Protecting Solar Access When Your Neighbour Redevelops

My house has been designed to maximise solar access – what happens if my neighbour wants to redevelop their property and block the sun?

“If at first you don’t succeed, try, try, try again”, as the saying attributed to W.E. Hickson goes – and this is exactly what a landowner in Casuarina on NSW’s far north coast has done in the Court of Appeal following a previous attempt to protect the amount of sunlight falling upon her property in winter (unsuccessfully, as is explained below). Here’s a brief Keynote on how this appeal played out, as decided by the Court of Appeal in Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123.

I previously wrote about Ms Conway’s attempts to overturn a development consent benefitting the property immediately to her north while at my prior firm (it’s a quick read – head here to check it out), and explained why Justice Pike of the Supreme Court decided not to quash the consent or grant an easement for solar access. Ms Conway, understandably miffed by this decision, opted to appeal Pike J’s findings in the Court of Appeal on two grounds:

1. Pike J failed to properly consider whether Tweed Shire Council (as the consent authority) had properly considered a ‘before and after’ comparison of solar access to her property, which (in the appellant’s view) would have resulted in a severe non-compliance with Council’s Development Control Plan (DCP); and
2. The easement for solar access should have been granted as the impact on Leeroy would not have been unacceptable in all of the circumstances, i.e. Ms Conway’s home had been designed to take advantage of solar passive elements and functionality, the extent of approved overshadowing was severely non-compliant with Councils’ DCP, and Leeroy could still develop its property with a restriction of height on the resulting home.

In addition to rejecting the ‘proper consideration’ ground 1 summarised above, the Court of Appeal affirmed Pike J’s conclusion that the proposed easement was not “reasonably necessary” for the effective use or development of Ms Conway’s land, and therefore the threshold requirement in s 88K of the Conveyancing Act 1919 (containing the statutory power for the Court to grant an easement) was not satisfied.

As for ground 2 concerning the necessity of the easement for solar access, the Court of Appeal reaffirmed that the requirement to show “reasonable necessity“ under s 88K sets a relatively high bar. It is not enough to show that an easement would be useful, desirable, convenient or would preserve an existing level of amenity. Rather, the applicant must establish that the easement is reasonably necessary for the effective use or development of their land. Pike J had previously considered these criteria and decided not to impose an easement over Leeroy’s land benefitting Ms Conway’s property.

In considering this ground, the Court of Appeal agreed with Pike J’s conclusion that Ms Conway was essentially seeking to preserve a higher level of sunlight and prevent additional overshadowing from a lawfully approved neighbouring development. While that outcome may have been preferable from her perspective, the Court of Appeal agreed that this fell short of demonstrating reasonable necessity in the statutory sense. As Pike J observed below, the test cannot be reduced to something that is merely a “substantial preference” or a “nice to have”.

The Court of Appeal further noted that where a proposed easement would significantly constrain the future development potential of neighbouring land, a particularly strong justification is required. In that context, there was insufficient basis to create a new proprietary right in favour of Ms Conway’s land that would effectively prevent development on the adjoining lot.

I have written extensively on the right to solar access and see this decision (rightly or wrongly) as taking a step further away from a landowner ever reasonably being able to obtain an easement over neighbouring property to protect the amount of sunlight reaching their private open spaces. Those requirements remain in the planning framework via statutory and regulatory requirements for minimum hours of solar access, with DCPs providing further specific detail (noting that DCPs are to be applied flexibly having regard the particular circumstances of the proposed development). This decision confirms again that:

• while the loss of sunlight or increased extent of overshadowing of private open spaces might be a relevant consideration in deciding whether or not to grant an easement;
• the preservation of an existing level of solar access is not, of itself, enough to satisfy s 88K; and
• the statutory requirement is directed to necessity for the effective use or development of the applicant’s land, not simply the maintenance of a preferred level of residential amenity.

Your specific circumstances might be enough to justify the creation of an easement for solar access over neighbouring land, but Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123 represents yet another example of why this is unlikely. You should seek legal advice (from yours truly, should you wish) before making any decisions or investments concerning your property in this respect.