Croudace and Town of Claremont - [2007] WASAT 323

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CROUDACE and TOWN OF CLAREMONT [2007] WASAT 323

MEMBER: MR P McNAB (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 31 DECEMBER 2007

FILE NO/S: DR 230 of 2007

BETWEEN: MICHAEL CROUDACE
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - Tower - Observation tower in residential zone - Tower external to dwelling but connected from second storey - Local government approved 8.5 metres tower - Addition by owner of pitched roof and small observation deck at building licence stage - Retrospective planning approval sought - Addition of roof triggered need for special approval - Building heights restricted to 6.6 metres in residential zone - Objections by neighbours on amenity and privacy grounds - Residents saw tower as a "watchtower" - Tower would stay even if Local government successful in review - Residential Design Codes of Western Australia (2002) did not apply to development - Additional screening proposed by applicant - Rejection by Local government of modified proposal - Conditions imposed deleting roof and preventing access to tower - Whether reasonable and appropriate conditions - Tower had architectural merit and integrated with other design elements on site - Access to tower through steep ladder/stairs - Officers supporting development in particular circumstances - Retrospective approval principles discussed - Privacy principles discussed - Absolute privacy not achievable - Significant screening and limited use of and access to tower effected reasonable compromise - Conditions deleted by Tribunal - Sufficient cumulative circumstances warranting special approval as to height - Words and phrases: "special circumstances"

Legislation:

Metropolitan Region Scheme
Residential Design Codes of Western Australia (2002)
Town of Claremont Town Planning Scheme No 3, cl 40, cl 40(5), cl 77, cl 77(2)(a), cl 77(2)(b)

Result:

The application for review is allowed
The Town's planning approval be varied

Category: B

Representation:

Counsel:

Applicant: Mr M Hardy
Respondent: Mr J Algeri (Acting as Agent)

Solicitors:

Applicant: Hardy Bowen
Respondent: Property Planning and Appeals Consultants (Town Planners)

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

Bailey and City of South Perth [2006] WASAT 235
Baker v The Queen (2004) 223 CLR 513
Burnett and Town of Cambridge [2006] WASAT 29
Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4
Harris v Port Phillip (Appeal No 1996/37496, No 5750/003/P1, 29 January 1997; [1996] VICCAT 8)
Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This review concerns an observation tower built in suburban Perth.
Mr Croudace, the owner of certain land in Claremont, applied for a review by the Tribunal of a decision by the Town of Claremont to impose two conditions in relation to planning approval for the tower built on his land. He had sought approval concerning certain alterations to the tower that he had built as part of the redevelopment of his property.
The tower was originally approved by the Town of Claremont in 2005. It was then 8.5 metres tall. It did not need any special approval as to its height until Mr Croudace sought to add a pitched roof (which harmonised with the dwelling being built on his land) and a small observation deck. The tower was external to the dwelling but was accessed from the second storey by way of a steep ladder/stair arrangement.
The conditions imposed by the Town of Claremont would have the effect of preventing both the addition of the roof and access to the tower.
Several neighbours had objected to the alterations (and the original tower) on privacy and related amenity grounds. Some regarded it as equivalent to a "watchtower". Thus, the Town of Claremont did not approve of either the roof or the observation deck. The Town of Claremont rejected a compromise that would have seen significant screening being added to the tower to protect the privacy of neighbours.
In the review there was no real contest as to the architectural merit of the altered tower and the officers had largely supported it. There were reasonable set backs in place and the Residential Design Codes of Western Australia (2002) did not apply to the tower.
The Tribunal considered that, amongst other things, the limited use that the tower would have, because of restrictions on access, its small platform size and the proposed screening (leading to restricted views) meant that the development should be approved. The Tribunal also discussed the applicable privacy principles and concluded that absolute privacy was not guaranteed in planning law and practice, only the avoidance of overlooking, and therefore reasonable development. Here, in effect, a reasonable compromise had been reached.
The applicant also had to demonstrate "special circumstances" to obtain an exemption from height restrictions under the relevant Town Planning Scheme. The Tribunal considered various factors, including the Town of Claremont's previous approval of the development at 8.5 metres (well above the limitation of 6.6 metres that would ordinarily apply), and concluded that relevantly unusual or different circumstances had been demonstrated warranting approval.
The review was therefore successful and the conditions in dispute were deleted by the Tribunal.

Introduction

This review deals with Lot 501 (No 7A) Thomson Road, Claremont (subject land or Lot 501). The subject land is owned by the applicant, Mr Croudace, and is a rear Lot in a two‑lot subdivision. Lot 501 is approximately 600 square metres. It is developed with a large modern house of some quality. The applicant is an experienced architect and is the designer of the house. The development also includes a small steel observation tower with a pitched roof standing approximately 8.5 metres tall to the eaves, and 9.5 metres to the tower's apex. This structure is externally connected to the house (from the second storey) and has an effective floor area of 2.6 square metres on the viewing platform, which is reached by a steep, small stairway.
Viewed from the east and west elevations, the tower appears to be in the centre of the two "segments" of the dwelling's principal design elements (dividing, roughly speaking, the living areas - northwards - and the working and storage areas, including a garage - to the south of the lot). Its present roof pitch and materials attempt to match the front segment (south) of the dwelling. The tower is located on the eastern side of the centre-line of the subject land and is set back 4.8 metres from the eastern boundary (12 metres from the dwelling on that land, No 9 Thomson Road) and 12.8 metres from the western boundary of the subject land.
At issue in this review are the height and roof of the observation tower and, in any event, whether access ought to be permitted to the tower.
Some of the applicant's neighbours have objected to the tower, both on aesthetic and privacy grounds. The Town of Claremont (Town), mainly in response to these amenity concerns, has imposed conditions which have had the effect of limiting the impact of the height of the tower by requiring the present roof to be removed and of preventing access to the tower. The height of the tower would, however, remain at 8.5 metres, it having been previously approved to that height by the Town. In response, the applicant has offered a compromise by providing certain screening to the east and west sides of the tower's viewing platform.
The question before the Tribunal is whether the conditions imposed by the Town are appropriate and reasonable, having regard to the circumstances of the case and the planning controls as are applicable to the subject land (such as they are), in light of the applicant's modified proposal which included the proposed screening on the sides of the tower's platform.

The subject land and its environs

Mr Algeri, who appeared for the respondent Town, has provided the following description of the subject land and its immediate locality which it is convenient to reproduce:
"The [subject land] currently has a modern single residential, two storey brick and tile dwelling that has been recently constructed. The [subject land] is effectively the rear battleaxe of an original larger lot. The other part of this original Lot is No 7 Thomson Road [Lot 500 to the south, comprising 617 square metres] which features a dwelling from circa early 20th century [in fact 1895, according to the applicant's plans]. [It] also shares common side boundaries to properties to the east [No 9 Thompson Road] and west [No 5A], and a rear boundary to the north [properties on Bernard Road].
The immediate locality is characterized by a mix or [sic, of] refurbished homes from the original era of development in the 19th and 20th century [sic] and more modern, typically larger dwellings."
The essential facts in this matter are not in dispute between the parties. Thus, the Tribunal does not understand that Mr Hardy, who appeared for the applicant, would have any difficulty with this description of the subject land and its immediate environs.

Planning controls

The subject land is zoned "Urban" under the Metropolitan Region Scheme and "Residential R20" under the Town of Claremont Town Planning Scheme No 3 (TPS 3). The subject land is in the "Residential Zone". Planning approval is needed for this development under TPS 3. The criteria for that approval are set out in cl 77 of TPS 3 which provides as follows (emphasis added):
"77.Design and Construction:
(1)This Clause applies to every application for planning approval with respect to a building.
(2)Before the Council may approve an application for planning consent to which this Clause applies the Council shall be satisfied that:
(a)the appearance of the building will not adversely affect the character or amenity of the locality and will not clash in harmony with the appearance of adjoining or neighbouring buildings;
(b)the proposed building, addition or alteration will not have any adverse affect on the privacy of any residential property;
(c)if the proposal includes the use of reflective glass, that use will not give rise to any glare or other discomfort to the occupiers or users of any other property or to the users of any public place;
(d)all servicing areas and other parts of the land or building, which are likely to be untidy in appearance, will be completely screened from public view and from view from adjoining properties;
(e)additions or alterations to an existing building are so designed as to be sympathetic and compatible with that building."
In regard to cl 77(2)(a) of TPS 3, Mr Algeri did briefly suggest at one point that "it could … be argued that the tower is not representative of any accepted architectural form in the municipality." However, this submission was faintly pressed and no evidence was presented in support of it. The Tribunal is not persuaded that planning approval should be refused on that ground standing alone.
It is common ground that the addition of a roof with eaves to the previously approved tower caused cl 40 of TPS 3 to have application to the circumstances of this case. So far as is relevant, cl 40 of TPS 3 provides as follows (emphasis added):
"40.Height of Buildings:
(1)[A] building shall not be erected or added to so as to exceed the height prescribed or determined in accordance with this Clause.
(2)For the purpose of this Clause the height of a building shall be the vertical distance between the top of the eaves, parapet or flat roof, whichever is the highest and the natural ground level …
(3)[In] the Residential Zone a building shall not exceed 6.6 [metres] in height.
(4)…
(5)Notwithstanding any provisions of this part to the contrary, the Council may in special circumstances only approve of a building of a greater height than prescribed under sub-clause (3) of this Clause on any Lot within the Municipality -
(a)that is located within the area contained within the black border on the map in Appendix V,
…
(11)Notwithstanding the provisions of this Clause, a church may have a tower, spire or arch feature which exceeds the maximum prescribed building height."
Thus, as Mr Hardy put it, cl 40 provides for:
"(a)the determination of the height of a building in sub‑clause (2),
(b)a constraint on height to 6.6 metres in the Residential Zone pursuant to sub-clause (3),
(c)a discretion to approve a building to a greater height pursuant to sub-clause 5(a) and Appendix V."
The subject land is conceded to be "located within the area contained within the black border on the map in Appendix V" of TPS 3.

R-Codes do not apply

Further, it is common ground that:
(a)screening is not required directly by any provision of TPS 3, and
(b)the Residential Design Codes of Western Australia (2002) (R-Codes) do not have application to the circumstances of this case. (This is because the area comprised in the tower "is not an active habitable space as that term is used in clause 3.8.1A1" of the R-Codes.)
In any event, as to (b) above, Mr Hardy submitted that the "neighbouring properties are beyond the cone of vision" as defined by the R-Codes because the "line of sight setback distances are to be measured by application of the cone of vision as set out in the explanatory text [he referred to the R-Codes at page 81] and the privacy setbacks delineated under the hearing [sic, heading] 'Privacy Separation Distances' [he referred to the R-Codes at page 79]".
Mr Hardy submitted that, once setbacks are achieved:
"[t]hese are set out as Acceptable Development provisions which do not require the discretion of the Council. For that reason, they are conservative, providing a relatively high level of protection from overlooking." (R-Codes at page 79.)
Mr Algeri did not, it appears, accept this argument; but it is unnecessary to resolve this point.
Nonetheless, as appears below, the Tribunal is persuaded that the Tribunal's general approach to these privacy standards can usefully inform any planning decision that requires consideration as regards any adverse effect "on the privacy of any residential property", as TPS 3 puts it.

The history of earlier planning approvals

The history of this matter is also common ground between the parties. It is, therefore, convenient to set out that narrative, so far as is material, as recited by Mr Algeri:
"On 5 July 2005 the [respondent] conditionally approved the construction of a two storey dwelling [on the subject land]. This application also included a tower external to the main dwelling …
A building licence was consequently issued by the [respondent] however it was later brought to the [respondent's] attention that the [building licence] drawings varied from the original [planning approval]. One such variation was the relocation of the tower further west [by 1 metre], [the] inclusion of a ladder within the tower for access purposes to the upper platform and a pitched roof added to the structure.
Consequently, an application for (retrospective) planning approval was lodged with the [respondent] on 20 November 2006 to consider the changes that had been incorporated in the building licence …"
The respondent subsequently granted planning approval in respect of this application on 5 June 2007. This approval led to the application for review in this Tribunal which was lodged in late June 2007. That review is however limited to just two conditions. These are emphasised immediately below in the reproduction of the Town's approval resolution.
The complete terms of the approval from 5 June 2007 were as follows (emphasis added):
"That Council grant retrospective planning approval for the construction design modifications for 7A (Lot 50l) Thomson Road, Claremont subject to the following conditions and advice notes [advice notes not reproduced]:
1.Temporary lattice screening being fixed to the top of the northern boundary fence to prevent direct views into the [rear] dwellings at 10 and l0A Bernard Street, Claremont;
2.The lattice screen, described in 1 above, being retained until such time as the Chief Executive Officer is satisfied the screening vegetation is sufficiently mature to provide the required level of privacy;
3.At no time shall the screening vegetation be removed or pruned to the extent that the required level of privacy is compromised;
4.The roof of the tower and any lighting be removed.
5.Access to the tower to be removed permanently.
6.The privacy screen, as required by DA 2864 [the 2005 approval], to be placed along the eastern and western side of the rear (northern) balcony to enhance the privacy of 8 Bernard Street and 12A Bernard Street, Claremont unless explicit written support from the owners of 8 Bernard Street and 12A Bernard Street, Claremont is obtained stating they have no objection to the constructed balcony without privacy screening. The screens are to remain permanently fixed;
7.In all other respects development shall occur in accordance with the drawings submitted with the [2006] application for planning approval (planning Application No 3292), as amended by these conditions and any modifications noted on the approved drawings; and
8.Conditions 1-6 of this Planning Approval must be completed by the [sic] 5 September 2007."
The conditions challenged thus principally agitate the issues of the height of the observation tower and the access thereto.

Modified proposal considered in 2007

Following discussions between the parties in the Tribunal, on 18 July 2007, the Tribunal ordered as follows:
"1.The applicant shall submit to the respondent a modified proposal along the lines discussed in the Tribunal on 18 July 2007 with a view to reconsideration of the decision under review by the respondent Town in accordance with these orders.
2.The respondent is invited to reconsider that modified proposal pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
3.The applicant is, as far as is practicable, to submit that modified proposal by 7 August 2007, with a view to reconsideration by the respondent at its meeting on 21 August 2007.
4.The Tribunal notes that an independent planner may be engaged by the respondent with a view to that person making a recommendation on the modified proposal.
5.If upon a reconsideration the matter is not determined in the applicant's favour then the matter is, subject to these orders, to be determined upon the documents with the parties filing and exchanging all necessary documents on or before 7 September 2007.
6.Prior to the applicant's departure on 14 September 2007 the Tribunal shall, in consultation with the parties, arrange to have a view of the subject land.
7.Thereafter the matter is a reserved decision of the Tribunal.
8.The parties have liberty to apply."
The applicant's modified proposal as submitted, as concisely summarised by Mr Hardy:
"(a)justified the retention of the roof to the tower[;]
(b)justified the retention of the lighting installed in the tower[;]
(c)justified the maintenance of access to the tower; and
(d)proposed the construction of opaque screens on the eastern and western sides of the tower so as to focus principal views to the south."
The applicant's proposed screening - item (d) above - something, in any event, recommended by the officers in their June 2007 report to Council, is discussed in more detail below.

Although not expressed in such terms, presumably all of these matters (which are expanded upon below) are, or relate to, TPS 3's cl 40(5) "special circumstances" requirement which it is necessary to meet to justify the height approval. This matter will be dealt with below.
At its ordinary Council meeting on 21 August 2007, the respondent considered the revised proposal of the applicant and resolved to the effect that:
"(a)the lighting could remain, but
(b)the balance of the conditions should be maintained."
Thus Mr Algeri noted that:
"... the issue of lighting is no longer in contention and that the [respondent] advised the Tribunal by way of letter on 29 August 2007 that it agrees for condition 4 to be re-worded to [read]: 'The roof of the tower be removed.'"

Modified proposal: proposed screening

Although Mr Hardy submitted that screening was not required by the provisions of TPS 3 and it is common ground that the R-Codes are not directly applicable to this development (see further below), the applicant, as has been mentioned, was "prepared to screen the eastern and western sides of the upper level of the tower consistent with the proposals … which formed part of the modified proposal".
The modified proposal shows two extra infill panels, each 1.8 metres in height on the western and eastern sides of the viewing platform. Mr Algeri notes as follows:
"The existing tower currently has balustrading constructed of opaque 'Danpalon' infill panels to a height of 800 [millimetres] which provides a clear, uninterrupted view of the adjoining property at 9 Thomson Road and, to a far lesser extent, properties immediately to the south and west.
The [applicant] has reiterated the offer to provide additional opaque screens to the west and the east and the submitted plans indicate an 'extra panel' that would bring the effective balustrading height to 1.8 metres from the upper floor deck.
The fitment of such extra panelling would restrict any cone of vision downward as 1.8 metres is higher than the eye level of the average adult.
Notwithstanding the above, there would still be eastward views from the south of the tower balcony …"

Site inspection

In the presence of the parties' representatives, the Tribunal also inspected the tower and its surrounds, a visit which included climbing up to its platform and engaging in a viewing out from each side of the structure but in a normal or casual manner. The proposed screening was not in place during that visit so an exercise in imagination was needed.
Mr Hardy submitted that such a view would "reveal the manner and extent" of the following matters:
(a)the "predominant views to the south [that is, to the front of the property, towards the Swan River]";
(b)the "absence of opportunity for casual surveillance", and
(c)the "ameliorative effect of [the proposed] screening on the eastern and western sides of the tower".
The Tribunal's impressions were generally consistent with these submissions. In particular, access to the tower would tend to be restricted by both the type of steep, relatively narrow ladder/stair arrangement leading to it, and the small size of the platform. Further, the limited nature of what could be observed from the tower would make access a fairly deliberative act.

Objecting neighbours

On 11 September 2007, the Tribunal made the following orders:
"1.Leave is granted to the objecting neighbours at nos 5, 5A, and 9 Thomson Road, Claremont to each make a written submission to the Tribunal pursuant to s 242 of the Planning and Development Act 2005, being a submission limited to their existing recent correspondence lodged with the Tribunal.
2.That no further s 242 applications be received after 19 September 2007.
3.That either party to the application for review may make a response (by filing and serving the same) to any current or future s 242 submission received in accordance with these orders by 26 September 2007.
4.There having been a view of the subject land, and all documents having been (or will have been) received by the Tribunal, the matter becomes a reserved decision of the Tribunal to be determined upon the documents on and from 27 September 2007."
Each of these persons or families residing at these addresses had previously made similar objections to the Town and these are summarised (together with other neighbours' submissions) in the officers' report of June 2007.
Mr Algeri submits that these submissions "serve to highlight some of the amenity and privacy considerations" that should be taken into account in the review.
Mr Hardy responded to the objectors and a summary of his response appears below. He expressly declined to address any complaint or objection which touched upon "irrelevant issues" including: an alleged decrease in property values, "personal allegations" in relation to the applicant; or "hearsay comments attributed to others". Generally speaking, Mr Hardy is correct to confine himself to matters relevant to planning considerations.
The Tribunal will briefly deal with each objector's evidence in turn.

The Bochenek family (5 Thomson Road, Claremont), located two properties to the west of the subject land

So far as is relevant, the Bochenek family submitted that the "sole purpose of the tower is to look down into our back yards" and that it was a "spy tower". The tower "dominates our back yard" and was more in keeping "with a shopping centre or used car yard".
In reply, Mr Hardy submits:
"The only substantive submission [by the Bocheneks] relates to an allegation of loss of privacy.
A better view of the whole of the kitchen window of the Bochenek residence is available from ground level at the rear of the [subject land]. It is not necessary to have access to the tower for that purpose.
The screening proposed by the [applicant] to the western side of the tower will provide a complete response to the concern articulated in this respect.
The assertions in relation to loss of amenity by visual intrusion (the 'ugly building' argument) is subjective and not accepted by the [applicant]."
Insofar as this objection related to the height of the tower, Mr Hardy relied upon the discretion given to respondent (or, on review, this Tribunal) by cl 40(5) of TPS 3.

Mr and Mrs King (9 Thomson Road, Claremont) located immediately to the east of the subject land

Relevantly, Mr and Mrs King drew attention to their privacy concerns. Mr Hardy says that "[a]gain, the construction of a screen (in this case to the eastern elevation) will ameliorate the apprehended loss of privacy, together with the limited use able to be made of the area and the dominant focus on the viewscape, to the south".

Mr and Mrs Weston (5A Thomson Road, Claremont) located immediately to the west of the subject land

Mr and Mrs Weston submitted that the tower detracted from the heritage properties in the area, "dominate[d] the adjoining properties" and that the applicant and his friends peer down at them "whenever they chose".
Mr Hardy says: "This submission reiterates matters referred to in earlier submissions, and the same response is provided".

Planning principles

First, it is necessary to emphasise that this review does not address the concept of the tower or its design per se, such that a decision in the Town's favour would lead to its removal. In substance, a tower-like structure had been previously approved by the Town in 2005 to about 8.5 metres in height. Still less is this review an inquiry into the processes of that approval, as some of the objectors would have it.
Secondly, regard must be had to the principles governing retrospective planning approval. In Burnett and Town of Cambridge [2006] WASAT 29 the Tribunal, as presently constituted, said (at [20] - [22]):
"In Taddei v City of Stirling [2004] WATPAT 85, the predecessor body to this Tribunal observed as follows (internal headings omitted, at [19] [22]):
'It is important for the role of the Tribunal in determining an application for retrospective planning approval to be made clear. [The town planning scheme under consideration gives] power to approve development notwithstanding the fact the development has already been carried out [and the scheme] allows an approval to be issued where the application conforms with [the scheme].
In determining an appeal of this nature, the Tribunal is required to test the application against the legislative and policy framework of the Respondent in order to determine whether approval should be given. It is not for the Tribunal to take into consideration the lawfulness or otherwise of the developer's actions in constructing the building without the necessary approvals in place.
This position has been made clear by the Supreme Court [of Western Australia] in the decision of [Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36], an appeal from the [former] Tribunal. In this case, His Honour RobertsSmith J held ... [at 64]:
"... the fundamental position remains that a development application under the Scheme is an application for planning approval and the only considerations relevant to that are planning considerations, which relate to whether the proposed development is appropriate to the locality and in accordance with the objects of the Scheme and the objectives of the R Codes. The conduct or motivation of the proponent are not such considerations and neither the Council nor the Tribunal is equipped to deal with allegations of that nature."
In the decision which gave rise to the [unsuccessful] appeal in [Low v Swan Cove Holdings Pty Ltd], Swan Cove Holdings Pty Ltd v City of Subiaco and Anor [2001] WATPAT 7, the Tribunal held that the onerousness of the appellant in being required to alter the existing development to comply with the relevant planning controls is irrelevant. There is no room for the "balance of convenience" to sway the Tribunal in determining the application [at [48]]:
"The issue must be solved only on planning grounds and an Appellant that comes to the Council or the Tribunal with a completed development must expect that the decision as to approval will be based entirely on planning grounds. The fact that the development is already in place must be disregarded." '
[…]
It is with these principles in mind, applicable as they are to retrospective approval applications of this scale, that the Tribunal has approached this review."
On the issue of the tower itself, there appears to be little published in the planning literature as regards such observation towers. Neither party cited any authority to the Tribunal. However, in Harris v Port Phillip (Appeal No 1996/37496, No 5750/003/P1, 29 January 1997; [1996] VICCAT 8) (Harris) the Administrative Appeals Tribunal of Victoria - the predecessor tribunal to VCAT - dealt with a development application for a "first floor extension of contemporary design and the construction of a 10.3 [metre] high observation tower [in historic South Melbourne]. The application involved demolition of the rear portion of the dwelling and outbuildings, and restoration of the front facade of the dwelling".
As will be seen, similar arguments to those agitated here were considered by the Tribunal. Member Coghlan (as she then was) found as follows (emphasis added):
"As to the matter of overlooking from the observation tower, however - while we accept Ms Ring's view [a town planner called by the applicant] that the tower provides only modest circulation space, would reasonably be expected to attract only infrequent visits, and that more distant views would offer considerably greater interest than any more immediate view to a neighbouring backyard - the tower will, (as Ms Ring also conceded), inevitably provide views to the surrounding area and some nearby private open spaces. While it was Ms Ring's opinion that the distance from those spaces (which she believed was at least 9 [metres]) and the tower's infrequent use would result in a situation where any overlooking was not unreasonable, we do not agree. This is firstly because, parts of the private open space 182 Nelson Road [an immediately adjoining property], are within 9 [metres] of the tower; and secondly, the deck at the rear of that property which serves as the principal open space area is elevated - a factor which we would believe would reduce the perceived distance to the tower. While we accept [counsel for the applicant's] submissions that the 'cheek by jowl' living in an area such as this 'must impact upon what can reasonably be expected in terms of visual and acoustic privacy', we do not believe that that should extend to what some residents might perceive as the presence of a 'watchtower'. We believe that it is appropriate, therefore, to delete the tower."
The reference to "9 [metres]" in the extract of the Tribunal's reasons set out above is a reference to the "9 [metres] recommended by the [Victorian] Good Design Guide as an adequate distance to protect privacy when unscreened upper level windows are proposed (see Element 7 Technique 2)". It is not clear from the reasons whether this standard applied of its own force in the consideration of the appeal or, as here, the standard informs the decision-making process. In any event, the 9 metre standard is described there as "recommended".
As mentioned, the arguments for and against the tower as appear in this passage extracted from Harris are essentially replicated in part in this case. In particular, Mr Algeri argues that:
"... regardless of how often the tower will be accessed, its visual presence to adjoining properties could detrimentally impact the amenity of the locality because of the perceived potential of someone being in such a prominent 'watchtower'."
Nevertheless, there are some significant differences between the cases. For example, the locality appears to have relatively dense development with a substantial heritage component which is quite different from the case here. The tower in Harris, at 10.3 metres, was significantly taller than what has been built here. Further, parts of the private open space of a neighbouring property appear to have been significantly within 9 metres of the tower. This is not the case here, although it is possible that to the east, the neighbour's swimming pool area falls close to that line. In any event, it appears that the equivalent regulatory standard in this State, if it were applicable, would not be breached: see Mr Hardy's argument on the cone of vision under the R‑Codes, set out above.
However, crucially, unlike the case here, there is no suggestion of any major screening to ameliorate the impact of the tower. In addition, here the so‑called "watchtower" effect might continue in any event, as the tower would remain at 8.5 metres in height. In short, Harris might have more relevance to a higher tower proposed to be developed from scratch, especially one without any ameliorating screening being proposed.
The Tribunal turns to the issue of privacy.
Although, as indicated, the R-Codes - which contain standards protecting privacy - do not apply to this development, the adverse effect on the privacy of any residential property is one of the factors to which regard must be had in granting planning approval: cl 77(2)(b), TPS 3.
In Bailey and City of South Perth [2006] WASAT 235 the Tribunal, as presently constituted, made the following general observations concerning "privacy" in developments affecting neighbours (at [27] -[29]):
"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 [(2005) 40 SR (WA) 303], that the applicant bears, to some extent, a practical burden of persuading the decision-maker, or this Tribunal on review, that legitimate privacy concerns - which are, of course, not absolute but are emphasised in the [R‑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.'
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 and outdoor 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.'"
These observations apply equally to "privacy" expressed either as an independent value or one that is expressed as an element of "residential amenity". The Tribunal will return to these matters below.
Finally, Mr Hardy noted that the tower as constructed was originally supported by the administration of the respondent. He submitted that such a consideration is relevant, citing Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4 at [35]:
"Whilst it is true that that is what they are, namely recommendations, it is equally true that they represent the considered recommendations of professionally trained and engaged employees."

Arguments of the parties on the roof height

The applicant's arguments on the tower's roof and its height, and put to the respondent during the reconsideration (reiterated in the Tribunal upon the review), so far as are relevant, were as follows:
"As evidenced by the east elevation of the plan approved [sic] by the [respondent] on 20 November 2006 … the roof of the tower is an architectural reflection of the roof of the garage lying immediately to the south of the tower and provides architectural harmony.
Further, the pitch of the roof to the tower, which is proportionate to the pitch of the roof to the garage, also provides an architectural link to the pitches of the corrugated iron roof of the property lying immediately to the south, namely 7 Thomson Road, Claremont [the subdivided front, the original property] being an early 20th century residence which has been extensively conserved and maintained.
The [respondent] has power to vary the height limits prescribed by the provisions of [TPS 3]."
Mr Hardy elaborated on these points further in his written submission to the Tribunal, as follows:
"There is nothing in the existence of the roof, its pitch or the material from which it is made which have the effect of:
(a)prejudicially affecting the streetscape, noting the distance from the road reserve [Thompson Road] to the tower,
(b)establishing any overbearing impact on adjoining properties or the amenity enjoyed by those adjoining properties whether by way of bulk, scale or other form of visual intrusion."
Mr Algeri responded at length as follows:
"The constructed tower has a height (from existing ground level) of 8.4 metres to the roof line and 9.4 metres to the apex of the roof.
Clause 40 of TPS 3 relates to permitted building heights in the municipality … Clause 40(2) infers that this does not relate to buildings that have no eaves, flat roof or parapet walls.
By placing a roof on the tower, there is now an eaves line and it is therefore subject to the provisions of [cl 40(3) of TPS 3]. Accordingly, the tower requires Council['s] discretion to approve a height in excess of 6.6 metres as provided for by [cl 40(5) of TPS 3] …
The proposal satisfies [cl 40(5)(a) as it is contained in the defined area]. However, I do not believe that the [applicant has] justified the 'special circumstances' [criteria] for the [respondent] to exercise its discretion.
The [applicant's] claims that the tower roof is to compliment [sic] and create an architectural link with the original house that has been retained at No 7 Thomson Road, both in material and pitch. Whilst I do not dispute this claim, in my mind this does not amount to 'special circumstances' [within the meaning of] TPS 3.
It is my [opinion and submission] that 'only' under special circumstances can the [respondent or Tribunal] exercise its discretion and that it should not be construed that such discretion can be afforded merely by compliance with [cl 40(5)(a) or (b) of TPS 3]. Accordingly, TPS 3 gives the decision‑maker, in my view, sufficient cause to maintain [condition 4] in respect to the removal of the roof."

Arguments of the parties on access to the tower

On the question of permanently preventing access to the tower (as the respondent also insisted upon in any event), Mr Hardy submitted as follows:
"Access is by way of a steep stairway with handrails which is structurally integrated into the building itself.
The concern articulated by the condition [that is condition 5] is to ensure that the tower is not capable of access and, therefore, there can be no unacceptable or intrusive surveillance of neighbouring properties.
The floor‑space of the tower does not constitute an active habitable space. It is 2.6 [square metres] in area and can comfortably accommodate only two or three people [at a time]. As a consequence, it is not nor could it be utilised as a place of congregation.
Rather, its purpose is to provide for occasional enjoyment of views to the south (including the Swan River).
It is a place which must be reached by deliberate access; in other words, it does not provide opportunities for casual surveillance such as are objectionable on privacy grounds for windows in habitable rooms which have the effect of overlooking neighbouring properties.
The prospect of an intrusion into the privacy of adjoining neighbours to the east and west of the subject land can be ameliorated by the construction of opaque screens on the eastern and western side of the tower. This will have the effect of directing views from the tower to the south and, thereby, focusing on the principal point of those views namely the Swan River and 'distant' views in that direction."
Mr Algeri says in reply (emphasis added):
"As noted in the officer's report and as [is] apparent from a site visit, the tower gives a clear, uninterrupted view of the adjoining property at 9 Thomson Road. This will be restricted to a significant degree by the placement of additional screening to [the] east and west as offered by the [applicant]. Notwithstanding the above, there is still a case to be argued that the tower may have an adverse affect [sic] on the privacy of adjoining properties and hence does not comply with [cl] 77(2)(b) of TPS 3 for two reasons:
i)even with the fitment of additional screening to the west and east, the tower does provide a direct cone of vision into the adjoining property at 9 Thomson Road from the southern side of the balcony; and
ii)regardless of how often the tower will be accessed, its visual presence to adjoining properties could detrimentally impact the amenity of the locality because of the perceived potential of someone being in such a prominent 'watchtower'."

Conclusions on the parties' arguments

In the Tribunal's view, Mr Hardy's contentions on both issues ought to be preferred. They are persuasive, in short, because they accord with the Tribunal's own impressions having regard to the plans and photographs received into evidence, informed by the observations made at the site inspection. Further, there is no doubt that the merits of the development, taken in isolation, are reasonably strong. So much is largely conceded, quite properly, in the respondent's own case (including the independent work of the officers).
Once it is accepted that a reasonable compromise has been reached in terms of privacy and related amenity concerns (see further below); that there is no going back on at least an 8.5 metre tower‑like object in any event; that no identifiable planning principle is offended; that Harris is useful but readily distinguishable; and that the observation tower (when screened) will have limited use, the outcome of the review is clear - the disputed conditions should be deleted.
On the issue of privacy, in the Tribunal's view, while the outcome is not perfect, particularly as regards the King family at No 9 Thomson Road, a "compromise" between "avoiding overlooking" and enabling "reasonable development to proceed" has been effectively reached. Planning decisions must recognise that:
"Privacy is, to a large degree, a subjective and changing concept. Consequently, it must be understood that absolute privacy cannot be expected in all cases." (R-Codes at page 77.)
However, all of these matters in themselves still require special circumstances to be demonstrated so as to avoid the height restriction in the Residential Zone.

"Special circumstances"

In Baker v The Queen (2004) 223 CLR 513, Gleeson CJ said at 523 (internal citation omitted):
"There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors."
There is no reason in principle why these observations would not be relevant to tribunals or others when administratively exercising such a formulated discretion.
Burchett J in Minister for Community Services and Health v Chee Keong Thoo (1988) 78 ALR 307 (FC) at 324 said that the "core of the idea of 'special circumstances' is that there is something unusual or different to take the matter out of the ordinary course …".
Here, there are several such factors of potential relevance in their weight or quality which when taken together in this particular case arguably are sufficiently unusual, uncommon or exceptional to take the matter out of the ordinary course.
The first is that the concept of a tower-like object (albeit only to 8.5 metres and not then with an observation base) has already been agreed to by the respondent. Importantly, that development already significantly exceeds the 6.6 metre standard. The increase in height is only an additional metre and then only by way of a matching pitched roof.
Of course, the pitched roof has been added leading to the need for special approval; nevertheless, as a design feature it has, in its context, architectural merit (see above) and the officers below concluded that it should be supported on conditions, particularly given its relatively short "wall length" (approximately 2 metres) and the 4.8 metres clearance to the nearest boundary.
Next, the expanded concept of an observation tower as proposed by the applicant (including the proposed screening) again, when viewed in its context, also has some intrinsic architectural merit to it. When it is recognised that only limited practical use of it is possible and a reasonable compromise has been reached as regards privacy considerations, a strong cumulative case has been made out for approval.
Mr Algeri did not really contest the architectural merit points, only whether the circumstances were then truly "special".
However, in the Tribunal's view, when properly understood in their context, they are sufficient to meet the criteria and intent of "special circumstances" as appears in cl 40 of TPS 3.
Accordingly, the two conditions under review should be deleted. The proposed additional screening becomes obligatory because of the effect of the further condition introduced by the Tribunal.

Order

For the reasons set out above, the Tribunal orders that:
1.The application for review is allowed.
2.The Town of Claremont's planning approval dated 5 June 2007 be varied by the deletion of conditions 4 and 5 and the addition of a further condition to the effect that the plan attached to the applicant's modified proposal lodged with respondent Town is deemed to be incorporated in the approval of the respondent dated 5 June 2007.

I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER