Residential Design Codes 2002 (WA) Part Three Element 8

1. The application to have Conditions 1(e)(i) and 1(e)(ii) deleted is dismissed

2. The application to have Condition 1(e)(iii) deleted is upheld

MR J JORDAN (SENIOR SESSIONAL MEMBER):

REASONS FOR DECISION

1 This is an application for review of Conditions 1 (e) (i), (ii) and (iii) imposed by the Town of Cottesloe ("Respondent") on the development approval issued for the extensions to the second storey at the rear of a single house at No 18 (Lot 28) Perth Street, Cottesloe ("subject land").

2 The subject land is owned by the Applicant and Mr D Newman. It has a width of 9.15 metres and an area of 279 square metres. Perth Street runs east-west between Railway Street and Lane Street and the subject land is at about the middle of the street on the north side.

3 The existing single house on the lot is two stories at the front and a single storey at the rear. It is set back about 3 metres from the street and the rear patio is set back about 7.5 metres from a rear right-of-way. There is a pergola-covered carport in the rear yard adjacent to the eastern boundary.

4 Other houses on the north side of Perth Street have a similar front setback. An aerial photograph provided by the respondent shows two storey dwellings at No 18a and No 20 Perth Street with building extending to within about 2 metres of the rear boundary. The house at No 16, to the west, has a setback of about 10 metres between the rear boundary and a roofed area adjacent to the rear of the house. The backyard of No 16 is about 650 millimetres below the level of the subject land.

5 The approved upper level extension is situated above an existing rear room. The extension is comprised of, at the eastern side, a large bedroom with an en suite and walk in wardrobe and, at the western side, a room initially described as a study but accepted by both parties as a small bedroom for the purposes of the imposition of conditions. The larger bedroom extends about 2.7 metres closer to the rear boundary than does the smaller bedroom.

6 The small bedroom has on its western wall, set back 1 metre from the boundary, a highlight window with a sill height of 1650. At the northern wall of this bedroom facing the rear yard is a 1500 wide window with a sill height of 950. The larger bedroom has on the western wall a window 1800 wide and on the northern wall a window 2200 wide, both with a sill height of 950.

7 The conditions imposed by the respondent on the approval of the development included:

"1 (e) 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 the height of 1.65 metres from the floor level or alternatively being provided with a fixed louvred 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 louvred screening or alternatively, be realigned to the centre of the north wall to prevent overlooking into the adjoining property."

8 The application is for a review of this condition.

9 The subject land is zoned 'Residential' with a density coding of R 20 in the Respondent's Town Planning Scheme No 2 (TPS 2). Clause 7.1.1 of TPS 2 requires an application for planning consent for any development. Clause 7.1.5 requires an applicant to inform adjoining property owners of proposed development if the development is other than a single level, low profile single house or extensions. The advertising procedure was carried out.

10 Clause 5.1.2 of TPS 2 at subclause (f) requires regard to be had to the location and orientation of buildings in order to achieve higher standards of daylighting, and privacy.

11 The respondent has included in TPS 2 by reference, Statement of Planning Policy 3.1, which is the "Residential Design Codes 2002" ("RD Codes").

12 Section 3.8 of the RD Codes is "Element 8 - Privacy". The objective of Element 8 is:

"To ensure a reasonable level of visual and acoustic privacy for both new development and adjoining residents."

13 Under the heading "Performance Criteria" in Element 8, it states that new development should meet the following criteria:

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 properties 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."

14 Element 8 also includes at 3.8.1 under the heading "Acceptable Development":

"Development that complies with the following is deemed to meet the relevant Performance Criteria:

(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 0.5 metres above natural ground level and positioned so as to overlook any part of any other residential property behind its street setback line, to comply with at least one of the following:

(i) are set back, in direct line of sight within the cone of vision, from the boundary a minimum of:

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

• 7.5 metres in the case of unenclosed outdoor 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 25 metres to opening or equivalent."

15 At page 77 of the RD Codes is says of the "Cone of Vision":

"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 ..."

16 The illustrations show a horizontal component where the 'sides' of the cone of vision are 90 degrees apart, being 45 degrees each side of a centre line of vision. The vertical component has a 60 degree spread being 30 degrees above and below a horizontal line from eye position.

17 The respondent called as a witness Mr Simon Rodriques, an architect. Mr Rodriques' initial involvement in this matter was at the application stage when he prepared a submission to the respondent on behalf of the owners of No 16 Perth Street.

18 Mr Rodriques made the observation that the generally established pattern of development for the small lots of Perth Street is to have reduced front setbacks in order to optimise available space at the rear. The rear setback is typically used for outdoor living. North-facing rear spaces, as on the north side of the street, benefit from solar access.

19 Mr Rodriques said the proposed west-facing window of the larger bedroom affords direct surveillance of the rear yard of No 16 and the north-facing window of the smaller bedroom permits oblique views. It was his opinion that without the condition limiting the degree of overlooking from the subject land, the approved addition will have a significant detrimental impact on the amenity of the owners of No 16. He cited from the explanatory text of Element 8:

"There are four basic ways of preventing or ameliorating overlooking:

• designing windows, balconies and decks to face away from boundaries with neighbouring properties, especially side boundaries;

• providing greater than normal set backs, to achieve an effective privacy separation distance;

• ensuring that overlooking windows are not transparent or not openable." [sic]

20 It was Mr Rodriques' opinion that the proposed windows do not meet the Acceptable Development standards of Element 8 as they are unscreened and are set back less than the minimum distance of 4.5 metres. He also said the development does not meet the Performance Standards as there are unscreened windows which directly overlook the outdoor living areas of the adjoining property. His interpretation of the RD Codes was that the cone of vision should terminate at the lot boundary.

21 The respondent also called as a witness Ms Lilia Palermo, a Planning Officer with the respondent. Ms Palermo said she assessed the proposed development and concluded that it did not satisfy the Performance Criteria of the RD Codes as:

"• The proposed windows of the Applicant's property were positioned as to overlook the only outdoor living area of the adjacent property to the west;

"• There was no screening proposed by the Applicant in order to prevent overlooking, as guided by the RDC;

"• The existing semi-deciduous jacaranda tree and a small gum tree on the adjoining property referred to by the Applicant in the response to the neighbour's objection, do not provide sufficient screening;

"• The existing patio at the rear of the adjoining property, referred to by the Applicant, does not provide screening as the outdoor living area subject of overlooking is not located under the patio; and

"• The area of the adjoining property subject of overlooking is not an area of an extensive front or back garden and it is not visible from the street. The area is in fact used on a regular basis as the only outdoor living area."

22 Ms Palermo prepared cone of vision diagrams. She says these showed that in lieu of 4.5 metres from the western boundary, the privacy setback for the north-facing window of the smaller bedroom is 2 metres, and for the west-facing window of the larger bedroom, 3.14 metres. The cone of vision from the north-facing window of the larger bedroom, while in accordance with RD Codes requirements, does overlook the outdoor living area. In her opinion, none of the windows are consistent with the higher standard of privacy required under cl 5.1.2 of TPS 2. It was her submission that the conditions imposed were necessary to protect the amenity of the adjoining property.

23 Mr Jackson for the respondent pointed out that rather than prescribe one solution to what it sees as the overlooking problem, there is provided within the three sub conditions alternatives from which the applicant can choose to achieve the level of privacy required.

24 Mr Ken Adam, an experienced architect and town planner, was a witness for the applicant. Mr Adam agreed with Mr Rodriques that the width of the subject land was such that development of the house to contemporary standards will result in a long, narrow dwelling. Also, in order to optimise solar access to the dwelling it is desirable to maximise the width of the dwelling at the north-facing rear of the property.

25 Mr Adam referred to the comment in the explanatory section of Element 8 that states:

"The relevance of the horizontal component of a cone of vision 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 the adjoining property."

26 It was Mr Adam's submission that, because of the 650mm difference in ground levels between the subject land and No 16, the windows being at first floor level and the attractiveness of the distant view, the outlook from the windows in question will tend strongly to be focused well beyond the adjoining property.

27 Mr Adam also expressed the opinion that the eucalypt and the jacaranda on No 16 close to the common boundary will tend to obscure and filter views into the property. He emphasised, however, that the applicant is not relying on the presence of these trees. The development, in his submission, complies with the cone of vision standards.

28 In relating the RD Codes to the provisions of TPS 2, Mr Adam argued that the RD Codes are later in time and more specific than the provisions of TPS 2. As to the application of the RD Codes, Mr Adam submitted that it is common practice to first determine whether a particular development is compliant with the Acceptable Development provisions. If the development is consistent with the selected development provision, there is no need to assess the development further as it can be approved.

29 In support of his contention that the proposed development complies with the Acceptable Development provisions, Mr Adam produced sketches of his interpretation of the cones of vision for the north-facing window of the smaller bedroom and the west-facing window of the larger bedroom. He said that critical in this matter is the definition of the limits of these cones of vision.

30 Mr Adam's evidence was that the extremity of the cones of vision is the 4.5 metre privacy distance from the major opening from which the cone of vision "protrudes". The horizontal extent of the cones of vision for the north-facing small bedroom window and the west-facing large bedroom window extend by up to 1.9 m and 1.3 m respectively over the common boundary. Mr Adam strongly emphasised, however, that the vertical limits of the cones extend to be no closer to ground level on No 16 than 3.3 metres and 2.7 metres respectively. That is, 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.

31 It was Mr Adam's submission that it is implicit in the RD Codes that overlooking does not occur where there is no opening to a habitable room or outdoor living areas within the defined cone of vision. Mr Adam quoted further from page 77 of the RD Codes:

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

32 This, he submitted, fits absolutely with his contention that the proposed windows are consistent with the outlook being above and beyond and not into an adjoining property, as referred to in the explanation of Element 8.

33 Mr Adam said that his assessment shows that:

"The proposed development provides a reasonable level of visual privacy for the adjoining residents, as indicated by the fact that the cones of vision of the windows in question do not extend into any occupiable space. No window is overlooked, no person in the outdoor living area of the adjoining residence would be observed within the cones of vision from windows on the subject property."

34 He argued that the impact of the proposed development on No.16 is negligible, the development complies with the Acceptable Development standards and therefore Condition 1(e) should be deleted.

35 There is no dispute between the parties that if a person stood at the windows in question and looked down towards the west, they would have a view of the rear yard of No 16. While there was some discussion about the filtering effect of the jacaranda tree, particularly in winter when it has no leaves, Mr Adam said that his client did not rely on the presence of the trees to justify compliance with the RD Codes. The presence of the trees was just an additional factor.

36 There was considerable discussion between the parties as to what part of the rear yard of No 16 should be considered as outdoor living space and which part is simply just extended backyard. It is agreed with Mr Adam that the whole rear yard can be considered as outdoor living area and attempts to divide it up into spaces of different use are not particularly helpful. Of this outdoor living space an area adjacent to the back of the house at the eastern side boundary is brick paved and has a table and seating.

37 The evidence presented illustrated that the two parties were able to find in the explanatory section of Element 8 statements that they considered supported their interpretation of the impact of the proposed development on the privacy of the neighbour.

38 Element 8 is an attempt to have an objective measure for the subjective issue of views and privacy. It is not the intention of the RD Codes to make habitable and outdoor spaces of a neighbour invisible from the neighbouring dwelling. An attempt is made in the RD Codes to achieve a compromise between avoiding overlooking and having a setback distance that enable reasonable development to proceed.

39 Mr Adam emphasised the three dimensions of the cone of vision. That is, 45 degrees each side in the horizontal plane, 30 degrees up and 30 degrees down in the vertical plane and a depth of 4.5 metres. He argued that any view beyond the defined boundaries of the cone of vision becomes irrelevant because beyond those boundaries any overlooking is deemed to be within the Acceptable Development provisions.

40 It was the applicant's submission that the difference in elevation between the subject land and No.16 is such that the cones of vision associated with the windows in question do not extend into the space that would be occupied by a window to a habitable room or by a person standing in the outdoor living space next door. Mr Adam illustrated that the difference in elevation of the windows at this upper level is such that the cone of vision with the allowed privacy distance of 4.5 metres will terminate about 3 metres above the head of a person standing in the yard at No 16. This, he said, reinforces the intent in the explanatory text that when the view is over a neighbouring property rather than into it, this complies with the provisions of the RD Codes.

41 In contrast, Mr Jackson, for the respondent, submitted that once the cone of vision extended beyond the boundary fence it no longer complied with the acceptable development standards and the 4.5 metre distance was no longer a consideration. On this basis, there was direct overlooking of the habitable spaces of No 16 from the north-facing small bedroom window and west-facing large bedroom window. He said screens or translucent glass, as suggested in the explanatory text of Element 8, should therefore be included in the development.

42 The stated objective of Element 8 is to ensure a 'reasonable level' of visual privacy. The cones of vision in this instance would be at about first floor level of No 16. There is not a first floor level of this single level dwelling and there is nothing to suggest that there are any plans to develop No 16, particularly to the extent of development on the subject land and No's 18a and 20. In this regard, however, the explanatory text of Element 8 at page 79 of the RD Codes states:

"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" (emphasis added).

"Acceptable point-to-point privacy distances can be calculated by aggregating the privacy setbacks of the Acceptable Development provisions."

44 As to how this is to be interpreted, the explanation given is:

"In the case of active habitable spaces ... an effective privacy separation distance would be of the order of 15 m or more. Clearly this is not realistically achievable. An acceptable compromise setback, where intervening screening is not provided, would be of the order of 7.5 m.

In the case of bedrooms, a lesser setback of 4.5 m should be appropriate."

45 A diagram titled "Measuring setbacks using the cone of vision" is also provided on page 79. Shown on the diagram is a setback distance of 4.5 metres between the lot boundary and the major opening of the bedroom from which the cone of vision "protrudes". This reflects the 4.5 metre setback within the cone of vision of a major opening of a bedroom from the boundary stipulated in A1 i of the Acceptable Development standards. If the same interpretation is taken for bedrooms as given for active spaces, the effective privacy separation distance is 9 metres, with the compromise being a 4.5 metre setback between the bedroom window on the subject land and the boundary. The boundary being the point from which the setback is to be measured is a common thread in this part of the explanatory text and the provisions of A1 i.

46 For the proposed development the 4.5 metre privacy separation distance within the cones of vision for the west-facing window of the larger bedroom and the north-facing window of the smaller bedroom extends beyond the boundary into No 16. At page 79 of the explanatory text it states:

"Where privacy separation setback distances cannot be achieved or, as is often the case, it is inefficient to implement them, some form of screening will usually be effective."

47 It is clearly a fiction that nothing can be seen beyond the compromise setback distances given in the Acceptable Development standards. It is necessary, however, to have such a fiction if a reasonable compromise is to be achieved between an acceptable level of development and protection of privacy.

48 In both the explanatory text and the Acceptable Development provisions it is stated that the required setback distances are between the major opening and the boundary. I am of the view that there would need to be a strong case for concessions on the distance between these two points if the privacy standard of the RD Codes were not to be eroded. Clearly one such case would be where the eye is attracted to a distant view over a neighbouring yard above a level to which a neighbouring lot might be developed, as referred to in the text. Reference is made at page 80 of the explanatory text to screening being so arranged to allow for such a distant view. The implication of this is that what can be seen beyond the cone of vision is relevant. It would appear the intent of the various statements made in Element 8, which it must be said are not always consistent, is that providing for a view beyond the cone of vision is not to be at undue prejudice to the privacy of the neighbour.

49 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.

50 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.

51 From the examination of this matter, I have concluded that conditions 1(e)(i) and 1(e)(ii) are justified and should be retained. Condition 1(e)(iii) cannot be supported on the evidence presented.

1. The application to have Conditions 1(e)(i) and 1(e)(ii) deleted is dismissed.

2. The application to have Condition 1(e)(iii) deleted is upheld and this sub condition is hereby deleted from the approval that was issued.

I certify that this and the preceding 13 pages comprise the reasons for decision of the Tribunal.

_____________________

Mr J Jordan

Senior Sessional Member