Salera v Banyule CC

COURT OR TRIBUNAL

Victorian Civil and Administrative Tribunal

DATE FILED (OR FIRST HEARING DATE)

31/08/2022

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Solar energy

REVIEW TYPE

Merits review

SUMMARY

Two dwellings on a lot – neighbourhood and landscape character – review of refusal – residential interface – building massing and siting – impacts on amenity – acceptability of proposal

“Mr Dudzinski was concerned about the potential for overlooking (including into his pool area) and the visual impact of the new dwellings being at a higher elevation and close to the common boundary. He preferred a design response which would lower the dwellings by one level. He also considered that the dwellings would unreasonably overshadow the solar heating coils on the western side of his roof (heating his swimming pool). He considered this would be inconsistent with current climate change policies which extend beyond consideration at the equinox only.”

“Overall, I find that the proposal exhibits a high level of compliance with ResCode objectives and standards in Clause 55 of the planning scheme, including local zone variations. More specifically, I consider that there is no potential for unreasonable overlooking since standard B22 would be met in full and windows would be obscured to prevent unreasonable overlooking into habitable room windows or secluded private open space within a 9 metre viewing arc. Mr Dudzinski’s pool and outdoor area have a high level of amenity. However, there will be no direct overlooking opportunities and the entertaining area is shielded by the design of dwelling on his property. Both this area and the pool have a primary, open orientation to the north and north east, rather than towards the subject land and will remain protected in this regard. A relevant decision guideline in the GRZ(2) at Clause 32.08-13 is to consider the impact of overshadowing on existing rooftop solar energy systems on dwellings in adjoining lots. A careful analysis of the shadow diagrams provided for this proposal at the equinox (in accordance with ResCode assessment standards) indicates that the area of his solar panels will not be overshadowed by this proposal until approximately 1pm. In the period from then until 2pm, there will be minimal overshadowing beyond that caused by the boundary fence. Given relevant angles, I accept the permit applicant’s submission that it is likely that the roof of his dwelling will be free from shadow (as opposed to ground level) at that time.”

CASE DOCUMENTS

Salera v Banyule CC [2022] VCAT 1230