LOMMA HOMES and TOWN OF CAMBRIDGE
[2006] WASAT 321
•3 NOVEMBER 2006
LOMMA HOMES and TOWN OF CAMBRIDGE [2006] WASAT 321
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 321 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:254/2006 | DETERMINED ON THE PAPERS | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 3/11/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review is set aside and substituted by a decision of the Tribunal | ||
| B | |||
| PDF Version |
| Parties: | LOMMA HOMES TOWN OF CAMBRIDGE |
Catchwords: | R Codes Acceptable development provisions Performance criteria Active habitable space Outdoor living area Visual privacy Western face of balcony Street setback area |
Legislation: | Metropolitan Region Scheme Residential Design Codes of Western Australia (2002), cl 3.8, cl 3.8.1 A1, cl 3.8.1 A1(i), cl 3.8.1 A1(ii), cl 3.8.1 A1(iii), cl 3.8.1 P1 State Administrative Tribunal Act 2004 (WA), s 29(3)(c) Town of Cambridge Town Planning Scheme No 1 |
Case References: | Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4 Nil |
Orders | 1. The decision under review is set aside.,2. That the matter is determined in accordance with conditions (a) to (f) below.,(a) That a permanent, fixed, non openable barrier to deny ease of access be fitted at the same height as the existing balcony wall to separate off the western facing 4.1 metre southern portion of the balcony.,(b) That a permanent fixed screen be fitted to the top of the western facing balcony wall along its full length to a total height (wall plus screen) of 1.2 metres only.,(c) That a single mature tree or trees be planted behind the street setback line of the neighbouring property to the west to minimise overlooking from the unenclosed northern portion of the subject balcony.,(d) That the costs associated with (c) be met by the applicant.,(e) That the number, type and positioning of the tree or trees in condition (c) be to the satisfaction of the respondent.,(f) That in the event of a disagreement between the parties with respect to conditions (a) to (e) that the matter(s) be referred back to the Tribunal for final determination. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LOMMA HOMES and TOWN OF CAMBRIDGE [2006] WASAT 321 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 3 NOVEMBER 2006 FILE NO/S : DR 254 of 2006 BETWEEN : LOMMA HOMES
- Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
R Codes - Acceptable development provisions - Performance criteria - Active habitable space - Outdoor living area - Visual privacy - Western face of balcony - Street setback area
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia (2002), cl 3.8, cl 3.8.1 A1,
cl 3.8.1 A1(i), cl 3.8.1 A1(ii), cl 3.8.1 A1(iii), cl 3.8.1 P1
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)
Town of Cambridge Town Planning Scheme No 1
(Page 2)
Result:
The decision under review is set aside and substituted by a decision of the Tribunal
Category: B
Representation:
Counsel:
Applicant : Mr Paul Lomma (Acting as Agent)
Respondent : Mr P Bracona (Acting as Agent)
Solicitors:
Applicant : Lomma Homes
Respondent : Town of Cambridge
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The matter under review, following an on-site mediation between the parties and an adjoining neighbour, is confined to the issue of overlooking from an upper level balcony of an already built two-storey home onto the front outdoor living area of the neighbouring property.
2 The decision of the respondent in granting a building licence was that screening was required to a height of 1.6 metres along the entire western face of the balcony. The applicant has opposed this condition.
3 In undertaking this review an analysis of the R Codes was required; particularly in relation to the 'acceptable development' provisions and the 'performance criteria' as they relate to Design Element 3.8 – Element 8 (Privacy) of the Codes.
4 In the view of the Tribunal a measure of screening is required along the entire western face of the balcony wall to meet the intent of the R Codes, but not to the extent contemplated by the respondent. Also, some additional measures to improve privacy from the perspective of the neighbouring property are also required.
5 The decision under review has been set aside and the matter determined in accordance with substitute conditions set by this Tribunal.
Introduction
6 The application for review, dated 26 July 2006, was lodged by Mr Paul Lomma (applicant) of Lomma Homes on behalf of Greg and Diane Stevens against a decision of the Town of Cambridge (respondent) to not approve amended plans for a building licence. The licence was for a two-storey residence at 25 Oban Road, City Beach.
7 The notice of refusal was contained in a letter, dated 28 June 2006, from the respondent to Lomma Homes. It stated:
"Your amended plans submitted on 11 March 2005 for building licence 164 BA-2005 have been considered by the Council at its meeting held on 27 June 2006. The Council's decision from the meeting was as follows:-
That:
(Page 4)
- (i) the applicant be advised that Council is not prepared to approve the application in its present form for the following reasons:-
(a) non compliance with the privacy provisions of the R Codes and the impact on the adjoining landowner in terms of loss of privacy;
(ii) the Council would be prepared to give favourable consideration to amended plans incorporating the following modifications:-
(a) the upper storey window to the Study Nook from Bedroom 2 being a fixed, obscure window; and
(b) the west facing balcony being screened in accordance with the previous approval dated 23 November 2005; ... "
9 On 22 September 2006 the respondent, in a response to the applicant's submission of 15 September 2006, advised:
· "The respondent is prepared to accept translucent or opaque windows to the south-western corner of the bedroom/study which are openable via an awning style window"; and
· " … the Respondent will accept the applicant's argument if the clear glass is replaced with translucent or opaque glass."
10 For the purposes of this review the Tribunal accepts that there is no longer an issue between the parties with respect to the window(s) on the upper floor level in the south-west corner of the area set aside as Bedroom 2/ Study Nook, and the existing clear glass on the openable awning style window(s) will be replaced with translucent or clear glass.
11 Subject to that action being taken by the applicant the matter falls away.
(Page 5)
Subject land
12 The subject land is located at Lot 141 (No 25) Oban Road, City Beach. It has an area of 923 square metres.
13 On the date of the on-site mediation, 23 August 2006, the two-storey dwelling, with undercroft garage and swimming pool, was well on the way to completion. From the upper floor level there are extensive views to the west towards the Indian Ocean.
Legislative framework
14 The subject land is zoned 'urban' in the Metropolitan Region Scheme (MRS) and 'residential' in the Town of CambridgeTown Planning Scheme No 1 (TPS 1). It has a density coding of R 12.5
15 The most relevant policy document to be considered in this review is the Residential Design Codes of Western Australia 2002, published by the Western Australian Planning Commission in October 2002 (Codes).
Respondent's position
16 The position of the respondent is outlined in a document titled 'Grounds for Opposing the Application' dated 13 September 2006. It argues with respect to the upper floor balcony:
(a) Clause 3.8.1 A1 of the Codes relates to Visual Privacy. It requires that major openings to active habitable spaces which are more than half a metre above natural ground level and positioned to overlook any part of another residential property behind its street setback line need 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 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.
- (b) An 'active habitable space' is defined as:
- "Any habitable room with a floor area greater than 10 sqm and any balcony, verandah, terrace or other outdoor living area raised more than 0.5 m above natural ground level and greater than 1.0 m in dimension and 3 sqm in area."
(c) The subject balcony, although not greater than 1.0 metre wide adjacent to the side of the house, connects with a portion of balcony at the corner of the dwelling which is more than a metre wide as well as being greater than 3.0 square metres in area, and therefore meets the definition of an active habitable space.
- (d) As the subject balcony is closer than 7.5 metres from the western side boundary, and there is no permanent vertical or horizontal screening provided on the amended plan the subject of this appeal, it does not comply with cl 3.8.1 A1(i), cl 3.8.1 A1(ii) or cl 3.8.1 A1(iii) of the acceptable development criteria.
(e) The alternative Performance Criteria for cl 3.8.1 (Visual Privacy) are:
"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."
(Page 7)
- (f) As the balcony allows for direct overlooking between an active habitable space and the outdoor living areas within the adjoining residential property to the west, it does not meet the performance criteria.
(g) Although the active habitable space and outdoor living area is at the front of the adjoining residential property to the west of the subject site, it is generally protected from views from the street by a screen wall along the front boundary.
(h) The adjoining property to the west is set back a considerable distance from the front boundary and therefore this area is important for the provision of outdoor living areas and active habitable space for the dwelling.
(i) The balcony on the subject site will affect usability of the north facing active habitable space and outdoor living areas of the adjoining property if not screened.
17 A submission by Mr J and Mrs A Papavassiliou, dated 5 September 2006, has been lodged to supplement that of the respondent. They own the property immediately to the west of the subject land at 27 Oban Road, City Beach and argue:
(a) "The balcony (which has been built) is meant to be screened up to a height of 1.6metres and was only approved by the council on the condition that permanent screening would be positioned along the full western side of the balcony which overlooks our front yard."
(b) "Our front yard is our main living and social outdoor space. … We have tried to make it as private as possible to allow us to relax and move around freely without feeling as though we are being watched."
(c) "Our front yard is fully enclosed and most of it is not visible from the street. People walking or driving by do so within a few seconds and cause little impact and are not as unfavourable as people lingering on a large balcony directly above us."
18 Further points made include:
(Page 8)
- (a) "Lomma Builders measured the effect of our own garage roof as an optical barrier for his clients by taking the highest point of the garage roof and basing all their assumptions on that … However, at the full council committee meeting of 15 March, the council moved unanimously that: 'the portion of the balcony along the western side of the proposed development which does not comply with the R Codes be removed.'"
(b) "At this point, the situation was win/win, as we felt that the overlooking of our yard was minimised. We also considered that our neighbour’s needs were also met, they had a balcony and windows which provided them with ocean views."
(c) "The owners had a choice. They decided of their own accord to keep the large non-complying balcony and screen it to make it comply … They have built their large balcony … and are now trying to get away with not screening it."
(d) "The height of the privacy screen at 1.6 metres (minimum height) will allow us to keep our privacy and use our garden freely. This still allows the neighbours to retain their ocean views."
(e) "Having a screen on the balcony will not diminish the aesthetic appeal of the house nor will it impede the servicing of the windows, which was the other reason for the balcony."
The applicant's submission
19 The position of the applicant is contained in the 'Outline of Submissions of the Applicant' dated 15 September 2006 as prepared by Paul Lomma. He argues:
(a) The 'acceptable development' requirements are 'deemed-to-comply' provisions, and a council must approve an application that complies, unless there are more stringent town planning scheme or local planning policy provisions that are not met. Issues such as an objection from a neighbour are not relevant.
(Page 9)
- (b) Alternatively, if an application does not comply with the 'acceptable development' criteria it can still be approved if it complies with the 'performance criteria'.
(c) The protection of privacy in residential developments is covered under cl 3.8 of the Codes. On page 77 it states:
" … absolute privacy cannot be expected in all cases. Often, a high level of privacy may be achievable only at too high a cost … "
(d) The privacy conditions of the Codes only apply to 'active habitable spaces' and 'outdoor living areas'.
(e) An 'active habitable space' includes a balcony raised more than 0.5 metres above natural ground level that is greater than 1.0 metre in dimension and 3 square metres in area.
(f) An outdoor living area is defined as:
"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 but excludes any area with a dimension of less than one metre minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling."
(g) As the southern 4.1 metres of the western balcony is less than 1.0 metre in dimension it is not an active habitable space or outdoor living area, and therefore not subject to the privacy requirements of cl 3.8 of the Codes. Accordingly, the respondent has no power to impose a condition that the southern 4.1 metres of the western aspect of the balcony be screened.
(h) Only the northern 2.4 metres of the western balcony is subject to the privacy conditions of the Codes.
(i) Further, and in the alternative, both the southern and northern aspect of the development comply with the acceptable development requirements of cl 3.8.1(ii) and cl 3.8.1(iii) because there are permanent vertical and horizontal screenings which restrict the views within the cone of vision. The garage on the adjacent western property provides the necessary screening and allows no
- overlooking, other than a portion of the street setback on that property.
- (j) The respondent contends that the:
" … existence of structures on the adjoining property is irrelevant in applying 'acceptable development' criteria and may only be considered when applying the performance criteria of the R Codes."
There is nothing in the Codes to support this contention but rather cl 3.8 expressly considers taking screening provided by other properties into account. Again, the underlying rationale of the privacy provisions that absolute privacy cannot be expected in all cases supports the contention that adjacent structures can be used as permanent screening.
(k) Further, and in the alternative, the proposed balcony without screening complies with the performance criteria found in cl 3.8.1 as the unscreened balcony does not directly overlook any active habitable space, with the exception of the street setback area which can be viewed from the street.
Planning issues
20 The principal planning issues are:
(a) Does the existing upper floor balcony comply with the 'acceptable development' provisions for privacy under the Codes?
(b) If the answer to (a) is in the negative, can it be construed that the upper floor balcony complies with the 'performance criteria' for privacy under the Codes?
(c) If the answer to (b) is in the negative, what action can be taken to ensure compliance with either (a) or (b)?
Assessment of proposal
Background
21 The background to this matter is contained in both the respondent's submission of 13 September 2006 (Grounds for Opposing the
(Page 11)
- Application) and the witness statement of Mr P Lomma of 15 September 2006.
(a) On 20 December 2005, the respondent lodged a planning application No PR00351 737 BA–2004 with the respondent. The application included provision to build an upper floor balcony on the western side of the development.
(b) On 15 February 2005, a recommendation to Council was made by the Development and Environmental Services Committee that the application be approved subject to a condition relating to "fill" at the rear of the site. The report noted:
(i) variations to setbacks, privacy, retaining walls and wall height as shown on amended plans dated 28 January 2005; and
(ii) that it was considered that the proposal met the performance criteria of the Codes with the overlooking of the front garden and the location of the garage (on 27 Oban Road) raising the line of sight to prevent overlooking.
(c) On 22 February 2005, the respondent deferred consideration of the application to enable the applicant to address the concerns of the neighbour.
(d) Amended plans were submitted on 9 March 2005 with the main amendment being to slide the dwelling forward on the lot to increase the rear setback.
(e) On 22 March 2005 Council approved the amended plans of 9 March 2005 subject to two conditions; one relating to 'fill' and the other stating:
"(ii) the portion of balcony along the western side of the proposed development which does not comply with the privacy conditions of the R Codes be removed."
(f) Earlier, on 11 March 2005, an application for a building licence 164 BA–2005 was made. The plans showed a portion of balcony along the western side of the proposed
- development with a planter box in the western corner of the balcony.
- (g) On 13 April 2005, the respondent advised the applicant that the amended plans did not meet the approval of 22 March 2005, and on 17 June 2005 building licence 164 BA–2005 was approved (first licence) with the balcony on the western side deleted.
(h) On 25 October 2005, amended plans were submitted by the applicant which sought to include a balcony with a reduced width of less than 1.0 metre for the western facing portion and a small screen. The applicant claims that on advice from a council officer, screening was included in order to have the building licence approved and then take up the issue of the screen later.
(i) On 10 November 2005, the respondent again advised the applicant that the amended plans still did not meet the condition of approval of 22 March 2005 relating to the balcony.
(j) On 11 November 2005, the applicant responded advising that the amended plans should be issued with a condition that the balcony be fully screened to a height of 1.6 metres along the entire western face of the balcony.
(k) On 23 November 2005, the respondent approved the amended plans subject to screening to a height of 1.6 metres along the entire western face of the balcony (second licence).
(l) On 11 March 2006, the applicant sought an amendment to the second licence to remove all the screening on the western face of the upper storey balcony. Amended plans submitted on 18 May 2006 showed the screening removed.
(m) On 27 June 2006, the respondent refused the amended plans of 18 May 2006 on the basis of non-compliance with the privacy provisions of the Codes and the impact on the adjoining owner in terms of loss of privacy. The applicant was advised to this effect on 28 June 2006.
22 In the view of the Tribunal, based on the information before it, the following is clear:
(Page 13)
- (a) the respondent has modified its position from requiring the removal of that portion of the upper level balcony on the western side of the development to allowing it with a reduced width of approximately 1 metre, but with screening along its entire western face to a height of 1.6 metres;
(b) proposals for screening to a height of 1.6 metres along the entire western face of the balcony were suggested by the applicant in order to have a building licence issued to allow commencement of construction. It appears that it was always intended to challenge the 'screening' condition at a later date; and
(c) although the technical report to Council, of 15 February 2005, argued that the performance criteria of the Codes were met by the then proposal, the report of 27 June 2006 concluded that the performance criteria were not met.
The Codes – general
23 The Codes have been formulated on the following basis:
" • 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 AcceptableDevelopment provisions related to the performance criteria is established."
24 As explained in the Codes document:
"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."
25 As stated in Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4:
(Page 14)
- "19. 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. Acceptable development represents examples which of themselves are deemed to meet the relevant performance criteria."
26 In the matter under review it is 'Design Element 3.8 – Element 8 (Privacy)' that is most relevant.
The Codes – [Design Element 3.8 – Element 8 (Privacy)]
27 The following extracts are relevant to this review:
(a) " … it must be understood that absolute privacy cannot be expected in all cases. … Nevertheless, a reasonable level of privacy can usually be achieved through good design."
(b) "The impact of a particular development on the privacy of a neighbouring property can be assessed by applying a cone of vision at a point where a person is likely to be able to look onto that property … "
(c) "The relevance of the horizontal component of a 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 from a neighbouring property … "
(e) "Of most concern are active habitable spaces – for example … balconies and outdoor living areas – that are at levels higher than 0.5m above natural ground level."
(f) "Design of new development should avoid overlooking into … outdoor living spaces."
(g) "However, protection from overlooking is not necessary for extensive areas of garden, especially where these can provide their own screening, for example with trees."
- (h) In reference to the 'acceptable development' provisions the document states:
- "For that reason, they are conservative, providing a relatively high level of protection from overlooking."
(i) "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 … "
29 It was clear from both an on-site inspection, and from photos submitted to the Tribunal by Mr and Mrs Papavassiliou, that overlooking not only occurs over most of the street setback area, but also over part of the front outdoor living area to the south-west of the garage.
30 However, in the terms of the 'Objective' for the Privacy Requirements of the Codes in Design Element 3, a reasonable level of privacy for the adjoining residents should be possible through the application of good design.
Active habitable space and outdoor living area
31 These terms are defined in [16(b)] and [19(f)] above and are used in cl 3.8.1 (Visual Privacy) in the Codes.
32 The applicant argues that, having regard to the wording of these terms, that as the southern 4.1 metres of the western balcony is less than 1.0 metre in dimension, it is not an 'active habitable space' or 'outdoor living area' and therefore not subject to the privacy requirements of the Codes.
33 In the respondent's detailed submission, of 22 September 2006, in response to the applicant's submission they advise:
(Page 16)
- "A portion of the balcony may be less than 1.0 metre in dimension but is greater than 3 square metres in area and therefore meets the definition of an active habitable space. Also the 1.0 metre wide portion of balcony is contiguous with the whole balcony. The respondent has not stated that the balcony has been determined as an 'Outdoor Living Area' but as an 'Active Habitable Space' more than 0.5 metres above natural ground level. The definition of Outdoor Living Area in relation to the balcony is therefore not relevant."
34 The Tribunal supports the respondent on this point because to do otherwise would be to make a nonsense of the Codes whereby portions of lots, rooms, verandahs or balconies could be excised off for the purposes of calculation and argued that they were exempt from the provisions of the Codes. In this particular case, it is the southern 4.1 metres of the western balcony that causes the neighbours as much concern, if not more, from the 'overlooking' aspect than the remainder of the contiguous northern portion of the balcony.
Acceptable development provisions (visual privacy)
35 These provisions are outlined in [16(a)] above and relate to subclauses 3.8.1 A1(i), 3.8.1 A1(ii) and 3.8.1 A1(iii) of the Codes. The important points to make are that the clauses only relate to 'overlooking' another residential property behind its street setback line and, to comply with the provisions, an applicant need only prove compliance with one of the subclauses.
36 The applicant argues in [19(i)] above that because of the presence of the garage on the neighbouring property there are permanent vertical and horizontal screenings which prevent overlooking, other than a portion of the street setback.
37 The respondent argues in its detailed submission of 22 September 2006:
"The garage on the adjoining property does not provide permanent vertical or horizontal screening between the balcony and the outdoor living area of the adjoining property to the west.
In any case, it is the Respondent's view that the R Codes do not provide for structures on adjoining properties to be used to meet acceptable development criteria and that the screening is
(Page 17)
- required to the active habitable space if it does not comply with the visual privacy setback requirement of Clause A1 sub-clause (i)."
38 As the Tribunal would agree that the garage on the adjoining property does not provide sufficient permanent vertical or horizontal screening to protect overlooking of portion of the usable front garden behind the street setback line, some form of vertical or horizontal screening is required on the upper floor balcony. The 'acceptable development' provisions 3.8.1 A1(i), 3.8.1 A1(ii) and 3.8.1 A1(iii) have therefore not been met.
39 Having made the point that, despite the presence of the garage, the 'acceptable development' provisions have not been met, there is no need to further explore the issue as to whether structures on adjoining properties should be considered in the assessment of the provisions.
Performance criteria (visual privacy)
40 The criteria are outlined in [16(e)] above, and because the 'acceptable development' provisions relate to the 'performance criteria' as explained in [23] above, it can reasonably be assumed that the criteria relate to areas behind the street setback line. It must be said, however, that this interpretation is not greatly assisted by the precise wording of the 'performance criteria'.
41 The applicant argues in [19(k)] above that because there is no direct overlooking, other than the street setback area which can also be viewed from the street that the 'performance criteria' are met. The respondent disagrees.
42 As explained in [38] above 'overlooking' does occur and the 'performance criteria' can only be met by some form of screening to achieve an acceptable outcome.
Conclusion
43 The matter under review is concerned with two issues; namely that the respondent would be prepared to give favourable consideration to amended plans for the two-storey dwelling on the subject land subject to:
(a) the upper storey window to the study nook from Bedroom 2 being a fixed, obscure window; and
(Page 18)
- (b) the west facing balcony being screened along its entire western face to a height of 1.6 metres.
These requirements have been challenged by the applicant.
44 On 22 September 2006, the respondent, in a response to the applicant's submission of 15 September 2006, advised that it was prepared to accept translucent or opaque windows to the south-west corner of Bedroom 2 which are openable via an awning style window.
45 For the purposes of this review the Tribunal accepts that there is no longer an issue between the parties on this point, and subject to the necessary action being taken by the applicant, the matter falls away.
46 In undertaking this review, an analysis of the Codes was required; particularly with respect to the meaning of the terms 'active habitable space', 'outdoor living area', 'acceptable development provisions', 'performance criteria' and the rationale behind Design Element 3.8 – Element 8 (Privacy).
47 The principal arguments of the applicant, which were contested by the respondent, were that having regard to the wording of 'active habitable space' and 'outdoor living area' that the western facing balcony of 4.1 metres was less than a metre wide and therefore not subject to the privacy requirements of the Codes.
48 Also, because of the presence of the garage on the neighbouring property to the west which provides vertical and horizontal screening, other than to a portion of the street setback, that the 'acceptable development' provisions and 'performance criteria' relating to visual privacy had been met.
49 The Tribunal was unable to support the applicant on these two arguments and finds that the western facing balcony is subject to the privacy requirements of the Codes and that without appropriate screening, and supplementary measures, that neither the 'acceptable development' provisions or 'performance criteria' for visual privacy have been met in this case.
50 The genesis of the 'overlooking' problem is largely the result of the neighbouring home to the west being positioned more towards the rear of the lot, whereby the majority of the outdoor living area is at the front of the home. This area is fully enclosed with a high front wall to the street, with the exception of the entrance to the garage.
(Page 19)
51 The adjacent neighbours to the west are understandably concerned at the loss of privacy caused by overlooking, and have the full support of the respondent in this matter.
52 In the view of the Tribunal, the owners of the subject land should be able to sit out on their upper level balcony and enjoy the views of the ocean to the west. They should not be adversely affected to the degree contemplated by the respondent by means of a 1.6 metre high screen, simply because of the unusual positioning of the neighbouring home to the west.
53 Of interest in this overlooking problem is that the neighbouring home to the east has a swimming pool in the front street setback area, and although overlooked from the northern portion of the subject balcony have not objected to the development.
54 Nevertheless, the rights of Mr and Mrs Papavassiliou need to be recognised and, contrary to the views of the applicant, their privacy should be protected to a reasonable degree in terms of the privacy Objective of the Codes.
55 The following conditions are imposed by the Tribunal:
(a) That a permanent, fixed, non-openable barrier to deny ease of access be fitted at the same height as the existing balcony wall to separate off the western facing 4.1 metre southern portion of the balcony.
(b) That a permanent fixed screen be fitted to the top of the western facing balcony wall along its full length to a total height (wall plus screen) of 1.2 metres only.
(c) That a single mature tree or trees be planted behind the street setback line of the neighbouring property to the west to minimise overlooking from the unenclosed northern portion of the subject balcony.
(d) That the costs associated with (c) be met by the applicant.
(e) That the number, type and positioning of the tree or trees in condition (c) be to the satisfaction of the respondent.
(f) That in the event of a disagreement between the parties with respect to conditions (a) to (e) that the matter(s) be referred back to the Tribunal for final determination.
(Page 20)
Orders
56 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 as follows:
1. The decision under review is set aside.
2. That the matter is determined in accordance with conditions (a) to (f) outlined in [55] above.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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