• VCAT

March 2, 2020

VCAT decision sets benchmark for assessing development impact on solar panels

For a long period of time, there has been no mandatory requirement in place for solar panels in Victoria and no protection for them from overshadowing by new developments. Although permits are required for installation of residential solar panels and solar panel permit applications have become increasingly popular, guidelines on new solar energy facilities and how to assess them as part of the planning permit application process have fallen far behind. Unlike overshadowing of private open spaces that are currently regulated by clear perspective standards and objectives, solar panels have been left in the dark when it comes to regulating new developments and assessing their overshadowing impact.

In 2018, a practice note (Planning Practice Note 88 – Planning considerations for existing residential rooftop solar energy facilities) was introduced by the State Government with the aim of providing guidance when assessing solar panel related planning permit applications. However, Councils are still free to make their own assessment of planning applications as they see fit and do not necessarily have to take into consideration the impacts of overshadowing to solar panels as the practice notes were guidelines to explain best practice when assessing planning applications rather than mandatory planning requirements like ResCode, a planning permit refusal on the grounds of solar panel overshadowing would be extremely unlikely.

The issue of overshadowing of existing solar panels usually only highlighted to council by objectors who have solar panels on their roofs or solar hot water heating systems and are concerned about the impact of a new house being built. It is more commonly addressed at VCAT when a planning permit application has been refused or an objector has appealed a council’s approval of a planning permit. A recent VCAT case where an objector has appealed a council’s approval for a planning permit has been successful with part of the objection being the new proposed development significantly overshadows the solar panels on his property. The VCAT case been marks as a ‘Red Dot Decisions’, meaning the decision is significant and will become the benchmark for all future cases involving overshadowing of existing solar panels.

Background of the VCAT Case

The respondent of the case is seeking to obtain a planning permit from Manningham council to amend an existing planning permit involving extensions and alterations to an existing medical centre to allow its more intensive use by up to six practitioners which council has approved. The applicant of the case lives next door to the medical centre and seeks to overthrow the council’s decision. He submits that the impacts of the proposal have not been properly thought through and addressed by Manningham Council. In particular, the proposal has not properly responded to the features of the site and its context. The site is elevated above the applicant’s property and impacts the applicant in terms of overlooking, visual bulk and overshadowing of roof top solar panels.

The solar panels were placed on the west side of the roof to capture the afternoon sun. Supplementary information at 15 minute intervals for the 22 September and 22 June were prepared by the applicant:

Commencement of shadows over existing solar panels

22 September22 September22 June22 June
Panel rowLowerUpperLowerUpper
Existing conditions3:45pm4:15pm3:00pm3:30pm
Proposed conditions3:00pm4:30pm2:15pm3:15pm

At the time council assessed the permit application, Manningham council determined the extent of additional overshadowing would not be unacceptable. The applicant asserts that the council could not have properly informed itself of the reasonableness of the proposal’s shadow impacts upon the neighbouring solar panels because the council did not have the supplementary shadow information described above or any details about the type of system installed when it determined the permit application.

Tribunal Assessment of Impacts on Solar Panels

The VCAT member assessed the permit application differently to Manningham Council and agreed with the applicant. Given no other specific guidance is available in the Victorian Planning Provision that might assist decision makers, such as planners of the council, in their exercise of discretion on this matter, plus the energy efficiency objectives and standards in clauses 54 and 55 of the planning scheme do not technically apply to this non-residential proposal. This leaves Planning Practice Note 88 as the main form of guidance for council planners. However, the practice note does not form part of the planning scheme and is neither a reference nor incorporated document.

The VCAT member also pointed out, there is no specific guidance either within Planning Practice Note 88, the Victorian planning scheme itself or local policy framework to help assess the extent of existing overshadowing, appropriateness of the panels’ location on an adjoining rooftop and the effect of overshadowing on an existing rooftop solar energy system. Importantly, in relation to understanding the actual effects of a development on the energy produced by a rooftop solar energy system – in other words changes to an existing system’s performance. Other than the general guidance provided by Planning Practice Note No. 88, there is no other specific planning scheme guidance to assist decision makers determine the acceptability or otherwise of overshadowing impacts on adjoining rooftop solar energy systems.
Where assessments are undertaken of overshadowing impacts as in this case and others, the Tribunal’s findings are frequently and superficially limited to the net change in shadow impacts rather than the actual effects on a system’s performance – that is, the net change to a system’s energy output. In many cases, the final assessment is primarily based upon or limited to the degree to which solar panels have been vulnerably sited on a rooftop relative to development proposals and the consequential change in hours of sunlight access they receive – as distinct from understanding the actual effects on a system’s performance. In the absence of suitable planning scheme guidance and more detailed information specific to the operating characteristics of the adjoining rooftop solar energy system. This means that any meaningful assessment of the proposal’s actual effects on the performance of the adjoining solar energy system cannot be made in this case.

Also pointed out by the VCAT member, the time of year chosen for assessing impacts and spread of hours for assessment throughout the day remain uncertain variables. Nor is there any guidance as to what might be regarded as a reasonable loss of a system’s overall performance – for example, in terms of reduced output as a percentage of average electricity generated over a specified period of time. This continues to make the assessment of proposals and most importantly their effects on existing rooftop solar energy systems and the reasonableness of those effects difficult to determine.

The absence of timely access to and ready availability of information about the type and operating characteristics of existing rooftop solar energy systems presents very real challenges for permit applicants formulating proposals and for decision makers tasked with assessing their effects.

For the full Case:  Ramjee v Manningham CC (Red Dot) [2020] VCAT 1 (5 February 2020)

VCAT’s Suggestion

The VCAT member of this case suggested that clearer and more sophisticated guidance at a state-wide level should be introduced. Such guidance might as a starting point specifying suitable reference times (such as time of year and spread of hours) with consideration to the variable orientations of panels (whether north, west or east facing) and include more specific parameters on what might be regarded as an acceptable change in an existing system’s performance. Different standards might also be adopted for different strategic contexts. Desirably, these should also be supported in a secondary way by appropriate decision guidelines to assist the exercise of discretion and avoidance of ‘a one size fits all’ approach, thus allowing for nuanced and contextually sensible decision making.

Such guidance would create greater certainty about the issue of overshadowing of solar panels, in turn, benefiting all stakeholders in the planning process including responsible authorities and the Tribunal on review. It would also be of assistance to persons who are making decisions about suitable locations for the installation of solar panels on rooftops and whether to seek a review of decisions involving overshadowing of such systems. A more consistent policy approach would assist both developers and existing solar panel users and future users to understand their obligations and expectations in this evolving assessment area.

Effects on Future Cases and Council Decisions

Despite overshadowing of solar panels forming part of the argument in the abovementioned VCAT case and marked as Red Dot Decision, mandatory planning requirements in relation to overshadowing of solar panels in Victoria will continue to be absent until state government takes action and amend the current State Planning Policy Framework. However, the case will now become the benchmark for all future VCAT cases involving assessments of solar panels and VCAT members will refer to Practice Note 88 more often compared to previously. This in turn will require councils to include assessments against the practice note when forming their decisions.