Pirone and City of Stirling - [2009] WASAT 27

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PIRONE and CITY OF STIRLING [2009] WASAT 27

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 FEBRUARY 2009

FILE NO/S: DR 5 of 2008

BETWEEN: ERNEST PIRONE
ROSE MARGARET PIRONE
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Application for approval to commence development - Provision of a privacy screen - Lattice screening - Obscure glazed screen - Detrimental impact of the development on the adjoining property - Gazebo - Adverse impact on amenity in terms of light, ventilation, noise and visual privacy - Performance criteria - Acceptable development provisions - Cone of vision - Outdoor living area

Legislation:

City of Stirling District Planning Scheme No 2, cl 4.3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 241(1), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.3.1 (A1), cl 3.8.1 (A1)
Residential Design Codes of Western Australia (2008), cl 1.3.1(e), cl 1.3.2(e), cl 6.3, cl 6.8, cl 6.10, Appendix 1
State Administrative Tribunal Act 2004 (WA), s 29(3), s 31

Result:

The decision under review is set aside and determined in accordance with conditions

Category: B

Representation:

Counsel:

Applicants: No appearance
Respondent: No appearance

Solicitors:

Applicants: No appearance
Respondent: No appearance

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a decision of the respondent to refuse an application for approval to commence development for a privacy screen along partonly of the southern property boundary at No 4 (Lot 621) Hill View Road, Mount Lawley.
In undertaking this review, the State Administrative Tribunal examined the respective position of the parties (including third party submissions), the background to the proposal, the relevant legislative and policy provisions and matters relating to lattice screening, obscure glazed screening and overlooking from the subject land into the rear outdoor space of the adjoining property at 42 Rookwood Street, Mount Lawley.
The State Administrative Tribunal determined that there is a need for both the completion of the lattice screening to match that existing and an obscure glazed screen positioned some 1.1 metres from the rear (southern) property boundary and attached to the existing gazebo.
The State Administrative Tribunal also determined that by positioning the obscure glazed screening in this way, it would be more in keeping with the intent of, and the relevant performance criteria of, the Residential Design Codes of Western Australia (2008) than in juxtaposition with the lattice screening.

Introduction

The application for review, dated 8 January 2008, was lodged by Ernest Pirone and Rose Margaret Pirone (applicants) against a decision of the City of Stirling (respondent, City or Council) on 19 December 2007 to refuse an application for approval to commence development, dated 29 August 2007, for a proposed privacy screen along partonly of the southern property boundary at No 4 (Lot 621) Hill View Road, Mount Lawley (subject land).
The application for review was lodged under the provisions of s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
The reasons for refusal were:
1.The proposed setback of the privacy screen does not comply with Element 3.3.1 of the RCodes (Boundary Setbacks).
2.The proposed [development] will have a detrimental impact on the adjoining property in regards to access to light and ventilation.
On the application heard before Member Peter McNab in the State Administrative Tribunal (Tribunal) on 7 May 2008, it was ordered, amongst other things, that:
a)The respondent was invited, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), to reconsider its decision under review at its committee meeting on 22 July 2008 and at its full Council meeting on 5 August 2008.
b)Leave was granted to the third party rear neighbours (Paul Brooshooft and Helen Brooshooft) at No 42 Rookwood Street, Mount Lawley, to file and serve a written submission in respect of any of the relevant planning issues in the proceedings.
At the Council meeting of 5 August 2008 it was resolved to adopt the Planning and Development Committee recommendation of 22 July 2008 that the original decision of 19 December 2007 in this matter be reaffirmed.

Subject land

The subject land is known as No 4 (Lot 621) Hill View Road, Mount Lawley. It is located on the southern side of the road and is essentially oriented northsouth with a significant fall to the rear (south side).
The property has a frontage of 19 metres, a depth of 49.43 metres and a total site area of 1,012 square metres. There is an existing single storey residence fronting Hill View Road but, because of the fall of the land, it presents as two storeys at the rear.
At the rear of the property there is a swimming pool, gazebo, extensive paving and some landscaping with trees planted along most of the southern boundary. There is lattice work positioned between existing limestone piers along the southern boundary, with the exception of that section of the boundary adjacent to the gazebo, which is located towards the southeast corner of the subject land. There is pool equipment positioned in the far southeast corner behind the gazebo.

Legislation and policy framework

The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'Residential' under the City of Stirling District Planning Scheme No 2 (DPS 2). It has a density coding of R12.5.
Of relevance are the Residential Design Codes of Western Australia 2002 (2002 Codes). These Codes were updated in April 2008 and are now referred to as the Residential Design Codes of Western Australia 2008 (2008 Codes).

Respondent's position

The position of the respondent is outlined in a report to Council's Planning and Development Committee Meeting of 22 July 2008 (22 July Report) and the witness statement of Neil Andrew Maull, a Senior Development Assessment Officer (Planning) at the City of Stirling. The argument includes:
a)The applicant is seeking a review of condition 1 of the respondent's development approval (DA06/2643) which required the southern proposed privacy screen to be relocated to the edge of the gazebo, 1.1 metres from the rear property boundary.
b)Under cl 3.3.1 (A1) Boundary Setback Requirements of the 2002 Codes, buildings are required to be set back in accordance with Table 1. Table 1 requires walls with a length of 4 metres, and a height of up to 3.5 metres with no major openings, to be set back 1 metre from the lot boundary.
c)The placement of a privacy screen 0.5 metres from the common boundary with No 42 Rookwood Street was not set back in accordance with the acceptable development provisions (cl 3.3.1 (A1)) of the 2002 Codes in respect of Boundary Setbacks.
d)While no details of the privacy screen were provided at the time, privacy screening would need to be visually impermeable to a minimum height of 1.6 metres above the finished floor level of the gazebo to restrict views within the cone of vision from the gazebo.
e)The applicants' agent has referred to a previous approval for lattice screening on the top of the wall, and contends that the approval is current and can be acted upon at any time. Also, that this lattice screening negates the need for any obscure glazed screening being set back 1.1 metres from the boundary.
f)The proposed lattice screening does not meet the requirements of the 2002 Codes in relation to visual privacy, as it will not permanently restrict views within the cone of vision from the gazebo.
g)The respondent considered the placement of the privacy screen under the performance criteria of the 2002 Codes and considered that it would have a detrimental impact on the adjoining property at No 42 Rookwood Street, not only as a result of the location of the privacy screen but as a result of the cumulative effect of a number of previous approvals for a retaining wall along the common boundary with No 42 Rookwood Street.
h)The placement of a 1.6 metre privacy screen on top of an existing 2.5 metre high retaining wall would present as a 4.1 metre high barrier between the two properties and would have a detrimental impact on the amenity of the adjoining property at No 42 Rookwood Street.
i)The location of the privacy screen approximately 1.1 metres from the boundary would minimise the impact on the adjoining property owners, whilst maintaining the required privacy.

The position of the third party (Mr and Mrs Brooshooft)

The position of the third party is broadly covered in their submission to the Tribunal dated 30 September 2008.
The submission argues with respect to the original proposal for the gazebo and boundary wall:
a)The existing gazebo is unacceptable from a privacy perspective as it is too close to the property boundary.
b)A solid wall, as originally proposed by the applicants, was unacceptable because of a 2 metre level difference between the properties which would have resulted in a 4.1 metre high wall on the property boundary.
c)Alternatively, a screen and fence located on the boundary will not shield noise from what is equivalent to a second storey balcony only 1.1 metres from the property boundary.
d)The Codes provide a rear setback for an R12.5 coding in DPS 2 of 6 metres. As a gazebo is classified as a habitable room under the Codes, the setback should have been 7.5 metres and the proposal should not have been approved.
e)Under cl 3.8.1 (A1) of the 2002 Codes, an unenclosed outdoor active space with a floor level of more than 0.5 metres above natural ground level, and which overlooks any part of any other residential property behind its street setback line, should be set back a minimum of 7.5 metres or provided with permanent vertical screening. Because of the particular site circumstances of a major height difference and overlooking, the proposed development should have been set back 7.5 metres from the property boundary or refused.
With respect to the proposal for a screen wall with obscure glass on the boundary, it is argued:
a)Under the Visual Privacy provisions of the 2008 Codes it states:
Where these [screens] are used, they should be integrated with the building design.
b)As such, any screening must be part of the southern gazebo face and fully enclose, both in width and height, the existing construction and not be located on the boundary. This will assist the visual intrusion and noise emanating from a large screen television and sound system incorporated into the gazebo.
c)The construction now so close to the boundary line will have an adverse impact on amenity in terms of sunlight, ventilation, noise and visual privacy. There is already a loss of outdoor living space in the northern and eastern courtyards due to noise from the sound system within the gazebo.

Applicants' position

The position of the applicants is best outlined in the witness statement, dated November 2008, of Simon John Bain, a qualified town planner and Director of SJB Town Planning and Urban Design.
Mr Bain contends:
a)There is an approval in place for the construction of a lattice and other works on or near the rear boundary of the subject land. This approval was issued on 18 April 2000 and has been acted upon with the exception of that section in the southeast corner which can still be completed.
b)The development complies with the Objective, Performance Criteria and Acceptable Development Standards of the Codes with respect to Boundary Setback Requirements in the following ways:
i)The proposal has no greater building bulk or overshadowing impact over what exists and what has been approved by way of the existing retaining wall and approved lattice. The proposed obscure glazing is acceptable to the respondent in terms of privacy.
ii)The existing gazebo is classified as an Outbuilding and is not required to comply with the setback requirements under cl 6.3.1 of the 2008 Codes. It is a non-habitable structure detached from the dwelling.
iii)The existing gazebo is not a Habitable Room in that it is closely aligned to an unenclosed swimming pool or patio. It is open on three sides and would not be occupied frequently or for extended periods as would rooms included in the definition of a habitable room.
iv)The gazebo conforms to cl 6.10.1 (A1) of the 2008 Codes. With respect to cl 6.10.1 (A1)(viii), no rear setback is required. However, the gazebo is set back 1.1 metres and, as noted in the 22 July Report of the respondent, privacy is not an issue.
v)The terrace level surrounding the pool has been approved and constructed and, as such, is not an issue in this matter. The only issue concerns screening being provided to the southern side of the gazebo.
c)The development complies with the acceptable development standards of the 2008 Codes with respect to privacy. Clause 6.8.1 (A1) specifies that active habitable spaces require permanent horizontal screening or the equivalent and this is provided by both the lattice and the obscure glazing. The provision of screening on or close to the boundary is an acceptable means of preventing overlooking as outlined in the Codes.
d)In the 22 July Report it states:
The provision of obscure glazing as a means of preventing overlooking would satisfy the R-Codes requirements in relation to visual privacy. However, in this case, the location of the privacy screening along the common boundary is considered to have a detrimental impact on the amenity of the adjoining property owners at House Number 42 Rookwood Street, Mt Lawley, as it would result in a 1.6m high screening being located above the existing retaining wall.
It is clear that the privacy screen is not the issue but the height of the existing retaining wall with a 1.6 metre screen on top. As a 1.6 metre high lattice on top of the retaining wall has already been approved, the obscure glazing will not have any greater impact than the previously approved and to be constructed lattice. Given that the obscure glazing is acceptable as a privacy screen and the lattice has already been approved, a screen 1.6 metres high and set back 1.1 metres from the boundary is not necessary.
e)The proposal also complies with the performance criteria under cl 6.8.1 (P1) of the 2008 Codes. It states:
Direct overlooking of active habitable spaces and outdoor living areas of other dwellings is minimised by building layout, location and design of major openings and outdoor active habitable spaces, screening devices and landscape, or remoteness.
There are no active habitable spaces or outdoor living areas at No 42 Rookwood Street affected. The narrow setback area on that property is used for clothes drying and contains mechanical plant such as airconditioners.
f)The matter of amenity can be addressed in terms of privacy, light and ventilation:
i)The provision of a screen at a 1.1 metre setback, as required by the respondent, will provide no additional privacy to the dwelling to the south than would be the approved and to be constructed lattice. The obscure glazing will provide additional privacy if required.
ii)The provision of a screen at a 1.1 metre setback from the rear boundary will provide no additional light to the dwelling to the south when considering the approved and to be constructed lattice.
iii)The provision of a screen at a 1.1 metre setback from the rear boundary will provide no additional ventilation to the dwelling to the south. That dwelling is located on a level well below the subject site, and the prevailing winds in Perth are from the east and southwest.
g)In comparing what is proposed by the applicants and what is proposed by the respondent, two crosssection diagrams were prepared (at Annexure SJB 7). They show:
i)By allowing a 1.1 metre 'gap' between the rear boundary and the gazebo, as required by the respondent, it will allow overlooking from this area as well as from the pool and terrace area into the neighbouring property. It will not prevent noise affecting the neighbouring property.
ii)The applicants' proposal to complete the lattice fencing, and obscure glazing, on the boundary will prevent overlooking from the gazebo, the pool and terrace into the neighbouring property. This proposal will prevent any noise transfer and there will not be a useless 1.1 metre 'gap' of land between the gazebo and the rear boundary.

Planning issues

The principal planning issues are:
a)Is there a need for the provision of both a lattice screen and an obscure glazed screen in the circumstances of this case?
b)If an obscure glazed screen is needed, would its positioning along the rear property boundary, or 1.1 metres from the rear property boundary, be more in keeping with the Residential Design Codes of Western Australia (2008)?

Assessment of the proposal

Background

The following background is relevant:
a)On 18 April 2000 an approval was granted by the City for the construction of the rear retaining wall and lattice positioned on top of the wall.
b)On 20 November 2006 a development application (DA06/2643) was lodged for additions to the existing dwelling in the form of a pool and gazebo, with an outdoor kitchen and privacy screen consisting of a solid masonry wall above the existing retaining wall. The privacy screen was approximately 0.35 metres in from the southern property boundary.
c)The application was approved on 26 June 2007 subject to a Condition No 1:
The proposed development complying with all details and amendments marked in red as shown on the approved plan specifically that the southern most eave overhang be deleted and the southern privacy screen be relocated to the edge of the gazebo.
The eave overhang was subsequently deleted.
d)On 29 August 2007 a further development application (DA06/2643.01) was lodged, with the applicants seeking to vary Condition 1 of the approval of 26 June 2007 by locating the privacy screen on the boundary (as originally proposed) and not at the southern edge of the gazebo. The privacy screen took the form of an obscure glazed screen located approximately 0.5 metres from the common boundary and which would incorporate an extension to the existing lattice screening along part only of the southern boundary.
e)On 19 December 2007 the application was refused for the reasons outlined in [7] above.
f)On 8 January 2008 an application for review was lodged with the Tribunal and, following an unsuccessful onsite mediation on 9 April 2008, the matter was referred to a directions hearing at the Tribunal on 7 May 2008.
g)At the directions hearing of 7 May 2008 it was ordered, amongst other things, that the respondent be invited to reconsider its decision of 19 December 2007 under review, that leave be granted to the third party rear neighbours (Mr and Mrs Brooshooft) and that subject to a view of the subject land, the matter be determined upon the documents.
h)At a meeting of the Planning and Development Committee on 22 July 2008, it was recommended to a full Council meeting on 5 August 2008 that the original decision of 19 December 2007 be reaffirmed. The recommendation was adopted at Council, despite additional information to support the proposal as outlined in DA06/2643.02.
i)On 1 December 2008, meetings were held by Senior Sessional Member Graham on the subject land and at No 42 Rookwood Street to view the situation on the ground.

Legislative and policy provisions

City of Stirling District Planning Scheme No 2

Clause 4.3 of the Scheme specifies that the development of land for any residential purpose dealt with by the Codes is to conform to the provisions of those Codes.

Residential Design Codes of Western Australia (2008)

The objective of the Boundary Setback Requirements is outlined in cl 6.3:
To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, interference with privacy, and overshadowing on adjoining properties.
The performance criteria advise under cl 6.3.1:
P1Buildings set back from boundaries other than street boundaries so as to:
•provide adequate direct sun and ventilation to the building;
•ensure adequate direct sun and ventilation being available to adjoining properties;
•provide adequate direct sun to the building and appurtenant open spaces;
•assist with protection of access to direct sun for adjoining properties;
•assist in ameliorating the impacts of building bulk on adjoining properties; and
•assist in protecting privacy between adjoining properties.
The acceptable development provisions advise under cl 6.3.1:
A1Buildings which are setback in accordance with the following provisions, subject to any additional measures in other elements of the Codes:
iBuildings setback from boundaries other than street boundaries in accordance with table 1, tables 2a and 2b (for wall heights 10 m and less), figures 2a 2e, and figure 3 (for wall heights in excess of 10 m).
iiUnenclosed balconies, terraces, verandahs, and other living areas accessible for use as outdoor living areas, whether roofed or not, if elevated 0.5 m or more above natural ground level, setback as though they were major openings to habitable rooms with a wall height of 2.4 m above their floor level …
The Objective of the Privacy requirements is outlined in cl 6.8:
To site and design buildings to meet projected user requirements for visual privacy and to minimise the impact of development on the visual privacy of adjoining residents in their dwellings and private open space.
The performance criteria for Visual Privacy are outlined in cl 6.8.1:
P1Direct overlooking of active habitable spaces and outdoor living areas of other dwellings is minimised by building layout, location and design of major openings and outdoor active habitable spaces, screening devices and landscape, or remoteness.
Effective location of major openings and outdoor active habitable spaces to avoid overlooking is preferred to the use of screening devices or obscured glass.
Where these are used, they should be integrated with the building design and have minimal impact on residents' or neighbours' amenity.
Where opposite windows are offset from the edge of one window to the edge of another, the distance of the offset should be sufficient to limit views into adjacent windows.
The acceptable development provisions for Visual Privacy advise under cl 6.8.1:
Major openings and unenclosed outdoor active habitable spaces (balconies, verandahs, terraces or other outdoor living areas) which have a floor level more than 0.5 m above natural ground level and which overlook any part of any other residential property behind its street setback line, to comply with at least one of the following:
iAre setback, in direct line of site within the cone of vision, from the boundary a minimum of:
•4.5 m in the case of bedrooms and studies;
•6 m in the case if habitable rooms other than bedrooms and studies; and
•7.5 m in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandahs and the like; or
iiAre provided with permanent vertical screening to restrict views within the cone of vision from any major opening of an active habitable space; or
iiiAre 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 m to the opening or equivalent.
The Objective of the Incidental Development requirements is stated in cl 6.10:
To ensure that (a) outbuildings and fixtures attached to buildings do not detract from the streetscape, or the amenity of the development or that of adjoining residents; and (b) adequate provision is made for incidental facilities serving residents' needs.
The performance criteria of the Incidental Development requirements are stated in cl 6.10.1:
P1Outbuildings that do not detract from the streetscape or the visual amenity of residents or neighbouring properties.
The acceptable development provisions relating to Incidental Development requirements are also outlined in cl 6.10.1:
A1Outbuildings that:
iare not attached to a dwelling;
iiare non-habitable;
iiicollectively do not exceed 60 sq m in area or 10 per cent in aggregate of the site area, whichever is the lesser;
ivdo not exceed a wall height of 2.4 m;
vdo not exceed a ridge height of 4.2 m;
viare not within the primary street setback area;
viido not reduce the amount of open space required in table 1; and
viiicomply with the siting and design requirements for the dwelling, but do not need to meet the rear setback requirements of table 1.
The following relevant definitions are included in Appendix 1:
•Active habitable space
Any habitable room with a floor area greater than 10 sq m and any balcony, verandah, terrace or outdoor living area raised more than 0.5 m above natural ground level and greater than 1.0 m in dimension and 3 sq m in area.
•Building
Any structure whether fixed or moveable, temporary or permanent, placed or erected on land, and the term includes dwellings and structures appurtenant to dwellings such as carports, garages, verandahs, patios, outbuildings and retaining walls, but excludes boundary fences, pergolas and swimming pools.
•Cone of vision
The limits of outlook from any given viewpoint for the purposes of assessing the extent of overlooking from that point illustrated in design element 6.8.
•Habitable room
A room used for normal domestic activities that includes:
•a bedroom, living room, lounge room, music room … fully enclosed swimming pool or patio, but excludes
•a bathroom, laundry … verandah and unenclosed swimming pool or patio and other spaces of a specialised nature occupied neither frequently nor for extended periods.
•Incidental development
Development which is associated with or attached to a dwelling and incidental to its main residential functions.
•Natural ground level
The levels on a site which precede the proposed development, excluding any site works unless approved by the council or established as part of subdivision of the land preceding development.
•Outdoor living area
The area external to a single house or grouped dwelling … such that it is capable of active or passive use but excludes any area with a dimension of less than 1 m minimum dimension or which, by reason of its development or topography, is not readily accessible from the dwelling.
•Outbuilding
An enclosed non-habitable structure that is detached from any dwelling.
•Patio
A water impermeable roofed opensided area …
•Private open space
Open space set aside on a lot for the exclusive use of the occupants of the dwelling to which it abuts and excludes car parking spaces and access ways.
•Screening
Permanently fixed external perforated panels or trellises composed of solid or obscured translucent panels.
The position of the applicants, as outlined in the witness statement of Mr Bain, is that the already constructed gazebo is classified as an Outbuilding and, as such, it is not required to comply with the Boundary Setback Requirements of cl 6.3.1 of the 2008 Codes. The view is also put that the development complies with the acceptable development provisions (cl 6.8.1 A1) as both the lattice and obscure glazing are an acceptable means of preventing overlooking into what is not, in any event, an Active Habitable Space at the rear of No 42 Rookwood Street.
The position of the respondent is that the privacy screen was refused because it was not constructed to meet the acceptable development provisions of the Codes with respect to boundary setbacks (cl 3.3.1 A1 (2002)/cl 6.3.1 A1 (2008)) and that the proposed development would have a detrimental impact on the amenity of No 42 Rookwood Street.
The position of Mr and Mrs Brooshooft is that a gazebo falls under the definition of an Active Habitable Room, and therefore falls within the definition of a Building. It is argued that under the Visual Privacy provisions of the Codes (cl 3.8.1 A1 (2002)/cl 6.8.1 A1 (2008)) that the gazebo should have been set back a minimum of 7.5 metres.

The matter of the lattice screening

The situation on the ground is that lattice screening exists along the rear property boundary with the exception of that missing portion in the southeast behind the gazebo.
The position of the applicants is that an approval is already in place to complete the work, and that as there is support from the third party neighbours (Mr and Mrs Brooshooft) that the missing portion should be completed in line with the existing lattice.
The position of the respondent appears to be to link the lattice screening with the obscure glazed screen as part of a single privacy screen and to require both to be set back 1.1 metres from the property boundary.
The position of the Tribunal is that a standalone lattice screen is a boundary fence and, as such, is specifically excluded from the definition of a Building. Accordingly, and in the interests of safety, privacy and amenity for both the applicants and the third party neighbours, the missing portion of lattice screening to match the existing lattice screening should be completed as soon as possible.

The matter of the obscure glazing

The position of the applicants is that only a lattice screen is needed but, if an obscure glazed screen is required, it should be parallel to and in juxtaposition with the lattice screen. This is what was proposed in DA06/2643.01.
The position of the respondent, and the third party neighbours, is that the obscure glazed screen should be positioned on the edge of the gazebo at 1.1 metres from the rear property boundary.
In the view of the Tribunal, the assessment of the obscure privacy screen is dependent on whether it is parallel to, and in juxtaposition with, the lattice screening, or whether it is attached to, and part of, the gazebo structure.

The matter of the cone of vision

In the witness statement of Mr Bain he provides, at SJB 7, two drawings showing a crosssection of the two alternative proposals for the privacy screen.
In the first place, he shows the respondent's proposal allowing a person to stand close to the existing retaining wall between the 1.6 metre high privacy screen (attached to the gazebo) and the rear property boundary. The person is able to easily look into the rear of No 42 Rookwood Street.
Mr Bain also shows the applicants' proposal with the continuation of the existing lattice screen and, if required, the obscure glazing behind at 1.6 metres high and positioned on the rear property boundary. In this alternative, he argues that it will reduce the cone of vision and consequently overlooking into the rear of No 42 Rookwood Street.
What Mr Bain has not shown are the consequential effects of the extended lattice screening on the rear property boundary and the obscure glazing attached to the gazebo at 1.1 metres from the rear property boundary.

The matter of the rear outdoor space at No 42 Rookwood Street

In his witness statement, Mr Bain argues that the rear space at No 42 Rookwood Street used for clothes drying is not an Active Habitable Space for a range of reasons. His arguments are persuasive.
The difficulty that the Tribunal has, however, is that this small area is part of a more extensive private open space and outdoor living area that leads past a habitable room to a swimming pool to the south. This small area, and beyond, is certainly capable of being overlooked from the subject land.

Conclusion

The application for review was lodged against a decision of the respondent to refuse an application for approval to commence development for a privacy screen along part-only of the southern property boundary at No 4 Hill View Road, Mount Lawley.
The privacy screen is proposed by the applicants behind the existing gazebo and comprises two parts; an extension to the existing lattice screening and a parallel obscure glazed screen located some 0.35 metres in from the common property boundary.
In undertaking this review, the Tribunal examined the respective position of the parties (including third party submissions), the background to the proposal, the relevant legislative and policy provisions and matters relating to the lattice screening, the obscure glazed screening and overlooking from the subject land into the rear outdoor space of No 42 Rookwood Street.
The position of the respondent in this matter is that the placement of a privacy screen, as proposed, would not be set back in accordance with the acceptable development provisions of the 2002 Codes with respect to Boundary Setbacks and also Visual Privacy, as it would not permanently restrict views within the cone of vision from the gazebo. Again, under the performance criteria it was considered that the proposed development would have a detrimental impact in terms of light and ventilation on the adjoining property.
The position of the third party neighbours (Mr and Mrs Brooshooft) is principally based on the unacceptability of the location of the existing gazebo so close to the property boundary and matters relating to noise and overlooking. It is suggested that the southern gazebo face be fully enclosed in terms of width and height to assist against visual intrusion and noise.
It is also clear from information before the Tribunal that there is no opposition from Mr and Mrs Brooshooft to the completion of the missing portion of the lattice screening in line with that already existing.
The position of the applicants in this matter is that there was an approval in 2000 for the construction of the lattice screening which is still current and that, as the gazebo is classified as an Outbuilding, it is not required to conform to the building setback requirements of the Codes. Also, that the lattice and obscure glazed screen conform to the requirement for permanent horizontal screening from an active habitable space and that, in any event, the narrow setback area at the rear of No 42 Rookwood Street is neither an active habitable space or outdoor living area.
It is also argued by the applicants that the provision of an obscure screen at a 1.1 metre setback (as required by the respondent) will provide no additional privacy, light or ventilation to the rear of No 42 Rookwood Street.
A further point made by the applicants is that by allowing a 1.1 metre 'gap' between the rear property boundary and the privacy screen, that this will allow direct overlooking and not prevent noise intrusion. Alternatively, the applicants' proposal will prevent noise transfer and will not create a useless 'gap' between the gazebo and the rear property boundary.
In an overall sense, the position of the applicants can be broadly summarised by wanting to complete the lattice screening and only, if required, should an obscure glazed screen be constructed parallel to, and in juxtaposition with, the lattice screen.
In examining this matter, the relevant provisions of the 2002 Codes and the 2008 Codes are an important determinant, as the Tribunal is required under s 241(1) of the PD Act to have due regard to any State planning policy (such as the Codes) which may affect the subject matter of the application.
In this regard, the Objectives for residential development (cl 1.3.1(e)) of the 2008 Codes includes:
To protect the amenity of adjoining residential properties.
Again, under the Objectives for the planning and development process (cl 1.3.2(e)), the 2008 Codes state:
To provide for neighbour consultation and discretionary decision by councils where acceptable development provisions are not met.
In assessing this matter, the Tribunal has been faced with a situation on the ground where a very attractive pool, gazebo, terrace and landscaping have already been constructed behind the existing residence on the subject land. The whole development towards the rear has required fill (apparently more than 0.5 metres above natural ground level) so that it is well above the neighbouring property at No 42 Rookwood Street.
There is, as a result, the opportunity for overlooking from the gazebo area; particularly in the absence of the missing portion of the lattice screen. This has led to a total lack of privacy at the rear (northeast corner) of No 42 Rookwood Street in the vicinity of the retaining wall.
In the view of the Tribunal, this loss of amenity could be compounded by noise emanating from the sound system from within the gazebo which is, at its closest point, some 1.1 metres from the joint property boundary. In these circumstances the Tribunal would agree (on the basis of noise only) with the contention of Mr Bain that a solid masonry wall:
… was, and still is, the best option to ameliorate neighbour concerns.
However, such a solution does not take into account matters of light, ventilation or the overpowering nature and shadow effect of a 4.1 metre high wall; particularly in the winter months.
In the view of the Tribunal, all that can be done at this time is to ameliorate the loss of amenity for the third party neighbours, but in a way that is not completely prejudicial to the applicants.
The first action should be to extend the existing lattice screening to fill the missing portion in the southeast corner behind the gazebo. This action would provide immediate privacy to both the applicants and the third party neighbours.
A point that needs to be made, as explained in [40] above, is that a standalone lattice screen is a boundary fence and, as such, is specifically excluded from the definition of a Building under the 2002 Codes and the 2008 Codes. It does not, as a consequence, need to meet the boundary setback provisions.
A matter relating to the security of the lattice screen is the prospect, however remote, of one or more individuals being able to lean against or climb the screen or be propelled against it with force, thereby causing it to break. There is the potential for an individual(s) to fall over 2 metres into the rear yard of No 42 Rookwood Street.
For this reason alone, the Tribunal supports the installation of an obscure glazed screen to supplement the lattice screen.
In terms of positioning such a screen, the respondent argues that if constructed parallel to and in juxtaposition with the lattice screen, that it would have a detrimental impact on No 42 Rookwood Street in terms of access to light and ventilation. The applicants contest this view but no quantifiable evidence has been provided to the Tribunal by either party. It would, however, seem a reasonable proposition that the further away the obscure glazed screen is from the completed lattice screen, the less effect the former will have on light and ventilation.
However, a factor relevant to the Tribunal is that if the obscure glazed screen was positioned in juxtaposition with the lattice screen, that there is the prospect of individuals on the subject land, and against the screen(s), being within a metre or so of persons in the rear corner of the outdoor living area at No 42 Rookwood Street. This is the kind of situation that could force neighbours to limit or abandon their use of an outdoor living area at certain times.

The Tribunal does not accept the argument of Mr Bain that this small area at the rear corner of No 42 Rookwood Street is not an outdoor living area as it is part of, and contiguous with, a more extensive private open space.
In the matter of the definition of a gazebo under the Codes, the Tribunal is more inclined to the view that it falls more appropriately under the definition of a Patio and would be classified as a Building. An obscure glazed screen attached to the gazebo would be part of that building and the Tribunal is satisfied that, in those circumstances, the performance criteria (Visual Privacy) of the Codes would be met.
It is a conclusion of the Tribunal that there is justification for an obscure glazed privacy screen at a height of 1.6 metres to be positioned approximately 1.1 metres from the rear property boundary across the full width, and attached to the gazebo. The screen should run parallel with the completed lattice screen.
Also, provision should be made for a gate to be part of the obscure glazed screen to allow access to the 1.1 metre 'gap' area to the south of the screen in order to attend the pool equipment in the far southeast corner of the subject land and to attend to any plants, cleaning, etc. This gate will avoid the difficult manoeuvre of an individual having to step across the southeast corner of the pool and to negotiate a gazebo column in order to access the 'gap' area.
In the view of the Tribunal there is a need for both the completion of the lattice screening to match existing and an obscure glazed screen having regard to the circumstances of this case, and that an obscure glazed screen positioned approximately 1.1 metres from the rear (southern) property boundary attached to the gazebo would be more in keeping with the intent of, and the relevant performance criteria of, the 2008 Codes than in juxtaposition with the lattice screening.

Orders

For the foregoing reasons, and in accordance with s 29(3) 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 the following conditions (a) to (c):
(a)That lattice screening be installed from the existing limestone pier on the rear property boundary to the southeast corner of the subject land of a type, height and alignment to match the existing lattice screen.
(b)That an obscure glazed privacy screen be installed at a height of 1.6 metres at approximately 1.1 metres from the rear property boundary across the full width of, and attached to, the existing gazebo.
(c)That the obscure glazed screen include provision for a gate (with safety lock) to allow access to the 1.1 metre 'gap' area between the screen and the rear property boundary.

I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER