Koutroubas and Town of Cambridge
[2007] WASAT 163
•25 JUNE 2007
KOUTROUBAS and TOWN OF CAMBRIDGE [2007] WASAT 163
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 163 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:4/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 25/06/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld | ||
| B | |||
| PDF Version |
| Parties: | GEORGE KON KOUTROUBAS TOWN OF CAMBRIDGE |
Catchwords: | Town planning Application for planning approval Proposed balustrade Need to address privacy concerns Overlooking Performance criteria Acceptable development provisions Modified proposal Upper level balcony |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.8, cl 3.8.1, cl 3.8.1(A1), cl 3.8.1(A1)(i), cl 3.8.1(A1)(ii), cl 3.8.1(A1)(iii) State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 31 Town of Cambridge Town Planning Scheme No 1, cl 19(3), cl 38(4), cl 39(3), cl 39(4) |
Case References: | Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 |
Orders | For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:,1. The application for review is upheld subject to the following conditions:,(a) That prior to the occupation of the dwelling a new 1.8 metre high hardiplank fence be constructed from the finished ground level on the northern rear boundary of the subject land and continue south along the western and eastern side boundaries at a height of 1.8 metres to points specified by the Town of Cambridge.,(b) That a landscaping plan specifying the number, size, location and variety of trees and shrubs be prepared in consultation with the Town of Cambridge, and then submitted to the Town for approval, and that the landscaping be completed within 28 days of the occupation of the building. ,(c) That prior to the occupation of the dwelling an obscure glass balustrade be constructed and installed in the following form:,(i) to be at a height of 1.65 metres at the north-west corner of the balcony and to wrap around the corner and continue east to a point 2.5 metres along the balcony;,(ii) to be at a height of 1.65 metres at the north-east corner of the balcony to wrap around the corner and continue west along the balcony to a point 1.5 metres beyond the western wall of the guest room;,(iii) to be at a height of 1.3 metres between the two 1.65 metre levels of balustrade specified in (c)(i) and (c)(ii) above. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KOUTROUBAS and TOWN OF CAMBRIDGE [2007] WASAT 163 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 25 JUNE 2007 FILE NO/S : DR 4 of 2007 BETWEEN : GEORGE KON KOUTROUBAS
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Application for planning approval - Proposed balustrade - Need to address privacy concerns - Overlooking - Performance criteria - Acceptable development provisions - Modified proposal - Upper level balcony
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.8, cl 3.8.1, cl 3.8.1(A1), cl 3.8.1(A1)(i), cl 3.8.1(A1)(ii), cl 3.8.1(A1)(iii)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 31
(Page 2)
Town of Cambridge Town Planning Scheme No 1, cl 19(3), cl 38(4), cl 39(3), cl 39(4)
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant : Mr I Rogers (Acting as Agent)
Respondent : Mr I Birch (Acting as Agent)
Solicitors:
Applicant : Hardy Bowen
Respondent : Town of Cambridge
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Town of Cambridge to refuse to allow the lowering of the height of the proposed balustrade from 1.60 metres to 1.20 metres on the upper floor rear balcony at 74B Evandale Street, Floreat.
2 The Tribunal examined the respective arguments of the parties, the background to the matter, the relevant statutory and policy provisions, the reaction of neighbours to being overlooked and the need for rear fencing and landscaping to address privacy concerns.
3 The Tribunal accepted that in the circumstances of this case that absolute privacy for adjoining neighbours was not possible, but that a combination of strategically placed vegetation and fencing, together with an obscure glass balustrade on the upper level balcony at variable heights, would provide effective screening and accord with the Performance Criteria (Privacy Provisions) of the Residential Design Codes of Western Australia (2002).
4 The application for review was upheld, subject to conditions.
Introduction
5 The application for review, dated 9 January 2007, was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) by Mr George Kon Koutroubas (applicant) against a decision of the Town of Cambridge (respondent) on 19 December 2006 to refuse an application to alter the height of the balustrading of the rear balcony at No 74B Evandale Street, Floreat.
6 The reasons for refusal, as relayed to the applicant on 22 December 2006, were:
"That:
(i) in accordance with Part 4 of the Town of Cambridge Town [P]lanning Scheme No 1, and matters required to be considered under this Scheme generally and, in particular, as the proposal would be contrary to the orderly and proper planning of the locality, the Council REFUSES the applications to alter the bal[l]ustrading on the rear balcony at Strata Lot 2 (No 74B) Evandale Street,
- Floreat as shown on plans dated 9 October 2006, 7 December 2006 and 15 December 2006 for the following reasons:
- (a) the proposal does not meet the acceptable development requirements or performance criteria of Part 3.8.1 – Privacy Requirements of Residential Design Codes;
(b) the proposal would have a detrimental impact on the privacy of adjoining neighbours;
(c) the adjoining neighbours object to the proposed amendments;
- (ii) the Council is not prepared to support anything less than an obscure balustrade to a minimum height of 1.6 metres for the entire length of the balcony as shown on plans dated 21 February 2006."
7 In seeking a review the applicant outlined the following grounds:
(a) the proposal is not contrary to the orderly and proper planning of the locality;
(b) the proposal meets the relevant acceptable development requirements and performance criteria;
(c) the proposal would not have a detrimental impact on the privacy of adjoining neighbours;
(d) there was no objection from adjoining neighbours in 2004 against a 1.0 metre high balustrade; and
(e) a 1.6 metre balustrade as proposed would obscure views from the back of the house and ruin the aesthetic appeal of the home.
The subject land
8 The subject land can be described as strata lot 2 at No 74B Evandale Street, Floreat. It has an area of 499 square metres.
9 There is a new unoccupied residence on the subject land which has been separated off from the original site which measured some
(Page 5)
- 18.61 metres wide and 53.75 metres long. The new residence is located behind the original home and the properties are orientated north-south with their frontages facing south to Evandale Street.
The legislative framework
10 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential" in the Town of Cambridge Town Planning Scheme No 1 (the scheme or TPS 1). It has a coding of R15.
11 Of relevance are the:
(a) Residential Design Codes of Western Australia (2002) (the Codes)
Respondent's position
12 The position of the respondent is best outlined in its submission of 3 May 2007 in response to the applicant's submissions of 30 April 2007. The respondent argues:
(a) The application for the balcony without additional screening does not comply with the Performance Criteria. This is because there is direct overlooking between an active habitable place (upper storey balcony) and the outdoor living area of the adjoining residential properties to the north, east and west behind the street setback line.
(b) A 1.2 metre high solid screen (modified proposal) will provide for some screening from direct viewing from the indoor living areas but not from the balcony. There will only be protection from direct overlooking into the habitable rooms and outdoor living areas within adjoining properties if a permanent vertical screen of 1.6 metres is provided.
(c) Any portion of the non-complying balcony which overlooks the active habitable spaces and outdoor living areas of adjoining residential properties within the cone of vision (closer than 7.5 metres in the case of balconies) is required to be screened to bring it into compliance with the acceptable development requirements of the Codes if it does not meet the relevant performance criteria.
(Page 6)
- (d) The relevant issue is whether the screening is "effective" in order to meet the performance criteria. A 1.2 metre screen is not effective as it will allow direct overlooking of active habitable spaces on neighbouring properties for anyone standing on the balcony.
(e) The "acceptable" visual privacy setback for an open balcony is 7.5 metres, and the proposed development provides for less than half this requirement. As such the balcony is very close to adjoining neighbours and stringent application of privacy measures, such as vertical screening to a height of 1.6 metres, is required.
(f) The provision of a 1.6 metre high screen will not compromise the use of the balcony.
Applicant's position
13 The position of the applicant is outlined in submissions from Hardy Bowen Lawyers to the Tribunal dated 30 April 2007. The submissions relate to a so-called "modified proposal" which advocated:
"(a) The construction of an obscure glass balustrade on the upper level balcony at a height of 1.6 metres at the north-west corner wrapping around the corner and extending by 2.5 metres along the balcony and then reducing in height to 1.3 metres for the remaining length of the balcony.
(b) The construction of a 1.8 metre high hardiplank fence from the finished ground level on the northern side of the boundary of the Subject Site; and
(c) the planting of trees on the northern boundary on the Subject Site."
14 The applicant argues that the "modified proposal":
(a) achieves an appropriate balance between protecting the privacy of adjoining neighbours whilst affording the applicant the enjoyment of views to the north;
(b) provides concurrently with the roofed exterior pergola and trees in the immediately adjoining property to the rear an effective screen; particularly to the pool area;
(Page 7)
- (c) provides, even without the roofed exterior and pergola on the immediately adjoining property to the rear an effective screen; particularly to the pool area;
(d) protects the privacy of the neighbouring adjoining properties to a reasonable degree in terms of the privacy objective of Design Element 3.8 of the Codes; and
(e) prevents the applicant from being adversely affected to the degree contemplated by the respondent by means of a 1.6 metre high screen, and allows the applicant to sit on the upper level balcony and enjoy the views.
Planning issues
15 The principal planning issue is:
1. Does the "modified proposal" accord with the privacy provisions of the Codes?
Assessment of proposal
Background
16 The background to this matter can be broadly summarised:
(a) On 4 May 2004 an application for Town Planning Approval was lodged for a two-storey grouped dwelling (strata) on the subject land. An approval was issued on 14 June 2004 for a 24 month period.
(b) A building licence consistent with the planning approval was subsequently granted on 21 November 2005.
(c) On 13 December 2005 amended plans were submitted in relation to filling, new retaining walls and variations to privacy provisions.
(d) As a result of neighbour concerns from the owner at 293A Salvado Road the amended plans in (c) above were altered to show obscure glass balustrading along the rear section of the upper floor balcony to a height of 1.6 metres. These plans were approved on 21 February 2006.
(Page 8)
- (e) On 23 May 2006 a further application for amended plans was lodged proposing alterations to window screening and removal of a short section of the balcony screening which faced the western neighbour's property. There was no objection from the affected neighbour to the west at 76 Evandale Street and the amended plans were approved on 13 June 2006.
(f) On 9 October 2006 amended plans were lodged with Council proposing the removal of the obscure glass balustrading on the upper floor balcony at a height of 1.6 metres and replacing it with 1.0 metre high selected balustrading.
(g) On 19 December 2006 the proposal to alter the balustrading in (f) above was refused.
(h) As a result of the refusal, an application for review, dated 9 January 2007, was lodged with the Tribunal.
(i) At a Directions Hearing on 24 January 2007 the respondent was invited to reconsider its decision under review pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
(j) On 14 February 2007 the applicant, through the legal firm of Hardy Bowen, lodged the "modified proposal" as outlined in [13] above
(k) On 27 March 2007 the respondent reconsidered its refusal decision of 19 December 2006. It resolved to reiterate its earlier refusal and advised that:
"(ii) the Council would be prepared to give favourable consideration to amended plans incorporating the following modifications:
(a) the obscure glass balustrading being installed prior to the occupation of the dwelling to a height of 1.6 metres for the entire balcony;
(b) the fence being installed prior to the occupation of the dwelling;
- (c) the landscaped area being completed within 28 days of the occupation of the building and maintained to a high standard to the satisfaction of the Town."
- (l) At a Directions Hearing on 30 March 2007 it was resolved, amongst other things, that the matter be determined wholly on the documents.
Statutory and policy provisions
Town Planning Scheme No 1
17 Under cl 19 (Residential Planning Codes) it states:
"(3) Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."
18 In October 2002 the Residential Planning Codes were replaced by the Residential Design Codes, and all residential development was subsequently required to conform to the new Codes.
19 In determining an application for planning approval the Council is required, under cl 38 (4) of TPS 1, to have regard to:
" …
(e) any submission accompanying or related to the application;
(f) the orderly and proper planning of the locality;
(g) the conservation of the amenities of the locality; and
(h) the design, scale and relationship to existing buildings and surroundings of any proposed building or structure."
(Page 10)
- "(a) if approval were to be granted, the development would be consistent with:
(i) the orderly and proper planning of the locality;
(ii) the conservation of the amenities of the locality; and
(iii) the statement of intent set out in the relevant Precinct Planning Policy; and
(b) the non-compliance would not have any undue adverse effect on:
(i) the occupiers or users of the development;
(ii) the property in, or the inhabitants of, the locality; or
(iii) the likely future development of the locality."
"(a) consult with the party or parties who, in the opinion of the Council, may be affected by the approval of its development; and
(b) have regard to any submissions before making its decision to grant the variation."
Residential Design Codes
22 Under cl 1.1.2 the Codes advise:
(a) That one of its "aims" is:
"ensuring that adverse impacts on neighbouring residents are minimised."
(b) That the concepts of flexibility and certainty are incorporated into a tripartite approach whereby:
"• first, the aim or Objective of the design element or aspect is stated;
- • second, a set of Performance Criteria is provided that must be satisfied if the objective is to be met; and
• third, a set of Acceptable Development provisions related to the performance criteria is established."
- (c) That the method of assessment can be achieved in the following way:
"The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed to comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
"As the Codes themselves make clear and as this Tribunal has observed on other occasions, the starting point is to have regard to the objective and then the performance criteria."
24 In this case the provisions of the Codes that relate to Privacy (3.8 Element 8) are of most relevance. They advise:
(a) "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."
(b) "The impact of a particular development on the privacy of a neighbouring property can be assessed by applying a cone of vision at any point where a person is likely to be able to look onto that property … "
(c) "The relevance of the horizontal cone of vision is readily apparent. Application of the vertical component is often more significant, especially for overlooking from upper levels of buildings."
(d) "A space could be considered to be overlooked if people carrying out normal day-to-day activity within it fall within the cone of vision as applied from a neighbouring property, and within a given distance. The concept of a
- cone of vision is a useful tool also for design of screening devices."
- (e) "Of most concern are active habitable spaces – for example, living rooms, kitchens, activity rooms, balconies and outdoor living areas – that are at levels higher than 0.5 metres above natural ground level."
(f) "The designer and the Council should take into account the effect of the new development on existing or proposed dwellings on adjoining properties."
(g) "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."
(h) On the matter of the Acceptable Development Provisions, which do not require the discretion of Council, the Codes state:
"For that reason, they are conservative, providing a relatively high level of protection from overlooking."
(i) On the matter of the Performance Criteria, the Codes state:
"In many cases, a more effective, more mutually beneficial outcome can be achieved through the application of good design, directed at meeting the Performance Criteria."
(j) "Privacy screening can occur in various forms, including:
• vegetation;
• permanent elements such as fences, balustrades, louvres, etc; and
• translucent or opaque (that is, non-transparent) glazing.
(Page 13)
- (k) "In many cases, it is desirable and possible to provide screening that allows a distant view while preventing nearby overlooking."
(l) "Where screening is proposed as an alternative to setbacks it should be provided where openings or outdoor living areas at an adjoining property lie within the line of sight of the cone of vision."
25 Under cl 2.2 (Definitions) an Active Habitable Space and Outdoor Living Area are defined:
"Active Habitable Space
Any habitable room with a floor area greater than 10 sq metres and any balcony, verandah, terrace or other outdoor living area raised more than 0.5 metre above natural ground level and greater than 1.0 metre in dimension and 3 sqm in area."
"Outdoor Living Area
The area external to a Single House or Grouped Dwelling to be used in conjunction with that dwelling such that it is capable of active or passive use … "
"To ensure a reasonable level of visual and acoustic privacy for both new development and adjoining residents."
27 The "Performance Criteria" requirements state:
"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 to the street.
28 The Acceptable Development provisions state:
"3.8.1 Visual Privacy
A1 Major openings or active habitable spaces or their equivalent which have a floor level more than 0.5 metre 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 a boundary a minimum of:
• 4.5 metres in the case of bedrooms;
• 6.0 metres in the case [of] 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 place; 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 metre to the opening or equivalent."
(Page 15)
The matters of neighbour reaction and overlooking
30 The reaction from adjoining neighbours to being overlooked from the upper balcony of the development has tended to alter over time.
31 A possible reason for this is that when reaction was sought prior to the first approval in June 2004 the actual structure had not been built. Since that time that building has been substantially completed.
32 The neighbours most affected, Mr B and Mrs J Hancock, are at 293A Salvado Road. The rear of their property is directly overlooked from the upper floor balcony of the development and they argue in their letter to Council of 8 March 2007:
(a) The proposed 1.6 metre high obscure glass balustrade has been maintained on the north-west corner of the balcony and the privacy of the residents at 295 Salvado Road is protected.
(b) The height of the balustrading after 2.5 metres from the north-west corner drops to 1.3 metres. This allows a view into the master bedroom, living room and entertainment courtyard of 293A Salvado Road.
(c) The suggested new rear fence at 1.8 metres is absolutely necessary.
33 In a letter to Council dated 12 March 2007 a Ms SA McGregor of 291A Salvado Road (north-east rear) argued:
"This application if approved will seriously affect my privacy. I will not agree to any variation to the code that will affect my privacy …
The owner, if the application is upheld, will have a clear and unobstructed view of my swimming pool and outdoor area …"
34 In the officer's report to the Development and Environmental Services Committee of Council held 12 December 2006 it explained:
"While no written submission has been received from the owners of No 295 Salvado Road, the owners advised of [their] strong objections to the proposed amendments when viewing the plans at the front counter of the Council's administration office during the advertising period."
(Page 16)
35 In letters dated 7 June 2004 and 22 May 2006 the owners (Mr and Mrs N M Henfry) of the immediately adjoining property to the west at 76 Evandale Street advised of their support of a 1 metre high balustrade overlooking the backyard of their property.
36 From photographic evidence made available to the Tribunal the following is clear:
(a) Because of the amount of fill at the rear of the subject land the effective height of the rear fence above the fill is no longer at 1.8 metres, but now appears to be in the order of 1 metre or less.
(b) From various locations inside the dwelling looking to the north-west, north and north-east the vertical cone-of-vision is constrained by the balcony, and the views are largely over the top of roofs and vegetation towards the horizon.
(c) From various locations taken along the upper floor balcony the vertical cone of vision is not constrained, and there is a clear view into the rear of 291A, 293A and 295 Salvado Road and into the rear of 76 Evandale Street.
37 In the view of the Tribunal there is a clear need to incorporate measures at both the ground floor level and first floor balcony level of the applicant's building to protect the privacy of adjoining neighbours at the rear.
The matter of rear fencing and landscaping
38 In the officer's report to Council of 27 March 2007 it advised:
"In addition to the modified balustrade to the balcony the applicant proposes:
• The construction of fencing be provided to a height of 1.8 metres above the finished ground level along the northern boundary of the site; and
• The planting of trees on the northern boundary to minimise overlooking.
(Page 17)
- "1 The fence along the northern boundary is proposed to be a 1.8 metre hardiplank, also known, as I understand, as a 'super six' fence.
2 Mr Koutroubas intends to plant fast growing and reasonably mature trees. A landscaper has not yet been engaged. Suitable fast growing trees, of an established height between 3 metres – 12 metres to provide effective screening will be planted. Species would likely include eucalypts and acacias and may include types such as tree lilly pillies and the evergreen flowering ash.
3 It is not the intention to plant seedlings but rather semi-mature trees of at least 1 metre – 2 metres.
4 Mr Koutroubas intends to plant between 2-4 such trees evenly spaced along the northern boundary."
40 In the view of the Tribunal the circumstances of overlooking in this case are such that screening measures, to include balustrading at the upper level and both fencing and vegetation at ground level, will be necessary to protect the privacy of adjoining neighbours at the rear.
Conclusions
41 The application for review has been lodged against a decision of the Town of Cambridge to refuse the lowering of the height of the proposed balustrade from 1.6 metres to 1.2 metres on the upper rear floor balcony at 74B Evandale Street, Floreat.
42 In undertaking this review, the Tribunal has examined the respective arguments of the parties, the background to the matter, the relevant statutory and policy provisions, the matter of neighbour reaction to overlooking and the need for rear fencing and landscaping at ground level to address privacy concerns.
43 The prime argument of the respondent is that the lowering of the balustrade on the rear upper floor balcony from 1.6 metres to 1.2 metres would not be "effective" in addressing the problem of overlooking to the north, east and west, and would not comply with the relevant Performance Criteria of the Codes.
44 The applicant argues that his "modified proposal" to include an obscure glass balustrade on the upper level balcony at a height of 1.6 metres at the north-west corner, and wrapping around the corner and
(Page 18)
- extending 2.5 metres along the balcony, and then reducing to 1.3 metres for the remainder of the balcony, would protect the privacy of adjoining neighbours to a reasonable degree.
45 The applicant also argues that this would allow views to the north for anyone sitting on the upper level balcony.
46 Of most relevance in this matter are the "Privacy" provisions of the Codes which recognise that absolute privacy is difficult to achieve in all cases but, where it can be achieved, the emphasis should be on protecting overlooking into habitable rooms. Also, that screening can be achieved by way of thoughtful design, vegetation, fencing and/or translucent or opaque glazing.
47 In examining the Privacy Requirements of the Codes it is clear that the prime objective is to ensure a "reasonable level" of privacy for both the proponent and adjoining residents. In other words, the matter of privacy is looked at from the point of view of both parties.
48 The Performance Criteria address the matter of avoiding direct overlooking between Active Habitable Areas and Outdoor Living Areas with the emphasis on design and "effective" screening solutions.
49 The Acceptable Development provisions allow for a design to meet at least one of the options outlined in 3.8.1(A1)(i), 3.8.1(A1)(ii) and 3.8.1(A1)(iii) which relate to specific boundary setbacks and the vertical or horizontal cone of vision.
50 In the view of the Tribunal there is a degree of flexibility built into the Privacy provisions of the Codes; possibly to accommodate what is a variable and difficult matter to address in a variety of site specific circumstances.
51 In this case a rear strata lot was approved by the Western Australian Planning Commission and a two-storey dwelling approved by the respondent on a substantial amount of fill. This has effectively positioned the dwelling some 3.2 metres from the rear boundary of the subject land with extensive overlooking across neighbouring properties.
52 As a result of the "fill" the rear 1.8 metre high original fence now appears to be at a height of 1 metre only or less when viewed from within the subject land.
(Page 19)
53 From photographic evidence available to the Tribunal it clearly shows that a 1.8 metre high fence is now needed along the rear boundary, but that the 1.8 metre high fence would also need to extend from the rear boundary south along the eastern and western boundaries to points acceptable to the respondent.
54 On the matter of landscaping it would be necessary to plant a number of trees in the order of at least 1.5 metres to 2.0 metres high in order to grow to a further height that will protect overlooking into the habitable rooms and outdoor living areas of 293A Salvado Road in particular, and the outdoor living areas of 291A and 295 Salvado Road. Some clumping of trees towards the north-west corner and north-east corner of the subject land would assist the overlooking problem.
55 At the upper level of the building the Tribunal would acknowledge that from certain points within the building the vertical cone of vision is constrained by the balcony and views are essentially over roofs and trees towards the horizon. However, that is not the case when viewed from the balcony.
56 In the opinion of the Tribunal the problem of overlooking from the upper floor balcony must be addressed in terms of the Objective of the Codes whereby a "reasonable level" of privacy is achieved.
57 An important step towards achieving this would be in line with that suggested by the applicant in their "modified proposal" where an obscure glass balustrade is constructed at the north-west corner of the balcony. However, it should be at a height of 1.65 metres (not 1.6 metres) and wrap around the corner to continue east to a point 2.5 metres along the balcony.
58 The Tribunal also believes that a similar obscure glass balustrade should be constructed at the north-east corner of the balcony at 1.65 metres to wrap around the corner and continue west to a point 1.5 metres beyond the western wall of the guest room.
59 It is also the view of the Tribunal that the applicant is entitled to be able to sit out on the balcony to enjoy views to the north, and not faced with a 1.65 metre high obscure glass enclosure.
60 In order to accommodate this, the Tribunal is satisfied that a 1.3 metre high obscure glass balustrade is acceptable between the two 1.65 metre high levels outlined in [57] and [58] above, and that these adjustments to the "modified proposal" would accord with the privacy provisions of the Codes.
(Page 20)
61 The application for review is upheld, subject to conditions.
Orders
62 For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
1. The application for review is upheld subject to the following conditions:
(a) That prior to the occupation of the dwelling a new 1.8 metre high hardiplank fence be constructed from the finished ground level on the northern rear boundary of the subject land and continue south along the western and eastern side boundaries at a height of 1.8 metres to points specified by the Town of Cambridge.
(b) That a landscaping plan specifying the number, size, location and variety of trees and shrubs be prepared in consultation with the Town of Cambridge, and then submitted to the Town for approval, and that the landscaping be completed within 28 days of the occupation of the building.
(c) That prior to the occupation of the dwelling an obscure glass balustrade be constructed and installed in the following form:
(i) to be at a height of 1.65 metres at the north-west corner of the balcony and to wrap around the corner and continue east to a point 2.5 metres along the balcony;
(ii) to be at a height of 1.65 metres at the north-east corner of the balcony to wrap around the corner and continue west along the balcony to a point 1.5 metres beyond the western wall of the guest room;
(iii) to be at a height of 1.3 metres between the two 1.65 metre levels of balustrade specified in (c)(i) and (c)(ii) above.
(Page 21)
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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