Nicholson v Bayside CC [2001] VCAT 764 (31 May 2001)

Application under Section 82 Planning and Environment Act 1987; Bayside Planning Scheme; Residential 1 Zone; Kitchen Window; Fencing Dispute

Respondents City of Bayside and R. & L. Thompson

The order of the Tribunal is that Application for Review 2000/089404 is allowed in part and the Responsible Authority's decision in relation to Planning Permit 2000/5945 is varied. A permit is granted in relation to the land at 4 Munro Street Brighton which allows the installation of a new kitchen window, in accordance with the endorsed plans and subject to the following conditions.

1. Before the development begins, amended plans which are to the satisfaction of the Responsible Authority must be submitted to the Authority for its approval. When approved, the plans will be endorsed accordingly and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans lodged with the application except that the location of the window shall be as shown on the measured drawing prepared by T. Millar, Building Design, dated the 8th of March 2001, and further modified to show:

(a) the lower sill height of the window to be not less than 900mm above floor level; the window to have a height of 1.2m and to be double hung; and

(b) a louvred screen affixed to the outside of the window if required by Condition 2 below.

2. Fixed vertical louvres must be attached to the wall of the subject dwelling directly outside the kitchen window - the angle of which must preclude overlooking to the southernmost habitable room window in the property at 2 Munro Street to the satisfaction of the Responsible Authority and the materials of construction and the colour of which must also be to the satisfaction of the Responsible Authority - unless overlooking to the said window of the dwelling at 2 Munro Street is otherwise prevented to the satisfaction of the Responsible Authority by a paling fence which is 1930mm in height with a 300mm high framed trellis extension. The trellis must have a maximum of 25 percent openings and be constructed of materials and painted in a colour to the satisfaction of the Responsible Authority.

3. Conditions 1 and 2 of the Responsible Authority's Notice of Decision to Grant a Permit issued on the 16th of October 2000 shall also be included as conditions of the permit, except that the first of those conditions shall be amended by deletion of the reference to the use of the land and the conditions shall be re-numbered appropriately.

The Responsible Authority is directed to issue a permit in accordance with this order.

Within 10 working days of the date of this order, the Permit Applicants must indicate to the Registrar whether or not they wish to pursue the earlier mooted application for costs. They must serve any such application for costs upon the Applicant for Review. If an application for costs is made, a hearing will be scheduled to deal with the matter.

Mr G. Lucas of Counsel, instructed by Matthew Shaw, Lawyers, appeared for the Permit Applicant.

Mrs L. Nicholson, the Applicant for Review appeared in person. She was assisted in her submissions by Mr B. Brooker, a member of the local residents' group (BRVP).

There was no appearance on behalf of the Responsible Authority.

1. This application for review is one brought by a neighbouring objector in response to the decision by the City of Bayside to grant a planning permit to allow a new kitchen window to be installed in a recently completed extension to the rear of the dwelling at 4 Munro Street, Brighton. The Council's permit application number is 2000/5945.

2. The subject land is located on the south-eastern side of Munro Street, approximately 30m from its intersection with New Street. (For convenience hereinafter the frontage of the land will be described as the southern side of Munro Street.) The site is regular in shape with a frontage to the street of 12.19m, a depth of 29.39m and a total site area of 358sq m. The site is developed with a single storey weatherboard dwelling with an existing vehicle crossing and driveway located at the eastern end of the frontage.

3. Under a planning permit issued in mid-2000, the rear of the dwelling on the subject land was extended and altered. The application as lodged with the Responsible Authority on the 1st of May 2000 proposed the enclosure of a courtyard to form an extension to an existing family room, a new pergola to the rear of the dwelling and a new window to an existing kitchen in the western elevation of the dwelling. In response to objections by the owner of 2 Munro Street to the south-west, Mrs Nicholson, the Thompsons deleted the proposed kitchen window from the plans in order to be able to proceed with the rest of the application without objection. Plans of the permitted addition indicating the deletion of the proposed kitchen window were endorsed under Planning Permit 2000/5529 dated the 30th of May 2000.

4. The extension approved under the 2000/5529 permit has now been completed. The western wall of the extension is located some 1.22m from the common boundary of the property owned by the objector/applicant for review.

5. Mrs Nicholson's dwelling to the west of the subject land is also a single storey weatherboard dwelling. Her house is set back approximately 2m from the common boundary with the subject land. There are three habitable room windows facing east towards the common boundary. Mrs Nicholson is concerned about the privacy of the southernmost of those windows which provides light to and an outlook for a sitting room commonly used throughout the day. The window has a 1m width and is located a minimum of 2.4m from the rear of her dwelling.

6. There is a 1930mm high paling fence on the common boundary between the two parties' properties in the vicinity of Mrs Nicholson's sitting room window and the proposed kitchen window. That fence was put in place sometime between May 2000 and the 23rd of August 2000. It replaced another paling fence which purportedly had a height of 1620mm.

7. The subject site and the objector's property form part of an established residential area characterised by low scale development including late Victorian and Federation style dwellings. The dwellings generally have small front set backs and are located on relatively small lots. The Planning Officer's report to the Responsible Authority dated the 16th of October 2000 provides a description of the neighbourhood character. This is not repeated here as the planning issues in contention are purely those of direct amenity impacts for neighbours.

8. The application for planning permit now before the Tribunal appears to have been lodged on the 23rd of August 2000 in the form of a letter to the Responsible Authority's Planning Department. The letter from Ms Louise Thompson to the Planning Department included:

"We refer to the above matter and wish to apply for an amendment to our original plans to now include the kitchen window.

We confirm that we have now erected a 6ft side fence to alleviate the privacy concerns of Mrs Nicholson who resides at No. 2.

We attach herewith plans showing the inclusion of the window in question, together with a copy of a letter which will be hand delivered to Mrs Nicholson this evening in an attempt to prevent her filing a notice of objection to our amendment request."

9. The plans lodged with the application indicate that the new window would be some 1.8m wide x 1.2m high, would have a 900mm sill height and be double hung. The plans indicate that the southern edge of the window would be located approximately 2.2m from the rear of the subject dwelling. The site plan lodged with the application suggests that the new window would be located entirely to the south of Mrs Nicholson's sitting room window.

10. However, because of concerns, expressed at the hearing of the application for review and in subsequent correspondence, about the inaccurate description in the plans lodged with the Council of the location of the new window in relation to Mrs Nicholson's window, a measured drawing was prepared by T. Millar, building designer on the 8th of March 2001 following the hearing of this application for review. The measured drawing indicates that the northern edge of the proposed window would be 3.85m from the rear of the Johnson's dwelling and be offset from Mrs Nicholson's window to the south by some 360mm. This would suggest that the southern edge of the subject window would be located only 2.05m from the rear of the Thompsons' dwelling.

11. As there was no correspondence arising from the provision of the amended plans in the form of the measured drawing, it seems that the parties have accepted that those plans are an accurate depiction of the relative location of the two windows.

12. It is also recorded here that in post-hearing correspondence of the 15th of February 2001, the solicitors acting for the permit applicants also indicated that the applicants would be prepared to reduce the width of the proposed window from its northerly edge by an unspecified amount so as to increase the offset between the two windows. They suggested this would prevent any line of sight to Mrs Nicholson's window.

13. The subject land is zoned Residential 1 under the Bayside Planning Scheme. The combined effect of Clause 32.01-4 of the Scheme and the schedule to Clause 52.03 (introduced by Amendment C3 to the Scheme on the 16th of March 2000) is that a planning permit is required for the construction and extension of a dwelling on a lot of less than 500sq m.

14. Clause 32.01-4 also requires the application be accompanied by a site analysis and design response as described in the Good Design Guide for Medium Density Housing and in Clause 52.04 of the Scheme. That clause also requires the Responsible Authority to certify the satisfactory nature of the site analysis prior to public notice being given of the application.

15. Clause 65 of the Planning Scheme generally guides the exercise of the discretion and directs attention inter alia to the orderly planning of the area, the purposes of the planning controls, the effect of the proposal on the amenity of the area and relevant State and local planning policies.

16. Neither of the parties appearing before me, nor the Planing Officer's report to the Responsible Authority on this application, made any reference to components of State Policy. It is sufficient to record here that the Bayside Planning Scheme seeks as an objective for metropolitan development at Clause 14.02-1 "enhanced environmental quality and livability for the metropolitan population"; and the policies relating to design and built form at Clause 19.03 include as a general implementation measure: "development should achieve architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties".

17. So far as local policy is concerned, the Responsible Authority's Municipal Strategic Statement at Clause 21.04-2 of the Scheme identifies as one of the overarching goals for the municipality

To continually enhance the quality of the physical living environment in Bayside through maintenance, retention and improvement of valued features."

Clause 21.05 contains various housing objectives. They include:

"To facilitate quality design outcomes which make a positive contribution to the character of residential areas."

A strategy designed to achieve this includes ensuring that new medium density housing is designed to be site responsive and respectful of its surroundings rather than simply meeting the minimum requirements under the Good Design Guide.

18. Upon receipt of the application for planning permit, the Responsible Authority directed public notice to the owner of 2 Munro Street. An objection was received in reply raising the issue of loss of privacy to private living areas through overlooking from the proposed window.

19. The Responsible Authority subsequently considered the application and determined to issue a Notice of Decision to Grant a Permit. The Notice of Decision which is dated the 16th of October 2000 allows a new window to an existing kitchen in accordance with the endorsed plans. Three conditions are included on the permit two are standard conditions with the third being a requirement that:

"A 300mm high trellis extension shall be erected to the top of the boundary fence extending for a distance of 1m either side of the kitchen window."

20. The Planning Officer's report to the Responsible Authority on the application for permit refers to the height of the boundary fence as 2m.

21. Mrs Nicholson then sought a review of that Council decision by the Tribunal on the 9th of November 2000. The short grounds for review were as follows:

22. An accompanying expansion of those grounds indicated that Mrs Nicholson believed that neither the trellis on the fence nor any creeper which might be grown on the trellis would confer privacy; she believed that there would be a reduction of sunlight and sun from the on-boundary fence and the trellising; and that there would be an additional conveyance of normal noise which was said to be already high. The elaboration of the grounds also indicate that Mrs Nicholson sought the use of glass bricks or a high sill window in place of the proposed window; alternatively the use of opaque or leadlight glass on the lower window pane; or as a third option a 3m long panel of opaque material on the relevant stretch of a 5ft 6in high fence clear of greenery, lattice or trellis.

23. It seems that upon advice being forwarded by the Registrar that the matter would be scheduled for hearing on the 30th of January 2001, Mrs Nicholson instigated proceedings to have the matter adjourned pending civil proceedings in the Magistrates' Court relating to the erection of the fence on the common boundary between the two properties. A formal request was made to the Registrar for an adjournment on the 15th of January 2001. The request for adjournment was not granted by the Deputy President who considered the correspondence relating to the matter and Mrs Nicholson was advised to again make application for a deferment at the commencement of the hearing. That advice was provided by Registrar's letter dated the 25th of January 2001.

24. At the outset of the hearing of the application for review, Mrs Nicholson again made that application for adjournment. This was opposed by Mr Lucas on behalf of the Johnsons.

25. Having heard from the parties, I indicated that I would not grant the adjournment. I indicated to the parties that the essential issue in the proceeding appeared to be the matter of whether there would be an amenity problem arising for Mrs Nicholson's property from the installation of this window. I indicated that if I found that there was such an amenity/privacy issue, and there was need for a solution to that, I might refuse the application for permit, or alternatively might impose conditions requiring various types of screening. I indicated that if I came to the conclusion that the only way to deal with the problem was by retaining a 6ft 4in high fence that I might defer my decision until after the Magistrates' Court proceedings. Nevertheless, I proposed to hear the merits of the application forthwith.

26. The sole matter in this proceeding is whether the installation of this proposed kitchen window with a sill height of only 900mm above floor level and offset from Mrs Nicholson's window by 360mm across a distance of approximately 3.2m would unreasonably intrude upon her privacy.

27. The dispute between the parties concerning the proposed kitchen window is entangled with a dispute concerning the construction of the new fence on the common boundary. That fence has been erected and would, I believe, effectively obscure views between the two windows. Mrs Nicholson, nevertheless, wants the fence removed and a fence only to the original height of the fence on the common boundary (being 1620mm or 5ft 6in) put in place. While Mr Lucas sought to argue that Mrs Nicholson was being illogical in seeking to have the fence removed, which provides the screening she seeks, I understand it to be the case that she does not see the fence as the appropriate means to solve the overlooking problem. She believes that the fence interferes with daylight and provides a poor outlook for her sitting room window.

28. The submissions made by Mr Lucas on behalf of the Thompsons were that the existing boundary fence is quite adequate to protect the privacy of Mrs Nicholson's window and that there would be no unreasonable impact upon the light and sunlight of her property. He also submitted that the Council requirement for trellising on top of the fence was not required in planning terms, as the fence alone protected privacy. He pointed to the fact that the proposed window was not directly opposite Mrs Nicholson's window which would assist in retaining privacy, and that persons looking out of the window would be standing back from the window behind a kitchen bench. The latter factor would further reduce any potential for overlooking, it was said. The submission made on behalf of the Thompsons also included that Mrs Nicholson has used and continues to use blinds to screen her living room window from sun and light. It was said the blind provided additional privacy. Mr Lucas also submitted that there was no evidence that even the 5ft 6in high fence (1620mm) would be inadequate to protect privacy. In this he relied on Element 7 Technique 2 of the Good Design Guide.

29. So far as noise is concerned, Mr Lucas said that there would be little difference if the window were added given that there is not a direct relationship between the windows. The transfer of noise between these properties, he said, was to be expected given that the dwellings are of timber construction and located close together.

30. The Good Design Guide for Medium Density Housing contains nine elements which are to be utilised to assess applications for medium density housing and extensions thereto. Under the Bayside Planning Scheme, a development associated with a single dwelling on a lot of less than 500sq m is also to be assessed under the Good Design Guide. Element 7 of the Guide relates to visual and acoustic privacy between properties. It has the following objectives:

"E7.O1 To limit views into neighbouring secluded private open spaces and habitable rooms.

E7.O3 To contain noise sources in developments which may affect new and neighbouring dwellings."

31. The first of the criteria under Element 7 is:

"Secluded private open spaces and habitable rooms of adjacent existing dwellings should be reasonably protected from direct overlooking."

32. Various design suggestions to achieve the objectives and criteria are made which include deploying dwelling layout, design detail, distance and landscaping to prevent overlooking. Another design suggestion is that windows of a dwelling be located so that they do not provide direct and close views into the windows of another. Yet another design suggestion is to place as few windows as possible alongside boundaries or close to rear boundaries unless they face a street.

33. Element 7 also contains a number of (design) techniques intended to achieve visual privacy. The following technique is relevant to the consideration of this application:

"E7.T1 Habitable room windows with a direct outlook to habitable room windows in an adjacent dwelling within 9m:

* are offset a minimum of 1m from the edge of one window to the edge of the other; or

* have fixed obscure glazing in any part of the window below 1.6m above floor level."

34. E7.T2, while it relates to direct views to secluded private open spaces of existing dwellings also has some relevance to the present application. It was that technique to which Mr Lucas referred. It provides as follows:

"Outlook from windows, balconies, stairs, landings, terraces and decks or other private, communal or public areas within a development is obscured or screened where a direct view is available into the secluded private open space of an existing dwelling.

If screening is used, the view of the area overlooked must be restricted within 9m and beyond a 45o angle from the plane of the wall containing the opening, measured from a height of 1.6m above floor level.

* windows are of bathrooms, toilets, laundries, storage rooms or other non-habitable rooms and they have translucent glazing or sill heights of at least 1.6m;

* windows are of habitable rooms and they have sill heights of 1.6m or more above floor level or translucent glazing to any part of a window less than 12.6m above floor level;

* windows are of habitable rooms which face a property boundary where there is a visual barrier at least 1.6m high and the floor level of the room is less than 0.6m above ground level at the boundary." (Tribunal emphasis.)

35. E7.T4 is also relevant and deals with screening:

"Direct views described in E7.T2 and E7.T3 may be obscured by solid translucent screens or perforated panels or trellis which have a maximum of 25 per cent openings, and which are:

* designed and painted or coloured to blend in with the development."

36. Before assessing the matter in dispute, it must be said that the uncertainty about the future height of the fence on the common boundary has added some difficulty in the making of this decision. I have found it necessary to proceed to consider the issues under two fencing scenarios: one where a 1930mm high fence is located on the boundary, as is the case now; and another where a fence of lesser height is located on the boundary, as is sought by Mrs Nicholson.

37. Before considering each scenario I will also say that having regard to the proximity of the parties' dwellings, I do not believe that the proposed kitchen window and Mrs Nicholson's sitting room window - if located as shown on the measured drawing - would be sufficiently offset to ensure that privacy would be protected, nor do I believe that a greater offset between the windows - by 1m or more as recommended in E7 - could be practically achieved having regard to the layout of the Thompsons' kitchen. I also believe that whether or not it is Mrs Nicholson's practice to have blinds closed, it is not reasonable that she or any subsequent owner of her dwelling would be required to protect privacy in this fashion.

38. The submissions made by the parties, and my own inspection with those parties, have satisfied me that should the fence which is now constructed on the common boundary between the parties' properties remain, and trellis be installed as recommended in the Council's Notice of Decision to Grant a Permit, privacy between the two properties would be adequately protected. In making this assessment, I have taken into account the fact that the finished floor level of the extension at the rear of the Thompson property is somewhat elevated above both natural ground level and the level of the base of the fence on the common boundary. This means that an eye level of 1.6m above floor level (the eye level generally used in the Good Design Guide as below which most eye levels are situated) would be elevated above ground level perhaps up to 1.8m. Nevertheless a 1930mm fence would remain higher than that eye level and would preclude overlooking by most persons who might look out of the window. To the extent that there would be some individuals whose eye level would be above 1.6m above floor level, the additional trellising to the fence recommended by the Responsible Authority would assist in precluding overlooking by those exceptionally tall persons. I acknowledge Mrs Nicholson's concerns that the trellising as described at present in the Council's Notice of Decision, which has an unspecified level of transparency, may not totally interrupt the view to her window by taller persons, but I believe that if the transparency of the trellising were prescribed in the terms of E7.T4 that this would be adequate. I am also of the view that there is no reason why trellising designed to meet E7.T4 would be particularly unsightly, as alleged by Mrs Nicholson, especially if framed and if plants were grown on it.

39. I am of the further view that having regard to the shadow diagrams prepared by the applicant, and the further techniques included at Element 6 of the Good Design Guide - which in part relate to the achievement of adequate daylight into habitable room windows of existing dwellings (E6.O1) - there would be no appreciable change to the sunlight and daylight available to Mrs Nicholson's sitting room window as a result of the fencing and trellising.

40. If the existing fence on the common boundary were to be removed and a lower fence installed as sought by Mrs Nicholson's other proceedings, it is clear to me that, having regard to 1.6m eye heights, elevated floor levels above natural ground level, a fence of only 1620mm (5ft 6in) would be inadequate to prevent overlooking to Mrs Nicholson's window from the proposed Thompson kitchen window. A 1.6m average eye level of a person inside the Thompson dwelling would be well above any fence on the common boundary. Depending upon actual floor levels, a taller trellis than in the Council condition may also be required to prevent overlooking between the two properties. Certainly the degree of transparency of the trellis would need to be adequately prescribed.

41. It should be said here that, while, as earlier noted, Mr Lucas relied on Element 7 Technique 2 of the Good Design Guide and the technique might be said to indicate that a visual barrier on the common boundary of 1.6m would be adequate if the floor level of the Thompson dwelling were less than 0.6m above natural ground level, the technique relates to privacy to secluded private open spaces of adjoining properties rather than to habitable rooms. It is true that if there were a 1.6m high boundary fence and the floor level of a room from which overlooking might occur is less than 0.6m above ground level at the boundary, a degree of privacy would remain for a private open space area on an adjoining property due to visual shielding by the fence of immediately adjacent areas, but this is not the case for habitable rooms. Those rooms would have elevated floor levels and windows set off the boundary, thus exposing occupants of the rooms to view. In the case of room privacy, Technique 1 of Element 7 is the relevant provision. The proposed window does not meet the offset or lower pane or sill height requirements of that technique.

42. Given some resistance by both parties to trellising on the common boundary, at least of a more substantial kind as would be required in the context of the lower fence, I have given consideration to alternative forms of screening between the two windows. I believe that an appropriate balance would be struck between the amenity of the two properties, if some outlook were retained from the Thompson's window (rather than the window being totally obscured below eye level), and at the same time Mrs Nicholson's window were not subject to overlooking.

43. During the course of the inspection, I suggested that fixing of vertical louvres to the kitchen window would be one option. Despite the view expressed in post-hearing correspondence that those vertical louvres would perhaps erode the daylight available to both properties and be inappropriate in the context of an historic building, I remain of the view that such a contemporary addition would neither erode the heritage value of the building, nor would it adversely affect the daylight available to either window.

44. I propose therefore to order that in the event that there is no fence on the common boundary which is at least 1930mm in height with a 300mm trellis as specified, that vertical louvres be affixed to the window which preclude direct overlooking to Mrs Nicholson's window. This would nevertheless allow an outlook further towards the south for the Thompsons and would allow the kitchen window to be openable.

45. There are no techniques included at Element 7 of the Good Design Guide which directly assist in assessing the matter of acoustic privacy between two properties. Nevertheless one objective of the Element is "to contain noise sources in developments which may affect new and neighbouring dwellings".

46. It is my assessment that the level of noise which might be generated if the kitchen window was installed, would not be beyond reasonable limits for a residential area of this kind. I would nevertheless observe that a higher fence on the common boundary would have acoustic benefits.

47. At the hearing of the application for review, Mr Lucas indicated that the respondents would seek the costs of the application for review both pursuant to Section 150 of the Planning and Environment Act 1987 and Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. The quantum of costs claimed was some $3,275.40 based on a solicitor's costs at County Court Scale "A" (a total of $895.40) and Counsel's fees of $2,380.

48. As Mrs Nicholson was not ready to respond on the matter of costs, and in light of the impact that a decision on this application may have on the appropriateness of awarding costs, the matter of the costs application was deferred.

49. Accordingly, I invite the respondents to indicate whether or not they wish to continue with the application for costs. If they do so, a short hearing will be scheduled to deal with the matter.