VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P872/2022
Permit Application no. MV/34/2022 	
CATCHWORDS	
Application under Section 82 of the Planning and Environment Act 1987 (Vic) to review a notice of decision to grant a permit; Moonee Valley Planning Scheme; General Residential Zone; two double storey side by side dwellings; neighbourhood character; amenity; overshadowing of private open space and rooftop solar panels	

Applicant	Cameron Tariq Cross	

Responsible Authority	Moonee Valley City Council	
Respondents	Daniel Michael Castelluccio, Jaiyden Castelluccio and Other	

SUBJECT LAND	58 Marshall Road
AIRPORT WEST VIC 3042	

HEARING TYPE	Hearing	

DATE OF HEARING	21 March 2023	
date of interim order	26 April 2023	

DATE OF ORDER	16 June 2023	

CITATION	Cross v Moonee Valley CC [2023] VCAT 676 	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
Prepared by:	Contemporary Design Consultants	
Plan numbers:	1 to 17	
Revision: 	G	
Dated:	14/02/23	
2	In application P872/2022 the decision of the responsible authority is varied. 
3	In planning permit application MV/34/2022 a permit is granted and directed to be issued for the land at 58 Marshall Road Airport West VIC 3042 in accordance with the endorsed plans and the conditions set out in Appendix A.  The permit allows:
•	
Construction of two dwellings

Christopher Harty
Member			

Appearances
For applicant	Mr Sav Koletas, Town Planner from CS Town Planning	
For responsible authority	Mr Matt Spozio, Town Planner	
For respondents	Mr David De Giovanni, Town Planner from David De Giovanni Town Planning	

Information
Description of proposal	Construction of two double storey dwellings in a side-by-side typology. 	
Nature of proceeding	Application under section 82 of the Planning and Environment Act 1987 – to review the decision to grant a permit.	
Planning scheme	Moonee Valley Planning Scheme 	
Zone and overlays	General Residential Zone Schedule 1 – General Residential Areas (GRZ1)
Development Contributions Plan Overlay Schedule 1 – Moonee Valley Development Contributions Plan September 2020 (DCPO1)	
Permit requirements	Clause 32.08-6 to construct two or more dwellings on a lot 	
Relevant scheme policies and provisions	Clauses 02.01, 02.02, 02.03, 11, 15, 16, 18, 52.06, 53.18, 55, 65 and 71.02   	
Land description	The subject land is on the north side of Marshall Road in Airport West.  The land is flat and rectangular in shape with a frontage width of 15.24 metres, depth of 40.23 metres and an overall area of 613 square metres.  It is affected by a covenant preventing quarrying activity which is not breached by the proposal.  The subject land is currently occupied by a single storey weatherboard dwelling.  
The surrounding area is an established residential area with a mixed built form comprising single and double storey detached dwellings along with side by side attached multi-dwellings of both single and double storey form.  Land further to the east of the site is commercially zoned with a range of industrial and warehousing activities and Westfield Airport West shopping centre located approximately 330 metres to the north-west and forming part of the Airport West Major Activity Centre. 	
Tribunal inspection	21 April 2023 unaccompanied   	

  Reasons
What is this proceeding about?
1	This is an application by Cameron Tariq Cross (applicant) to review the decision of the Moonee Valley City Council (Council) to issue a notice of decision to grant a permit in relation to permit application MV/34/2022 on 10 June 2022 for the construction of two double storey dwellings in a side-by-side configuration at 58 Marshall Road, Airport West (site).  
2	The applicant’s grounds of review relate to the proposal creating detrimental impacts on amenity from overlooking, overshadowing of private open space, rooftop solar panels and from visual bulk.
3	Council supports the proposal and considers it achieves an acceptable outcome regarding the policy and provisions of the Moonee Valley Planning Scheme (planning scheme).
4	Similarly, the permit applicants, Daniel Michael Castelluccio, Jaiyden Castelluccio and Ashley Rose Rosata (respondents) consider the proposal is a reasonable response to the site conditions and planning scheme.  
5	Amended plans were circulated and substituted at the hearing which the respondents consider:
•	Addresses issues with overlooking.
•	Demonstrates that additional overshadowing of the private open space of the adjoining dwelling to the east will not occur between 9.00am and 3.00pm.
•	Demonstrates that overshadowing of solar panels on the roof of the adjoining dwelling at 56 Marshall Road to the east will not occur between 9.00am and 3.00pm at the equinox, which is not an unreasonable impact.    
6	Following my inspection, I became aware of a decision of the Tribunal in Ling v Whitehorse CC (Red Dot) [2023] VCAT 307 dated 22 March 2023 (Ling) whereby Acting Senior Member Djohan determined a question of law regarding interpretation of Standard B21 under Clause 55.04-5 – ‘Overshadowing open space objective’ of the planning scheme.  
7	The full text of clause 55.04-5 including Standard B21 is set out below:
Overshadowing open space objective
To ensure buildings do not significantly overshadow existing secluded private open space.
Standard B21
Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September.
If existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of this standard, the amount of sunlight should not be further reduced.
Decision guidelines
Before deciding on an application, the responsible authority must consider:
•	The design response.
•	The impact on the amenity of existing dwellings.
•	Existing sunlight penetration to the secluded private open space of the existing dwelling.
•	The time of day that sunlight will be available to the secluded private open space of the existing dwelling.
•	The effect of a reduction in sunlight on the existing use of the existing secluded private open space.
8	The crucial question determined in Ling was what does the phrase ‘the amount of sunlight should not be further reduced’ mean?  Does it proscribe the further reduction of sunlight:
•	at all, at any time during the day?
•	at all, between 9.00am and 3.00pm on 22 September? or 
•	for five hours between 9.00am and 3.00pm on 22 September?
9	In her decision, Acting Senior Member Djohan found at paragraph 57 that:
For the avoidance of doubt, the proper interpretation of the second paragraph of B21 is - where existing sunlight to the secluded private open space of an existing dwelling is less than the requirements of the first paragraph of Standard B21, the amount of sunlight should not be further reduced at all, at any time, on 22 September. 
10	Given an issue in this matter relates to overshadowing of secluded private open space of the rear of the adjoining dwelling at 56 Marshall Road, I issued an interim order on 26 April 2023 allowing parties to respond to any implications of the interpretation arising from the decision of Ling.  Consequently, submissions were received from all parties of which I have had regard. 
What is proposed?
11	The proposal is for the construction of attached double storey dwellings.  They are arranged in a side-by-side layout with individual vehicle access via Marshall Road.  Each dwelling contains four bedrooms, kitchen, living, rumpus rooms and two parking spaces provided by way of single garages and tandem parking in the driveway.
12	The maximum building height is 7.965 metres associated with Dwelling 1, site coverage is 60%, site permeability is 31.7% and garden area is 30.36%.
13	The design is contemporary with Dwelling 1 having a skillion roof and Dwelling 2 having a flat roof design.  Materials include brick, render and vertical colourbond steel cladding and colourbond steel roofing.
What are the key issues?
14	The issues raised within the context of this review relate generally to the proposal's response to its physical and policy contexts including neighbourhood character and amenity impacts associated with overshadowing of secluded private open space and rooftop solar panels.
15	Having heard the submissions and inspected the site and surrounds, the key issues arising from this proposal are:
•	Is the proposal responsive to its physical and policy contexts?
•	Whether impacts on amenity are unreasonable?
•	Whether overshadowing impacts on rooftop solar panels are unreasonable? 
16	I must decide whether the proposal will produce an acceptable outcome having regard to the relevant policies and provisions in the planning scheme.  Net community benefit is central in reaching a conclusion.  Clause 71.02-3 – ‘Integrated Decision Making’ of the planning scheme requires the decision-maker to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.  
17	Regarding the proposal, I must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions presented with regards to the applicable policies and provisions of the planning scheme and assisted by my inspection, I find the proposal achieves an acceptable outcome. 
18	I have decided to vary the decision of Council and direct that a permit is granted subject to modified conditions suggested by Council.  My reasons follow.
Is the proposal responsive to its physical and policy contexts? 
19	This matter raises tension between broader strategic goals and site-specific amenity issues.  This is because the site is located close to the Airport West Major Activity Centre (Airport West MAC) which includes the Westfield Airport West shopping centre and other industrial and employment areas.  As a result of the location of the site, it lends itself to the achievement of the urban consolidation aspirations of the planning scheme whilst located within an established residential area comprising both a mix of single and double storey detached and attached development.
Physical context
20	The site is a relatively flat residential allotment of approximately 613 square metres containing a single storey weatherboard dwelling.  It has few constraints for redevelopment.
21	The immediate abuttals comprise single storey brick or weatherboard dwellings.  
22	To the immediate west of the site (60 Marshall Road) is a single storey weatherboard dwelling set back 7.56 metres from the street with a driveway and carport and single garage abutting the common boundary of the site.  
23	To the immediate east of the site (56 Marshall Road) is a single storey weatherboard dwelling set back 7.86 metres from the street and 1.58 metres from the common side boundary.  The dwelling includes two habitable room windows that face the site.  The secluded private open space area is located to the rear of the dwelling and features a roofed alfresco area that is attached to the single width carport.  The dwelling accommodates solar panels along the western and northern sections of the roof.  
24	Behind this dwelling is 56a Marshall Road which is a single storey brick dwelling set back approximately 950mm from the side common boundary with two habitable room windows that face the site.  The secluded private open space area is located at the rear of the dwelling and garage within the north-eastern corner of the site accessible via the common driveway. 
25	Behind the site (57 Moore Road) to the north is a single storey brick dwelling with a detached bungalow constructed to the rear common boundary. 
26	The surrounding area is comprised of predominately residential housing with built form within the vicinity of the site comprising predominantly single storey form.  The area is experiencing change with medium density housing including ‘side by side’ attached multi-unit dwellings both single and double storey in scale.  
27	Land further to the east of the site is within a Commercial 2 Zone (B3Z) and land to the north is in the Commercial 1 Zone (B2Z) which accommodates a range of industrial/warehousing activities and Westfield Airport West shopping centre located approximately 330 metres to the north-west is in the Commercial 1 Zone (B1Z).  These commercial areas all form part of the Airport West MAC.
28	The site is close to public transport associated with bus route 469 approximately 130 metres to the east on Marshall Road and tram route 59 approximately 450 metres to the east.  The site is also close to the M80 Ring Road and Tullamarine Freeway and around 800 metres to Essendon Fields and Essendon Airport.
Policy context
29	The site is in the General Residential Zone Schedule 1 – ‘General Residential Areas’ (GRZ1).  A permit requirement is triggered for the construction of two or more dwellings on a lot.  The GRZ1 also specifies that the requirements of Clause 55 apply, and the objectives, standards and decision guidelines must be considered by the responsible authority including the Tribunal on review.  The GRZ1 includes Schedule 1 to the zone, however it contains no additional neighbourhood character objectives or variations to Rescode standards, planning scheme provisions or decision guidelines for consideration.
30	The purposes of the GRZ1 relevant to the proposal refer to encouraging a diversity of housing types and growth particularly in locations offering good access to services and transport.  It also includes encouraging development that respects the neighbourhood character of the area
31	The GRZ1 also includes the purpose of implementing the Municipal Planning Strategy (MPS) and Planning Policy Framework (PPF).
32	Under the MPS, Clause 02.01 describes the municipality of Monee Valley as diverse noting the strategic location of major employment precincts associated with the Airport West MAC and Essendon Fields Airport (noting the long association of Airport West with Essendon Airport).  The policy recognises that population growth is expected and that there is demand for new housing required to service such growth.  
33	The ‘Vision’ under Clause 02.02 reinforces the 20-minute neighbourhood where all people, at all stages of life, can live locally, accessing most of their needs close to their homes.
34	Policy under Clause 02.03-1 relating to ‘Settlement’ recognises the Airport West MAC as a key employment base.  Under ‘Local Places’, the policy also identifies the area of Airport West as a key economic and employment area close to freeways and rail corridors at its periphery.  
35	The policy also recognises that growth in Airport West is forecast to be relatively moderate compared to other areas of Moonee Valley with growth expected to accommodate an increased number of empty nesters, mature families and older lone persons.  The policy recognises that, new housing should include medium density infill development where there is good access to services and facilities. 
36	Under the PPF, the ‘Airport West Major Activity Centre plan’ under Clause 11.03-1L identifies the site within an area of medium density housing and encourages properties in proximity of the shopping centre, public transport interchange and Matthews Avenue to be consolidated for multi-dwelling development.  The policy identifies this same area, which includes the site, to be developed to provide a transition in height between the activity centre and more traditional housing.  Residential densities are encouraged to increase.
37	Policies under Clauses 15 and 16 also refer to contributing to a diversity of choice with new housing that achieves a high standard of urban design and amenity, energy efficiency and respect for neighbourhood character.
38	Clause 15.01-5l seeks development to be consistent with the preferred character of ‘CR2 – Central Residential’ as identified in the ‘Neighbourhood Character Precinct Profiles 2012’ which is an incorporated document of the planning scheme.
39	The preferred neighbourhood character for the CR2 precinct is as follows:
New developments in this precinct may be diverse in architectural styles, but will retain a cohesive appearance due to a consistency in siting, articulation, use of finishes and strong garden settings.
Building articulation will be achieved through the use of recesses, windows and setbacks to complement the verandah and porch areas of the traditional dwellings.  Lighter finishes and materials will contribute to the palette of the traditional period buildings.  Consistent front and side setbacks will provide space for formal landscaping, while low or permeable front fences will retain the openness of the streetscape.  
40	Clause 16.01-1L seeks to direct infill medium density development, respectful of the character of the neighbourhood, to occur in areas within walking distance to Major Activity Centres.  Development is encouraged to be of a density and scale that respects the strategic context of the site and the existing streetscape character and comprise a variety of housing that responds to the forecast demand for an increase in smaller households.  
Tribunal’s findings
41	The strategic context of the site was not contested by the parties.
42	The site is in a location that is intrinsically close to the Airport West MAC with an employment area down the end of the street and the Westfield Airport West shopping centre a block away behind the site.  Accordingly, the planning scheme provides strong and clear strategic support for medium density residential development.
43	Council says that from a physical and policy perspective, the site is appropriate for redevelopment.  Council considers the size and location of the site within an established and highly desirable residential area with good access to services and facilities, no built form or environmental overlays and where policy calls for medium density infill development, is in an area where change is expected.  It says the provision of two dwellings on the site is the level of change the planning scheme expects.  It says two dwellings on the site, in the form and scale proposed, will sit comfortably with the existing and emerging housing types within the neighbourhood and can also accommodate a landscaping outcome that contributes to the neighbourhood. 
44	Similarly, the respondents say the site is in a location where a resident can realistically walk to excellent public transport, shopping, entertainment, and community services.  They say the site has few constraints and represents orderly planning capitalising on both the physical and policy benefits of the site’s location.
45	The proposal for two double storey dwellings in a side-by-side typology is a modest response to providing for an increased density of residential infill development in Marshall Road.
46	A two storey built form typology is not at odds with residential areas across the Melbourne Metropolitan Area and in Marshall Road in Airport West.  The design response is respectful of neighbourhood and streetscape character with setbacks from the street ranging from 6.99 metres to 8.14 metres for Dwelling 1 and 7.695 metres for Dwelling 2.  This is commensurate with the street setbacks of both adjoining dwellings (7.56 metres to the west and 7.86 metres to the east).
47	Similarly, there is only a short section of garage wall of Dwelling 2 that is proposed to be constructed on the side boundary, with side and rear boundary setbacks at ground floor level proposed for the remainder of the development including:
•	Setbacks for Dwelling 1 from the eastern side boundary ranging from 1 metre to 1.9 metres.
•	Setbacks for Dwelling 1 from the rear northern boundary ranging from 4.06 metres to 7.06 metres.
•	Setbacks for Dwelling 2 from the western side boundary ranging from 1.155 metres to 1.905 metres.
•	Setbacks for Dwelling 2 from the rear northern boundary ranging from 5.78 metres to 8.78 metres.     
48	First floor level setbacks are increased further with a minimum of 2 metres to a maximum of 5.295 metres from side boundaries and a minimum of 6.28 metres to 6.91 metres from the rear boundary.
49	With a maximum building height of 7.965 metres to the top of the skillion ridge of Dwelling 1, the two storey form is within the requirements of the GRZ1 and respectful of the neighbourhood of the area where two storey form is present in the street.
50	Generally, I find the proposal is supported by the strategic aspirations of the planning scheme and is generally respectful of the neighbourhood and streetscape character of the area and is appropriately responsive to both the physical and policy contexts relevant to the site and area. 
Whether impacts on amenity are unreasonable? 
51	Impacts on amenity can relate to overshadowing of secluded private open space, overlooking and visual bulk.  The applicant expressed concern regarding these matters. 
Overshadowing of secluded private open space
52	As mentioned earlier, I provided parties with an opportunity to respond to overshadowing of the secluded private open space of 56 Marshall Road, which is sandwiched between the rear of the dwelling and a carport.
53	I understand that the area of secluded private open space is approximately 35 square metres and that the parties agreed that both the size of the secluded private open space and the amount of sunlight do not meet the requirements outlined in the first paragraph of Standard B21 which is:
Where sunlight to the secluded private open space of an existing dwelling is reduced, at least 75 per cent, or 40 square metres with minimum dimension of 3 metres, whichever is the lesser area, of the secluded private open space should receive a minimum of five hours of sunlight between 9 am and 3 pm on 22 September.
54	In addition to written submissions, the respondents provided the following additional information to assist me:
•	Updated drawings prepared by Contemporary Design Consultants, Revision H, that have been updated to include a tabular analysis of the shadowing impacts to the private open space of the dwelling at 56 Marshall Road, Airport West.
•	An additional drawing prepared by Contemporary Design Consultants, identified as Drawing 18, Revision H, that compares the shadows cast from both a single and double storey townhouse on the review site, onto the private open space of the dwelling at 56 Marshall Road, Airport West at 5pm of the September equinox.   
55	Relevantly, the decision in Ling provides that where existing sunlight to excluded private open space of an existing dwelling is less than the requirements of the first paragraph of Standard B21, the amount of sunlight should not be further reduced at all, at any time, on 22 September.
56	To assist with an assessment of the impacts from overshadowing, an assessment also needs to be made of the existing shadow cast on affected secluded private open space throughout 22 September.  
57	The tabular analysis provided information on the extent of both existing and proposed shadow cast over the secluded private open space area at 56 Marshall Road.  The results show that at the equinox on 22 September, a small area of sunlight is provided to the secluded private open space between 9am and 3pm.  By 4pm the secluded private open space area is completely covered by shadows from existing fencing and buildings and that by 5pm approximately 5.5 square metres of the secluded private open space is covered by additional shadows cast from the proposal.
58	What can be deduced from the updated plans and tabular analysis is that the proposal does not cast shadows over the rear secluded private open space at 56 Marshall Road until around 5pm.
59	The results show that the requirements of Standard B21 are not met.
60	This does not mean an automatic refusal, but rather an analysis of what effect shadowing from the proposal has on the amenity of the affected dwelling.
61	The process of consideration was aptly described in Ling in paragraphs 53 to 56:
Generally, the suite of provisions making up clause 55 operate by the identification of 'objectives' that describe the desired outcome to be achieved by proposed development. 
'Standards' are prescribed that contain the requirements to meet the objectives to be achieved.  It is expected that these standards 'should normally be met', however the operation of clause 55 provisions also contemplate that there may be instances where the requirements of standards are not met but an alternative design solution (not prescribed in the requirements of a standard) may achieve the relevant objective.  In essence the operation of clause 55 allows for a performance-based outcome to be demonstrated.
Where the requirements of a standard cannot be met, and an alternative design solution is proffered for a proposed development, that alternative design solution must be considered against the decision guidelines of the relevant standard to assess whether the proffered solution meets the objective.
Specifically in the context of clause 55.04-5, this is achieved by - 
•	Step 1 - Identify and accurately record the existing levels of sunlight enjoyed by affected secluded private open space areas throughout a specified day - 22 September.  This is required under the second paragraph of Standard B21.
•	Step 2 - Compare the data obtained in the step 1 with the requirements of Standard B21 (contained in the first paragraph of Standard B21) to identify whether existing sunlight to affected secluded private open space areas is less than the requirements of Standard B21.
•	Step 3 - Before deciding an application, whether the requirements of Standard B21 contained in the first paragraph of that Standard can be met or not, the decision-maker must consider the matters outlined in the decision guidelines for Standard B21. In particular -
•	where an application seeks to reduce existing sunlight to the secluded private open space of an existing dwelling but maintains access to sunlight that meets the requirements of the first paragraph of Standard B21, then by meeting those requirements, the application will have met the objective of clause 55.04-5.  This is because clause 55 provides that a standard contains the requirements to meet the objective. 
The decision guidelines for Standard B21 confirm that existing sunlight penetration to existing secluded private open spaces of existing dwellings is required to be considered.  In order for such consideration to occur properly, the existing sunlight to the relevant areas must be recorded accurately.  Once that is done and the application demonstrates that despite the reduction in sunlight caused by the proposed development, the requirements of the first paragraph of Standard B21 are still met, a decision that the proposed development does not significantly overshadow existing secluded private open space can be expected (the objective of clause 55.04-5). 
•	where the application seeks to reduce the existing sunlight to the secluded private open space of an existing dwelling where the level of existing sunlight is less than the requirements of the first paragraph of Standard B21, consideration must be given to the matters set out in the decision guidelines for Standard B21 before deciding if the proposed development does not significantly overshadow existing secluded private open space (the objective of clause 55.04-5). 
Consideration of the matters set out in the decision guidelines must necessarily commence with the accurate recording of existing sunlight to relevant areas during the course of 22 September and this will necessarily identify the source of any shadow cast at the times of the day the existing sunlight is recorded.
•	in each case, the weight to be given to each matter required to be considered under the decision guidelines -
•	will be determined by consideration of the particular facts and circumstances of each application; and 
•	is a matter to be determined by the decision maker.
62	It is a moot point to acknowledge that the extent of access to sunlight to the secluded private open space area of 56 Marshall Road is already diminished by the presence of a carport that adjoins to the north, by high fencing and vegetation that provides privacy and by roofing comprising a transparent laserlite cladding.  It is an area that relies on a limited extent of open viewing to the sky with a reliance on a westerly aspect to enjoy afternoon sunshine.
63	The Council and respondents say the impacts from overshadowing from the proposal on the rear secluded private open space at 56 Marshall Road is acceptable.  They say the extent of overshadowing is limited to late in the afternoon when the sun is already low in the sky.  They say the extent of overshadowing is reasonable having regard to the strategic policy context of the site within an activity centre.
64	The applicant says the updated plans demonstrate that their rear secluded private open space will be heavily impacted from both existing and proposed overshadowing.  They say the area already does not receive the requisite solar access and that no further shadows should be cast into this area at any time including late afternoon, as per the findings in Ling.  
65	Mr Koletas submitted that shadows cast at 5pm disrupt sunlight access to the rear courtyard at a time when it is most likely to be used after working hours.  The already limited amount of sunlight to the secluded private open space is of great significance to the amenity of the applicant.
66	There was also some discussion about a similar extent of overshadowing impact that a single storey building within the same footprint of Dwelling 1 would have and that there is an area within the front setback of the dwelling at 56 Marshall Road that would be available for use as private open space because of existing high front fencing.  I have not considered these issues at length because they are not what is before me for determination.
67	Not meeting a Standard under Rescode is not necessarily fatal to a proposal.
68	As noted in Ling, meeting a Standard under Clause 55 demonstrates that the relevant objective is met.  However, where the standard is not met, the objective may still be satisfied and determining if that is the case, consideration of the relevant decision guidelines, may assist.
69	The objective relating to overshadowing of open space is to ensure buildings do not significantly overshadow existing secluded private open space.  
70	In this matter, I find the proposal is an acceptable response.
71	The design response has been to set back the development more than what is required under Standard B17 of Rescode, to include a cut-out section to limit shadows cast over the adjoining property to the east and to limit actual overshadowing until around 5pm, which is late in the day.  These elements point to a satisfactory response.  The effects of which will not, in my view:
•	significantly impact on the amenity of the existing dwelling;  
•	not prevent the existing secluded private open space from enjoying some sunlight access, which is during most of the day until late afternoon; and
•	not prevent the private open space area from being able to be continued to be used and enjoyed.
72	I note the secluded private open space at 56 Marshall Road will already be in full shadow at 4pm because of existing structures.  This loss of sunlight at 4pm is not a direct result of the proposal.  Hence, the effects of overshadowing from the proposal are not unreasonable. 
73	I consider it is important to understand that the site is in an area where change is expected.  It is close to community services and facilities and public transport and within a designated Major Activity Centre.  It is to be expected to see change in the area.  The design of the existing secluded private open space at 56 Marshall Road with a carport, fencing and roofing makes it vulnerable to any change to the west.  However, that is a design decision that the applicant has made balancing between privacy and solar access.
74	Within this context, I find that to refuse the grant of a permit based on additional overshadowing in the late afternoon would be a perverse outcome and one that would not achieve a net community benefit that relates to an increase in housing density that is modest and responsive to the broader strategic intent for this area.
75	I would also add that the applicant was concerned about daylight access to habitable room windows and a north facing glass sliding door that provides access from the kitchen/dining/living room area to the secluded private open space.  Both Council and the respondents say the proposal complies with the requirements of Standard B19 relating to daylight to existing windows and Standard B20 relating to north facing windows due to setbacks proposed by the development.  I am satisfied the design response provides for adequate daylight access to the existing windows and north facing door of the dwelling to the east.      
76	Overall, I do not find the overshadowing effects of the proposal unreasonable.
Overlooking
77	Concern was expressed by the applicant about overlooking from the proposed Dwelling 1 to the east.
78	Council says the proposal has been appropriately designed to reduce overlooking in accordance with the requirements of Standard B22 under Clause 55.04-6 through windows being treated either with screening or a highlight window design.  The amended plans provide further clarity in relation to the screening to the rumpus room windows as a response to Council’s conditions.
79	I am generally satisfied that overlooking can be managed in accordance with the requirements of Standard B22 and satisfy the objective of Clause 55.04-6 to limit overlooking and achieve a balance between preventing downward viewing into adjoining properties while allowing for daylight access and an outlook for future occupants of the proposed dwellings.
Visual bulk
80	Visual bulk relates to how the proposed built form will be viewed and what effects it may have on neighbouring properties.
81	The abutting properties to the west and north have existing built form close to boundaries either in the form of a bungalow (57 Moore Road) or carport/garaging (60 Marshall Road).  The dwellings to the east have their side service yard areas along most of the side boundary with the site and sections of secluded private open space at the rear.  Sections of view to the sky to the west are available from both dwellings from which the proposal will be visible.   
82	The proposal is just under 8 metres in height associated with Dwelling 1.  It is set back from the side boundary with the adjoining dwellings at 56 and 56a Marshall Road in compliance with Standard B17 under Clause 55.04-1.  This includes additional recessed upper floor levels from the ground floor facades which allows for sufficient articulation in combination with a variety of material finishes and lighter colours, as conditioned by Council to ensure impacts from visual bulk is appropriately mitigated.  
83	These design parameters are reasonable with double storey housing a common and accepted built form typology across Metropolitan Melbourne and in Airport West.
84	The presence of a carport/garage and bungalow backing onto the site to the west and north combined with setbacks presents an acceptable response.  To the east, the proposal faces the ‘blind side’ of the adjoining dwellings.  Impacts from visual bulk are limited and visibility alone is not the test, but rather, the extent of dominance and sense of being overwhelmed by the built form presence.  In this regard, I do not consider the visual bulk or mass of the proposal to be an overwhelming element given the setbacks and upper-level recession, particularly the increased setback of the cut-out area of around 5.2 metres between the rumpus room and bedroom 3 of Dwelling 1.  I am also mindful of Council’s suggested condition requiring an increase in the setback of bedroom 3 from 2.645 metres to 2.845 metres which I consider will assist in further reducing visual bulk impacts.   
85	Overall, I do not consider there will be significant impacts on amenity arising from visual bulk.  
Whether overshadowing impacts on rooftop solar panels are unreasonable? 
86	The applicant is concerned the proposal will overshadow existing rooftop solar panels on the west facing roof of the dwelling at 56 Marshall Road.  They are concerned the overshadowing will diminish the efficiency of the rooftop solar panels and diminish their power output resulting in loss of income and adding to costs in household energy consumption.
87	The dwelling at 56 Marshall Road has three banks of rooftop solar panels with a bank of solar panels on the most southerly western side of the roof at risk of being overshadowed by the proposal.  A second bank of solar panels is located further north which also faces west and which sit higher up on the roof while a third bank of solar panels face to the north.  Neither of these banks of solar panels are affected by overshadowing (refer to Figure 1).
88	The amended plans show that the southerly bank of solar panels located on the western side of the roof may be affected from overshadowing by around 3pm at both the equinox (22 September) and at the winter solstice (22 June) and around 5pm at the summer solstice (22 December).
89	The respondents say Clause 55.03-5 relating to ‘Energy Efficiency’ includes, under Standard B10, a requirement that buildings should be sited in residential areas to ensure that the performance of existing rooftop solar energy systems on dwellings on adjoining lots are not unreasonably reduced.  The respondents say the test for considering the effects of overshadowing on rooftop solar panels is reasonableness and not achieving a total prohibition of overshadowing.    
90	The respondents say the proposal does not cause excessive overshadowing of the rooftop solar panels with no overshadowing between 9am and 3pm at the equinox and that only the lower section of the southerly west facing solar panels will be affected by shadowing at 4pm with partial and full shadowing occurring at 5pm and 6pm.

Figure 1: Location of three banks of existing rooftop solar panels at 56 Marshall Road.
91	They consider this demonstrates the extent of overshadowing to be modest and that for most of the day at the equinox, winter and summer solstices the solar panels will receive sunlight access.
92	The Tribunal in John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258 identifies the following principles for consideration regarding overshadowing of rooftop solar panels:
•	(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? 
93	The principles have been further refined in ‘Planning Practice Note 88 – Planning for domestic rooftop solar energy systems, May 2022’ which include:
Relevant factors to consider in determining whether the impact of a development is unreasonable include:
•	The extent of existing overshadowing of the domestic rooftop solar energy system from existing buildings or permanent structures.
•	Whether the proposed development meets the side and rear setback and north-facing windows standards under clauses 54 and 55.
•	Whether the protection of the existing domestic rooftop solar energy system will unreasonably constrain or compromise the proposed development.
•	The type of existing domestic rooftop solar energy system.  A multiple string system is less affected by shading than a single string, which is more vulnerable to shading.  Other system features such as micro inverters or bypass diodes can also operate with partial shading.
•	Whether the siting of the existing domestic rooftop solar energy system takes into account the potential future development of adjoining lots promoted or permitted under the planning scheme.
•	The extent to which the existing domestic rooftop solar energy system has been located to protect it from overshadowing through placement higher on the roof and further from existing lot boundaries.
94	Having considered these principles, I do not find the extent of overshadowing of the existing rooftop solar panels on the adjoining dwelling to the east to be unreasonable.  My reasons include:
•	The expectation for avoiding all-together, overshadowing of rooftop solar panels in an area where strategic policy under the planning scheme seeks change with medium density housing of greater than single storey height would have the effect of being contrary to policy direction and would not represent orderly planning.
•	The proposal meets the side boundary setback requirements under the planning scheme.
•	Protection of the existing rooftop solar panels would unreasonably constrain or compromise the proposed development for replacing one single storey dwelling with two double storey dwellings, which is a modest increase in density at a modest height.
•	The proposal affects only a portion of one bank of solar panels which, although may be a single string system and hence more vulnerable to shading, would still receive daylight and be capable of efficiently generating power throughout most of the day and until mid-afternoon for at least the southerly bank of western rooftop solar panels on the dwelling to the east of the site.
•	The location of the southerly bank of solar panels on the western side of the roof of the dwelling at 56 Marshall Road at around 1.8 metres from the common boundary with the site makes them vulnerable to overshadowing from any redevelopment.  The policy directions for change in this neighbourhood makes their positioning difficult to avoid overshadowing.      
95	Overall, I consider the impacts from overshadowing on solar panels are not unreasonable.
What conditions are appropriate?
96	I have had the benefit of a 'without prejudice' discussion of draft permit conditions circulated by Council in response to the circulated amended plans that I have substituted.  
97	I have accepted the draft conditions circulated by Council which I consider are appropriate for the proposal and the issues regarding the proposed development. 
Conclusion
98	For the reasons given above, the decision of the responsible authority is varied.  A permit is granted subject to conditions amended as per Council’s suggested changes.

Christopher Harty
Member			

Appendix A – Permit Conditions

Permit Application No	MV/34/2022	
Land	58 Marshall Road
AIRPORT WEST VIC 3042	

What the permit allowS	
In accordance with the endorsed plans:
•	Construction of two dwellings	

Conditions
Endorsement Conditions
1	Before the development starts, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.  The amended plans must be drawn to scale with dimensions and be in an electronic format.  The amended plans must be generally in accordance with the substituted amended plans prepared by Contemporary Design Consultants, drawing numbers 1 to 17, Revision G, dated 14/02/23 but modified to show:
(a)	The first floor Bedroom 3 and the adjacent bathroom associated with Dwelling 1 to be set back a minimum of 2.845 metres from the eastern boundary; and 
(b)	A Landscape Plan in accordance with Condition 7.
When approved, these plans will be endorsed and will form part of this permit.
2	The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.
3	Stormwater from the development must be treated to meet the water quality performance objectives set out in the Urban Stormwater Best Practice Environmental Management Guidelines, Victoria Stormwater Committee 1999 (Guidelines), as amended.  The performance objectives of the Guidelines must be met entirely on site as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the responsible authority; except that with the written consent of the responsible authority, up to 20% of treatment may be delivered offsite as demonstrated by a Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the responsible authority.
4	A minimum 30 days prior to any building or works commencing, all WSUD details (relating to the WSUD treatment measures nominated in the approved and complying STORM report), such as cross-sections and/or specifications, to assess the technical effectiveness of the proposed stormwater treatment measures, must be submitted for approval by the responsible authority.
5	A minimum 30 days prior to any building or works commencing, a WSUD Site Management Plan must be submitted to and approved by the responsible authority detailing the site and environmental management methods to be used.  The plan must include, but is not limited to:
(a)	A statement or report outlining all construction measures to be taken to prevent litter, sediments and pollution from entering the stormwater systems.
Once submitted and approved the works detailed by the WSUD Site Management Plan must be carried out to the satisfaction of the responsible authority. 
6	A maximum 30 days following completion of the development, a WSUD Maintenance Program must be submitted to and approved by the responsible authority which sets out future operational and maintenance arrangements for all WSUD measures.  The program must include, but is not limited to:
(a)	Inspection frequency;
(b)	Cleanout procedures;
(c)	As installed design details/diagrams including a sketch of how the system operates; and
(d)	A report confirming completion and commissioning of all WSUD Response treatment measures written by the author of the WSUD Response and STORM or MUSIC model approved pursuant to this permit, or licensed installing/commissioning plumber, or similarly qualified person or company.  This report must be to the satisfaction of the responsible authority and must confirm that all WSUD treatment measures specified in the WSUD Response and STORM or MUSIC model have been completed and implemented in accordance with the approved report.
The WSUD Maintenance Program may form part of a broader Maintenance Program that covers other aspects of maintenance such as a Building User's Guide or a Building Maintenance Guide.
7	Before the development starts, and before any trees or vegetation are removed, a landscape plan and schedule to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority.  The landscape plan and schedule must be prepared by a person or firm with suitable qualifications to the satisfaction of the responsible authority, drawn to scale and an electronic copy must be provided.  The amended landscape plan and schedule must be generally in accordance with the landscape plan submitted with the application but modified to show:
(a)	Any changes in accordance with Condition 1 of this permit;
(b)	The floor plan to be consistent with the Ground Floor Plan; 
(c)	The use of non-invasive plant species within any easements which will ensure that existing infrastructure assets are not damaged by root systems;
(d)	An annotation that 'planting along the front property boundary to be adequately contained to meet Council's Nature Strip Landscaping Policy';
(e)	All WSUD design solutions in accordance with the successful STORM report/s;
(f)	All permeable and impermeable surfaces to be consistent with the successful STORM report/s
(g)	All planting abutting the accessways and land frontage to have a maximum mature height of no more than 900mm in accordance with Clause 52.06-9 (Design standards for car parking) of the Moonee Valley Planning Scheme; and
(h)	An appropriate irrigation system.
When approved the amended landscape plan and schedule will be endorsed and will form part of this permit.
Landscaping in accordance with the endorsed landscape plan and schedule must be completed before the building is occupied.
Development Contributions Levy Condition
8	Prior to the issue of a Building Permit in relation to the development approved by this permit, a Development Infrastructure Levy and/or Community Infrastructure Levy must be paid to Moonee Valley City Council in accordance with the approved Moonee Valley Development Contributions Plan 2018 (revised 2020).
If an application for subdivision of the land in accordance with the development approved by this permit is submitted to Council, payment of the Development Infrastructure Levy can be delayed to a date being prior to the issue of a Statement of Compliance for the subdivision.
Development Conditions
9	The water sensitive urban design treatments as specified within the Water Sensitive Urban Design (WSUD) assessment report(s) submitted to and approved by the responsible authority must be implemented on site prior to the occupation of the development unless an alternative agreement is reached with the responsible authority.
10	Before the buildings approved by this permit are occupied, all boundary walls and retaining walls must be cleaned and finished to the satisfaction of the responsible authority if the occupier of the adjoining land allows access for the purpose.
11	Floor levels shown on the endorsed plans must not be altered or modified without the prior written consent of the responsible authority.
12	Before the buildings approved by this permit are occupied, the privacy screens and other measures to prevent overlooking as shown on the endorsed plans must be installed in accordance with Clause 55.04-6 (Overlooking objective) of the Moonee Valley Planning Scheme to the satisfaction of the responsible authority.
All privacy screens and other measures to prevent overlooking as shown on the endorsed plans must at all times be maintained to the satisfaction of the responsible authority.
13	All pipes, fixtures, fittings, ducts and vents servicing any building on the land, other than storm water down pipes and gutters above the ground floor storey of the building, must be concealed in service ducts or otherwise hidden from view to the satisfaction of the responsible authority.
14	Before the buildings approved by this permit are occupied, concrete vehicular crossing(s) must be constructed to suit the proposed driveway(s) in accordance with the responsible authority's specification and any obsolete, disused or redundant vehicle crossing(s) must be removed and the area reinstated to footpath, nature strip and kerb and channel to the satisfaction of the responsible authority.
All vehicle access points must be located a minimum of 1.0 metre from any infrastructure including service pits.  Alternatively, such assets may be incorporated into the crossover with the prior written consent of the responsible authority and the relevant servicing authority/agency.  Subsequent works and costs in association with relocation and/or amendment must be incurred at the owner's cost, to the satisfaction of the relevant servicing authority/agency and the responsible authority.
15	Before the buildings approved by this permit are occupied, the areas set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must be:
(a)	Constructed;
(b)	Available for use in accordance with the endorsed plans;
(c)	Properly formed to such levels and drained so that they can be used in accordance with the endorsed plans; and
(d)	Finished with a permanent trafficable surface (such as concrete, asphalt or paving),
in accordance with the endorsed plans to the satisfaction of the responsible authority.
The area set aside for the parking of vehicles, together with the associated driveways and access lanes as shown on the endorsed plans must:
(e)	Be maintained and made available for such use; and
(f)	Not be used for any other purpose,
to the satisfaction of the responsible authority.
16	Prior to the commencement of the development (including any demolition works), the following street tree/nature strip protection measures must be undertaken:
(a)	The nature strip and street trees located within the Marshall Road frontage of the land must be barricaded out using portable cyclone fencing for the duration of the development in accordance with the Australian Standard (AS 4970 - 2009 - Protection of trees on development);
(b)	No pruning of the nature strip and street trees located within the Marshall Road frontage of the land is to be undertaken by any party other than Moonee Valley City Council;
(c)	No building materials are to be stacked and/or dumped on any nature strip during construction; and
(d)	All costs associated with any fencing and/or damage to the existing street trees shall be borne by the permit holder.
17	Provision must be made for the drainage of the land including landscaped and pavement areas.  The discharge of water from the land must be controlled around its limits to prevent any discharge onto any adjoining or adjacent property or streets other than by means of an underground pipe drain which is discharged to an approved legal point of discharge to the satisfaction of the responsible authority.
18	Prior to the issue of an Occupancy Permit, all new boundary fencing as shown on the endorsed plans must be erected.  The cost of such fencing must be met by the owner and carried out to the satisfaction of the responsible authority.
19	The garden areas shown on the endorsed plan and schedule must only be used as gardens and must be constructed, completed and maintained in a proper, tidy and healthy condition to the satisfaction of the responsible authority.  Any tree or shrub damaged, removed or destroyed must be replaced by a tree or shrub of similar size and variety to the satisfaction of the responsible authority.  
Expiry of permit for development
20	This permit as it relates to development (buildings and works) will expire if one of the following circumstances applies:
(a)	The development is not started within three (3) years of the issue date of this permit.
(b)	The development is not completed within five (5) years of the issue date of this permit.
In accordance with section 69 of the Planning and Environment Act 1987 (Vic), an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

– End of conditions –