By Hannah Wilson, Lawyer and Miranda Clark, Law Graduate

A review of the provisions relating to sunlight access in public parks in the City of Melbourne is currently underway. Amendment C278 proposes to introduce a new Schedule 8 to the Design and Development Overlay (DDO8) within the Melbourne Planning Scheme (Planning Scheme). Amongst other things, the new DDO8 will restrict the future overshadowing of parks within the City of Melbourne, excluding the Hoddle Grid, Southbank, Docklands and Spring Street South.

Maps 1 to 10 in the proposed DDO8 designate parks in the affected areas as being one of three types, each with varying overshadowing controls. Notably, DDO8 seeks to protect sunlight access at the winter solstice, when the southern hemisphere is tilted furthest from the sun. Specifically, the controls provide for:

• Park Type 1: Buildings and works must not cast additional shadow onto the park between 10am and 3pm, on June 21 beyond the existing shadow;
• Park Type 2: Buildings and works must not cast additional shadow onto the park between 10am and 3pm on June 21 beyond the existing shadow or allowable shadow (whichever is greater, with ‘allowable shadow’ being defined at the shadow that would be cast by a street wall being built to the lower of any street wall requirement or height requirement under the Planning Scheme);
• Park Type 3: Buildings and works must not cast additional shadow onto the park between 10am and 2pm, June 21 beyond the existing shadow.

Mandatory nature

The overshadowing controls proposed by DDO8 are mandatory in nature, meaning that there is no opportunity for a performance-based assessment of a proposal. While mandatory controls can be constructive in some circumstances, we consider a level of discretion is required in this case, particularly where development promises to deliver, for example, exceptional design outcomes or a broader community benefit.

As Melbourne continues to grow, it will be necessary for the city’s inner suburbs, such as Carlton, Kensington and North Melbourne, to accommodate more people. Not only do these suburbs benefit from close proximity to the CBD, they are well-serviced in terms of public transport and infrastructure, making them a logical choice for additional housing and development opportunities. In its current form, the proposed DDO8 will significantly hinder the development potential of land within the City of Melbourne, where that land is located adjacent or nearby to a specified public park.

While we are not advocating for unreasonable overshadowing of Melbourne’s inner city parks, our view is that a more flexible drafting should be considered. The Planning Scheme’s Schedule 10 to the Design and Development Overlay includes a requirement that ‘[a] permit must not be granted for building and works which would cast any additional shadow across a space listed… unless the overshadowing will not unreasonably prejudice the amenity of the space.’ Indeed, in many of the world’s greatest cities, public spaces are abutted by tall developments which do not necessarily undermine the utility or attraction of the space. Accordingly, we consider a similar phrasing could be appropriate in the context of DDO8.

Alternatively, the drafters of DDO8 could contemplate an ‘offset’ mechanism, whereby developments may be permitted to reasonably overshadow parkland in exchange for delivering public realm upgrades or other community benefits.

In any event, we consider that the introduction of DDO8 as it is presently drafted could lead to a lost opportunity for Melbourne.

No transitional provisions

In its current form, the proposed DDO8 does not include transitional provisions. As such, any application for a permit that has not been granted at the date of gazettal of Amendment C278 would need to be amended to comply with the mandatory overshadowing controls contained in DDO8. We consider this to be unfair and contrary to best practice for planning in Victoria.

Moving forward

Consideration of Amendment C278 will proceed to a panel hearing in the week commencing 10 March 2020. In particular, it will be interesting to see whether the panel supports the mandatory nature of the overshadowing controls or whether a more flexible re-drafting is recommended.