RUSSELL and CITY OF MELVILLE - [2008] WASAT 244

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RUSSELL and CITY OF MELVILLE [2008] WASAT 244

MEMBER: MS R MOORE (SENIOR SESSIONAL MEMBER)

HEARD: 20 AUGUST 2008

DELIVERED : 21 OCTOBER 2008

FILE NO/S: DR 173 of 2008

BETWEEN: SHANA RUSSELL
Applicant
AND
CITY OF MELVILLE
Respondent

Catchwords:

Town planning - Conditions of development approval - Objection by adjoining landowner - Side boundary setback - Visual privacy - Overlooking from upper level major opening - Relocation of mature street tree

Legislation:

City of Melville Community Planning Scheme No 5, cl 5.1(c), cl 6.4, cl 6.5
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252
Residential Design Codes of Western Australia (2008), cl 6.3.1, cl 6.8, cl 6.8.1, cl 6.8.1 P1

Result:

The application for review is dismissed
The decision of the respondent to impose conditions (2), (3), (4), and (19) is affirmed

Category: B

Representation:

Counsel:

Applicant: Ms A Butterworth (Acting as Agent)
Respondent: Mr A Pawluk (Acting as Agent)

Solicitors:

Applicant: Allerding & Associates (Planning Consultants)
Respondent: City of Melville

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of four conditions imposed by the City of Melville on a development approval to amend the second storey windows to the dining room, kitchen and wet kitchen areas, and balcony screening of a two storey single dwelling at No 133 (Lot 25) The Esplanade, Mount Pleasant.
The City of Melville and the adjoining property owner at 135 The Esplanade were primarily concerned with the effect of the change from obscure to clear glazing in the upper floor dining room window. The City applied a condition requiring screening to this window in order to minimise overlooking of the adjoining property.
The Tribunal found that the neighbour's amenity was significantly impacted by the overlooking of their active habitable space and outdoor living areas warranting the condition imposed by the City requiring screening of the dining room window.
The three remaining conditions related to the relocation of an existing mature street tree. These conditions had also been imposed on the original planning application for the almost completed two storey dwelling. The Tribunal was satisfied that these three conditions should remain.

Introduction

These proceedings involve an application brought by Ms Shana Russell (applicant), pursuant to s 252 of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Bayswater (respondent, City or Council) made on 15 July 2008 to grant conditional approval of an application to amend the second storey windows to the dining room, kitchen and wet kitchen areas and balcony screening of a previously approved of a two storey dwelling at No 133 (Lot 25) The Esplanade, Mount Pleasant (site or subject site).

Site and locality

The site is located at No 133 (Lot 25) The Esplanade, Mount Pleasant. It is a corner block with a site area of 725 square metres. The site has a frontage of approximately 14.2 metres to The Esplanade and approximately 30.6 metres to Central Avenue, and a corner truncation measuring 8.53 metres.
There are unrestricted views over The Esplanade to the river foreshore.
There is a mature jacaranda street tree (street tree) on the Central Avenue verge approximately 10 metres from the western boundary of the subject site.
Construction is almost complete on the previously approved two storey dwelling on the subject site. This review is concerned with the conditional approval of amendments to southern upper floor windows and balcony. The conditions relating to the relocation of the street tree are included in this review.

Planning framework

The site is zoned 'Urban' under the Metropolitan Region Scheme (MRS). The site is zoned 'Living Area Precinct - River Foreshore' and has a residential density coding of R12.5 under the City of Melville Community Planning Scheme No 5 (CPS 5 or Scheme).
Clause 5.1(c) of the Scheme provides that '[u]nless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes'.
The relevant sections of the Residential Design Codes of Western Australia (2008) (Codes) will be discussed below.

Proposed development

The planning application lodged in January 2008 was for approval to amend the southern upper floor windows to the dining room, kitchen and kitchen wet areas, and for alterations to screening at the southern end of the balcony.
As part of the review proceedings the Tribunal had the opportunity to view the subject site and the neighbour's property at 135 The Esplanade. At the view it was noted that the two storey residence was close to completion, the jacaranda tree on the verge was in its original position and the window to the dining room had been installed with clear glass.

City of Melville's decision

The application for review lodged with the Tribunal in May 2008 was in relation to a deemed refusal. The City of Melville has since approved the application subject to a new condition as follows:
19. The dining room window be screened to prevent views to the south and south-west by the use of lumisty film or similar, or external screening to the approval of the manager planning and development services.
Also included on the approval were conditions which formed part of the original development approval for the two storey residence. The applicant is requesting that these conditions be reviewed as well. They relate to an existing jacaranda street tree and read as follows:
2. The existing jacaranda street tree located within the central avenue road verge of 133 The Esplanade, Mount Pleasant, to be relocated at the applicants/owners full cost to the satisfaction of the Manager, Planning and Development Services. The street tree is to be relocated midverge within the area marked in 'red' on the approved plans.
3. The applicant/owner to enter into a bond agreement with the City of Melville for the street tree relocation. The cash amount applicable to the bond agreement shall be $2,000 and is to be held by the City of Melville for a replacement tree, should the replanting fail, for a period of 12 months from planting.
4. The applicant/owner to provide to the City of Melville, in writing, confirmation of the intention to proceed with the street tree relocation and the intention to enter in the bond agreement with the City of Melville within 21 days of the date of this approval.

Neighbour objection

The neighbour, Dr Kai Oon Goh, resides with his wife and son at 135 The Esplanade, Mount Pleasant which is located immediately to the south of the subject site. Dr Goh objected to the proposal to change the dining room window from obscure to clear glass because he felt that the window was in an area to be used frequently by the occupier and looks directly into his house and thereby reduces the privacy of his family.
It was Dr Goh's evidence that there will be an unobstructed view from the upper dining room window into his ground floor living area as well as his main bedroom, son's bedroom and upper living area. He had no objection to the proposed alterations to the front balcony as it is on the south (river side) and used infrequently. Dr Goh was of the opinion that the view to his house from the footpath is not the same as the view from the subject dining room window. He believed that while his windows can be seen from the footpath, the interior of the rooms are more private because the overhanging balconies cause the windows to generally be in shade.

The issues

The two key issues that arise from this review are in relation to the effect of the second floor dining room window on the amenity of the adjoining neighbour and the significance of the existing jacaranda street tree.

Street tree

The street tree is located on the Central Avenue verge and is described as a healthy jacaranda mimosifolia approx 10 metres in height.
Clause 6.4 of CPS 5 enables the Council to maintain a 'Register of Trees and other Flora' in order to facilitate the protection of significant vegetation. The subject tree is not listed on this register.
Clause 6.5 of CPS 5 states:
For the conservation of vegetation:
(a)the Council, in granting an application for planning approval, in addition to any other condition that the Council is required or permitted to impose, may require that:
(i)the development is carried out in such a way as to minimise disturbance to existing vegetation;
(ii)any tree or group of trees or other flora be preserved or protected, whether included in the Register or not;
In the City of Melville Tree Policy No 12-001 (Tree Policy) cl 1(d) states:
Retention of mature trees on public and private property may be included as a condition of approval for development applications in accordance with section 6.5 of Community Planning Scheme 5.
The three conditions under review relating to this street tree were listed as Special Conditions 1, 2 and 3 in the planning approval dated 28 February 2007. The conditions form part of the recent planning approval dated 15 July 2008 and are listed as Special Conditions 2, 3, and 4 respectively.
Mr Pawluk, a town planner representing the City, gave evidence that the application of these conditions reflects the Council's Tree Policy objectives which state that '[t]rees are an asset which contribute to the wellbeing of the community and the natural environment and which, through their longevity, serve as a cultural linking element throughout generations'. Mr Pawluck had received advice from the respondent's Senior Natural Resource Technical Officer, Mr Richard Jessup, by email that '[t]he tree is a magnificent specimen for a Jacaranda which is a City of Melville Prescribed Street Tree'.
Mr Pawluk provided the Tribunal with a Tree Valuation Formula prepared by Mr Jessup, which is used by the respondent to calculate the amenity value of a tree and expresses this in monetary value. The formula utilises a table of values devised by the American Council of Tree and Landscape Appraisers and has been borrowed from, and is used by, the City of Melbourne. It is the evidence of Mr Pawluk that the assessed value of $6,393 using this formula indicates the significant amenity value of the street tree.
The street tree has been described as a very good specimen of its species and considered worthy of protection hence the special conditions placed on both the original and subsequent planning approvals.
In June 2008, the applicant requested, in writing, approval for the following:
1.Removal of the existing street tree at the landowners expense.
2.The landowner planting a new street tree in the location as shown on the attached plan, being a species as approved by the City.
The City responded by requesting the applicant submit a revised development application and stating the options that the City were willing to consider. The options are:
(i)Retain the tree in its present location and deviate the crossover to the right hand side of the tree allowing a minimum of 1.0 metre clearance to its base.
(ii)The City of Melville removes the tree at the applicant's cost and the applicant undertakes replacement with an equivalent sized Jacaranda having a calliper of 400mm measured at breast height and planted clear of the crossover in the Central Avenue verge in a position agreed by the City of Melville.
(iii)The City of Melville removes the tree at the applicant's cost and the applicant undertakes to replacement with two semi advanced trees to the Central Avenue verge, in a position agreed to buy the city of Melville each having a calliper of 150mm measured at breast height.
Ms Amanda Butterworth, a town planner representing the applicant, put forward a number of arguments as to why the applicant should be able to remove the existing street tree and replace it with an available semimature tree.
These arguments included the Council not supporting an earlier design which positioned the garage wall on the boundary, and utilised the existing crossover and retained the existing street tree. In Ms Butterworth's opinion, the current design requires the relocation of the existing street tree in order to access the three car garage.
The Tree Policy does give the Council the discretion to approve removal of a street tree where 'in the opinion of the Director Development Services, removal is necessary to provide vehicular access to a property as part of a development application'.
In this case, the subject site is a corner site with a total of approximately 50 metres of boundary which can be accessed from the street. It would be difficult to argue that there is no alternative location for a driveway or crossover. The Tribunal is of the view that the new dwelling could have been designed so as to provide garaging that could be accessed while leaving the street tree in its existing position.
Mr Pawluk notes that the applicant was fully aware of the conditions relating to the relocation of the street tree before commencing construction of the residence.
The applicant, Ms Shana Russell, gave evidence that she was away at the time her builder paid the council bond and gave the Council the assurance by email that 'our client is aware that the tree has to be re-located'. In her evidence, the applicant stated that she was not happy with the option of two replacement trees because they would block north light to her building and obscure current views. She was of the same opinion regarding the relocation of the existing street tree. She was also unhappy with the fact that there were no guarantees the street tree would survive relocation.
Ms Butterworth presented evidence that underground public utility services are in the vicinity of the area specified for re-location and that the root ball of the tree may be large - making relocation difficult.
The street tree in its current location was viewed on site. There was disagreement on whether the garaging could be safely accessed by vehicles if the street tree remained in its existing position. It was also noted that the verge levels had been significantly altered by the applicant which may have reduced the amount of ground cover to existing underground services.
It is the Tribunal's view that the two storey dwelling could have been designed to include safe vehicular access to appropriate garaging while maintaining the integrity and location of the street tree. Notwithstanding this, the City has given approval for the street tree to be relocated and since has offered three alternatives to be considered with respect to replacement trees.
The Tribunal is satisfied that the City values its existing trees as indicated by CPS 5 [at] cl 6.5 which allows for the imposition of conditions requiring the preservation of any tree whether on the Tree Register or not. Further, the Tree Policy allows for the retention of mature trees on both private and public property.
The Tribunal is of the view that the conditions (2), (3), and (4) are appropriate and should not be deleted.

Dining room window

The application under review proposes clear glass to the dining room window located on the second storey south elevation. This was to be fixed obscure glazing in the original development approval.
It is agreed by the parties that with clear glazing, the dining room window is considered a major opening and under the acceptable development standards of the Codes a setback of 5.3 metres from the side boundary would be required. The window is already constructed with a side setback of 1.56 metres and therefore does not meet the acceptable development standards.
Clause 6.3.1 of the Codes lists the performance criteria for buildings setback from boundaries other than street boundaries. The last criteria requires buildings to 'assist with the protection of privacy between adjoining properties'. It is Mr Pawluk's opinion that this criteria is not achieved with the change from obscure to clear glazing.
Ms Butterworth is of the opinion that the key concern should be whether the dining room window meets the performance criteria of cl 6.8.1 of the Codes in regard to visual privacy. It is accepted by both parties that the proposed window does not meet the acceptable development criteria and must be assessed in accordance with the performance criteria below.
Clause 6.8.1 P1 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.
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 objectives of cl 6.8 are '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 subject dining room window overlooks the adjoining neighbour's ground floor living area and associated outdoor living area, as well as the second floor main bedroom and associated balcony.
Ms Butterworth argues that as these areas are all visible from the street and river foreshore there is a lesser requirement for privacy. She refers to page 23 of the Code's Explanatory Guidelines, where it states that 'a lesser need for privacy protection is usual in the case of front gardens and areas visible from the street … '.
The openness of Dr Goh's house was illustrated at the view. There are large windows on both the ground and upper floors maximising the river views. At pedestrian level it is possible to look upwards through the raised glass fencing towards the balconies and large windows. The amount of visibility from the footpath and river foreshore is limited by the fact that the ground floor is raised considerably and the windows are generally setback behind a continuous balcony.
Mr Pawluk is of the opinion that the nature of the overlooking from the subject dining room window is very different than the potential overlooking from the public realm. The view from the public realm is at ground level looking upwards (the ground level of the house is approximately 1.5 metres above the ground level of the footpath), the distance is greater from the public realm than from the subject window and the viewing from the public realm is generally for shorter periods of time.
The Tribunal prefers Mr Pawluk's evidence and agrees that the nature of overlooking from the subject window is fundamentally different to the potential overlooking from the public realm. While there is a lesser need for privacy protection for areas visible from the street, that does not equate to the justification of permanent overlooking from a raised active habitable space over the habitable rooms and outdoor living areas (private or not) of an adjoining property.
The main area of concern from the neighbour is the upper main bedroom and balcony, and the ground floor living and associated outdoor area. It is worth noting that as the subject window is situated on the side elevation, it overlooks areas located behind the front building setback line. The neighbours have not expressed concern for the potential overlooking from the upper front balcony presumably as it overlooks the front section of their property forward of the front setback line.

A further argument of Ms Butterworth's concerns the meaning of 'remoteness' and is based on the contention that development more than 6 metres from the side boundary may be interpreted as being remote and that in her view 'direct overlooking of the main bedroom and the adjacent balcony on the neighbouring property is minimised by its remoteness from the dining room window'.
'Remoteness' is not defined in the Codes and the Tribunal is not of the view that in this situation it is a sufficient reason for not reducing direct overlooking by the other means listed in cl 6.8.1, which include:
building layout, location and design of major openings and outdoor active habitable spaces, screening devices and landscape …
As Mr Pawluk points out, changing the dining room window from obscure to clear glass turns a minor opening into a major opening and causes direct overlooking of an adjoining property.
The Tribunal finds that the performance criteria of cl 6.8.1 will not be satisfied with the removal of condition 19, as the subject window with clear glass directly overlooks active habitable spaces and outdoor living areas of an adjoining property and thereby impacts on the amenity of the adjoining property.
While absolute privacy cannot be expected in all situations, 'a reasonable level of privacy can be achieved through good design' and in this case, the condition requiring directional film to be applied to the subject window is a compromise allowing partial views of the river from the subject window while protecting the privacy and amenity of the adjoining neighbour.

Conclusion

The Tribunal has determined that the provision of clear glazing instead of obscure glazing to the upper floor dining room window of the subject two storey dwelling does not satisfy the visual privacy performance criteria of cl 6.8.1 of the Codes. The subject window is a major opening which will directly overlook both active habitable spaces and outdoor living areas of the adjoining property. The impact on the amenity of the neighbour is not minimal.
The Tribunal is of the view that the City's condition (19) is an appropriate compromise. The applicant has an existing approval for the subject window to be obscure glazing which can be complied with.
With regard to the existing mature jacaranda street tree, conditions (2), (3), and (4) formed part of the original planning approval for the partially complete two storey dwelling on the subject site. The Tribunal is of the view that the conditions (2), (3), and (4) are appropriate and should not be deleted.
The application for review is therefore dismissed and the decision of the respondent to impose conditions (2), (3), (4) and (19) is affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 15 July 2008 to grant conditional approval to amend the previously approved two storey dwelling at No 133 The Esplanade, Mount Pleasant is affirmed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS R MOORE, SENIOR SESSIONAL MEMBER