Overshadowing, Overlooking Are You Overreaching With Your Development?
By: Jarrod Gutsa Planning & Construction Lawyer, Lovegrove Smith & Cotton
In Victoria a planning permit may be required for a proposed development. A planning permit is generally required for a proposed development on a lot that is less than 300sqm or a lot that is between 300 – 500sqm in certain circumstances. Victoria has comprehensive planning regulations that encompass the Planning & Environment Act 1987 (VIC), the Victorian Planning Provisions and the relevant municipal planning schemes.
Each municipality in Victoria has a planning scheme that is unique to that municipality, in order to cater for the distinctive neighborhood features present within its jurisdiction.
This article will focus on the objectives and requirements of clause 54 of the Melbourne Planning Scheme (“the Planning Scheme”). While each planning scheme is unique, there are many similarities between the various Victorian planning schemes and the City of Melbourne’s. As such the City of Melbourne’s Planning Scheme will be used as the main point of reference for the purpose of this article.
Clause 54 of the Planning Scheme pertains to proposed developments. In particular this article will focus on the following areas:
1. Daylight to existing windows (54.04-3);
2. Overshadowing (54.04-5); and
3. Overlooking (54.04-6).
54.04-3 Daylight to existing windows objective
The Objective of this clause is “to allow adequate daylight into existing habitable room windows.”
The clause adopts Standard A12 which states that:
“Buildings opposite an existing habitable room window should provide for a light court to the existing window that has a minimum area of 3 square metres and minimum dimension of 1 metre clear to the sky….”
When designing a new development one must consider the adjoining properties to ensure that the development complies with this clause and that one does not effectively block out all the sun light of the neighbouring dwellings.
Further to the above clause 54.04-4 places further requirements on a proposed development not to block daylight to existing north facing windows in particular.
Compliance with the above clauses is not simply measured by one looking out a window and finding the neighbouring property casts a shadow on your property. There are very specific calculations that must be made in order to decide whether a proposed development will breach this clause.
54.04-5 Overshadowing open space objective
The Objective of this clause is “To ensure buildings do not unreasonably overshadow existing secluded private open space.”
This objective is similar to the objectives above in aiming to ensure developments do not unreasonably block sunlight from neighbouring properties. This objective however is primarily concerned with allowing for all properties to have access to sunlight so that occupants may be able to have quiet enjoyment of their property. As with the above objective there are specific measurements and calculations that must be made in order to determine whether a proposed development is compliant with the objective.
54.04-6 Overlooking objective
The overlooking objective’s purpose is “To limit views into existing secluded private open space and habitable room windows.”
This requirement does not mean that if you can see into your neighbour’s garden that it has been breached. There are very specific calculations and measurements that must be taken in order to determine if a proposed development complies with this objective.
Clause 54 of the Planning Scheme places specific requirements on a proposed development in order to ensure that the amenity of the existing dwellings is protected. The Planning scheme through clause 54 requires that proposed developments do not unreasonably overlook, overshadow and block out sunlight to neighbouring dwellings. In order to determine if a proposed development has breached this clause, one should engage a suitably qualified professional to conduct the necessary measurements that are required by the clause.
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