Cann and City of Fremantle - [2012] WASAT 211

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CANN and CITY OF FREMANTLE [2012] WASAT 211

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 OCTOBER 2012

FILE NO/S: DR 165 of 2012

BETWEEN: PETER CANN
Applicant
AND
CITY OF FREMANTLE
Respondent

Catchwords:

Town planning Development Orderly and proper planning Amenity RCodes Performance criteria Visual privacy Upper level north-west facing master bedroom window Overlooking Outdoor living area Private open space Active habitable space Vertical screening Horizontal screening Rear setback Materially similar proposals Horizontal cone of vision Vertical cone of vision Identical proposals Reasonableness of condition

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 5.2, cl 5.2.2
City of Fremantle Town Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 252(1), Pt 1
Residential Design Codes of Western Australia (2010), cl 1.3, cl 6.8

Result:

Application for review dismissed
Decision under review varied

Summary of Tribunal's decision:

This matter involved an application for review of condition 3 of a planning approval granted by the City of Fremantle at No 38 (Lot 9) Tuckfield Street, Fremantle. The applicant sought removal of the condition which related to measures to address the perceived problem of overlooking into the backyard of a neighbouring property at 15 Burt Street, Fremantle.
In examining this matter, the Tribunal considered the position of the parties, as well as those of Ms Victoria Jackson, the part owner of the adjoining No 15 Burt Street.
The Tribunal addressed the issue as to whether the current approved proposal (DA 518/11) was materially similar to an earlier 2003 proposal (DA 574/03), whether the proposed upper level north-west facing master bedroom window met the objective and performance criteria of the visual privacy element of the Residential Design Codes of Western Australia (2010), and whether the imposition of condition 3 was fair and reasonable. The matters of orderly and proper planning and amenity were also addressed.
The Tribunal determined on the question of 'materially similar proposals' that, although the approval granted in 2003 was for a similar residential structure to that currently proposed, the two proposals were not identical. Also, the conditions and circumstances pertaining to the two approvals as considered by the City of Fremantle in its evaluations had changed over time.
On the question of whether the proposed master bedroom window would meet the objective and performance criteria of the Residential Design Codes of Western Australia (2010) with respect to visual privacy, the Tribunal was not convinced that direct overlooking into the backyard of No 15 Burt Street had been minimised. Accordingly, although the imposition of a condition to minimise overlooking as required by the respondent was considered fair and reasonable in the circumstances of this case, it was the Tribunal's view that the condition needed to be more clearly specified.
The application for review was therefore dismissed and condition 3 was varied.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: City of Fremantle

Solicitors:

Applicant: N/A
Respondent: N/A

Case(s) referred to in decision(s):

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Dilatte & Anor v MacTiernan [2002] WASCA 100
Rossi and City of Bayswater [2010] WASAT 33
Tran and Town of Vincent [2009] WASAT 123
Tran and Town of Vincent [2009] WASAT 123 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter involves an application, dated 1 May 2012, by Mr Peter Cann (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of condition 3 of a planning approval by the City of Fremantle (respondent, City or Council) for the partial demolition and two storey rear additions and alterations to an existing single house at No 38 (Lot 9) Tuckfield Street, Fremantle (subject site).
The requirements of condition 3 are:
Prior to occupation, the upper level window(s) on the western elevation of the master bedroom shall be either:
(a)fixed obscured or translucent glass to a height of 1.65 metres above the upper floor level, or
(b)be fixed with vertical screening which incorporate[s] horizontal [louvres] to a height of 1.65 metres above the upper floor level, or
(c)a minimum sill height of 1.65 metres as determined from the internal floor level, or
(d)screened by an alternative method to the satisfaction of the Chief Executive Officer, City of Fremantle,
to prevent overlooking in accordance with Clause 6.8.1 A1 of the Residential Design Codes and thereafter maintained to the satisfaction of [the] Chief Executive Officer, City of Fremantle.
Of particular relevance to this matter are the submissions of Ms Victoria Claire Jackson, partowner of No 15 Burt Street, Fremantle, which adjoins the subject site at the rear.

Subject site

The subject site at No 38 Tuckfield Street, Fremantle can be described as Lot 9 (Plan 102) on Certificate of Title No 1082, Folio 170. It has a front and rear boundary width of 12.17 metres, a northern boundary of 25.07 metres, a southern boundary of 25.13 metres and a site area of approximately 304 square metres.
The subject site is located on the western side of Tuckfield Street, approximately 50 metres south of the Artillery Barracks and some 150 metres north of the Fremantle Arts Centre. It is located at the apex of Tuckfield Street and has extensive views to the north across to Fremantle Harbour and the ocean and to the southwest to the Fremantle Town Centre.
The subject site has an existing single storey brick and tile dwelling on the front portion of the property and a two storey addition at the rear. The adjoining property to the north at No 40 Tuckfield Street contains a traditional residence with a two storey addition to the rear, whilst the residence immediately to the south at No 36 Tuckfield Street contains a renovated three level dwelling.

Legislative and policy framework

The subject site is zoned Urban in the Metropolitan Region Scheme and Residential under the City of Fremantle Local Planning Scheme No 4 (LPS 4). It has a residential density coding of R25.
The subject site is individually listed on the City's Heritage List and is identified as a Management Category Level 3 place on the City's Municipal Heritage Inventory.
Of relevance to this matter are both the State Planning Policy 3.1 (SPP 3.1) Residential Design Codes of Western Australia (2010) (RCodes), prepared under s 26 of the PD Act by the Western Australian Planning Commission and the Residential Design Codes of Western Australia Explanatory Guidelines (RCodes Guidelines).

Respondent's position

The position of the respondent is outlined in its statement of issues, facts and contentions (respondent's SIFC) dated 20 July 2012. The respondent contends:
a)the upper level master bedroom window (subject window) as proposed on the northwestern elevation of the approved plans (DA 518/11), dated 26 March 2012, does not meet the performance criteria nor the objective of Design Element 6.8.1 of the RCodes as the window overlooks the outdoor living area of the northwestern adjoining property at No 15 Burt Street, Fremantle;
b)the increase in the floor level of the proposed development above the existing family room floor level of approximately 1.63 metres will allow for a further elevated view over and into the outdoor living area of No 15 Burt Street, and therefore does not satisfy the performance criteria of Design Element 6.8.1 of the RCodes;
c)the City's standard condition of approval relating to privacy was modified to allow for the inclusion of condition 3(d). This condition provided an opportunity for the applicant to suggest a solution to the loss of privacy to the rear of No 15 Burt Street whilst still allowing for a view of the port from the master bedroom, whether lying in bed or standing in the room;
d)horizontal screening that extends out beneath the master bedroom window sill is a suitable compromise to the issue of visual privacy, preventing overlooking to areas of private open space at No 15 Burt Street whilst still permitting open views to the port;
e)failure to provide a suitable screen will result in an undue and adverse offset on the amenity of No 15 Burt Street; and
f)the proposed development involving demolition and redevelopment of the existing two storey addition is not materially similar to the approval for alterations and additions issued by the respondent on 11 November 2003.

Applicant's position

The position of the applicant is outlined in a statement of issues, facts and contentions (applicant's SIFC) dated 31 July 2012. The statement broadly contends in relation to the respondent's SIFC:
a)the view to the harbour and ocean has been enjoyed from the subject site for nearly 100 years;
b)no portion of the living room windows, door or adjacent outdoor living area at the rear of No 15 Burt Street will be overlooked by the subject window. Accordingly, the subject window is deemed to comply with the performance criteria of Design Element 6.8.1 of the RCodes and any condition requiring any form of screening of this window is unwarranted;
c)the existing permanent screen (pergola) in the backyard of No 15 Burt Street provides added visual privacy to the backyard and swimming pool;
d)the daytoday activities undertaken in the master bedroom (sleeping and dressing) will not be visible from, nor will have any view of the backyard of, No 15 Burt Street;
e)the subject site's locality is characterised by medium density development. The RCodes Guidelines note that higher levels of privacy are achievable in low density areas than higher density areas, so Council's objective to provide visual protection to the whole backyard of No 15 Burt Street is unwarranted;
f)the development proposed by DA 518/11 provides greater visual privacy to the backyard of No 15 Burt Street than is afforded by the existing first floor living room and adjacent balcony as well as that proposed earlier in 2003 by construction of the large master bedroom window in DA 574/03;
g)when No 15 Burt Street was purchased by the current owners, the backyard was visible from the first floor living rooms and balconies of both No 38 and No 40 Tuckfield Street. It follows that the level of privacy available to this backyard at that time, and now with the recent removal of a backyard outbuilding, is not deemed as problematic by the current owners;
h)Council's discretion would not be required to approve the subject window should it have a 4.5 metre rear setback. On this basis, it is unreasonable for Council to seek a condition of approval for an extensive (neighbouring) backyard that would be afforded no protection by a compliant rear setback;
i)the proposal by Council for horizontal screening extending out from the master bedroom window sill would require a screen to extend out beyond the rear boundary of the subject site in order to prevent overlooking of private open space at the rear of No 15 Burt Street. Also, it would remove solar access to the ground floor northwest facing windows, and significantly impede the effectiveness of the clothes drying area at ground level;
j)the development proposed by DA 518/11 is materially similar to DA 574/03 as the planning framework is identical for both approvals and the context and circumstances of DA 518/11 have not changed in any material way since the original approval of DA 574/03. More importantly, the component of the application for review (subject window) has been modified (reduced in size and sill height raised) to increase the visual separations between the subject site and backyard of No 15 Burt Street;
k)although the respondent contends that DA 574/03 is not materially similar to DA 518/11, as the latter involves additional demolition, the PD Act includes 'demolition', 'alteration' and 'addition' under the overall definition of 'development'. Accordingly, Council's assessment and determination of DA 518/11 should have been consistent with its assessment and determination of DA 574/03, particularly as the latter involved significant demolition, and the subsequent reconstruction of the dwelling (particularly the first floor level) would have resulted in a near identical height, finished floor level, rear setback, internal layout and size as currently proposed by DA 518/11;
l)as consistency of decisionmaking should be afforded significant weight in the interests of orderly and proper planning, Council's decision to impose condition 3 is inconsistent with its previous assessment and determination of a nearly identical application for the subject site, and is therefore not in the interests of orderly and proper planning; and
m)notwithstanding the nearly identical nature of the proposals, the subject window complies with the objectives and performance criteria of Design Element 6.8.1 of the RCodes.

Submission by Victoria Jackson

The witness statement of Victoria Jackson dated 10 August 2012 advises:
a)the west facing pergola in the backyard at No 15 Burt Street was erected by the previous owners in 1993, presumably because of privacy issues resulting from the illegal build at the subject site. The structure is not stable or strong enough to support a roof;
b)there can be no guarantee that the master bedroom proposed by the applicant will be used as such and, as the drawings show a window seat, we have no desire to be aware of the occupants seated at the window with our garden in full view;
c)our swimming pool is totally overlooked and the original shade sail at the eastern end, installed for privacy, will be relocated to the western end for sun screening;
d) the garden/patio area, in line with the bedroom window, has no privacy at all. Improvements to provide a much needed garden are planned;
e)when the floor area is raised a further 1.65 metres (1.63 metres), the rear entertainment area and windows will be more exposed to overlooking;
f)a 1.65 metre sill height is our preferred option as it would be less intrusive and go some way to allow us to enjoy our garden and swimming pool without the feeling of being overlooked. Frosted glass to a height of 1.65 metres is an unattractive option;
g)we would be prepared to consider horizontal screening from the master bedroom as a compromise action if provided with more information. However, there would be additional bulk and poor aesthetics and, as the rear wall of the applicant's shed is built approximately 500 centimetres into our property, the true setback is even less than shown on the drawings; and
h)we expect to be able to use the rear of the property at No 15 Burt Street in privacy. This includes the children's play area, swimming pool, pergola, kitchen and family room windows and outside entertainment area.

Assessment of proposal

Background

On 21 October 1992, a Mr Lim (then owner) wrote to Council seeking retrospective approval for the unauthorised second storey addition to the rear of the single house at the subject site, as it was his intention to sell the property. The second storey addition had been built in 1982 without planning approval or a building licence.
On 18 November 1992, Council granted planning approval (DA 259/92) after considering the following advice:
a)there were no specific provisions in the (then) City of Fremantle Town Planning Scheme No 3 to grant retrospective approvals. However, it had been the practice to grant approvals if warranted;
b)the rear setback requirement was 6.0 metres, but the ground floor extension, which had been approved in the mid 70s, was only set back 2.0 metres from the rear boundary;
c)the proposal intrudes onto the rear garden area of two adjoining properties to the north, but the second storey addition had not resulted in any objections from adjoining neighbours since construction; and
d)that the plans dated 22 October 1992 be approved but subject to solid balustrading being provided to the upper level balcony.
On 3 February 1993, a pergola was approved in the backyard of No 15 Burt Street.
On 15 September 2003, the applicant lodged a planning application for a home renovation which included alterations and additions to the ground floor, first floor and roof. A concession to build to a maximum height of 7,585 millimetres was sought, being 585 millimetres above that provided in Design Element 7 of the RCodes.
On 11 November 2003, the City issued a planning consent (DA 574/03) for 'alterations and two storey additions to residence' at the subject site in accordance with plans dated 15 September 2003. The officer's report in relation to the matter advised:
a)although a 4.5 metre setback is normally required under the RCodes, the 2.0 metre setback is supported under the performance criteria, given that it will have a lesser impact than the balcony and there have been no objections;
b)additional roof height supported, as it is designed to enhance energy efficiency and there have been no objections against building height and massing;
c)the reduced setbacks from the boundary with No 36 Tuckfield Street supported under the performance criteria, given that the removal of the rear balcony and reduction in the size of the retreat area will actually reduce overlooking; and
d)that 'a demolition licence is required prior to the removal of the building'.
Since 11 November 2003, the planning consent has been extended on five separate occasions. The latest extension requires the applicant to substantially commence development by 11 November 2013.
On 19 October 2011, the City received an application for planning approval, dated 14 July 2011 (DA 518/11), for proposed alterations and additions to the existing residence, having been advised some five years earlier by the City on 18 October 2006 that a new development application would be required for the revised plans.
In his letter dated 18 October 2011 accompanying his planning application, the applicant advised of '… some minor design amendments' to the earlier 2003 approval. These included:
a)an extension of the plant roof over an additional portion of the roof area; and
b)two additional windows on the southeast and northeast elevations.
On 20 December 2011, an application for planning approval at No 15 Burt Street was lodged with Council for the removal of an existing outbuilding, construction of a new outbuilding in the northern corner of the subject site and new boundary fencing. Planning approval was issued on 20 February 2012.
On 1 February 2012, the officer's report to the Planning Services Committee (PSC) recommended approval to DA 518/11 subject to conditions. The report concluded that:
a)the proposed development was considered to be very similar to the approved DA 574/03 with the key differences being that the applicant was now seeking to demolish and rebuild a rear two storey addition rather than construct and modify the existing two storey addition as approved on 11 November 2003 (DA 574/03); and
b)overall, the development complied with the relevant provisions of LPS 4, the RCodes and local planning policies and where it did not meet the acceptable development criteria, particularly in relation to boundary walls, building height and visual privacy, the development was considered to satisfy the relevant performance criteria of the RCodes.

At its Ordinary Meeting on 1 February 2012, Council resolved to defer the application 'to allow officers to obtain legal advice' regarding consistency of decisionmaking as an aspect of orderly and proper planning.
On 21 March 2012, an approval was granted to DA 518/11 subject to conditions. The officer's report concluded that, upon reviewing legal advice and in the interests of good planning, the visual privacy discretionary matter should not be supported again as in 2003 as the proposed development was not considered to address the relevant performance criteria of the RCodes.
On 1 May 2012, an application for review was lodged with the Tribunal.

Planning framework

PD Act

The term 'development' is defined under Pt 1 ' Preliminary' of the PD Act as:
… means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
…

LPS 4

Under cl 5.2 'Residential Design Codes', the Scheme explains, at cl 5.2.2:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform to the provisions of those Codes.

RCodes

Under cl 1.3 'General objectives of the RCodes', the following is relevant:
1.3.1Objectives for residential development
…
(e)To protect the amenity of adjoining residential properties.
…
1.3.2Objectives for the planning and development process
…
(e)To provide for neighbour consultation and discretionary decisions by councils where acceptable development provisions are not met.
Under cl 6.8 'Privacy requirements', the following is relevant:
Objective
To site and design buildings to meet projected user requirements for visual privacy and to minimise the impact of development on the visual privacy of adjoining residents in their dwellings and private open space.
Performance criteria
6.8.1
Visual privacy
P1Direct overlooking of active habitable spaces and outdoor living areas of other dwellings is minimised by building layout, location and design of major openings and outdoor active habitable spaces, screening devices and landscape, or remoteness.
Effective location of major openings and outdoor active habitable spaces to avoid overlooking is preferred to the use of screening devices or obscured glass.
Where these are used, they should be integrated with the building design and have minimal impact on residents' or neighbours' amenity.
…
The following 'Definitions' in the RCodes are relevant:
Active habitable space
Any habitable room with a floor area greater than 10 [square metres] and any balcony, verandah, terrace or other outdoor living area raised more than 0.5 [metres] above natural ground level and greater than 1 [metre] in dimension and 3 [square metres] in area.
…
Cone of vision
The limits of outlook from any given viewpoint for the purposes of assessing the extent of overlooking …
…
Outdoor living area
The area external to a single house, grouped or multiple dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use …
…
Private open space
Open space set aside on a lot for the exclusive use of the occupants of the dwelling to which it abuts and excludes car parking spaces and access ways.

RCodes Guidelines

The following statements relating to screening for privacy under 'Design element 6.8 privacy requirements' are relevant:
Screening can be employed to limit the cone of vision; and therefore the privacy distances which would otherwise be required …
Privacy screening can occur in various forms, including:
•vegetation;
•permanent elements such as fences, balustrades and louvres; and
•translucent or opaque (ie non-transparent) glazing.
…
Louvres, which are proposed to be relied on for screening, must be fixed or have a physical and permanent limitation on opening, to ensure the level of visual permeability does not exceed the specified standard. Such standards may be subject to discretionary variation taking into consideration any comment and/or agreement from the relevant adjoining property owner.
…
The horizontal cone of vision is defined by the extent of the opening, with a viewpoint 0.5 [metres] from the opening.
…
Application of a vertical component is often more significant, especially for overlooking from upper levels of buildings. Often it will show that the upper level windows of dwellings on elevated sites will have an outlook above and beyond, and not into, an adjoining property.
…
A space could be considered to be overlooked if it falls within the cone of vision as applied from a neighbouring property, and within a given distance.
…
Overlooking from bedrooms and studies, which may be occupied infrequently, mainly at night, without noise, and by relatively few people, is more easily tolerated than overlooking from active areas.
…
Design of new development should avoid overlooking into adjacent habitable room windows, especially of living rooms, and of balconies, terraces and other outdoor living spaces.
…
Where a dwelling has only limited outdoor living space, and especially where its location is fixed, for example, adjacent to indoor living areas, protection from overlooking has high priority …
…
In the case of active habitable spaces, including outdoor living areas and balconies, an effective primary separation distance would be in the order of 15 [metres] or more. Clearly this is not realistically achievable. An acceptable compromise setback where intervening screening is not provided would perhaps be in the order of 7.5 [metres]. In the case of bedrooms, a lesser setback of 4.5 [metres] should be appropriate.

Planning issues

Issue 1: whether the proposed development is materially similar to the approval issued by the City on 11 November 2003 (DA 574/03)

In the respondent's submissions dated 10 August 2012, it is argued:
a)the planning application approved by the City in 2003 sought alterations to an existing two storey structure at the rear of the existing dwelling;
b)the current proposal involves the complete demolition of the existing two storey addition and could be designed to meet the acceptable standards of the RCodes;
c)the respondent has assessed the new development application having regard to existing circumstances and the 2003 approval. Although variations to the RCodes have been supported, the respondent was not prepared to support the privacy variation due to the adverse and detrimental impact that the redevelopment would have on the adjoining residential property; and
d)the application is not materially similar to the 2003 proposal as that was for alterations and additions to an existing structure rather than demolition and reconstruction of a new two storey structure, albeit of a similar shape to the 2003 proposal.
In the applicant's SIFC, he argues:
a)in 2006, an architect and engineer were appointed to prepare building licence (working) drawings for DA 518/11. They recommended strongly against retaining the concrete slab and lower wall sections, as major wall cracks indicated subsistence of the existing footings, and that retaining small portions of the existing dwelling was not practical, safe or costeffective;
b)full architectural and engineering working drawings were prepared on this basis and were nearly identical to those delineated on plans approved by Council for DA 574/03;
c)more particularly, the working drawings show that the building occupies the same site, is the same size, has the same setbacks, has the same finished floor levels and maintains the same internal layout as DA 574/03;
d)some minor design refinements included the bottom of the first floor windows being raised from floor level to 700 millimetres above floor level, the size of the northwest facing first floor window being reduced from 8.75 square metres to 7.75 square metres, the size of the southern facing first floor window being reduced from 8.75 square metres to 4.95 square metres, the size of the ground floor timber deck being reduced, the northwest facing ground floor being removed and a nib wall added to the first floor balcony;
e)other changes included a lower overall height of 43 centimetres, an additional highlight window and a relocated internal stairwell;
f)as the building proposed by DA 518/11 is nearly identical to the building proposed by DA 574/03, then the assessment and determination of DA 518/11 should have been consistent with its assessment and determination of DA 574/03; and
g)the decision to impose condition 3 in 2011 is inconsistent with the earlier decision in 2003 and is not in the interests of orderly and proper planning.
In the Minutes of the PSC dated 21 March 2012, it is advised:
…
(a)at its meeting of 1 February 2012 the PSC resolved to defer the application 'to allow officers to obtain legal advice' regarding consistency of decision[]making as an aspect of orderly and proper planning;
(b)a summary of the legal advice stated:
'if:
(1)[t]he proposed development is materially similar to the development previously approved;
(2)[t]he planning framework is the same for both the approved and proposed developments; and
(3)[t]he context or circumstances have not changed in any substantial or material way since the approval was granted;
consistency in decision[]making would be a relevant, but not determinative, consideration for Council in making a decision about the current development application.'
Quite surprisingly on the matter of 'materially similar proposals', and particularly having regard to [32d)] above, the PSC Minutes dated 21 March 2012 record that:
In review of this legal advice criterion, the City considers that conditions 1 [materially similar], 2 and 3 above are met. Therefore it's considered that consistency in the decision would be a relevant, but not determinative, consideration for Council in making a decision about the current development application.
Other points made in the same PSC Minutes include:
a)that, although the Tribunal, and its predecessor, the Town Planning Appeal Tribunal, had accorded significant weight to consistency of decisionmaking, as an element of orderly and proper planning, they had not approached it as a determinative issue;
b)furthermore, the City's legal advice states that this is consistent with the approach adopted by other consent authorities 'where it has been said that consistency in all circumstances may deny a consent authority the opportunity to change its mind where it might do so in the interests of good planning; and
c)'… it's been advised that Council does have the opportunity and ability to change its mind regarding [a] previous discretionary decision granted in relation to the 2003 approval, should the change be in the interests of good planning.'
In Tran and Town of Vincent [2009] WASAT 123 (Tran), the matter related to a refusal by the Town of an identical (the builder's plans were identical) development previously upheld on review by the Tribunal. The Tribunal upheld the second review in its reasons of 24 June 2009.
In Tran and Town of Vincent [2009] WASAT 123 (S) on the issue of whether costs should be awarded against the Town, Member P McNab (as he then was) advised in his reasons, at [36]:
Although I do not doubt for one moment that the respondent's actions were undertaken other than in good faith it is important for the process of orderly public sector decisionmaking that original decisionmakers pay careful attention to consistency in [their] decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for … rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.
Further, in Rossi and City of Bayswater [2010] WASAT 33, the Tribunal, at [23], observed as follows:
Orderly and proper planning requires that planning decisions be made in a consistent way in relation to a site where the planning framework is the same and the circumstances have not changed in any substantial or material way. …
In Dilatte & Anor v MacTiernan [2002] WASCA 100 (Dilatte) at [61], Malcolm CJ observed:
Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice …
In order to determine whether there has been inconsistency between successive decisions, Malcolm CJ in Dilatte at [62] observed:
The determination whether there has been inconsistency between successive decisions depends upon a comparison of the circumstances in each case and, in particular, to those relevant to each decision. The comparison obviously involves questions of fact and degree. The test is that ordinarily there would need to be 'a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency'.
In the case now before the Tribunal, the circumstances and conditions pertaining to DA 518/11 are different to those pertaining to DA 574/03 for the following reasons:
a)the extent of demolition required to develop DA 518/11 would be greater than that required to develop DA 574/03;
b)as outlined by the applicant at [33d)] and [33e)] above, the working drawings for DA 574/03 are different to those for DA 518/11;
d)the 2010 version of the RCodes (and the RCodes Guidelines) were not in place in 2003; and
e)there was no detailed analysis in 2003 of the likely diminution of privacy on the backyard of No 15 Burt Street, as now argued by Ms Victoria Jackson and the respondent.
In the view of the Tribunal, although a hypothetically completed building resulting from DA 574/03 may have appeared materially similar to one hypothetically completed under DA 514/11, the buildings would not be identical. Again, both the circumstances and conditions and the resulting planning assessment surrounding the two approvals have altered during the eight year intervening period, and would therefore not meet the test in Dilatte to establish a basis for a complaint by the applicant of inconsistency in decision-making by the respondent.

Issue 2: whether the proposed Master Bedroom window on the upper level rear addition meets the objective and performance criteria of Design Element 6.8.1 (Visual Privacy) of the RCodes

As the proposed development does not meet the 4.5 metre setback for a bedroom from the rear boundary as specified under the acceptable development provision 6.8.1 A1 of the RCodes, the matter must be assessed under the discretionary provisions of the performance criteria.
These discretionary provisions are assisted by the use of the concept of a 'cone of vision' to measure the impact of a particular development on the privacy of a neighbouring property.
In the applicant's SIFC, he divides the backyard of No 15 Burt Street into three distinct areas, namely:
1)the outdoor living area directly adjacent to the living room (area 1);
2)the area within the pool fence comprising an outdoor swimming pool and open pergola (area 2); and
3)the area beyond the swimming pool (area 3).
To assist his argument using cone of vision diagrams (both horizontal and vertical) in Appendices 5 10, the applicant concludes that:
a)via the application of the vertical 'cone of vision', only a small portion of area 3 would be overlooked and that the living room windows, outdoor living area, pergola and swimming pool (areas 1 and 2) were not considered to be overlooked; and
b) on this basis alone, the subject window would be deemed to comply with the performance criteria of Design Element 6.8.1 of the RCodes.
In the respondent's submissions, dated 10 August 2012, it argues that, in the 2002 version of the RCodes, the vertical cone of vision had a restricted view of 30 degrees above and below the horizontal level from the viewpoint. Significantly, in the 2010 version, this restrictive view corridor was removed, thereby opening up the angle of viewing and allowing an assessment of view based on direct overlooking.
The respondent concludes that the proposed development, with its northwest facing window, does not minimise overlooking and, by raising the master bedroom floor level by 1.63 metres from that existing, there would be more direct overlooking of the outdoor living area of No 15 Burt Street.
With respect to this matter, the Tribunal had the benefit of an on-site view by Senior Sessional Member L Graham on 26 September 2012.
Based on that view and consideration of all relevant material before it, the Tribunal is not convinced that direct overlooking into the backyard of No 15 Burt Street has been minimised from the subject window.
In reaching this conclusion, the Tribunal is conscious of the fact that, although useful, a cone of vision assessment is not a precise measure of overlooking in all circumstances. For instance, a line of sight taken from above 1.65 metres, or from a person standing closer to a window than 0.5 metres, would create a different overall perspective from the position of the viewer.
Although there is some substance to the argument that an outlook from an elevated site may be above and beyond an adjoining property as stated in [31] above, the Tribunal is not convinced that that would be the case in this instance where the floor level of the master bedroom would only be some 4.5 metres to 5.0 metres above the backyard of No 15 Burt Street.
Again, although overlooking from bedrooms may be more easily tolerated by some than overlooking from more active areas, that is not necessarily the case. For instance, in this case, where greater use of the pool and adjacent areas below the subject window are likely to be actively used in summer, the prospect of being overlooked at any time at random would not be easily tolerated or welcomed.

Issue 3: whether the requirements of condition 3 of the City's planning approval for DA 518/11 are reasonable in the circumstances of this case

The approval of DA 518/11 required the development to be modified to address the matter of loss of privacy resulting from the subject window. Condition 3 included four possible options as outlined in [2] above.
In the respondent's SIFC, it is suggested, at [10d)], that an appropriately located and designed screen could achieve privacy in the backyard at No 15 Burt Street, and also assist the applicant in seeking distant views of the port. The screen would extend horizontally out from beneath the subject window.
The response from the applicant is outlined in his SIFC at [11i)], where he suggests that such a screen would need to extend out beyond the rear boundary of the subject site in order to prevent overlooking. Also, it would remove solar access to the ground floor northwest facing windows and significantly impede the effectiveness of the clothes drying area.
In the respondent's response of 13 August 2012 to written submissions, it is argued, at [65] and [66], that the objective of the screen could be achieved within the site boundaries and could be developed with permeable material that allowed light through, possibly via vertical blades.
The Tribunal favours the applicant on this point, as it is not convinced that a horizontal screen, extending only 2.0 metres out from the sill of the subject window, would achieve the dual objectives of privacy for the backyard of No 15 Burt Street and maintain an effective clothes drying area at ground level on the subject site.

What the Tribunal does support is vertical screening which incorporates fixed horizontal louvres to be erected on the northwestern elevation of the subject window to a height of 1.65 metres above the upper floor level. The louvres would allow an outward view to the port and, at the same time, restrict a downward line of sight into the backyard of No 15 Burt Street. A similar suggestion was made in the officer's submissions at the PSC meeting on 1 February 2012.

Issue 4: the matters of orderly and proper planning and amenity

The matter of orderly and proper planning is best addressed by assessing the proposal against the relevant provisions of the RCodes in this case. An important feature of these provisions is the question as to how a neighbour, or neighbours, might be affected, and conclusions have been drawn in [52] to [54] above.
On the matter of amenity, the reasons in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48] are helpful:
… However, in undertaking this objective inquiry, a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. This can include visual amenity.
In this case, the views of Ms Jackson, who is the neighbour most affected, must be given significant weight. However, a decision must also be fair on all parties and the amenity of the applicant should not be significantly diminished, if at all possible.
As the applicant is expected to enjoy views from both his upper level retreat and master bedroom, a level of protection to improve the amenity of the adjoining neighbour by way of fixed horizontal louvres on the subject window is considered fair, reasonable and equitable in this case.

Conclusions

This review has resulted from the imposition of a condition 3 of a planning approval requiring the applicant to address the perceived problem of overlooking from a rear first floor northwest facing window into the backyard of a neighbouring property at No 15 Burt Street, Fremantle. The decision sought by the applicant is the removal of condition 3.
In the view of the Tribunal, the matter before it is a direct result of a poor planning decision made in the mid 70s to allow a ground floor extension on the subject site to within 2.0 metres of the rear boundary when a 6.0 metre setback was required. An unauthorised second storey rear addition, and subsequent retrospective planning approval in 1992, has now given rise to the question of overlooking, particularly as the current proposal raises the floor level of the second storey 1.63 metres above that existing and the development is still only 2.0 metres from the rear boundary of the subject site.
In its conditional approval of 26 March 2012, the respondent was prepared to support the current proposal and grant concessions from the RCodes with respect to building height and boundary setbacks. However, it was not prepared to grant concessions with respect to the visual privacy requirements of the RCodes.
In examining this matter, the Tribunal considered the arguments of the parties, as well as those from Ms Jackson, the partowner of No 15 Burt Street, in relation to whether the current proposal was materially similar to that approved in 2003 without a visual privacy condition, whether the proposed upper level northwest facing master bedroom window met the performance criteria of the visual privacy element of the RCodes and whether the imposition of condition 3 was reasonable. The matters of orderly and proper planning were also addressed.
The Tribunal concluded that, although the approvals in 2003 and 2012 could, theoretically, give rise to materially similar structures if built, they would not, in fact, be identical for reasons outlined in [42] and [43] above. More importantly, the circumstances and conditions pertaining to the two approvals as considered by Council in its assessments had changed over time.
On the question of whether the subject window would meet the objective and performance criteria of the RCodes with respect to visual privacy, the Tribunal was not convinced, based on the conflicting evidence from the applicant and respondent, that direct overlooking into the backyard of No 15 Burt Street had, in fact, been minimised by the proposals.
In view of this conclusion, the Tribunal considers that the imposition of condition 3 was both fair and reasonable in order to address the issue of overlooking, and that the applicant's argument that there would be no or minimal overlooking was not correct.
However, in fairness to the parties, the size of the subject window(s) has been reduced by the applicant in the current proposal and the respondent has also attempted to find a solution with the suggestion of a horizontal screen projecting outwards from the window sill. However, the Tribunal does not support this proposal.
The Tribunal believes that a fair, reasonable and equitable decision in this case is to give significant weight to the amenity concerns of Ms Jackson and to vary condition 3 to read as follows:
Prior to occupation, the upper level north-western window(s) of the master bedroom shall be fitted with fixed vertical screening which incorporates horizontal louvres to a height of 1.65 metres above the upper floor level to prevent downward overlooking in accordance with cl 6.8.1 A1 of the Residential Design Codes of Western Australia (2010) to the satisfaction of the Chief Executive Officer, City of Fremantle, and thereafter maintained to the satisfaction of the Chief Executive Officer, City of Fremantle.
The Tribunal determines that the application for review is dismissed and that the decision of the respondent is varied in that condition 3 read as set out in [73] above.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent issued on 21 March 2012 granting approval for the partial demolition and two storey rear additions and alterations to the existing single house at No 38 Tuckfield Street, Fremantle is varied as follows:
i)Condition 3 is deleted and replaced with the following condition:
Prior to occupation, the upper level north-western window(s) of the master bedroom shall be fitted with fixed vertical screening which incorporates horizontal louvres to a height of 1.65 metres above the upper floor level to prevent downward overlooking in accordance with cl 6.8.1 A1 of the Residential Design Codes of Western Australia (2010) to the satisfaction of the Chief Executive Officer, City of Fremantle, and thereafter maintained to the satisfaction of the Chief Executive Officer, City of Fremantle.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER