Pittwater Life July 2017 Issue

Business Life: Law
Business Life
Solar investment: what
happens if covered up?
It is rare to listen to radio,
view TV or read newspapers
without encountering
discussion on renewable
energy – sunlight, wind,
rain, tides and geothermal
heat which are naturally
replenished.
Renewal technologies
includes solar power and wind
power. It has been defined as
energy from a source that is
not depleted when used.
In the 5th century BC Greek
dramatist Aeschylus wrote
that primitive people had
“neither knowledge of houses
built of bricks and turned
towards the sun nor yet of
work in wood”.
Today on the peninsula
many, many houses look
to the sun through the
installation of solar panels to
provide them with heating,
hot water and electricity.
Solar powered photovoltaic
(PV) panels convert the
sun’s rays into electricity by
exciting electrons in cells
using the photons of light
from the sun.
In April this year, 1.6 million
properties around the country
were assessed as having
photovoltaic (PV) solar power
panels – and this number is
expected to double over the
next several years.
The development of solar
as a source of energy has
grown apace with property
owners, residential and
commercial, installing PV
panels on environmentally
green buildings.
However, what happens
when direct sunlight is
partially or completely
obscured by unchecked
vegetation growth or
development on nearby
property?
Most states have some
planning and development
controls that regulate solar
access but legal regimes
that regulate planning and
development do not provide
any explicit protection of
solar access to a building.
In NSW, some planning
laws which control the
construction of schools
or TAFE buildings and
new residential flats
include a requirement
for overshadowing of
neighbouring buildings to
be limited only so much as
to allow for a minimum of
three hours of solar access to
principal private open spaces
between 9am and 3 pm on
the winter solstice (21st June).
So what are the rights
of owners of solar panels
to protection from
overshadowing of panels and
living spaces by both trees
and adjoining developments?
Litigants have brought their
disputes to courts in NSW,
Victoria, South Australia and
with Jennifer Harris
Western Australia during the
past few years. From these
cases, some legal principles
have emerged.
In NSW in 2015 the Land and
Environment Court held that
trees could be the subject of a
height restriction if sufficient
proof is provided that the
overshadowing compromises
the passive solar heating of
a neighbouring property. In
an earlier judgment in the
same court it was held that a
development can be ordered
to be modified if an alternate
design would result on
greater solar access to a solardesigned
house.
While in the Victorian Civil
and Administrative Tribunal
in 2012, a loss of sunlight to a
solar array, resulting in a total
loss of energy generation
greater than 50%, was held to
be unreasonable.
Elsewhere the Civil and
Administrative Tribunal has
found:
n Solar panels which have
been poorly placed are
unlikely to attract protection
from overshadowing by
adjacent development;
n Additional heating and
cooling costs of less than
$100 a year that would be
experienced through lost
efficiency in a solar passive
designed home are grounds
to order a neighbouring
development to be modified
56 JULY 2017
Celebrating 25 Years