Posted on July 19, 2022 by Sue Puckeridge and James King 3

Overshadowing considerations for development near Sydney parklands

The Greater Sydney Parklands Trust Act 2022 (Parklands Act) commenced on 1 July 2022. On the same date, the Minister for Cities gazetted the Greater Sydney Parklands Shadow Modelling Study 2022 (Shadow Modelling Study). The Parklands Act, in combination with the Shadow Modelling Study creates a new ‘must have regard to’ provision for relevant consent authorities when determining development applications. Where proposed development will, or may, cast a shadow over certain parklands, consent authorities must now consider the overshadowing impacts of that development on the parkland using the Shadow Modelling Study.

The Parklands Estate

The Parklands Act applies to the parklands directly owned or managed by the Greater Sydney Parklands Trust and all of the parklands owned or managed by the associated Trusts’ estates (Parklands Estate), including Callan Park, Centennial, Moore and Queens parks, Parramatta Park, and Western Sydney Parklands and Fernhill Estate.

The total land covered by the Parklands Estate is more than 6,000ha.

Requirement to consider overshadowing

A general obligation to consider overshadowing impacts already exists under s4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). However, section 26 of the Parklands Act now introduces a specific requirement for any consent authority determining an application for a development consent under the EPA Act that will, or may, overshadow the Parklands Estate to consider the impacts set out in the Shadow Modelling Study.

The Centennial Parklands and Parramatta Park have been identified by the Shadow Modelling Study as the most susceptible to overshadowing. These parks have been mapped (Mapped Parklands) and detailed site-specific Solar Protection Controls have been prepared to determine the acceptability of overshadowing impacts for development in their vicinity.

For the rest of the Parklands Estate (Unmapped Parklands), Solar Protection Objectives are set out in the Shadow Modelling Study.

Solar Protection Framework

The Solar Protection Framework, set out in Part 3 of the Shadow Modelling Study, applies to all existing and future parks in the Parklands Estate. It details how the potential impacts of overshadowing can be determined and assessed, and how this work should guide consent authorities when assessing development. The Solar Protection Framework sets out a three-stage approach, which, at a high-level, consists of:

Phase	Requirements	Responsibility
Phase 1 – Identification	A determination must be made as to whether  the development  will or may overshadow the parkland between 9am and 3pm on winter solstice (21 June) (Assessment Period). The Shadow Modelling Study sets out some characteristics which will make overshadowing likely, including if the development is located within one kilometre of boundary on the north, east or west side of a parkland or if the development exceeds maximum height controls.	Applicant or the consent authority. If carried out by the applicant, this phase may be validated by the consent authority.
Phase 2 – Site-Specific Shadow Study	If the development will result in additional overshadowing occurring within the Assessment Period, or if the site is identified as requiring a site specific built form testing, the study must: Prepare 2 alternative built form options demonstrating a reduction in or reallocation of overshadowing; and Assess the additional overshadowing in accordance with: for Mapped Parklands: the Solar Protection Controls; or for Unmapped Parklands: the Solar Protection Framework Objectives.	Applicant or the consent authority. If carried out by the applicant, this phase may be validated by the consent authority.
Phase 3 – Determination	Determine whether the overshadowing is acceptable or unacceptable with reference to: the Solar Protection Controls for Mapped Parklands, or the Solar Protection Objectives for the Unmapped Parklands.	The consent authority.

 

The Shadow Modelling Study also does not apply to minor encroachments classified as exempt development, such as aerials, antennae, masts and flagpoles. Development by or on behalf of the Greater Sydney Parklands Trust within the Parklands Estate is also exempt.

It is curious that this mandatory consideration has been imposed in the Parklands Act, rather than in a State Environmental Planning Policy (SEPP) where the same outcome could have been achieved by reason of s4.15(1)(a) of the EPA Act. Arguably, a SEPP could have been more readily brought to the attention of consent authorities and developers.

Further, it may have been a matter that could have been identified on a planning certificate. In its present form, whether a property is affected by the requirement to consider overshadowing of parkland under s26 of the Parklands Act is not a matter to be included in a s10.7 planning certificate under the EPA Act.

See the Shadow Modelling Study as gazetted here.

If you would like to discuss the issues raised in this post, please contact Sue Puckeridge on 8235 9702 or James King on 8235 9722.