Family’s fight for the right to backyard sunlight

Key points

• Bespoke Development Group has applied to build a seven-storey apartment block in Brunswick’s Dods Street.
• Elisa Hill and Philippe Yardin say if the development proceeds they will only get two hours a day of sunlight in their backyard.
• The family have lodged an objection against the development application alongside 40 other residents.

A family in Melbourne’s inner-north are preparing to take on a developer over proposed construction they say will limit the amount of sunlight in their home and backyard, and reduce the solar energy their panels can generate.

Elisa Hill, Philippe Yardin and their two sons have lived in Dods Street, Brunswick for 15 years but were dismayed to discover a seven-storey apartment building has been proposed for the land adjacent to their one-storey house.

Elisa Hill, husband Philippe Yardin and son Jai, who lives with severe autism.Credit:Chris Hopkins

The family say that if approved, the apartments will overshadow their home for most of the day. This would not just limit the usefulness of their solar panels and battery, but also affect recreational space for son Jai, 18, who is on the autism spectrum.

“Our understanding is we will only have two hours’ sunlight in the backyard [if the apartment block is built],” Hill said.

“We just don’t think that is feasible. We have a son with a severe disability who can no longer leave the house very easily, so we really need that sunlight for him.”

Yardin said he was conscious of potential accusations of NIMBYism (Not In My Back Yard), but believed the apartment building proposal had gone too far.

“Development is good; renovating the houses and putting additional housing in the street is a good thing. But it is a matter of density and how much you can do,” he said. “They’ve gone too far here and there is going to be a bunch of highrises across the street.”

Yardin said the zoning of the area had changed recently.

“When we renovated, we wanted to go up and we couldn’t,” he said.

An artist’s render of the proposed development at Dods Street in Brunswick.

As development in Melbourne continues apace, the issue of access to sunlight has become a battleground between residents and developers.

Michael Buxton, an emeritus professor of environment and planning at RMIT University, said while regulation existed to protect sunlight access and to maintain the character of existing neighbourhoods, there were often contradictory policies that sought to achieve greater housing diversity and encourage mid-rise development.

“Someone’s got to make a decision as to which ones apply and because they’re often written in a vague, general way, planning lawyers drive bulldozers through these words,” he said. “How do you get protection of sunlight when you have a seven-storey development next to a single-storey development on the wrong side of the sun? It just can’t happen.”

Buxton said the agencies and councils that wrote planning policies often sought to achieve impossible outcomes.

He said there was not much in the planning system to protect people’s special needs as in the case of Hill, Yardin and their son Jai.

The family are worried they will be limited to two hours of sunlight a day if the development goes ahead. Credit:Chris Hopkins

“It’s not going to really stop a development proceeding,” Buxton said.

Under planning laws, developers are required to consider the impact on solar energy facilities on the roofs of adjoining dwellings, but he said developers could simply reject the considerations.

“It’s a lawyer-fest, basically,” he said. “Ultimately, what happens is the developer wins. This is all over Melbourne. This planning system is not fit for purpose for protecting resident rights.”

Buxton said planning disputes over access to sunlight were widespread.

“This sort of conflict is occurring every week, in many, many places,” he said. “It’s a major issue for lots of residents and for the future form of Melbourne too.”

“In fact City of Melbourne and the state government has legislation that says you have a right to sunlight.”

The family and 40 other residents have lodged an objection against the Dods Street development application, with a hearing at Merri-bek council scheduled for March 22.

Merri-bek Mayor Angelica Panopoulos said council planning decisions were bound by the state government’s planning policy and provisions that encouraged higher density developments in activity centres.

“There is a growing need for new housing in the inner-city, which must be carefully balanced against the character of neighbourhoods and the rights of adjoining properties to be protected against amenity impacts, such as loss of sunlight,” she said. “However, councils must consider planning applications within state planning policy and within the context of tribunal precedents.”

Dods Street resident Michael Petit, who is the secretary of the Protectors of Public Land, said the street was rezoned from residential to mixed-use a few years ago and the proposed apartment building was an “egregious overdevelopment”.

“Most councillors and developers say you can’t protest losing your view. That has been accepted but what hasn’t been accepted is they can take away all your sunlight,” he said. “In fact City of Melbourne and the state government has legislation that says you have a right to sunlight.”

Petit said sunlight was essential to the health and wellbeing of Jai, who can rarely leave their home, and the family’s experience is like that of the 1997 movie The Castle.

“In this instance, it is not the vibe, but the light that matters,” he said. “This family has been here for many years, they are a credit to the neighbourhood and suddenly someone is going to come along to make a buck and completely remove their light.”

Credit:Matt Golding

A state government spokeswoman said residential development in Victoria was controlled by planning and building requirements commonly known as ResCode.

“We’re protecting residential rooftop solar panel systems with planning provisions that require new developments to consider their impact on any existing mounted solar energy facility,” she said.

The developer of the proposal, Bespoke Development Group, did not respond to a request for comment.

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