Minosora and Shire Of Busselton - [2006] WASAT 3

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: MINOSORA and SHIRE OF BUSSELTON [2006] WASAT 3

MEMBER: MS M CONNOR (MEMBER)

HEARD: DERTERMINED ON THE DOCUMENTS

DELIVERED : 9 JANUARY 2006

FILE NO/S: DR 506 of 2005

BETWEEN: MICHAEL MINOSORA
Applicant
AND
SHIRE OF BUSSELTON
Respondent

Catchwords:

Town planning - Development - Review of conditions of approval - Compliance with 10 metre height limitation above natural ground level - Reasonableness of condition - Visual privacy screening - Use of vegetation as effective screening - Cone of vision diagrams

Legislation:

Residential Design Codes of Western Australia 2002, cl 2.2, cl 3.8.1A1(ii), Element 7, Element 8

Shire of Busselton Town Planning Scheme No 20, cl 6(3), cl 10(2), cl 13, cl 16, cl 27, cl 30, cl 47(2)(b), Sch 6(2)(b), Table 1
State Administrative Tribunal Act 2004 (WA), s 60(2)

Town Planning and Development Act 1928 (WA), s 8(A)(1)

Result:

1. The application for review is allowed
2. Conditions 6, 11, 12, 13, 14, 15, 16, 17, 18(a) and 18(b) and 19 of the decision under review are modified

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Mr Minosora applied to the Shire of Busselton for approval to construct a single house on No 16 Wardanup Crescent, Yallingup. The Shire of Busselton granted approval to the proposed development on 14 June 2005, subject to 19 conditions and 10 footnotes.
Mr Minosora sought review of conditions 6, 11, 12, 13, 14, 15, 16, 17, 18(a) and 18(b) and 19 of the Shire of Busselton's approval. Conditions 6, 11, 12, 13, 14, 15, 16 and 19 were resolved by agreement between the parties, whereas conditions 17 and 18(a) and 18(b) were determined on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Condition 17 imposed a height restriction on the proposed development. The Tribunal determined that a condition conveying such a requirement was not unreasonable, but provided clarity on an important aspect of the development that had been an issue between the parties. However, the Tribunal considered the wording of the condition imparted some uncertainty by the inclusion of the phrase "as determined by the Shire". The Tribunal considered the inclusion of this phrase unnecessary, and as such, modified the wording of the condition.
The disputed portion of condition 18 related to the requirement for privacy screening on the northern elevation of the western balconies on the "upper ground floor" and "first floor" levels. The Tribunal was satisfied that the combination of screening proposed by the applicant to overcome overlooking from the "upper ground floor" would provide a reasonable level of visual privacy. In relation to the "first floor", the Tribunal accepted the undisputed evidence, that the view from the "first floor" balcony would overlook the roof of the adjoining property to the north and would not impact on any major openings. Condition 18 was modified accordingly.

Introduction

Michael Minosora (the applicant) made application to the Shire of Busselton (the respondent) for approval to construct a single house on Lot 145 (No 16) Wardanup Crescent, Yallingup (the subject land).
The respondent approved the development application on 14 June 2005, subject to 19 conditions and 10 footnotes.
The applicant, on 11 July 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) to have conditions 6, 11, 12, 13, 14, 15, 16, 17, 18(a) and 18(b) and 19 reviewed. The conditions read as follows:
"6.A geotechnical report covering the development area being prepared by the applicant at the applicant's cost and to the satisfaction of the Shire of Busselton. The report to be lodged with the building licence application, together with certification for a structural engineer that the design is suitable for the site conditions as outlined in the geotechnical report.
11.The development being connected to a reticulated sewer system to the satisfaction of the Shire of Busselton and the Water Corporation, Dunsborough prior to issue of a Permit to Use. Full plumbing details must be submitted with the building licence application.
12.The provision on‑site of a minimum number of two car parking bays prior to issue of a Permit to Use. The parking area(s), driveway(s), and points of ingress and egress [including crossover(s)] to be designed, constructed, drained, marked and thereafter maintained to the specifications and satisfaction of the Shire of Busselton. Details to be submitted with the building licence application.
13.The submission of a landscape plan to the satisfaction of the Shire of Busselton. The plan should indicate the location and species of all trees to be removed and/or retained; the location and type of fencing to be installed; and the location and type of paving to be installed. The plan should also include a plant schedule nominating each species, the spacing of each species, the numbers of plants required; and the size of each plant to be used at the time of planting, together with the anticipated height of each plant at maturity. The plan should identify and include an adjoining road verges. The plan must be submitted and approved prior to the issue of a building licence.
14.Landscaping and reticulation to be established in accordance with the approved plan(s) prior to issue of a Permit to Use and thereafter maintained to the satisfaction of the Shire of Busselton.
15.Existing vegetation along the northern boundary of the subject site, as shown in red on the attached approved Development Plans, shall be retained during construction and at all times thereafter in order to assist with screening the outdoor living areas of the subject site, to the specification and satisfaction of the Shire of Busselton. Details to be submitted with the building licence application.
16.The external surfaces of all buildings shall comprise prescribed materials as described in Clause 27(5) of District Town Planning Scheme No 20 to the satisfaction of the Shire of Busselton. Details to be submitted with the building licence application (refer Footnote 3).
17.The dwelling, the subject of this Planning Consent, is not to exceed 10.0 metres in height from natural ground level, as determined by the Shire, in accordance with Clause 47(b) of the District Town Planning Scheme No. 20 and the Shire's Yallingup Special Character Area Policy. Details to be submitted with the building licence application.
18.Plans submitted with the building licence application shall demonstrate the following to the satisfaction of the Shire of Busselton and as indicated in red on the approved Development Plans:
a)The proposed western balconies on the 'upper ground floor' and the 'first floor' shall be screened on the northern and southern elevations with appropriate privacy screening to a minimum height of 1.6 metres from the finished floor level; and
b)The proposed northern deck or outdoor living area on the 'upper ground floor plan' shall be screened on its northern elevation with appropriate privacy screening to a minimum height of 1.6 metres from the finished floor level (refer Footnote 4).
The privacy screening shall be in place prior to the issue of a Permit to Use and shall be maintained thereafter, to the satisfaction of the Shire of Busselton.
19.Prior to the issue of a building licence, the applicant shall provide a bond to the value of $4,000 with the Shire of Busselton. The bond may be in the form of cash, cheque or bank guarantee and is a performance guarantee against satisfactory completion of the conditions of this approval. The performance guarantee will be refunded in full immediately the outstanding works are complete / established as appropriate to the conditions(s). Any such bond is to be accompanied by a written authorisation from the owner of the land that the Shire may enter the site to complete or rectify any outstanding work. The Shire will recover the bond, or part of the bond, as appropriate, the cost to the Shire, including administrative costs, of completing or rectifying any outstanding works."
The matter was referred to mediation where the parties resolved, by agreement, the Application for Review in relation to conditions 6, 11, 12, 13, 14, 15, 16 and 19 as follows:
i)Condition 6 be deleted.
ii)Condition 11 be replaced with the following:
"The installation of an approved effluent disposal system to the satisfaction of the Shire of Busselton (in consultation with the Department of Health) prior to occupation (i.e. issue of a Permit to Use). Such a system is to be designed and submitted by a plumbing consultant or other suitably qualified person. Details to be submitted with a building licence application."
iii)Condition 12 be deleted.
iv)Condition 13 be replaced with the following:
"The development of the site is to be carried out as indicated on the approved plans with retention of existing vegetation on the western edge and north-eastern corner of the property. No trees outside the footprint of the building, driveway or paved accessways shown on the approved plans shall be removed."
v)Condition 14 be replaced with the following:
"Landscaping and reticulation to be established in accordance with the approved plans prior to issue of Permit of Use."
vi)Condition 15 be replaced with the following:
"Existing vegetation along the northern boundary of the subject site, as shown in red on the approved Development Plans retained by Council, shall be retained in order to assist with screening the outdoor living areas of the subject site."
vii)Condition 16 shall be replaced with the following:
"All external finishes shall be non‑reflective."
viii)Condition 19 be deleted.
Conditions 17 and 18(a) and 18(b) were not resolved through mediation. The Tribunal made orders for the filing of witness statements in relation to those conditions and for the determination of the outstanding matters on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

Subject land and locality

The subject land is referred to as Lot 145 (No 16) Wardanup Crescent, Yallingup. There is currently a two storey dwelling located on the western portion of the lot.
The site is lower than road level and falls approximately 5.9 metres from Wardanup Crescent (east) to the rear of the lot in the west. The land is also lower than the adjoining property to the south.
According to Ms Lisa Goff, a town planning consultant called by the applicant, the Yallingup Hill area is characterised by large homes, with open balconies and deck areas designed to take advantage of the sloping topography, which provides ocean views to the west, with northern and southern aspects also achievable.

The proposal

The proposal involves the construction of a three level "Single House" comprising a large open dining living area, kitchen, five bedrooms, three bathrooms, study, family room, laundry, terrace areas on all three levels on the western elevation, a deck area and a two car bay garage with trailer/boat storage.
The proposed development will replace the existing two level dwelling. According to Mr Paul Rossen, a Director of Parry & Rosenthal Architects (the architectural firm commissioned to design the proposed development), the foot print and ground levels of the existing house were used as the basis for the new dwelling, thereby minimising disturbance of the existing ground and allowing retention of as much existing vegetation as possible.

Planning Framework

The subject land is zoned "Residential" with a permitted site density of R10 under the Shire of Busselton District Town Planning Scheme No 20 (TPS 20). Pursuant to cl 6(3) of TPS 20, the use or development of land for any of the residential purposes dealt with by the Residential Design Codes 2002 (the Codes) is to conform to the provisions of those Codes. The sections of the Codes that are of particular relevance to this application include the definition of "natural ground level" under cl 2.2, the explanatory text "Determining Natural Ground Level" contained in Element 7 ‑ Building Height and Element 8 ‑ Privacy.
Table 1 of TPS 20 establishes the "Zone Objectives and Policies" for each specified zone. A primary consideration in the "Residential" zone is to ensure that the amenity and character of the residential areas is maintained. In addition, the policy provision applicable to lower density areas in the Residential zone is:
"To encourage primarily detached housing generally not exceeding a height of 2 storeys and with private gardens in an environment free from commercial and other incompatible activities and building;"
The subject land is also situated within a "Landscape Value Area" and a "Special Character Area" pursuant to cl 27 and cl 30 and Schedule 6 of TPS 20. As the land is located within a Special Character Area planning consent is required for a "Single House": cl 16.
Condition 17 of the respondent's planning consent imposes a height restriction on the proposed dwelling. Clause 47 of TPS 20 relates specifically to "Height of Buildings" and the relevant provisions relating to this development are as follows:
"(1)A dwelling house, having more than two storeys, shall not be erected on land to which this Scheme applies, except with the consent of the Council.
(2)A building (including a dwelling house) shall not be erected on land to which this Scheme applies where –
(a)…;
(b)in all other cases –
(i)the building contains more than three storeys; or
(ii)the perpendicular distance from its highest point to the natural ground level of the land on which it is to be erected exceeds 10 metres.
(3)Notwithstanding Sub-Clauses 2(a)(i) and 2(b)(i), the Council may approve a building containing more than two or three storeys, as the case may be, provided that the additional storey or storeys are of the nature of a basement or similar structure and that they do not protrude more than 1 metre above finished ground level at the perimeter of the building.
(4)…
(5)Nothing in this Scheme prevents the Council from specifying a limitation on the height of buildings which is lower than that specified in Sub-Clauses (2) & (3) above in circumstances where topography, environmental values or viewscapes warrant."
Furthermore, Schedule 6 "Yallingup Special Character Area" also provides height limitations. Clause 2(b) states, "[n]o residential development shall exceed a maximum height of 10 metres measured vertically from natural ground level at any point of the building except for Lot 105 Dawson Drive …". Clause 2(c) provides that in the determination of any development application within the Yallingup Special Character Area regard shall be given to the general provisions of the "Yallingup Special Character Area Policy" (YSCAP), which also incorporates a height limit of 10 metres to be measured vertically from natural ground level at any point of a building.
Clause 13 of TPS 20 specifies the matters that are required to be taken into consideration in determining applications for planning consent.

Condition 17

The applicant in their "Grounds of Appeal" explained that two design options using different roof forms were submitted to the respondent on 10 June 2005. The first option incorporated a "curved roof" which required a minor variation to the 10 metre building height restriction. The roof form of the second option included a "pitched roof", which was compliant with the height restriction and approved by the respondent subject to condition 17. The applicant requested that the "curved roof" form be approved as the preferred building form.
The applicant did not advance this position in later documentation or argument. The only plans submitted into evidence incorporated the "pitch roof" proposal and the evidence given by Ms Goff and Mr Rossen on this aspect referred only to the "pitched roof" proposal. In the absence of any evidence it would appear that the "curved roof" proposal does not seem to arise as a matter for determination.

Respondent's position

The respondent maintained that the condition reflected the requirements of cl 47(2)(b) and Sch 6(2)(b) of TPS 20 and the YSCAP where the height of residential development must not exceed 10 metres, measured vertically from natural ground level to any point of the building. The respondent asserted that the condition had been imposed to convey that it had not approved any form of variation to the maximum height requirement in the granting of planning consent.

Applicant's position

The applicant argued that the "condition is unnecessary and is basically requesting that the applicant go though the requirements of planning approval again, when it has already demonstrated that the proposed building complies with the height restriction". The applicant further asserted that the condition lacks finality and certainty.
The applicant asserted that revised plans were submitted to Council in June 2005 to address compliance concerns in relation to building height, which included redesigning the roof form. As part of the application, a licensed Land Surveyor certified the natural ground level on a plan elevation, with the proposed dwelling indicated. Mr Rossen, in his evidence, claimed that all levels on the approved plans reflected those on the certified plan. Ms Goff further asserted that that datum levels of the ground corresponded with the approved site plan and the datum levels of the building related to the ground levels and corresponded to the approved elevation plans.

Tribunal's view

The respondent, in its "Response Statement" in par 10, acknowledged compliance of the redesigned proposal in relation to height requirements and referred to the additional material submitted by a Land Survey stating:
"… the proposal was brought into compliance with the 10 metre height limit and evidence was also submitted from a licensed land surveyor demonstrating natural ground level."
Furthermore, the respondent did not advance any arguments disputing the evidence of either Mr Rossen or Ms Goff in relation to compliance with the 10 metre height limit. It appears, from the evidence, that the intent of the respondent in imposing the condition was to clearly convey the height limitation applicable to the proposed development. The Tribunal does not consider a condition conveying such a requirement to be unreasonable, but rather it provides clarity on an important aspect of the development that was an issue between the two parties.
The wording of the condition does however, impart some uncertainty in that the condition includes the phrase "as determined by the Shire". The Tribunal consider the inclusion of this phrase to be unnecessary as cl 47(b) of TPS 20 is specific in establishing height parameters being "the perpendicular distance from its highest point to the natural ground level of the land". The term "natural ground level" is defined in "Schedule 1 ‑ Interpretations" of TPS 20 and has the same meaning as the term in the Codes, which is apposite as cl 10(2) of TPS 20 states:
"[w]here a word or term is defined in the [Codes] then, notwithstanding anything else in the Scheme, that word or term, when used in respect of residential development, has the meaning given to it in the [Codes]".
There should be no confusion as to what is meant by the term "natural ground level". Given the above, the Tribunal considers that the wording of condition 17 should be reworded as follows:
"The Dwelling, the subject of this Planning Consent, is not to exceed 10.0 metres in height from natural ground level. Certification by a Licence Surveyor demonstrating compliance with this condition is to be submitted with a building licence application."

Condition 18(a) and (b)

This condition requires the western balconies on the "upper ground floor" and "first floor" on the northern and southern elevations and the deck area on the "upper ground floor" on the northern elevation to be screened to ensure compliance with the Codes.
The Approved Plans and the "Cone of Vision Diagrams" show that the applicant is intending to provide visual screening to a height of 1.65 metres above finished floor level on the southern elevation of the "upper ground floor" and "first floor" western balconies and along the northern boundary adjacent to the northern deck area on the "upper ground floor". The evidence indicates that there is no dispute relating to these elements of conditions 18. The disputed portion of condition 18 concerns screening of the northern elevation of the western balconies on the "upper ground floor" and "first floor" (subject areas).

Respondent's position

The respondent contended that condition 18 was necessary to ensure compliance with the requirements of the Codes.
The respondent provided photographs of the dwelling situated on the lot immediately north of the subject land (adjoining lot) to show the areas that will be impacted by the proposed development. According to Ms Angela Satre, a planning officer at the Town of Busselton, a balcony located on the western/rear elevation and major openings (windows to bedrooms) in the southern elevation of the dwelling would be overlooked from the subject areas.
Ms Satre acknowledged that a tree exists adjacent to the south western corner of the balcony on the adjoining lot that would partially obstruct the view of the outdoor living area but did not accept that existing and proposed vegetation to be adequate to effectively prevent overlooking from the subject areas. Ms Satre further stated that the respondent did not consider vegetation screening to be an acceptable long term screening option given the ephemeral nature of vegetation, particularly in harsh coastal environments. Furthermore, she did not consider it reasonable for the applicant to rely on the retention of the vegetation on the adjoining lot to screen the outdoor living areas of the proposed development, particularly while the supplementary screening vegetation reached an effective screening height.
Ms Satre also referred to a submission received from the "adjoining northern neighbour" which raised concern that compliance with the privacy requirements under the Codes had not been achieved for the proposed development. She characterised the submission as a "valid objection" and argued that consideration should be given to the submission under cl 13(1)(r) of TPS 20. A copy of the submission was not submitted into evidence, therefore the Tribunal is unable to attribute any weight to the submission.
The respondent maintained that the condition was necessary to ensure that the proposed outdoor living areas were screened appropriately to meet the Acceptable Development standards of the Codes: cl 3.8.1. The respondent claimed that the wording of the condition allowed the applicant to submit details of alternative types of screening to address the requirement.

Applicant's position

The applicant contended that dwellings on the Yallingup Hill generally faced west, with balconies and outdoor areas taking advantage of ocean views. According to Ms Goff the application of screening to these spaces has not been applied with consistency by the respondent, which has produced a transparent form of development with less bulk and scale. She considered the proposed dwelling would be consistent with the scale and character of the existing development in the Yallingup Hill area. The respondent did not dispute this claim.
Ms Goff contended that the vegetation on the northern side of the property would act in the same way as it does for the existing situation, that is, provide a privacy screen from the middle level balcony. She argued that given the amount of protection afforded by TPS 20 in relation to the removal of vegetation (cl 27), existing vegetation to be retained (as shown on the Approved Plans) could be considered as permanent, thereby qualifying as effective screening for the application of the Codes. On this basis she asserted that the upper ground floor balcony was compliant with the Acceptable Development requirements of cl 3.8.1A1(ii) of the Codes.
In relation to the "first floor" balcony (northern elevation), a vertical cone diagram (Attachment LG 5) prepared by Parry & Rosenthal Architect, was submitted as evidence to demonstrate that the view from the "first floor" balcony overlooks the roof of the adjoining lot and does not impact on any major openings. On this evidence, Ms Goff asserted that the overlooking to the north from the first floor balcony was compliant with the performance criteria of the Codes and would not affect the adjoining lot.

Tribunal's view

Clause 6(3) of TPS 20 relevantly provides that "the use or development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provision of those Codes".
Section 3.8 of the Codes is entitled "Element 8 – Privacy". The objective of this element is "to ensure a reasonable level of visual and acoustic privacy for both new development and adjoining residents". The Performance Criteria for this element is as follows:
"New development should meet these criteria:"
"3.8.1 Visual Privacy
P1Avoid direct over looking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential areas 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."
The Acceptable Development provision of Element 8 is as follows:
"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 distance 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 affect land is zoned to allow for residential development.
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 habitable rooms other than bedrooms; and
•7.5 metres in the case of unenclosed outdoor active habitable space (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 25m to the opening or equivalent."
It is common ground that the "upper ground floor" and "first floor" western balconies are by definition, "active habitable spaces" for the purposes of the Codes and that the areas of concern on the adjoining lot involved the balcony at the rear of the dwelling and the major openings along the southern elevation.
The applicant asserted that due to the existing planted screen located along the northern boundary of the subject land, the northern elevation of the "upper ground floor" western balcony complied with the cl 3.8.1(ii) of the Codes. The respondent conceded that there was vegetation on the adjoining lot that partially obstructed the view from the "upper ground floor" balcony but contended that the view of the windows along the southern elevation of the dwelling would not be obstructed in any way. The respondent was not satisfied that the existing and proposed vegetation would provide adequate screening to these sensitive areas.
Under the heading "Privacy Screening" the explanatory text to Element 8 of the Codes states that:
"Privacy screening can occur in various forms including:
•vegetation;
•permanent elements such as fences, balustrades, louvres, etc; and
•translucent or opaque (i.e. nviii) Condition 19 be deleted.on-transparent) glazing."
"R‑Codes Advice Notes Part 3 Element 8 ‑ Privacy" Volume 2 Issue 1 September 2003, was prepared by the Western Australian Planning Commission for the purpose of clarifying the interpretation and application of the provisions of Element 8 ‑ Privacy of the Codes. It was prepared in response to a number of questions raised through the R‑Codes Share Forum and elsewhere, and was based on a detailed evaluation of the explanatory material, the design requirements and the definitions relating to the design element. The heading "Screening for privacy" is relevant to this application. It states that in order for screening to be taken into account for the purpose of the Acceptable Development provisions, it must be regarded as permanent. It also considers vegetation in the form of screen planting or selective placement of suitable trees or shrubs capable of providing effective screening for privacy control. However, it does suggest that consultation take place with affected property owners and that screening should be assessed in terms of the Performance Criteria.
The applicant, whilst stating that he does not consider additional screening is required (other than the existing vegetation), is prepared to provide the following additional measures to assure the respondent and neighbour that there will be no overlooking:
i)Planting mature coastal mort (E.platypus) on the northern boundary to compliment existing vegetation, either on the subject land or the neighbour's property,
ii)Obscure glazing of the glass balustrades on the northern sides of the "upper ground floor" and "first floor" balconies to a height of 1.0 metres above finished floor level.
From the photographs submitted into evidence it can be deduced that the existing vegetation (on the adjoining lot) will provide some visual screening between the "upper ground floor" balcony of the proposed dwelling and the existing balcony on the adjoining lot. The "Cone of Vision Diagram" also indicates that the existing vegetation would screen the most westerly major opening in the southern elevation, however, the photographs do not conclusively show this to be the case. The Tribunal notes that the applicant intends to provide additional supplementary vegetation screening to enhance the screening provided by the existing vegetation.
The Codes clearly recognises vegetation as an acceptable form of screening contingent on assurances that it will remain in place. In this particular instance, the argument advanced by the applicant relating to the protection of vegetation in a Landscape Value Area pursuant to cl 27 of TPS 20 is persuasive. The applicant has indicated a preparedness to implement a combination of various forms of screening to overcome overlooking from the "upper ground floor" balcony. On the evidence, the Tribunal is persuaded that the suggested method of screening proposed by the applicant, that being, obscure glazing of the glass balustrade on the northern sides of the "upper ground floor" to a height of 1.0 metres above finished floor level and the planting of "mature coastal mort (E.platypus)" on the northern boundary to compliment existing vegetation on the subject land, will provide a reasonable level of visual privacy satisfying the Performance Criteria and meeting the Objective of Element 8.
In relation to the "first floor" balcony (northern elevation) the applicant submitted a vertical cone diagram, prepared by Parry & Rosenthal Architect, to demonstrate that the view from the "first floor" balcony overlooks the roof of the adjoining property to the north and does not impact any major openings. This evidence was not challenged by the respondent. The Tribunal accepts Ms Goff's evidence, based on the vertical cone diagram, that the view from the "first floor" balcony would overlook the roof of the adjoining lot and will not impact on any major openings.
For the above reasons the Tribunal makes the following orders:
1.The Application for Review is allowed.
2.Conditions 6, 11, 12, 13, 14, 15, 16, 17, 18 (a) and 18(b) and 19 of the decision under review are modified as follows:
i)Condition 6 be deleted.
ii)Condition 11 be replaced with the following:
"The installation of an approved effluent disposal system to the satisfaction of the Shire of Busselton (in consultation with the Department of Health) prior to occupation (i.e. issue of a Permit to Use). Such a system is to be designed and submitted by a plumbing consultant or other suitably qualified person. Details to be submitted with a building licence application."
iii)Condition 12 be deleted.
iv)Condition 13 be replaced with the following:
"The development of the site is to be carried out as indicated on the approved plans with retention of existing vegetation on the western edge and north-eastern corner of the property. No trees outside the footprint of the building, driveway or paved accessways shown on the approved plans shall be removed."
v)Condition 14 be replaced with the following:
"Landscaping and reticulation to be established in accordance with the approved plans prior to issue of Permit of Use."
vi)Condition 15 be replaced with the following:
"Existing vegetation along the northern boundary of the subject site, as shown in red on the approved Development Plans retained by Council, shall be retained in order to assist with screening the outdoor living areas of the subject site."
vii)Condition 16 be replaced with the following:
"All external finishes shall be non-reflective."
viii)Condition 17 be replaced with the following:
"The Dwelling, the subject of this Planning Consent, is not to exceed 10.0 metres in height from natural ground level. Certification by a Licence Surveyor demonstrating compliance with this condition is to be submitted with a building licence application."
ix)Condition 18 be replaced with the following:
Privacy screening shall be provided as follows:
1.The proposed western balconies on the "upper ground floor" and the "first floor" shall be screened on the southern elevations with appropriate privacy screening to a minimum height of 1.6 metres from the finished floor level;
2.The proposed northern deck or outdoor living area on the “upper ground floor” plan shall be screened on its northern elevation with appropriate privacy screening to a minimum height of 1.6 metres from the finished floor level.
3.The proposed western balconies on the "upper ground floor" and the "first floor" shall be screened on the northern elevations to avoid direct overlooking of the balcony on the western/rear elevation and the major openings in the southern elevation of the dwelling on the adjoining lot to the north by:
a) Planting mature vegetation along the northern boundary of the subject land to supplement existing vegetation; and
b) Obscure glazing of the glass balustrades to a height of 1.0 metre above finished floor level.
Details of the proposed privacy screening, including details of the vegetation to be provided along the northern boundary are to be submitted with a building licence application. The privacy screening shall be in place prior to the issue of Permit of Use and shall be maintained thereafter.
x)Condition 19 be deleted.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER