BAILEY and CITY OF SOUTH PERTH
[2006] WASAT 235
•8 August 2006
BAILEY and CITY OF SOUTH PERTH [2006] WASAT 235
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 235 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:555/2005 | 24 JANUARY AND 14 FEBRUARY 2006 | |
| Coram: | MR P McNAB (MEMBER) | 8/08/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Principal decision under review affirmed Tear down Notice decision set aside Applicant's position on fill level affirmed Application otherwise dismissed | ||
| B | |||
| PDF Version |
| Parties: | CLINTON WAYNE BAILEY CITY OF SOUTH PERTH |
Catchwords: | Town planning – Retrospective development approval – Two separate issues before Tribunal – Extent of overlooking from balcony – Balcony's privacy screening – Extent of fill level in front garden area – Neighbour's privacy concerns versus owner's "City lights" views – Tribunal not satisfied that privacy concerns adequately addressed by applicant's proposal for limited screening – Decision of Council on full length screening affirmed – "Tear down" Notice set aside – Minor differences between parties on fill question – Applicant's position on fill upheld – Application for review otherwise dismissed – Words and phrases: "directly overlooking" |
Legislation: | City of South Perth Town Planning Scheme No 6 Local Government (Miscellaneous Provisions) Act 1960 (WA) Residential Design Codes of Western Australia (2002) |
Case References: | MacAdams and City of Joondalup [2006] WASAT 121 Newman and Town of Cottesloe [2005] WASAT 83 Newman v Town of Cottesloe (2005) 40 SR (WA) 303 Saunders and City of Nedlands [2005] WASAT 190 Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79 WASAT Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71 Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140 Sistaro Pty Ltd and City of Joondalup [2003] WATPAT 43 Sweetland and Town of Cambridge [2005] WASAT 278 Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 |
Orders | 1. The application for review in proceedings CC 31283/04 is allowed and the decision to issue a Notice under the Local Government (Miscellaneous Provisions) Act 1960 dated 25 August 2004 is set aside and in lieu thereof there is substituted a decision not to issue such a Notice.,2. The application for review in proceedings DR 555/05 is allowed to the extent that in respect of the two conditions under review, namely conditions (4) and (11) of the Notice of Determination dated 26 July 2005, condition (4) is varied by deleting all words after the phrase "as detailed in" and substituting the following words: "the sketch plan and accompanying letter by Dickie Architects to the State Administrative Tribunal dated 1 March 2006".,3. The application for review is otherwise dismissed and consequently condition (11) is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : BAILEY and CITY OF SOUTH PERTH [2006] WASAT 235 MEMBER : MR P McNAB (MEMBER) HEARD : 24 JANUARY AND 14 FEBRUARY 2006 DELIVERED : Edited reasons delivered extemporaneously on
8 AUGUST 2006 FILE NO/S : DR 555 of 2005
- CC 31283 of 2004
- Applicant
AND
CITY OF SOUTH PERTH
Respondent
Catchwords:
Town planning – Retrospective development approval – Two separate issues before Tribunal – Extent of overlooking from balcony – Balcony's privacy screening – Extent of fill level in front garden area – Neighbour's privacy concerns versus owner's "City lights" views – Tribunal not satisfied that privacy concerns adequately addressed by applicant's proposal for limited screening – Decision of Council on full length screening affirmed – "Tear down" Notice set aside – Minor differences between parties on fill question – Applicant's position
(Page 2)
on fill upheld – Application for review otherwise dismissed – Words and phrases: "directly overlooking"
Legislation:
City of South Perth Town Planning Scheme No 6
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Residential Design Codes of Western Australia (2002)
Result:
Principal decision under review affirmed
Tear down Notice decision set aside
Applicant's position on fill level affirmed
Application otherwise dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M Dickie (Acting as Agent)
Respondent : Mr C Buttle
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
MacAdams and City of Joondalup [2006] WASAT 121
Newman and Town of Cottesloe [2005] WASAT 83
Newman v Town of Cottesloe (2005) 40 SR (WA) 303
Saunders and City of Nedlands [2005] WASAT 190
Case(s) also cited:
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Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79 WASAT
Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Self and Shire of Serpentine-Jarrahdale [2005] WASAT 140
Sistaro Pty Ltd and City of Joondalup [2003] WATPAT 43
Sweetland and Town of Cambridge [2005] WASAT 278
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
(Page 4)
Summary of the Tribunal's decision
1 This review dealt principally with a balcony built on the second storey of a home in South Perth. Retrospective planning approval had been sought for the balcony and a condition had been imposed by the respondent (the City of South Perth) requiring screening along the entire balcony. This would have affected the City views that the applicant (Mr Bailey) enjoyed from the balcony.
2 The applicant had offered a compromise whereby part of the balcony (towards the rear of his property) would be screened.
3 The Tribunal had to interpret the relevant planning instruments, particularly concerning the meaning of the expression "directly overlooking". The Tribunal also had to consider how a proper balance could be achieved between the neighbour's amenity and privacy concerns, and the applicant's amenity expectations concerning his City views.
4 The Tribunal, after reviewing the relevant planning principles, concluded that the neighbour's right to reasonable privacy meant that screening of the entire balcony was required.
5 The Tribunal also dealt with some subsidiary matters concerning the property, namely the fill level of the front yard of the land, and a "tear down" Notice that had been issued for the removal of the balcony. The fill level and scheme proposed by the applicant was approved as a reasonable compromise, and the Notice was set aside. The application for review was otherwise dismissed.
Introduction
6 This matter involves two appeals, namely DR555 of 2005, which concerns retrospective planning approval for a balcony, and another matter related to the fill level of part of the subject land. The other matter is proceedings CC 31283 of 2004, which is an appeal against a Notice to pull down and remove the balcony structure which is the subject matter of the principal appeal. That Notice was issued on 25 August 2004, pursuant to the Local Government (Miscellaneous Provisions) Act 1960 (WA). The two matters were heard and determined together.
7 The procedural history of the matter is as follows. Principally, the matter arises out of a planning approval given by the respondent
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- on 26 July 2005. There was an application for review launched in August 2005 and considerable time was spent in the Tribunal in directions and mediation, and this has substantially narrowed the issues between the parties. The matter was heard in January with a site inspection in February. Various other submissions were filed in the matter and the final submission was received on 12 May 2006.
Subject land
8 The subject land is Lot 156 (No 203) Douglas Avenue, Kensington in the City of South Perth. No information has been provided on the zoning of the land but it comprises a double storey dwelling house with single storey houses on either side, at No 201 and No 205.
9 The Tribunal was assisted with a view of the premises and a site inspection in the presence of the parties, including a site inspection of the neighbouring property. It is convenient at this point to say something about those neighbours. The neighbours at 201 Douglas Avenue have an open outdoor living area with a pergola with heavy vegetation covering it. This structure is located a few metres from the balcony the subject of this review. The balance of the yard at the rear of the neighbour's premises to the south is paved or grassed. A small clothes line is located at the side of the neighbour's house in front of the pergola area and directly under the balcony.
10 It is clear that between the applicant and the respondent there have been some considerable difficulties, if not some friction, in understanding or acknowledging each other's respective positions. The applicant has a number of complaints about the administration of his approvals over recent years. The respondent's position, speaking very generally, does not appear to have been all that consistent over the years but it is to be acknowledged that sometimes there has been compromise by the respondent in the applicant's favour.
11 In any event, this Tribunal has no jurisdiction to inquire into such allegations of what are, in effect, maladministration, and the Tribunal will pass them by. Before doing so, the Tribunal should also briefly record that there is some apparent antipathy between the immediate neighbours to the west at No 201, which has of course fed into the equation so far as the respondent's actions are concerned.
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Issues for the Tribunal
12 There are two issues in this review. The first is the extent of, and nature of, the excavation and fill in the front garden area in relation to the corner at the intersection of the western and front (northern) boundary wall. The second issue is whether retrospective planning approval should be given for the applicant's western upper storey balcony and, if so, are there any conditions appropriate to be imposed on that approval.
13 The second issue is the major issue in this review. The respondent is content for conditional approval to be given. The conditional approval relates to a condition concerning the neighbour's privacy and the consequential screening of the whole of the balcony.
Planning framework
14 The relevant provision of the respondent's Town Planning Scheme No 6 (TPS 6) is set out in the witness statement of Mr Buttle, who appeared for the respondent, and the chain of authority that incorporates the Residential Design Codes of Western Australia (2002) (Codes) is there referred to. The specific clauses adverted to by Mr Buttle are common ground between the parties and I need not reproduce them in these reasons. Speaking generally, there is a discretion given to the decisionmaker, and on review to this Tribunal, to grant planning approval in respect of both matters, a decision particularly influenced in respect of the main matter for review, that is the balcony, by the Codes and questions of amenity.
The balcony
15 I turn first to the question of the balcony. According to Mr Bailey in his witness statement, in 2001 a "solid balcony balustrade [was] built in order to add privacy for myself and my neighbour". It appears that this balcony was renovated or upgraded from one previously approved in 1995. According to Mr Bailey, it was originally approved by the respondent, it appears, under a building licence - but this is not absolutely clear - with a 2000 millimetre width and 100% screening to 1600 millimetres in height.
16 Mr Bailey also says in his witness statement that there "is no direct view from the balcony to the neighbour's property. The direct view is of the roof and the City [of Perth] beyond". This is patently not correct if read literally, as one can see the neighbour's property if one stands on the balcony. But Mr Bailey's words assume a context about the use of the
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- balcony - a context that will be returned to and discussed below. The quote does take us, however, to the real issue here, which is that of the City views which Mr Bailey enjoys.
17 Put simply, the applicant says that, given a compromise that he has made in respect of screening to the south of the balcony, to be referred to in more detail below, his ability to exploit these views outweighs his neighbour's rights to arguably reasonable privacy in respect of the side and rear of his neighbour's premises.
18 The balcony in its present state may be described as a structure with an existing solid balustrade 1.0 metre high around the entire structure, that is, on the west and to the rear (south). The balcony is 5630 millimetres long and 3500 millimetres wide. The balcony's western edge is approximately 4.0 metres from the dividing fence with the neighbouring property.
19 The respondent's Notice of Determination of Planning Approval dated 26 July 2005 imposed the following condition on the applicant:
"(11) Revised drawings to the satisfaction of the City shall be submitted incorporating measures to prevent overlooking of the adjoining property from the first floor balcony. Privacy screening is to be provided for the full length of 5630 millimetres on the western side of the balcony and returned 1500 millimetres along the southern side of the balcony to the rear yard.
The details of the required screening are to be incorporated in the working drawings lodged with the building licence application and are required to show the material(s), colours and presentation of the screen. The screening must be: (a) not more than 20% perforated for the total surface area of the screen; and (b) permanently and securely attached to the balcony."
20 That condition is the formal subject matter of this review. Arising out of the proceedings in this Tribunal, a compromise position has been put forward by the applicant, namely, a pergola roof to be erected above the balcony, and some screening on the balcony, namely, 2860 millimetres of screening at 0.5 metres, that screening to be located on the western side of the balcony extending to 1500 millimetres at the rear with a permeability of 25%. The screening, as I understand it, would be permanently secured to the existing balustrade. The proposal, which
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- has been rejected by the respondent, is nevertheless, the agreed subject matter before the Tribunal.
The R-Codes
21 I turn to the central issue of the interpretation of the Codes. Mr Dickie, an experienced architect who appeared for the applicant and who was his principal witness, drew attention to the need for the Tribunal to properly direct itself concerning the meaning and application of the Codes. Mr Dickie stressed two points. First, the acceptable development, that is, the "deemed to comply" provisions of the Codes, must not be permitted to cramp the scope of the more flexible alternative performance-based criteria. The second point of Mr Dickie was that there was an emphasis in the Codes, namely, on the objective of "reasonable" protection of privacy: Codes, at 81. Mr Dickie relies upon the performance-based criteria in this review. Therefore, according to cl 3.8.1 of the Codes, the applicant has to meet the following standard:
"Avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within the adjoining residential properties, taking into account [certain matters]."
22 (The first dot point that follows here is not relevant, dealing as it does with the positioning of windows. The second dot point refers to the provision of "effective screening", and the third dot point is the "lesser need" to prevent overlooking of extensive back gardens, front gardens or areas visible from the street.) A balcony is considered under the Codes as an active habitable space: Codes, at 79.
23 The applicant has submitted that the compromise position adopted of the southern rear screening is reasonable in itself or points to a proposal which is reasonable, therefore meeting the objective just set out. Secondly, the applicant submits that the prohibitive restriction on direct overlooking is met here because "direct" means a view straight ahead, and not looking down or to the side or requiring a person to stand in a particular area (that is, somewhat "artificially") in order to overlook the adjoining property.
24 Mr Dickie cites Newman and Town of Cottesloe [2005] WASAT 83 (affirmed Newman v Town of Cottesloe (2005) 40 SR (WA) 303), at [38], with its reference to the Codes not requiring complete "invisibility". The Tribunal will return to this interpretation below. Mr Dickie finally submits that, using a 0.5 metre point back from the western balcony
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- balustrade, and 1.65 metres in height (as the frequently asked questions [FAQS] to the Codes suggest is appropriate), a person would have to stand in a very, very limited area away from the point of access to the house, look downwards at almost a 30 degree angle and peer beneath the neighbour's pergola, which is heavily screened with vegetation, in order to observe the neighbours. This, he submitted, in effect, met the requisite degree of privacy under the Codes.
25 The respondent, in reply, argued that the Codes spoke for themselves, that this was a case of direct overlooking from an active habitable space of an outside living area, and that screening of the entire balcony was required as is envisaged by the Codes.
Analysis
26 The Tribunal has come to the conclusion that the applicant's contentions on this point ought to be rejected.
27 It is clear from recent cases such as MacAdams and City of Joondalup [2006] WASAT 121, Saunders and City of Nedlands [2005] WASAT 190 and Newman and Town of Cottesloe (already referred to), that the applicant bears, to some extent, a practical burden of persuading the decisionmaker, or this Tribunal on review, that legitimate privacy concerns - which are, of course, not absolute but are emphasised in the Codes - are properly addressed by the applicant's particular proposal. I draw attention to what I said in Saunders and City of Nedlands at [37]:
"This Tribunal takes as its starting point the need to guard against [the] 'privacy standard' set out in the R Codes from being eroded."
28 I was then citing Newman and Town of Cottesloe. There, the Tribunal acknowledges, at [38]:
"It is not the intention of the [R Codes] to make habitable andoutdoor spaces of a neighbour invisible from the neighbouring dwelling. An attempt is made in the [R Codes] to achieve a compromise between avoiding overlooking and … [enabling] reasonable development to proceed."
29 I continued:
"It seems clear enough that the current proposal before the Tribunal (dealing with actively habitable rooms overlooking, as they do, a corner of the neighbour's bedroom and his outdoor
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- entertainment area) generally seems to run counter to the central tenets of the R Codes as manifested in the passages set out above.
Those provisions particularly emphasise a combination of adequate measures with a starting point or presumption, in effect, generally favouring the protection of reasonable privacy where active living rooms (as here) are involved. Thus interpreted, the [applicant] bears the practical burden of persuading the regulatory authority that reasonable privacy has been protected and in a way that necessarily minimises the impact of the ameliorating measures on the amenity of the subject of the protection."
30 The Tribunal also does not accept the applicant's argument as regards the meaning of "direct overlooking". "Direct" has as its ordinary English meaning, according to the Oxford English Dictionary (2nd Edition, 1989) in "reference to space: straight; undeviating in course; not circuitous or crooked". Moreover, according to Black's Law Dictionary (6th Edition, 1991) which is an American dictionary but which is used frequently in the Tribunal, the legal meaning includes the following (emphasis added):
"In the usual or natural course or line; immediately upwards or downwards; as distinguished from that which is out of line, or on the side of it. In the usual or regular course or order, as distinguished from that which diverts, interrupts or opposes. The opposite of cross, contrary, collateral or remote."
31 Here, the case resembles, to some extent, Newman and Town of Cottesloe at [35] in that, if one stood at the relevant point "and looked down towards the west, they would have a view of the rear yard [of the adjoining property]".
32 In addition, "directly", so interpreted by the Tribunal as set out above, promotes the relevant purpose or object underlying the Codes to which I have already referred.
33 In the Tribunal's view, the amenity improvement to the applicant by access across the rooftop to a City view does not sufficiently outweigh the amenity concerns of the neighbour, and therefore screening must be provided across the whole of the balcony so that, in reality, no "window" remains directly overlooking the neighbour's outdoor living area. Moreover, various types of screening technology exist which would
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- permit some retention of view, and to this point, the Tribunal in April sought additional submissions on a possible alternative or compromise form of screening which would allow sunlight and a horizontal view but which did not permit the looking down onto the neighbour's property, thus preserving, to some extent, the City views from the living room adjacent to the balcony and, to some extent, on the balcony itself. The responses from the parties were: guarded acceptance by the respondent subject to the receipt of specifications, and outright rejection by the applicant.
The remaining matter of fill
34 The second condition under review, no (4), has been substantially modified by agreement, such that the requirement to remove fill material in the north-western corner of the front yard has been reduced from 600 millimetres to 300 millimetres. In March 2006, the parties exchanged final positions and plans on this matter. It is unnecessary to go into the history of the building of the relevant walls, and the excavation and related matters. The only issue outstanding is the construction of the slope or slopes to provide for the transition from the north-western corner to natural ground level at the front of the dwelling house.
35 The difference between the parties here is very marginal, with the respondent requiring an even slope in an arc shape commencing 6.0 metres to the south on the north-western boundary wall, that is, two pillars southwards, swinging across to two pillars to the east on the front wall at 9.0 metres. The applicant offers the same slopes at the same points but with a lawn area in the centre of the yard. The lawn would remain at the natural ground level with the north-western point chamfered 1.0 metres on either side. The northern slope would be approximately 6.0 by 2.0 metres in size and the western slope area would be 2.5 metres by 2.0 metres.
36 The Tribunal has inspected the site including the neighbouring front yard. A very large tree is evident on the neighbour's side on their corresponding north-eastern boundary point. Given the marginal difference between the parties, the layout of both properties at this point, (including the existing layout of the applicant's paths) and the minimal impact on any person's amenity, including the neighbour at No 201, the Tribunal is of the view that the correct and preferable decision is to allow the review to permit the excavation in the manner proposed by the applicant.
(Page 12)
Orders
37 For the reasons just given, the Tribunal makes the following orders:
1. The application for review in proceedings CC 31283/04 is allowed and the decision to issue a Notice under the Local Government (Miscellaneous Provisions) Act 1960 dated 25 August 2004 is set aside and in lieu thereof there is substituted a decision not to issue such a Notice.
2. The application for review in proceedings DR 555/05 is allowed to the extent that in respect of the two conditions under review, namely conditions (4) and (11) of the Notice of Determination dated 26 July 2005, condition (4) is varied by deleting all words after the phrase "as detailed in" and substituting the following words: "the sketch plan and accompanying letter by Dickie Architects to the State Administrative Tribunal dated 1 March 2006".
3. The application for review is otherwise dismissed and consequently condition (11) is affirmed.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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