This update is co-authored by Daphne Schilizzi, Law Graduate
More and more Australian homes are becoming, in one form or another, reliant on solar energy; whether it be solar panels, solar water heaters or by way of passive solar architecture. However, the effectiveness of solar devices depends almost entirely on the amount of sunlight they receive. For example, a solar panel typically needs at least 4 hours of direct sunlight, meaning sunlight that is not obscured by clouds or otherwise, to perform optimally. If a neighbouring building or tree is reducing the sunlight which a solar panel receives, the amount of energy which the solar panel can generate is considerably diminished.
With the recent sprawl of high-rise apartments going up around Perth, many home owners may be wondering whether their source of solar energy, sunlight, is under threat. This article will explain that, although we do not have an express right to sunlight in our homes, there are avenues through which you can ensure that your home’s access to sunlight is protected.
Do you have a right to sunlight in your home?
The right to sunlight in our homes is more properly termed ‘solar access’. Solar access means the ability for land to receive sunlight without obstruction from a neighbouring property.
Unfortunately, unlike some countries, there is currently no legislation which expressly protects our solar access in Australia. Regardless, in Western Australia, there are options available to those who wish to protect their solar access.
What can you do to protect your solar access?
1. Lodge an objection to a proposed development with your Local Government
Local Governments in Western Australia have planning controls in place that protect their residents’ solar access. The Residential Design Codes (RDC), which are applicable throughout most of Western Australia, provide that a relevant principle when assessing development proposals is whether the development is designed to protect solar access for neighbouring properties. Potential overshadowing of existing indoor and outdoor living areas as well as solar collectors (panels) is an important consideration.
The impact of these considerations on a development will depend on whether you are in an area coded less than R40 or above R40. In other words, the greater the housing density in your area, the less likely it is that your solar access will be protected.
If a proposed development on an adjacent property poses a risk to your solar access, you may be able to file an objection with your local government. Depending on the overall impact the proposed development will have and whether it aligns with the RDC design principles, the local government may:
- Approve the development without amendments;
- Approve the development but impose conditions on it which adequately protect your solar access, such as requiring building setbacks; or
- Reject the development.
It is usually very difficult to raise objections once the stipulated period for doing so has passed. Therefore, it is imperative that you seek advice at the earliest opportunity about the merits of objecting to a proposed development. However, it should be noted that if a development satisfies all of the RDC’s “deemed-to-comply” requirements, it may not require planning approval and the opportunity to object may not arise at all.
2. Create an express easement or restrictive covenant
One way to obtain a right to solar access in your home is by creating an express easement or restrictive covenant.
An easement is a right which a person can acquire over another person’s land to use that land for a specific purpose. To create an easement relating to solar access, you must come to an agreement about your solar access with the relevant neighbour and register this agreement at Landgate. This agreement will be attached to the title of both your and your neighbour’s lands.
Example: The easement could provide that a particular area of your property will not be overshadowed by anything on your neighbour’s property for certain hours of the day.
A restrictive covenant is an agreement which restricts the ability of one land owner to use or enjoy their land in a particular way for the benefit of another land owner. It is another way to protect solar access, but a restrictive covenant can only be restrictive; it cannot compel a land owner to actively do something. As with easements, an agreement as to a restrictive covenant relating to solar access must be registered at Landgate and will attach to the title of both your land and your neighbour’s land.
Example: The covenant could provide that your neighbour is prevented from building or growing plants in a way which causes overshadowing on particular areas of your roof or land.
If an express easement or restrictive covenant in your favour is breached, you may be entitled to seek damages or an injunction as a result of the breach. However, creating express easements and restrictive covenants can be a costly task; they require the consent of your neighbour, who will likely seek monetary consideration in exchange for their consent.
It should be noted that without a properly registered express easement or restrictive covenant, you have no express right to the access or use of light on your land, regardless of how long you have maintained that level of access or use.
Although there is no express right to solar access in our homes, there are avenues through which you can protect your solar access. These include:
- Lodging an objection to a proposed development with your local government; and
- Creating an express easement or restrictive covenant.
For more information on what you can do to protect your solar access, please contact Jonathan O’Connor on (08) 9483 0923.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.