the street. Particularly the large frame for the one located on Alta Street which was visible from many angles. There were also a range of other service installations including air conditioning units (such as the large evaporative cooling unit on the corner dwelling directly opposite in Dorothea Street) and telecommunications facilities of comparable dimensions to the subject proposal. My attention was also drawn to a number of other skylights, which were far smaller than the installation proposed. I consider that the condition requiring complete invisibility of the installation of the street in the same manner as dwelling extensions as outlined in the guidelines is not reasonable in this context and should not be applied to service installations.

25 In addition, the condition is not clear about a second location for the installation. While it suggests it must not be visible from the opposite side of the street in accordance with the Hassett Estate Guidelines (assuming Dorothea Street), it gives no other guidance in relation to the visibility from Griotte Street or neighbouring properties. As demonstrated in the Alta Street example, the use of supporting frames can make the installation very visible from neighbouring properties and elsewhere within the heritage area.

26 As a general planning principle, I consider that solar panel installations within Heritage Overlay areas should be in the least visible situation in which the unit can achieve satisfactory performance. As outlined by Mrs. Anderson solar panels may over time become more frequent. Council may give some thought to addressing guidelines for such installations in Heritage areas.

27 Position "C" will ensure that the proposal will be less visible from Dorothea Street, however, this is not the best solution in terms of solar collection as the panels should be orientated to maximise their annual exposure to sunlight, particularly the afternoon sun. I understand that in June in Position C the panels are only free of shade between 11 am and 2 pm. While the frame could be mounted higher on the south facing ridgeline, this increases the visibility of the frame from the surrounding area. The visibility of the frame from the rear and neighbouring properties to the rear and Griotte Street may also be significant.

28 If the panels remain on the north side of the ridge, improved energy efficiency is achieved. The Panels are located flat against the roof which limits there impact on the heritage area. The tank is however very visible. With the relocation of the tank and the painting of the frame for the solar panels, I have reached the conclusion that on balance the "compromise" achieves a good balance between environmental and heritage objectives and will not unduly impact on the heritage nature of the area similar to many other visible service installations within the area.

29 I am satisfied that the proposed solar panels with the tank relocated will not unduly impact on the significance of the Hassett Estate heritage area.

30 For the reason's set out above, Condition 1a) of permit PP05/00500 is varied.