Harper and City Of Fremantle
[2007] WASAT 78
•4 APRIL 2007
HARPER and CITY OF FREMANTLE [2007] WASAT 78
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 78 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:428/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 4/04/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed Condition 3 is deleted from the conditional approval granted for the development of a single house at Lot 9 Price Street, Fremantle | ||
| B | |||
| PDF Version |
| Parties: | DONNA HARPER CITY OF FREMANTLE |
Catchwords: | Town planning Development Condition of approval Condition requiring upper level window to be fixed, obscured or translucent glass to a height of 1.6 metres above upper floor level Overlooking of neighbour Residential Design Codes of Western Australia 2002 Element 8: Privacy Performance criteria Acceptable development standards Bedroom setback from boundary and neighbour |
Legislation: | City of Fremantle Town Planning Scheme No 3, cl 55 City of Fremantle Local Planning Scheme No 4, cl 5.2.2, cl 8.1, cl 10.2.1, cl 10.2.1(a), cl 10.2.1(c), cl 10.2.1(s), cl 10.2.1(w) Planning and Development Act 2005 (WA), s 242 Residential Design Codes of Western Australia 2002, cl 3.8, cl 3.8.1 A1(i), cl 3.8.1 A1(ii), cl 3.8.1 A1(iii) and cl 3.8.1 P1 |
Case References: | Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 (S) |
Orders | 1. The application for review is allowed.,2. Condition 3 is hereby deleted from the approval to commence development of the proposed house at Lot 9 Price Street issued by the City of Fremantle on 22 November 2006. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HARPER and CITY OF FREMANTLE [2007] WASAT 78 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 4 APRIL 2007 FILE NO/S : DR 428 of 2006 BETWEEN : DONNA HARPER
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Development - Condition of approval - Condition requiring upper level window to be fixed, obscured or translucent glass to a height of 1.6 metres above upper floor level - Overlooking of neighbour - Residential Design Codes of Western Australia 2002 - Element 8: Privacy - Performance criteria - Acceptable development standards - Bedroom setback from boundary and neighbour
Legislation:
City of Fremantle Town Planning Scheme No 3, cl 55
(Page 2)
City of Fremantle Local Planning Scheme No 4, cl 5.2.2, cl 8.1, cl 10.2.1, cl 10.2.1(a), cl 10.2.1(c), cl 10.2.1(s), cl 10.2.1(w)
Planning and Development Act 2005 (WA), s 242
Residential Design Codes of Western Australia 2002, cl 3.8, cl 3.8.1 A1(i), cl 3.8.1 A1(ii), cl 3.8.1 A1(iii) and cl 3.8.1 P1
Result:
The application for review is allowed
Condition 3 is deleted from the conditional approval granted for the development of a single house at Lot 9 Price Street, Fremantle
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers
Respondent : Mr S Carter (Acting as Agent)
Solicitors:
Applicant : Hardy Bowen
Respondent : City of Fremantle
Case(s) referred to in decision(s):
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 (S)
(Page 3)
Summary of Tribunal's decision
1 The City of Fremantle granted planning consent for the development of a two storey single house at No 22A Price Street, Fremantle. Access to the lot on which the house was to be built was gained via a right-of-way.
2 A condition of approval imposed by the City of Fremantle required that the upper level window on the northern elevation of the proposed house be fixed obscured or translucent glass to a height of 1.6 metres above the upper floor level. It was said this condition was imposed to protect the privacy of the rear yard of the house to the north on the opposite side of the right-of-way.
3 The Tribunal found that the proposed setback of the proposed first floor bedroom from the neighbours to the north would exceed the acceptable development standard and satisfy the performance criteria for protection of privacy set out in the Residential Design Codes of Western Australia 2002 . The condition requiring the screening treatment for the upper floor window was deleted from the approval.
Introduction
4 Ms Donna Harper (applicant) applied to and was granted conditional approval by the City of Fremantle (respondent) for a two storey single house at Lot 9 (No 22A) Price Street, Fremantle (subject land). The subject land is a 387 square metre lot that sits to the rear of Lot 2, Lot 3 and Lot 4 Price Street. It is separated from those three lots by a right-of-way along its southern boundary. There is also a right-of-way from Price Street which runs along the eastern boundary of the subject land and then turns and runs along the northern boundary. The subject land does not have frontage to a gazetted road but it does have a right to use the right-of-way to gain access to and from Price Street. The width of the right-of-way along the northern boundary is shown on a copy of deposited plan 4503 included with the respondent's bundle of documents to be 3.04 metres wide. Opposite the subject land, to the north of the right-of-way, are the rear yards of Lots 10, 11 and 12 Grey Street.
5 The subject land extends about 32 metres east-west and narrows in width from about 14.5 metres at the eastern end to 10 metres at the western end. The proposed house would be built along the southern boundary and have a varying setback from the angled northern boundary. The house would be two stories along the northern elevation. The upper
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- section of the northern facade would be glazed. Internally, at the first floor level from the northern facade window, would next be a void 2.7 metres wide above the lower level sitting room and then a full height glass northern wall to the first floor bedroom. The setback of the internal glass bedroom wall from the northern boundary of the subject land varies from about 6.2 metres at the western end to about 7.2 metres at the eastern end.
Condition in dispute
6 In granting conditional approval to the proposed house, the respondent imposed three conditions. Condition 3 required:
"the upper level window on the northern elevation shall be fixed obscured or translucent glass to a height of 1.6 m above the upper floor level."
7 The applicant is seeking to have this condition deleted from the approval.
Planning controls
8 The respondent's Local Planning Scheme No 4 (LPS 4) at cl 8.1 provides that development, including a single house on residential zoned land requires the approval of the respondent.
9 Clause 10.2.1 of LPS 4 requires that in determining an application the respondent shall have regard to and may attach conditions relating to various listed matters, where relevant. The matters listed at cl 10.2.1 include, in summary:
a) the provisions of LPS 4; ...
c) any approved State Planning Policy of the Western Australian Planning Commission; ...
s) effect of buildings on adjoining lots, including on privacy; ... and
w) the relationship of the proposal to land in the locality, including the orientation of the proposal.
10 Clause 5.2.2 of LPS 4 requires that residential development conform to the provisions of the Residential Design Codes of Western Australia 2002 (Codes). The respondent's Town Planning Scheme No 3, in place when the respondent imposed condition 3, but now rescinded, had the same requirement at cl 55.
(Page 5)
11 At cl 3.8 of the Codes is Element 8 – Privacy. The objective of the privacy requirements is stated as:
"To ensure a reasonable level of visual and acoustic privacy for both new development and adjoining residents."
12 Under the heading "Performance Criteria" it states:
"New development should meet these criteria:
3.8.1 Visual Privacy
P1 Avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential properties taking account of:
• the positioning of windows to habitable rooms on the development site and the adjoining property;
• the provision of effective screening; and
• the lesser need to prevent overlooking of extensive back gardens, front gardens or areas visible from the street."
"Development that complies with the following is deemed to meet the relevant Performance Criteria:
Notes:
i. Line of sight setback distances shall be measured by application of the cone of vision set out in the explanatory text;
ii. line of sight setback distances include the width of any adjoining right-of-way, communal street or battleaxe access leg or the like; and
iii. these provisions apply only where the adjoining affected land is zoned to allow for residential development."
3.8.1 Visual Privacy
(Page 6)
- A1 Major openings to active habitable spaces or their equivalent which have a floor level more than 0.5 [metres] above natural ground level and positioned so as to overlook any part of any other residential property behind its street setback line, to comply with at least one of the following:
i. are set back, in direct line of sight within the cone of vision, from the boundary a minimum of:
• 4.5 metres in the case of bedrooms;
• 6.0 metres in the case habitable rooms other than bedrooms; and
• 7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandahs and the like); or
ii. are provided with permanent vertical screening to restrict views within the cone of vision from any major opening of an active habitable space; or
iii. are provided with permanent horizontal screening or equivalent, preventing direct line of sight within the cone of vision to ground level of the adjoining property if closer than 25 [metres] to the opening or equivalent."
Submission by neighbour
15 Ms Mary Nixon, the owner of No 11 Grey Street, to the north of the subject land, across the right-of-way, was not a party to the proceedings. She made an application to the Tribunal for leave to file a submission setting out her concerns about the proposed development as there would be a view toward No 11 Grey Street from the first floor of the proposed house. As the respondent relied in part upon the addresses Ms Nixon
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- made to it, and only part of that information was provided in the respondent's bundle of documents, the Tribunal formed the view that Ms Nixon had a sufficient interest in the matter to have her position known. She was granted leave to make a submission as provided for in s 242 of the Planning and Development Act 2005 (WA). The submission was to comprise the text of two addresses made to the respondent, one dated 1 November 2006 and the second dated 15 November 2006, together with a full set of the photographs numbered and referred to in those two documents. The parties were provided with the opportunity to respond to Ms Nixon's submissions.
16 In the respondent's bundle of documents, there was included a cross-section tabled by Ms Nixon at a planning services committee meeting of the respondent. This showed the proposed dwelling relative to the northern boundary of the subject land and the right-of-way and had added the back yard area of No 11 Grey Street on the opposite side of the right-of-way. This sketch showed that the back of the house at 11 Grey Street is some 19 metres from the back fence and about 28 metres from the proposed bedroom on the subject land.
17 Approximately 4 metres from the right-of-way on 11 Grey Street is a building which includes an outside lavatory. It is noted on the cross-section sketch as 2.75 metres high. Adjacent to the rear fence, which has gates in it, is what appears to be an old timber garage. These buildings and the yard were shown in the photographs attached to Ms Nixon's submission.
The issue
18 The issue to be resolved in this matter is whether the proposed house would satisfy reasonable privacy requirements if condition 3 were deleted.
Discussion
19 Condition 3 refers to the upper level windows in the northern elevation of the proposed house. The bedroom at the first floor level would have a full height glass wall along its northern side set back 2.7 metres from the northern elevation. Some references in the submissions from the parties refer to the glass bedroom wall as the bedroom window and there are other references where the windows on the northern elevation are referred to as the bedroom window. As a person at first floor level can get no closer to the northern boundary than the full height glass wall of the bedroom, the Tribunal considers it is the setback
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- from this bedroom wall that is relevant to the consideration of setback requirements and privacy.
20 The respondent advised that, at the application stage, the owner of No 11 Grey Street to the north raised concerns about overlooking in a direct line of sight from the proposed upper level bedroom into her back yard and to the rear of her house. It was the respondent's submission that the privacy of the adjoining neighbour was a relevant consideration and the proposal was considered contrary to cl 3.8.1 A1(ii) and cl 3.8.1 A1(iii) of the acceptable development provisions for visual privacy of the Codes. Condition 3 was therefore imposed.
21 The applicant submitted that the cross-section of the proposed development showed that, in a direct line of site within the cone of vision, the upper level glass wall of the proposed bedroom was set back at distances in excess of the conservative privacy separation setback distance minimum of 4.5 metres for a bedroom specified in the acceptable development provision cl 3.8.1 A1(i) of the Codes.
22 The Tribunal notes that under cl 3.8.1 A1 of the Codes it states that setback from habitable spaces should comply with "at least one" of the three listed subclauses, which are listed as alternatives. "Notes" on acceptable development standards, cited above, state that sight setback distances include the width of the right-of-way. The setback distance from the glass wall of the bedroom to the rear boundary of No 11 Grey Street varies between 9.2 metres and 10.2 metres scaled from the sketches provided. As stated by the applicant, these distances are greater than the 4.5 metre line of sight setback distance from the boundary for bedrooms set as an acceptable standard in cl 3.8.1 A1(i).
23 The respondent's submission that there are two other subclauses that the proposal might not comply with does not negative the development complying with "at least one" subclause; that is cl 3.8.1 A1(i). The applicant referred to the statement at Element 8 under the acceptable development standards that meeting one of the subclauses of cl 3.8.1 A1 was sufficient to satisfy the performance criteria. That is not the end of the matter, however. The respondent, and the Tribunal on review, retains the residual discretion under LPS 4 to consider the development in the light of the matters set out in cl 10.2.1, when determining whether a condition should be imposed: Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 (S) [90]. Consideration must therefore be given to the relationship between the proposed house and 11 Grey Street.
(Page 9)
24 Ms Nixon, although not qualified in planning matters, made the comment that she understood "that as regards the strict application of the Residential Design Codes of Western Australia the plan for 22A Price Street meets the guidelines as far as overlooking is concerned". Ms Nixon further stated, however, that although the Codes may well be appropriate to new development areas, she did not believe they provided the best outcome in protecting existing privacy in infill situations such as this. Ms Nixon said the valued privacy of her outdoor living area at the rear of her house would be lost and she supported a condition to prevent this.
25 To note is that the subject land is not a lot created by recent infill subdivision. Lot 9 is on plan 4503 approved 16 November 1920 and is on Certificate of Title Volume 1164 Folio 357 dated 1953. The subject land has had the potential for residential development for a long time. The question is whether the proposed house affords a reasonable level of privacy to the neighbour.
26 In response to the submission of Ms Nixon, the applicant restated that any overlooking from the proposed two storey house, if found, but which was in any event denied, could easily be tolerated given that the overlooking will be from the upper level bedroom that is "occupied infrequently, mainly at night, without noise, and by relatively few people" (cited from page 78 of the Codes text). It was further stated, as provided in the performance criteria of cl 3.8.1 P1, that if there were to be found any overlooking it is restricted to the extensive back yard of Ms Nixon's property which requires a "lesser need to prevent overlooking".
27 The Tribunal notes that it is about 28 metres from the bedroom to the rear of the house at No 11 Grey Street. It might reasonably be assumed that, for the extensive back yard found at No 11 Grey Street the outdoor living area is most likely to be closer to the house than to the back fence. The area of the yard closest to the subject land is that section between the sheds and adjacent to the back fence. The Tribunal is inclined to the applicant's submission that this is the section of the extensive back yard of No 11 Grey Street that requires lesser need to prevent overlooking.
Conclusion
28 Clause 10.2.1 of LPS 4 requires that there be consideration given to the relationship between the proposed house and the effect this will have on its neighbours. Clause 10.2.1(c) also requires that consideration also be had to any approved State planning policy adopted by the Western Australian Planning Commission and the Codes are such a policy. As
(Page 10)
- noted above, cl 5.2.2 of LPS 4 specifically requires that development conform to the provisions of the Codes.
29 While the Codes are not the only consideration in this matter, they have been specifically incorporated into LPS 4 in order to guide the exercise of planning discretion on such matters as overlooking and privacy. The Codes are a focal point of the decision-making process.
30 Under Element 8 of the Codes, the stated objective is to ensure a "reasonable level" visual privacy. In the explanatory text at page 79, it states:
"Because it is not possible to easily predict how a neighbouring site may be developed in the future, privacy separation distances can most realistically be applied between the proposed development and the property boundary, that is, as line of direct sight setbacks."
31 As to how this is to be interpreted, the explanation given is:
"In the case of active habitable spaces ... an effective privacy separation distance would be of 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 of the order of 7.5 [metres].
In the case of bedrooms, a lesser setback of 4.5 [metres] should be appropriate."
32 In this instance, the setback of the proposed bedroom from the northern boundary of the subject land would exceed the acceptable development standard of the Codes and the setback would be double the standard when measured from the rear boundary of No 11 Grey Street. In addition, for No 11 Grey Street, both what might reasonably be considered an adequate outdoor living area and the rear wall of the house, where visible, would be set back from the proposed bedroom beyond the 15 metre separation distance mentioned as an effective separation distance at page 79 of the Codes.
33 The intent of the Codes is not that a neighbouring back yard should be free of all overlooking, but that care should be taken when overlooking of an outdoor living area is likely to occur. To assist in reaching a compromise between potential overlooking of such areas and the need for reasonable levels of development, the Codes have established direct line
(Page 11)
- of sight setback distances for different forms of space to be occupied by the viewer. These provide an objective standard against which the relationship of a development to its neighbours can be assessed. In this instance, the view would be from a bedroom and the distance to the visible portions of what could reasonably be considered the outdoor living area of the overlooked yard is beyond the setback distance indicated by the Codes. The Codes have been incorporated into LPS 4 by reference and the fact that the development conforms to the relevant provisions of the Codes is significant in relation to the condition requiring review under this application. In this instance, the proposed house has been designed to satisfy the privacy requirements of the Codes and the Tribunal has concluded the design will afford a sufficient level of privacy for the neighbour.
34 The Tribunal has therefore determined that the application can be allowed and Condition 3 deleted from the approval issued by the respondent.
Orders
1. The application for review is allowed.
2. Condition 3 is hereby deleted from the approval to commence development of the proposed house at Lot 9 Price Street issued by the City of Fremantle on 22 November 2006.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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