Interpretation Act 1984 (WA), s 5, s 18

Residential Design Codes of Western Australia, cl 3.8.1

Town Planning and Development Act 1928 (WA), s 66

2. Determination of Senior Sessional Member Jordan in Newman and Town of Cottesloe [2005] WASAT 83 and orders dated 27 April 2005 affirmed

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Lawson and Shire of Mundaring [2005] WASAT 1

Newman and Town of Cottesloe [2005] WASAT 83

Randwick Municipal Council v Manousaki (1988) 66 LGERA 330

Williams and Western Australian Planning Commission [2005] WASAT 10

Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; (1999) 130 LGERA 79

1 The applicant sought review by the President of a determination of the Tribunal under s 66 of the Town Planning and Development Act 1928 (WA). The Tribunal had dismissed the applicant's application for review of conditions of development approval which required that two proposed windows be modified to preserve the privacy of an adjoining property. A review by the President was only available where the determination of the Tribunal was on a matter involving a question of law.

2 The question of law involved in the determination of the Tribunal was the proper construction of the acceptable development provision in cl 3.8.1 of the Residential Design Codes of Western Australia. On its proper construction, that provision required that major openings to active habitable spaces, which had a floor level of more than 0.5 metres above natural ground level, and which were not provided with permanent vertical or horizontal screening, were to be set back the nominated minimum distances, where a horizontal cone of vision from the major opening overlooked any part of any other residential property behind its street setback line. The Tribunal had correctly construed this provision.

3 This case highlighted an unfortunate, direct conflict within the explanatory text of element 8 of the Residential Design Codes of Western Australia which should be addressed and removed at the earliest opportunity.

4 This is an application by Ms D M Newman ("applicant"), made under s 66 of the Town Planning and Development Act 1928 (WA) ("TPD Act"), for review by the President of a determination of the Tribunal made in review proceedings under the TPD Act. The determination in question was made by Senior Sessional Member Jordan in a reserved decision delivered on 27 April 2005, following a hearing on 11 March 2005: Newman and Town of Cottesloe [2005] WASAT 83.

5 The proceedings involved an application for review by the applicant of the decision of the Town of Cottesloe ("respondent") to grant development approval for second storey additions at the rear of her house at No 18 (Lot 28) Perth Street, Cottesloe ("the site"), subject to certain conditions. The proposed additions included a large bedroom and a small bedroom. The large bedroom was proposed to have a west-facing window 1800 millimetres wide, set back 3.14 metres from the common boundary with No 16, Perth Street (the adjoining property), and a north-facing window 2200 millimetres wide, facing the rear yard, both with a sill height of 950 millimetres. The small bedroom was proposed to have a north-facing window 1500 millimetres wide, facing the rear yard, with a sill height of 950 millimetres. This window was proposed to be set back 2.0 - 3.5 metres from the common boundary with the adjoining property.

6 The applicant applied for review of the following condition of approval:

"Revised plans being submitted for approval by the Manager, Development Services, showing;

(i) the north-facing window to the small upper floor bedroom being modified to have a sill height of 1.65 metres from the floor level or to be provided with fixed obscured glazing up to a height of 1.65 metres from the floor level or alternatively being provided with a fixed louvered screening to prevent overlooking into the adjoining property;

(ii) the west-facing window to the new upper floor bedroom being modified to have a sill height of 1.65 metres from the floor level or to be provided with fixed obscure glazing up to the height of 1.65 metres from the floor level;

(iii) the north-facing window to the large upper floor bedroom being modified to provide fixed louvered screening or alternatively, be realigned to the centre of the north wall to prevent overlooking into the adjoining property."

7 The Senior Sessional Member dismissed the application to have par (i) and par (ii) deleted from the condition. He upheld the application to have par (iii) deleted from the condition.

8 The application for review under s 66 of the TPD Act was made in the form of a letter from Mr D Newman, on behalf of the applicant, dated 30 May 2005 and received by the Tribunal on 1 June 2005. On 2 June 2005, the Tribunal advised the parties that, unless either party specifically requested a hearing, the President would determine the application entirely on the documents, namely the parties' written submissions, the published reasons for decision of the Senior Sessional Member and any exhibit which the parties referred to in their submissions. The applicant was directed to file and give her submissions to the respondent by 8 June 2005, the respondent was directed to file and give its submissions to the applicant by 15 June 2005, and the applicant was directed to file and give any submissions in reply to the respondent by 17 June 2005.

9 Although the applicant filed her submissions within time, it appears that she failed to give her submissions to the respondent. The Tribunal subsequently forwarded a copy of the applicant's submissions to the respondent, which promptly responded with its written submissions within two days. As it appeared that the respondent did not provide its submissions to the applicant, the Tribunal forwarded a copy of the respondent's submissions to the applicant.

10 Neither party requested an oral hearing.

Section 66 of the Town Planning and Development Act

11 As the Tribunal observed in Lawson and Shire of Mundaring [2005] WASAT 1 at [7], s 66 of the TPD Act "sets out two preconditions which must be satisfied by the applicant in order to found jurisdiction to review a determination of the ... Tribunal". The first is that a determination must have been made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). Mr Jordan is not a legally-qualified member.

12 The second precondition is that the determination must have been upon a matter involving a question of law. The applicant did not explicitly assert that the determination in question was upon a matter involving a question of law. The respondent submitted that no question of law arose. However, it appears from her written submissions, and bearing in mind that she is self-represented, that the applicant's complaint is, in substance, that the determination in question was vitiated by error of law.

13 In Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; (1999) 130 LGERA 79, Lloyd J held, in the course of determining an appeal from a decision of the former Senior Commissioner of the Land and Environment Court under s 56A of the Land and Environment Court Act 1979 (NSW), which was restricted to an appeal "on a question of law", at [29], as follows:

"A finding of fact may reveal an error of law where judge (or commissioner) has misdirected himself (ie, in this case that 'the development is seen as entirely acceptable'), or where he has defined otherwise then in accordance with law the question of fact which he has to answer (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, per Glass JA)."

14 It appears that, in this case, the applicant, in substance, asserts that the Senior Sessional Member misconstrued the meaning of the acceptable development provision in cl 3.8.1 of the Residential Design Codes of Western Australia (R-Codes), that relates to visual privacy, and, therefore, asked himself and answered the wrong question.

15 At [9] ­ [16] of his reasons for decision, the Senior Sessional Member described the planning framework which governed the development application. The site is zoned "Residential", with a density coding of "R20", under Town of Cottesloe Town Planning Scheme No 2 ("TPS2"). Clause 7.1.1 of TPS2 requires the respondent's approval to commence development on any land zoned under the Scheme. Clause 5.2.1(c) of TPS2 relevantly provides that "the development of land for any of the residential purposes dealt with by the [R-Codes] shall conform to the provisions of those Codes".

16 Section 3.8 of the R­Codes 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

P1 Avoid direct overlooking between active habitable spaces and outdoor living areas of the development site and the habitable rooms and outdoor living areas within adjoining residential areas taking account of:

• the positioning of windows to habitable rooms on the development site and the adjoining property;

• the lesser need to prevent overlooking of extensive back gardens, front gardens or areas visible from the street."

17 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 distances 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 affected land is zoned to allow for residential development.

A1 Major 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. a setback, in direct line of sight within the cone of vision, from the boundary a minimum of:

• 6.0 metres in the case of habitable rooms other than bedrooms; and

• 7.5 metres in the case of unenclosed active habitable spaces (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."

18 It was common ground that the north and west-facing windows of the large bedroom and the north-facing window of the small bedroom were "major openings" to "active habitable spaces" for the purposes of the R-Codes.

19 Under the heading "Overlooking and the cone of vision for privacy design", the explanatory text to Element 8 of the R-Codes states that "the impact of a particular development on the privacy of a neighbouring property can be assessed by applying a cone of vision at any point where a person is likely to be able to look onto that property" (page 77). Diagrams then illustrate a "horizontal component" of the cone of vision and a "vertical component" of the cone of vision. The illustrated horizontal component is 90 degrees, being 45 degrees each side of a centre line of vision. The vertical component is 60 degrees, being 30 degrees above and 30 degrees below a horizontal line from eye height 0.5 metres from the window. The text states that, although the relevance of the horizontal component is "readily apparent", 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.

A space could be considered to be overlooked if people carrying out normal day-to-day activity within it fall within the cone of vision as applied from a neighbouring property, and within a given distance."

20 Under the heading "Privacy separation distances", the explanatory text states, at page 79, as follows:

"Because it is not possible to easily predict how a neighbouring site may be developed in the future, privacy separation distances can most realistically be applied between the proposed development and the property boundary, that is, as line of direct sight setbacks. The way in which setbacks should be determined is illustrated in the diagram "Measuring setbacks using the cone of vision".

The Codes provide a set of privacy setbacks, based on these considerations, to operate in the absence of detailed and acceptable consideration of the use and development of affected properties. These are set out as Acceptable Development provisions, which do not require the discretion of the Council. For that reason, they are conservative, providing a relatively high level of protection from overlooking."

21 The diagram entitled "Measuring setbacks using the cone of vision", which is also at page 79, shows the floor plan of "proposed new dwelling with floor level higher than 0.5m above natural ground", dimensioned setbacks to boundaries, and existing dwellings on each side. A horizontal 90-degree cone of vision is generated from each side window of the proposed new dwelling. In the case of a bedroom window having a setback of 4.5 metres, no screening is provided. However, in the case of bedrooms having a lesser setback, screening devices are shown within the horizontal cone of vision. Significantly, this diagram does not include or refer to a vertical component of the cone of vision.

22 At [17] - [34] of his reasons for decision, the Senior Sessional Member recounted the respondent's and the applicant's evidence and submissions. Mr S Rodrigues, an architect, gave evidence for the respondent that the proposed west-facing window of the large bedroom would afford direct surveillance of the rear yard of the adjoining property and that the north-facing window of the small bedroom would permit oblique views. He considered that these windows did not meet the acceptable development provision of element 8 of the R-Codes, as they were unscreened and set back less than 4.5 metres from the common boundary. He considered that the development did not meet the performance criteria, as the unscreened windows would look directly into the outdoor living areas of the adjoining property.

23 Ms L Palermo, a town planner who gave evidence for the respondent, was of a similar opinion. It was her evidence that the conditions in question were necessary to protect the amenity of the adjoining property.

24 Mr K Adam, a town planner, represented and gave evidence on behalf of the applicant. Mr Adam contended that the windows in question conformed to the acceptable development provision, because, while within 4.5 metres of the common boundary, the vertical limits of the cones of vision taken from these windows extended no closer to ground level on the adjoining property than 3.3 metres and 2.7 metres, that is, in the Senior Sessional Member's words, "the cones of vision stop well above the head of someone in the yard and the level of openings to habitable rooms within the area into which they protrude". This was, in part, due to the fact that the adjoining property was 650 millimetres lower than the site. Mr Adam submitted that it was implicit in the R-Codes that overlooking did not occur where there was no opening to a habitable room or outdoor living areas within the cone of vision generated vertically and horizontally.

25 The Senior Sessional Member considered the evidence and submissions at [35] - [50] of his reasons. He noted, at [35], that there was no dispute between the parties that if a person stood at the windows in question and looked down towards the west, he or she would have a view of the rear yard of the adjoining property. He noted that each party appeared to derive support from the explanatory text of Element 8 for its submission that the windows in question did or did not conform to the acceptable development provision. However, he drew particular attention to the text and diagram referred to at [17] and [18] above.

26 The Senior Sessional Member concluded his analysis, at [49] - [50], as follows:

"Where the privacy setback distance is to the lot boundary it meets the Acceptable Development provisions and can be approved. In this case the privacy setback distance extends beyond the boundary of the subject land. From the evidence presented, I am not convinced the cones of vision of the west-facing window of the larger bedroom and the north-facing window of the smaller bedroom are sufficiently elevated above No 16 to be beyond the threshold where a compromise on setback distance from the boundary to the windows can be supported.

In respect of the north-facing window of the larger bedroom, the setback distance within the cone of vision is within the subject land and in any event any 'distant view' beyond the depth of the cone of vision is to the rear fence of the yard of No 16. This is considered to be consistent with the Acceptable Development provisions."

27 It is apparent that, in considering the application for review of the conditions in question, the Senior Sessional Member was presented by the parties with two alternative interpretations of the meaning of the acceptable development provision. The applicant contended that the windows in question were not positioned "so as to overlook any part of any other residential property" and were not "in direct line of sight within the cone of vision", because, on the proper construction of the acceptable development provision, overlooking and direct line of sight would only occur where a window to a habitable room or a person standing in the outdoor living space of an adjoining property was within both the horizontal component and the vertical component of the cone of vision referred to in the R-Codes at page 77. In consequence, the applicant submitted that the acceptable development provision was satisfied and that the development was, therefore, deemed to meet the relevant performance criteria.

28 In contrast, the respondent contended that the words "so as to overlook any part of any other residential property" were to be given their ordinary meaning, and that the words "in direct line of sight within the cone of vision" referred only to the horizontal component of the cone of vision, because that was the component identified in the diagram entitled "Measuring setbacks using the cone of vision" at page 79.

Was there a determination involving an error of law?

29 As the Senior Sessional Member recognised, each party found support for its submission in a part of the explanatory text of element 8. This was because there is an unfortunate, direct conflict in the explanatory text. On the one hand, at page 77, the explanatory text describes the cone of vision for privacy design in terms of both a horizontal component and a vertical component. Mr Adam correctly submitted that, at page 77 at least, the R-Codes contemplate that a space would not be relevantly "overlooked" if a person carrying out ordinary activities there did not fall within the congruence of the horizontal and vertical components of the cone of vision taken from a particular window.

30 However, under the heading "Privacy separation distances", at page 79, the R-Codes expressly state that, because it is not possible to easily predict "how a neighbouring site may be developed in the future", privacy separation distances are to be determined on the basis of the diagram entitled "Measuring setbacks using the cone of vision". As noted earlier, this diagram is concerned only with the horizontal component of the cone of vision. The limitation to the horizontal component is consistent with the apparent intention of the privacy separation distances, as explained at page 79, to provide a desirable degree of privacy not only in relation to existing adjoining development, but also in relation to potential redevelopment of adjoining properties. As adjoining properties may be undeveloped, and as buildings may be altered, added to or replaced over time, the determination of appropriate minimum setbacks by reference only to the horizontal component is more likely to facilitate a desirable degree of privacy in both the short and long term.

31 As noted earlier in these reasons, the first note to the acceptable development provision states that "line of sight setback distances shall be measured by application of the cone of vision set out in the explanatory text". The note does not indicate whether the "explanatory text" is that at page 77 or at page 79. Similarly, the words "in direct line of sight within the cone of vision" in par A1(i) of the acceptable development provision do not identify whether the cone referred to is that at page 77 or at page 79.

32 The Senior Sessional Member was correct in construing the acceptable development provision such that the words "explanatory text" and "cone of vision" referred to the text and diagram at page 79 of the R-Codes, for two reasons.

33 First, the explanatory text and diagram at page 79 specifically concern privacy separation distances, which is the subject of par A1(i) of the acceptable development provision. The extract from page 79, set out at [17] above, states that the acceptable development provision contains a set of privacy setbacks "based on [the] considerations" in the first paragraph of the extract. That paragraph states that "privacy separation distances can most realistically be applied between the proposed development and the property boundary, that is as line of sight setbacks". It also states that the way in which setbacks should be determined is illustrated in the diagram on that page. Clearly, therefore, note (i) to the acceptable development provision, which states that "line of sight setback distances shall be measured by application of the cone of vision set out in the explanatory text", is a reference to the explanatory text (and diagram) at page 79.

34 Second, this interpretation promotes the objective of Element 8, namely "to ensure a reasonable level of visual ... privacy for ... adjoining residents". Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a "written law", a construction that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object. The term "written law" is defined in s 5 of that Act as including "subsidiary legislation", which is defined as including a town planning scheme. Although the R-Codes do not form part of a town planning scheme, conformity with their terms is required by TPS2. It is appropriate that the R-Codes are, therefore, construed in a manner which promotes the relevant purpose. As noted earlier, it was common ground that the windows in question would permit overviewing of the adjoining property. The interpretation adopted by the Senior Sessional Member would avoid that overviewing (unless it conformed to the performance criteria), and, therefore, promotes the objective of the Element.

35 Having correctly construed the acceptable development provision, it was for the Senior Sessional Member to determine whether the windows in question conformed to the performance criteria, without the imposition of the conditions in question. At [49], he stated that he was not convinced, from the evidence presented, that the cones of vision from the west-facing window of the large bedroom and the north-facing window of the small bedroom were sufficiently elevated above the adjoining property such that those windows could be accepted without condition. This conclusion did not involve a question of law, and was entirely within the province of the Senior Sessional Member as the tribunal of fact. As the Tribunal stated in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]:

"Questions such as the adequacy of the evidence, the relative significance or weight to be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the Senior Member to determine for himself, and do not ground any error of law; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at pages 155 ­ 6; Randwick Municipal Council v Manousaki (1988) 66 LGERA 330 at pages 133 ­ 4."

36 Although the applicant, being self-represented in these proceedings, did not expressly raise for consideration on this review a question of law involved in the determination of the Senior Sessional Member, it is apparent from the application for review and from her written submissions that, in substance, the application is for review of a determination upon a matter involving a question of law. The question of law is the proper construction of the acceptable development provision of the R-Codes in relation to privacy.

37 On its proper construction, the acceptable development provision has the effect that, in order to be deemed to meet the relevant performance criteria, major openings to active habitable spaces which have a floor level more than 0.5 metres above natural ground level, and which are not provided with permanent vertical or horizontal screening in accordance with par ii or par iii, are to be set back the minimum distances nominated in par i, where a horizontal cone of vision of 90 degrees from the major opening in question overlooks any part of any other residential property behind its street setback line.

38 The Senior Sessional Member correctly construed the provision in question. In consequence, he did not misdirect himself. The determination of whether the windows conformed to the performance criteria without the imposition of the condition in question was one of fact. The Senior Sessional Member's conclusion is not open to review.

39 However, this case has highlighted an unfortunate, direct conflict within the explanatory text of element 8 of the R-Codes between the text at page 77, which refers to both a horizontal component and a vertical component of the cone of vision, and the text at page 79, which refers to only a horizontal component. This conflict resulted in each of the parties having been able to call in aid of their submission different parts of the same document. It is important that this conflict be addressed and removed at the earliest opportunity.

40 The orders of the Tribunal are:

1. The application for review of the determination of the

Tribunal is dismissed.

2. The determination of the Tribunal in Newman and Town of Cottesloe [2005] WASAT 83 and the orders dated 27 April 2005 are affirmed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT