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[2009] WASAT 217
General information, not legal advice.
State Administrative Tribunal (WA)
2009-11-03
Original judgment source is linked above.
The application for review is allowed and that part of condition 1 of development approvals DA07/2773 and DA07/2774, which relates to privacy screening, is hereby deleted from the approval that was issued
Each party should pay its own costs of the proceedings
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53;
1 These matters involved two applications for review on adjoining properties of the City of Stirling's requirement for privacy screening to balconies, decks, north facing windows and several west facing windows in the proposed units.
2 The respondent's reasons were related to the cone of vision from the proposed development which encroaches across the common boundary with adjoining lots, including a large undeveloped site for which there is no valid development approval.
3 The Tribunal found that although the technical application of the cone of vision did encroach on adjoining properties, the outlook is most likely to be over and beyond any development rather than into it. The view will be to the ocean, and in fact it is that view provided by the topography of the site that promotes the development.
4 The Tribunal allowed both applications for review.
5 This is an application by Myburgh Concepts Pty Ltd and Wagner Projects Pty Ltd (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the City of Stirling (respondent) on 21 March 2009 to impose a condition requiring screening on the proposed developments at No 29 (Lot 20) Nautilus Crescent, Scarborough and No 5 (Lot 19) Nautilus Place, Scarborough.
6 The developments were the subject of separate applications to the respondent and subsequently to the Tribunal. The matter under review is condition 1 of the development approvals DA07/2773 and DA07/2774, which the respondent states:
relate specifically to the requirements to provide screening to prevent the encroachment of the cone of vision across the common lot boundaries with adjacent properties.
7 Pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), conduct of the matter proceeded entirely on the basis of documents, although the Tribunal had the benefit of a view on 11 August 2009, accompanied by representatives of the respective parties.
8 The planning issue is the same for both sites, however the designs are, by necessity, different, so the Tribunal will initially deal with the sites separately.
9 The site is described by the applicants as being:
located on the north western corner of Nautilus Crescent and Nautilus Place in Scarborough. The lot is primarily oriented in an east west direction and is 'boot' shaped, with the boot being on the north western portion and the 'leg' being the eastern portion. The lot has a 9.7 m eastern street frontage to the primary street[,] namely Nautilus Crescent, a 8.5 m corner truncation and at 47.245 m southern street frontage to the secondary street[,] namely Nautilus Place.
29 Nautilus Crescent currently has a site area of 1073 [square metres] of which 98 [square metres] is proposed to be transferred to the neighbouring property, 5 Nautilus Place (See DR254 of 2009) also owned by the Applicants. The lot as applied for has an area of 975 [square metres] and is zoned R40.
29 Nautilus Crescent is located at the highpoint of a hill. From the site sweeping views of the ocean are available to the north, west and south. Views inland are available to the east. The topography of site is in keeping with its hilltop location with a steep slope on the site. The only large flat area of the site is located in the south western portion. This is also the high point at an elevation of RL44. From this plateau the site slopes down steeply in a northerly direction to a low point of RL36.36 (fall of 7.64m in the north west corner. The site also slopes less steeply in an eastern direction along the Nautilus Place boundary to a low point of RL37.91 (a fall of 6.09m in the north east corner).
10 The proposal is to construct four grouped dwellings, of which proposed Unit 3 and Unit 4 are affected by this review.
11 Proposed Unit 3 and Unit 4 have similar floor plans and are on three levels: a ground floor, upper floor and lower floor. The units are oriented to the north to take advantage of the sun, the ocean views and to avoid the southwesterly winds.
12 The ground floor at elevation RL44 has a north-facing balcony/deck area, and it is advised that it will have sweeping views to the ocean in the north.
13 The upper floor at elevation RL46.915 will have a small balcony from the master bedroom and again, have sweeping views to the ocean.
14 The approval granted by the respondent, dated 21 March 2009, has as the following relevant conditions:
The proposed development complying with all details and amendments marked in red as shown on the approved plan, specifically
...
All proposed privacy screening to comply with the provisions of Clause 6.8.1 - Visual Privacy of the Residential Design Codes of Western Australia[.]
18 Further notations on the northern elevation drawings show that all the northern balconies to both units require 'Balconies to be screened to a minimum 1.6m above finished floor level'.
19 The applicants state that the screening conditions would eliminate the northern views of the ocean which they consider the more significant amenity benefit of the property.
Residential Design Codes of Western Australia (2008)
20 The Design Element 6.8 'Privacy requirements' has as the stated objective:
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.
21 Under the heading 'Performance criteria', it states:
New development should meet these criteria:
6.8.1
Visual privacy
P1 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.
22 Under the heading 'Acceptable development', it states:
The acceptable development provisions illustrate one way of meeting the associated performance criteria.
Notes:
6.8.1
Visual privacy
A1 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 the following:
A2 In multiple dwelling developments, major openings and unenclosed outdoor active habitable spaces within the cone of vision of an upperlevel dwelling shall not overlook more than 50 per cent of the outdoor living area of a lowerlevel dwelling directly below and within the same development.
23 A cone of vision is illustrated in the explanatory section of Design Element 6.8 at 28 of the Residential Design Codes of Western Australia (2008) (Codes). The eye position is set at 1.65 metres above floor level and 0.5 metres back from a balcony edge or a window. The horizontal component is an arc between the two lines drawn at 45 degrees from the eye position. The vertical component is a 60 degree arc measured 30 degrees above the eye level and 30 degrees below the eye level.
24 The respondent's submission, put forward in its 'Respondent's Statement of Reasons for its Decision' dated 4 August 2009, is that the cone of vision from the proposed development encroaches across the common boundary with adjoining lots. The land known as No 19 (Lot 21), No 21 (Lot 22) and No 25 (Lot 23) Nautilus Crescent, Scarborough is vacant and does not have a valid approval.
25 There had been a development approval for 12 grouped dwellings on Lot 21, Lot 22 and Lot 23 Nautilus Crescent that expired on 25 September 2008. The respondent had been advised that the application would be renewed. However, this did not occur and the application was determined without particular relevance to that proposal.
26 The respondent's position in the absence of existing development, or an approved development application, is that:
... The Respondent was reluctant to issue an approval for a development which would result in the cone of vision encroaching across lot boundaries when it was not possible to assess the impact of the encroachment on any future development which may take place on the adjoining lots.
27 The applicants have provided detailed sketches of both the horizontal and vertical cone of vision in support of their position, and as these sketches are not dated, they may not have been provided to the respondent at the time of submission. Nonetheless, the respondent has not elected to provide a response on these aspects.
28 The applicants' cone of vision sketches and associated notes make the following claims:
The horizontal encroachment to the west can be suitably responded to by virtue of the fact that the development to the west is by the same owner and screening is incorporated in that proposal.
29 The applicants' submission is that the vertical difference between the properties and the attractiveness of the distant ocean view, which is the outlook from the balconies, will tend to strongly focus the view well beyond the adjoining property.
30 The applicants have utilised the previously approved development at 19 25 Nautilus Crescent to demonstrate compliance with the acceptable development standards. The development approval, however, has lapsed and the respondent is suitably cautious in approving an application where the horizontal cones of vision encroach beyond the common boundary.
31 The difference in elevation evident on site, and shown on the applicants' vertical cone of vision sketches, is such that the view could reasonably be expected to be over the neighbouring property, based on any realistic development proposal, rather than into it. This situation is even more likely in this instance where the distant view is to the ocean.
32 The Explanatory Guidelines of the Codes at 25 reinforce this position where they state that:
Application of the vertical component is often more significant, especially for overlooking from upper levels of buildings. Often it will show that upper level windows of dwellings on elevated sites will have an outlook above and beyond, and not into, an adjoining property.
33 From the examination of this matter, the Tribunal concludes that the condition requiring screening to the upper and ground level balconies on proposed Unit 3 and Unit 4 at 29 Nautilus Crescent, Scarborough cannot be supported.
34 The site is described by the applicants as being:
located in a small hilltop cul de sac in Scarborough. The lot is oriented in an east west direction and is rectangular in shape. The lot has a 40.08m northern, 25.335m eastern, 40.715m southern and 20.12m western boundaries. The lot has a small 6.93m street frontage to Nautilus Place and its south eastern corner.
5 Nautilus Place currently has a site area of 826 [square metres] of which 98 [square metres] is proposed to be amalgamated from the neighbouring property at 29 Nautilus Crescent, also owned by the Applicants. The lot as applied for has an area of 924 [square metres] and is zoned R40.
5 Nautilus Place is located at the highpoint of a hill. From the site[,] sweeping views of the ocean and over Scarborough towards the ocean are available to the north, west and south. The high point of the lot is at the south eastern corner at an elevation of RL44.24 [metres]. From this point the site slopes down steeply in both northerly and westerly directions to a [sic] low points of RL36.29 [metres] (fall of 7.95 m) in the north east corner, RL34.14 [metres] (fall of 10.1 m) in the south west corner, and RL31.27 (fall of 13.01 m) in the north west corner.
35 The proposal is to construct four grouped dwellings, and there are similar issues as at 29 Nautilus Crescent regarding the prospective development on the land to the north and west which is vacant and has no valid development approval.
36 The respondent has not provided detailed comment on the proposal, rather relying on the position that the horizontal cone of view encroaches over the common boundary.
37 The applicants have provided detailed horizontal and vertical cone of vision sketches, and with those sketches submitted that the application meets either the acceptable development provisions in cl 6.8.1 of the Codes or the performance criteria.
38 The Tribunal concludes that there is no requirement for the screening conditions as:
39 The Tribunal accepts the respondent's view that in the absence of a valid development approval for the adjoining property, they should act with caution. However, there is compelling logic in the previously approved development application to guide consideration.
40 The Tribunal considers that there is adequate information regarding both the site topography, the previous approval of an application on the adjacent property, the logic of the adjacent property being developed with north facing activity areas and the attractiveness of a distant view of the ocean over and beyond the adjoining properties to conclude that there is no necessity for the screening proposed by the respondent.
41 The Tribunal has considered the proposed development and the detailed submissions of the applicants. The horizontal and vertical cone of vision sketches, which are undated and may not have been in the initial submission, have demonstrated the need to particularly consider the vertical separation of the proposed development to either existing or anticipated developments on adjoining land.
42 The applicants' submissions that the view will be over, not into, any adjoining development because of the topography, is accepted and highlights the value of providing detailed vertical documentation at an early stage.
43 In summary, the respondent raised concerns regarding the encroachment of the horizontal cone of vision on the common boundary and how this would result in overlooking of active habitable spaces and outdoor living areas of other dwellings of future development on the adjoining lot. The Tribunal does not consider that in this situation, the respondent's concerns are justified.
44 The applicants seek an order under s 87(2) of the SAT Act that the respondent should pay their costs of the proceedings as it did not make an attempt to genuinely assess the need for screening on the windows and balconies on its merits, and acted unreasonably in not raising its concerns about privacy matters at earlier meetings.
45 The Tribunal's established practice, in relation to the exercise of its discretion as to costs in review proceedings, is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246. The Tribunal does not consider that it should depart from its usual practice in the circumstances of this case.
46 The respondent did delay a decision on the matters in anticipation of a renewed application for 19 25 Nautilus Crescent, as that could have provided them with guidance as to the development proposed. There was, however, no application submitted and eventually a decision was made.
47 The applicants appear to have submitted the very detailed horizontal and vertical cone of vision sketches only as part of their review submissions, so these were not available to the respondent prior to its decision. It is considered that these would have been of assistance to the respondent.
48 It is arguable that the respondent should have raised the privacy concerns at an earlier stage. However, the respondent appears to have been focused on the horizontal cone of vision only, and in that regard was anticipating clarity from the adjoining application.
49 The matter was ultimately dealt with on the papers and did not involve the engagement of experts for hearings and thus no substantive costs were incurred.
50 It follows that each party should bear its own costs of the proceedings.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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