MAC Adams and Anor and City of Joondalup

[2006] WASAT 121

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   MAC ADAMS & ANOR and CITY OF JOONDALUP [2006] WASAT 121

MEMBER:   MR J ADDERLEY (SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   17 MAY 2006

FILE NO/S:   DR 485 of 2005

BETWEEN:   MICHAEL MAC ADAMS

ISABELLE MAC ADAMS
Applicants

AND

CITY OF JOONDALUP
Respondent

Catchwords:

Development application – City of Joondalup – Removal of balcony screen – Residential Design Codes of Western Australia 2002 – Overlooking – Unenclosed outdoor active habitable spaces – Privacy requirements – Cone of vision – Habitable rooms – Outdoor living areas

Legislation:

Town Planning and Development Act 1928 (WA)
City of Joondalup District Town Planning Scheme No 2
Residential Design Codes of Western Australia 2002, cl 3.8, cl 3.8.1(P1), cl 3.8.1(A1)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicants:     N/A

Respondent:     N/A

Solicitors:

Applicants:     N/A

Respondent:     N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The City of Joondalup refused planning consent for removal of a balcony screen located in a residence at Lot 2 (No 7A) West View Boulevard, Mullaloo, for reasons relating to non‑compliance with the performance criteria for visual privacy set out in the Residential Design Codes of Western Australia 2002.

2. The applicants sought a review of the City of Joondalup's decision based on the argument that the circumstances of overlooking from the balcony of the applicants' dwelling towards a bedroom and other outdoor areas within the adjacent residential premises was not unreasonable because:

   •The bedroom in question was not actually within the cone of vision (as defined by the Codes) from the balcony.

   •The outdoor areas in question were, in one case, considered to be sufficiently extensive to not require protection from overlooking, and in the other case, considered to be an area constituting an unused passageway and thus, also not requiring protection from overlooking.

3. Upon consideration of the arguments put by the respondent and the applicants, the Tribunal accepted the applicants' argument that there was some doubt as to whether the bedroom in question fell within the cone of vision.

4. On the question of the outdoor areas within adjoining residential properties which would be overlooked from the balcony if presently existing screening was removed, the Tribunal concluded that such areas did constitute outdoor living areas worthy of protection from overlooking and required a reasonable level of visual privacy as set down by the Codes.

5. The application for review of the City of Joondalup's decision to refuse planning consent for the removal of a balcony screen in premises situated at Lot 2 (No 7A) West View Boulevard, Mullaloo was dismissed.

Introduction

1. This is an application for the review of a decision by the City of Joondalup (respondent) to refuse planning consent for removal of a balcony screen located in a residence at Lot 2 (No 7A) West View Boulevard, Mullaloo (subject land).

2. Application for removal of the balcony screen was submitted on behalf of the property owners, Mr and Mrs Mac Adams (applicants), to the respondent by Danmar Homes Pty Ltd on 15 December 2004.

3. The respondent issued a notice to Danmar Homes Pty Ltd conveying its decision and reasons for refusal of the application on 8 April 2005.

4. An application for review of the respondent's decision was submitted to the State Administrative Tribunal (the Tribunal) on 23 June 2005 by Mr and Mrs Mac Adams.

The proposal

1. The application for removal of the balcony screen from premises subject land needs to be considered in its physical and historical context.

2. The subject land is an urban lot of 1005 square metres in area, zoned "Residential" and density coded R20 under the City of Joondalup District Planning Scheme No 2 (DPS 2.)

3. The subject land has common boundaries to four other residential lots.  Of note in this matter, is that the western boundary of the subject land abuts two properties, namely No 9 West View Boulevard and No 27 Yulema Street.

4. Two dwellings occupy Lot 2 West View Boulevard.  The newer and western most of the two dwellings is owned by Mr and Mrs Mac Adams and is the subject of this application.

5. The applicants' dwelling is constructed on two levels with three bedrooms, laundry, bathroom, activity room and garage on the ground floor, and master bedroom, kitchen, dining and entertaining areas on the upper floor.  The casual entertaining area room at the rear of the upper level opens onto what is described on the plans of the dwelling as a "terrace/alfresco" area or balcony.

6. The "terrace/alfresco" area or balcony affords an open outlook southwards into the back garden of the subject land.  The view overlooking adjoining residential premises to the west from the balcony has been restricted as a result of implementation of a condition of development approval required by the respondent when the dwelling was constructed in 2002.  The condition stipulated: "Screening the balcony facing the western boundary to a height of 1.8 metres".  The required screen has been installed.

7. The horizontal distance of the balcony to the side boundary of the subject land is 3.044 metres according to the approved plans of the dwelling.

8. According to the approved plans, the height of the balcony balustrade above natural ground level at the boundary is about 3.9 metres.  The balcony floor level is 2.9 metres above natural ground level at the boundary.

9. The screen installed above the balustrade on the western side of the balcony as a result of the conditional approval of the dwelling by the respondent in 2002 is proposed to be removed.

Town Planning Scheme and Policy Provisions

1. The subject land is zoned "Residential" in accordance with DPS 2 and is assigned a density code of R20.

2. The Residential Design Codes of Western Australia 2002 (Codes) are adopted by DPS 2 and therefore constitute the mechanism for planning control of residential development in the City of Joondalup.

3. The Codes address privacy requirements by requiring that new development should meet the following performance criteria:

   3.8.1Visual Privacy

   P1Avoid 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.

4. The Codes set out the acceptable development standards that meet the performance criteria as follows:

   "A1Major openings to active habitable spaces or their equivalent which have a floor level more than 0.5m 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 of habitable rooms other than bedrooms; and

   •7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandas 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 25m to the opening or equivalent."

The refusal by the respondent

1. The respondent issued its refusal of planning consent for removal of the balcony screen citing the following reasons:

   "1.The removal of the screen will not meet the objectives of Acceptable Development or the Performance Criteria for Visual Privacy outlined in cl 3.8.1 of the Residential Design Codes 2002.

   2.The cone of vision will impact on the active habitable spaces and the back gardens of the adjoining properties."

The respondent's argument

1. The respondent argues that the objective of the Codes in terms of privacy requirements is to ensure a reasonable level of visual and acoustic privacy for both new residents and adjoining residents.

2. Clause 3.8.1(A1) of the Codes prescribes that balconies should be set back, in direct line of sight within the cone of vision, from the boundary a minimum of 7.5 metres.  In the circumstance under consideration, the western side of the balcony, presently screened but proposed to be unscreened, is set back 3 metres from the boundary of No 9 West View Boulevard and 4 metres from the boundary with No 27 Yulema Street.

3. The spaces affected by the proposed removal of the balcony screen include:

   •The rear yard and upper floor bedroom window of No 9 West View Boulevard.

   •The rear yard of No 27 Yulema Street.

4. In the course of considering the application to remove the balcony screen, the respondent consulted the adjoining residents.  Both parties objected to removal of the balcony screen.  The residents of No 9 West View Boulevard recorded that their privacy has been severely encroached, even with the screening in place.  Their daughter's bedroom is in direct view of the balcony.  The resident of No 27 Yulema Street advised that the balcony overlooks her property and invades her privacy.

5. Having regard to the preceding circumstances, the respondent concluded that removal of the balcony screen would not be consistent with the Codes visual privacy performance criteria.

The applicants' argument

1. The applicants suggests that any overlooking of the backyard of No 9 West View Boulevard from the balcony would not be significant because the area in question is an unused passageway only 1.5 metres wide.  The main outdoor activity area is on the other side of the house.

2. The respondent incorrectly assumed that the balcony overlooked a ground floor bedroom in the adjoining dwelling at No 9 West View Boulevard.  The room is in fact a bathroom with opaque glass in the window opening.

3. In regard to the bedroom on the upper floor of the adjoining property, the applicants make reference to the expression in the respondent's delegated authority report of 31 March 2005 that "… the cone of vision nearly reaches the window of the bedroom".  The applicants make no further direct inference from this observation, but go on to point out that the room in question is small, curtainless, used for air‑conditioning ducting, a computer and a desk.  A nylon curtain has been installed since this application was made in June 2005.

4. No 27 Yulema Street is one of the largest lots in the area.  Although the resident has chosen to locate a swing set on part of the lot within an area overlooked by the balcony, in fact, a more shady and appropriate position could be found elsewhere on such a big block.  The presence of five tall palm trees obscures the swing set and therefore the balcony alfresco area does not impact.

5. There has been some incitement of the neighbour at 27 Yulema Street by the neighbour at 9 West View Boulevard to hinder the development of the applicants' house.  A dispute over tree lopping may have influenced attitudes.

Analysis

1. The respondent's argument is constructed on the proposition that the applicants' proposal to remove the balcony screen does not meet the performance criteria for residential privacy because it does not comply with the relevant acceptable development standards specified by the Codes.

2. The applicants' argument relies on demonstrating that the areas allegedly sensitive to overlooking are in fact not so.

3. The habitable areas within the cone of vision from the balcony in question are identified by the respondent as:

   •the back yard of No 9 West View Boulevard;

   •a bedroom at the upper floor level of No 9 West View Boulevard; and

   •the back yard playground area of No 27 Yulema Street.

4. A reference in the delegated authority report of 31 March 2005 by the respondent, that the cone of vision "nearly reaches the window of the bedroom on the first floor" seems to be at odds with the respondent's Statement of Issues, Facts and Contentions which makes no mention as to the marginality of the window's inclusion within the cone of vision.  In the absence of any clarifying evidence, the respondent's planning report can only be taken literally by the Tribunal to mean that the bedroom window is, in fact, not actually within the cone of vision.  Accordingly, and based on the limited evidence before the Tribunal, there is reasonable doubt that it should be taken to be an area sensitive to overlooking from the balcony vantage point.

5. There is no challenge by the applicants that the back yard areas of No 9 West View Boulevard or No 27 Yulema Street fall within the cone of vision from the balcony.  Rather, the applicants have queried the degree of sensitivity to privacy that should be attributed to these areas.

6. In the case of the back yard of No 27 Yulema Street, the Tribunal notes the applicants argument that the yard area is reasonably extensive and that the yard could therefore be considered less sensitive to privacy concerns as mentioned in the Codes at Part 3.8 page 79.  The section headed "Taking Neighbouring Properties into Account", includes advice that "protection from overlooking is not necessary for extensive areas of garden, especially where these can provide their own screening, for example with trees".

7. Reference to photographs submitted in evidence demonstrates that a substantial proportion of the back yard of No 27 Yulema Street is clearly visible from the balcony.  The garden is well established and trees have been planted that are already affording some screening although not to the extent that overlooking from the balcony is significantly restricted.  The extent of the garden is visible as far as the dwelling building and dominance of the vista is accentuated because No 27 Yulema Street appears to be at a lower natural ground level than the applicant's dwelling at the subject land.

8. It is difficult to reconcile the circumstances of the back yard of No 27 Yulema Street with the quoted advice from the Codes in this case.  The Tribunal concludes in this matter that the back yard area of No 27 Yulema Street is not so extensive as to allow further practical on site visual screening or to accept the argument that the area in question is not sensitive to privacy needs.

9. Further reference to photographs submitted in evidence attests to overlooking from the balcony of the subject land of the side and back yard of No 9 West View Boulevard.  The side and back yard area is confined, exposed to view from above and with no reasonable prospect of any screening by vegetation.  Whilst the applicants have raised questions as to the functionality of the space, it nevertheless appears from the photos to be an area of useable dimension and has been paved for active use.  The back yard portion would be reasonably described as a terrace or outdoor living area associated with the house.  In the opinion of the Tribunal, overlooking of this outdoor activity area from the vantage point of the balcony on the subject land would seriously compromise the objective of reasonable privacy for the residents of No 9 West View Boulevard.

10. The Tribunal notes the remarks by the resident of No 27 Yulema Street and the response by the applicant, in relation to a dispute about tree lopping.  The Tribunal is of the view that this dispute has no practical bearing on determination of this appeal, and is not otherwise a proper consideration for its determination.

Conclusion

1. Based on the preceding analysis, guided by the Codes, the Tribunal concludes that the privacy requirements of the Codes would be breached by the application to remove the screen installed above the balustrade of the western side of the balcony at the rear of the subject land.

2. The Tribunal finds that the removal of the balcony screen would permit additional capacity for overlooking of outdoor living areas situated at adjoining residential properties No 9 West View Boulevard and No 27 Yulema Street contrary to the performance criteria for visual privacy required by the Codes.

3. For these reasons and those reasons amplified in the Analysis section of these reasons, the application for review of the respondent's decision to refuse planning consent for the removal of the balcony screen from premises at Lot 2 (No 7A) West View Boulevard, Mullaloo is dismissed.

Orders

1.The application for review of the respondent's decision to refuse planning consent for the removal of the balcony screen from premises at Lot 2 (No 7A) West View Boulevard, Mullaloo, in the City of Joondalup is dismissed.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J ADDERLEY, SESSIONAL MEMBER