Galipo and City Of Fremantle
[2009] WASAT 59
•3 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GALIPO and CITY OF FREMANTLE [2009] WASAT 59
MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 APRIL 2009
FILE NO/S: DR 398 of 2008
BETWEEN: CARMELO GALIPO
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Conditions of development approval - Retrospective planning approval - Refusal - Visual privacy - Overlooking from upper level balcony - Sloping site - Provision of obscure glazing to balcony balustrade - Adjoining properties - Whether balustrade complies with visual privacy requirements of Codes
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 5.2.2, cl 10.2.1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252
Residential Design Codes of Western Australia (2008), cl 6.8.1
State Administrative Tribunal Act 2004 (WA)
Result:
Application for review is allowed
Development approval granted
Category: B
Representation:
Counsel:
Applicant: Ms A Butterworth (Acting as Agent)
Respondent: Mr S Bain (Acting as Agent)
Solicitors:
Applicant: Allerding & Associates (Town Planners)
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This matter involved an application for review of the refusal of a retrospective planning application for a balcony balustrade as constructed at No 53 (Lot 32) Solomon Street, Fremantle.
The balcony was constructed as part of a two storey plus basement addition to an existing house. The planning approval granted for the addition included a condition which required the balcony balustrading to have obscure glazing to a height of 1.2 metres. The balustrading installed by the applicant has a height of approximately 660 millimetres.
The issues were whether the balustrade as constructed satisfied the visual privacy requirements of the Residential Design Codes of Western Australia (2008) in relation to the adjoining properties.
It was agreed by the parties that the balustrade as constructed satisfied the acceptable development requirements of the Residential Design Codes of Western Australia (2008) in relation to the visual privacy of the western (rear) adjoining property. In addition, the Tribunal found that the applicant had attempted to mitigate potential overlooking by setting the balcony back 9.3 metres in lieu of the minimum 7.5 metres from the rear boundary as well as providing low level obscure panels which substantially prevented overlooking particularly when seated on the balcony.
With respect to the southern (side) adjoining property, the Tribunal found that the rear triangular section of the property which could be viewed from the balcony when standing at 0.5 metres from the edge was not an outdoor living area. The Tribunal determined that the balustrade as constructed satisfied the performance criteria of the Residential Design Codes of Western Australia (2008) in relation to the visual privacy of the adjoining property to the south.
The Tribunal therefore allowed the application for review and granted development approval for the balustrade as constructed.
Introduction
These proceedings involve an application brought by Mr Carmelo Galipo (applicant), pursuant to s 252 of the Planning and Development Act 2005 (WA), for review of the decision of the City of Fremantle (respondent or City) made on the 2 October 2008 to refuse retrospective planning approval for the balustrade as constructed on the rear upper balcony of No 53 Solomon Street, Fremantle (site or subject site).
Site and locality
The subject site is No 53 (Lot 32) Solomon Street, Fremantle. It is rectangular in shape with a street frontage and width of 15.09 metres, a length of 35.41 metres and an area of 531 square metres.
There is an existing dwelling on the site which consists of an older single storey house facing the street with a recent two storey plus basement addition to the rear.
The site slopes from east (street boundary) to west (rear boundary) and has a drop of approximately 1.5 metres. The height of the subject site allows for a view from the upper floor, towards the west, of the Indian Ocean.
Planning framework
The site is zoned 'Urban' under the Metropolitan Region Scheme. The site is zoned Residential R25 under the City of Fremantle Local Planning Scheme No 4 (LPS 4).
Clause 5.2.2 of LPS 4 provides that '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.'
Clause 10.2.1 of LPS 4 lists matters the City shall have due regard to in considering applications for planning approval and includes the following:
…
(i)the compatibility of a use or development within its setting,
…
(o)the preservation of the amenity of the locality,
…
(w)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal,
…
Proposed development
The proposed development is the installation of glass balustrade panels to the rear upper floor balcony of the recent addition. These glass panels are already installed on site, consequently the application the subject of this review is for retrospective planning approval.
The recently constructed addition was approved by the City on the 22 February 2005 and included the following as condition 12:
The balustrade panels located on the rear balconies to be constructed of frosted glass and increased in height to 1.2m to the satisfaction of the Director Urban Management.
The balustrade panels have been constructed in glass and to a height of 1.2 metres but the frosted section is only 660 millimetres in height.
The balcony itself is set back 1.55 metres from the southern boundary, 9.3 metres from the western boundary and more than 8.5 metres from the northern boundary.
Site view
The Tribunal had the benefit of a site visit on 17 February 2009. The upper west facing balcony was inspected. The Tribunal viewed the installed glass balustrade panels from various positions on the balcony including while seated on outdoor lounge furniture located on the balcony.
It was noted that while seated, the existing frosted sections restricted views of the adjoining properties to the rear and side. When standing at a distance of 1 metre from the western edge of the balcony, a triangular section of the north-west corner of the southern adjoining property could be viewed. If the balustrade was frosted to the full height of 1.2 metres this would be obscured.
When standing 0.5 metres from the western edge of the balcony it was possible to view the same section of garden. It was noted that this area contained a shed and some vegetation. It is not currently used as an active outdoor area. If the balustrade was to be frosted to 1.2 metres as required by condition 12 of the original development approval, this section of garden would still be visible from this position on the balcony.
Council’s decision
The applicant applied for retrospective planning approval for the balustrade panels as constructed (with obscure glazing to 660 millimetres in height instead of to 1200 millimetres in height). The City refused to grant approval for the following reason:
The balustrade as constructed does not satisfy the performance criteria of Clause 6.8.1 of the Residential Design Codes of Western Australia (2008) in that the use of low level obscure glazing does not sufficiently protect the amenity of the adjoining property owners.
The issue
The main issue which arises for determination in this review is whether the balustrade as constructed satisfies the visual privacy requirements of cl 6.8.1 of the Residential Design Codes of Western Australia (2008) (Codes).
The balcony has the potential to overlook three adjoining properties. The Tribunal will concentrate on the western and southern adjoining properties.
Visual privacy of adjoining property to the west (rear)
Mr Simon Bain and Ms Amanda Butterworth, representatives for the respondent and applicant respectively, both agree that the development complies with the visual privacy requirements of the Codes with respect to the adjoining property to the west (rear) of the subject site. A setback of 7.5 metres is required in order to satisfy the acceptable development requirements of cl 6.8.1 of the Codes and in this case a setback of approximately 9.3 metres has been provided.
It is worth noting that the council officer who prepared the report for the council meeting on 23 September 2008 was of the same opinion. The report suggested that the sloping topography of the subject site and the adjoining rear site combined with the height above ground level of the existing balcony did accentuate the visual impact on the adjoining property to the rear. However, it stated, 'in built up urban and suburban areas, it is considered reasonable to expect that some level of overlooking may exist from development of two-storeys or higher'. The Codes state 'absolute privacy cannot be expected in all cases' but; 'a reasonable level of privacy can be achieved through good design'.
In this case, the Tribunal is of the view that the applicant has used good design to mitigate potential overlooking by setting the balcony 9.3 metres from the rear boundary in lieu of the minimum 7.5 metres and by providing obscure glazing to the lower section of the balustrade even though the existing balcony satisfies the acceptable development criteria of the Codes without it. The result is that from a seated position on the balcony there is virtually no overlooking of the rear adjoining property.
Furthermore, for the purposes of this review, it is agreed by both parties that the only issue to be determined is the potential overlooking of the southern adjoining property from the western balustrade of the top rear balcony.
Visual privacy of adjoining property to the south (side)
It is Mr Bain’s opinion that the balustrade as constructed does not comply with either the objective or the performance criteria of cl 6.8.1 of the Codes. Clause 6.8, 'Privacy requirements', states:
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.
6.8.1 Visual Privacy
P1 Direct 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 a minimal impact on residents 'or neighbours' amenity.
Where opposite windows are offset from the edge of one window to the edge of another, the distance of the offset should be sufficient to limit views into adjacent windows.
Mr Bain is of the view that the amenity of the adjoining properties to the south and west and the area in general are impacted adversely. In his witness statement he argues that 'the active habitable spaces and outdoor living areas of the adjoining property to the south are overlooked' and therefore the performance criteria of cl 6.8.1 of the Codes are not satisfied.
Ms Butterworth describes the area of the southern adjoining neighbour that is overlooked as 'not an active habitable space or an outdoor living area but a garden area'.
This adjoining property has an outdoor area immediately to the rear of the existing house and she agues that the area potentially overlooked from the balcony should be described as 'extensive areas of garden' which according to the Codes does not necessarily need to be protected from overlooking.
Having had the benefit of a view of the site, the Tribunal agrees with Ms Butterworth and is of the opinion that the rear triangular area of the southern adjoining property that can be viewed from the balcony is not an outdoor living area. Consequently, as discussed in the explanatory guidelines of the Codes, protection from overlooking is not required as 'protection from overlooking generally is not necessary for extensive areas of garden which are well separated from the dwelling to which they relate'.
The council officer's report reinforces this view and states:
that the balustrade does satisfy the performance criteria with respect to visual privacy, as the obscure glass on the lower half of the balustrade is designed integrally with the building, and will prevent overlooking on a downward angle into the adjoining property. In addition, the third floor balcony does not overlook any sensitive or active areas of the adjoining southern property.
The Tribunal finds that the balustrade as constructed does satisfies the performance criteria of cl 6.8.1 of the Codes.
Conclusion
The Tribunal has determined that the rear triangular area of the adjoining property to the south, visible from the edge of the balcony, is not an outdoor living area and that the balustrade as constructed satisfies the performance criteria of the Codes in relation to the visual privacy of the southern adjoining property.
Notwithstanding the fact that the parties agreed that the balustrade as constructed satisfies the visual privacy and acceptable development requirements of the Codes with regard to the western (rear) adjoining property, the Tribunal found that the applicant had used building location and screening devices to minimise potential overlooking of this adjoining property.
The Tribunal has found that the balustrade as constructed meets the objective and the performance criteria of cl 6.8.1 of the Codes. The application for review is therefore allowed and development approval for the balustrade as constructed is granted.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 2 October 2008 to refuse development approval for a balustrade as constructed at No 53 (Lot 32) Solomon Street, Fremantle, is set aside and a decision is substituted that approval is granted.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R MOORE, SENIOR SESSIONAL MEMBER
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