Newman and Town of Cottesloe [2005] WASAT 83 (27 April 2005)

Newman and Town of Cottesloe [2005] WASAT 83 (27 April 2005) - WASAT 2005 case summary — Zoe

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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:

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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:

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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:

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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.

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Judgment (64 paragraphs)

Newman and Town of Cottesloe [2005] WASAT 83 (27 April 2005)