Kellehers was recently involved in a matter with an inner-city Council debating its refusal to permit a pergola across a set of north-facing windows due to a neighbour’s objection of interference with a rooftop terrace view.
Council’s only concession to sustainability, in this case, was referral to its Sunshading Fact Sheet[1]. It refused to permit shading deeper than 1.2m, the maximum depth permitted for an ‘eave’ in the Fact Sheet. It required the proposed pergola to be cantilevered without vertical posts.
Within the immediate vicinity of this site were multiple recent/ under construction, high and medium rise buildings with no eaves or pergolas of any kind. The occupants of these residences and offices will be totally reliant on air-conditioning during hot weather.
This approach to sustainability and climate change reflects the inadequacy of controls in the Victoria Planning Provisions (VPPs) – the State government’s template planning controls. VPP provisions, in our view, require rigorous and urgent review.
The Municipal Association of Victoria (MAV) over a year ago lodged what it regards as an innovative planning scheme amendment. 24 of its member Councils[2] participated in what building on existing environmentally sustainable development (ESD) requirements for new developments. MAV reported recently that they still await a response[3].
Meanwhile, Kellehers Australia works with Monash University’s Climate Justice Clinic (CJC) on a Project to evaluate the climate related VPP provisions. This Project was designed and is overseen by Cameron Algie. In initial findings, it identified controls focusing on coastal land, conservation, biodiversity, soil quality and erosion. The Project identified both serious gap areas and provisions needing significant strengthening and clarification. The Project more recently reviewed VCAT climate-related decisions, deriving interesting preliminary outcomes. Coastal land management provided a strong basis for climate change consideration. The precautionary principle was applied, with future and cumulative impacts a strong, often decisive, factor, particularly when combined with other environmental and climate-related factors. The CJC Project is important and on-going.
Cameron Algie[4], Leonie Kelleher
22 August 2023
KELLEHERS AUSTRALIA PTY LTD
Copyright © Kellehers Australia 2023.
Liability limited by a scheme approved under Professional Standards Legislation
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] file:///C:/Users/Leonie/Downloads/Sunshading%20factsheet%20(3).pdf (accessed 22.8.2023).
[2] Council Alliance for a Sustainable Built Environment (CASBE). Surprisingly given KA’s pergola matter and its vast quantity of approvals for residences without eaves or pergolas, the Council above was one of the participant councils.
[3] https://www.mav.asn.au/news/one-year-on,-24-councils-still-waiting-on-minister (accessed 22.8.2023).
[4] B.A., B.Mus., L.L.B.(Hons).