Saunders and City of Nedlands [2005] WASAT 190 (2 August 2005)

Saunders and City of Nedlands [2005] WASAT 190 (2 August 2005) - WASAT 2005 case summary — Zoe

[21]

"The [R-Codes have] been arranged to provide a clear choice for applicants to select a performance approach to approval or a standards approach. Performance Criteria and Acceptable Development requirements are set out ... within the Code. If an applicant wishes to have a development assessed against the Performance Criteria, then all the [specified] criteria must be addressed. If the applicant wishes a development to be judged against the Acceptable Development standards, the provisions [specified] must be satisfied.

It is expected that most development will be assessed against the Acceptable Development provisions and that where a proposal is unable to meet one or more provision, discretion will be sought from the Council against the specific Performance Criteria associated with the areas of non-compliance.

The shift from an essentially prescriptive [former] code, albeit one with scope for discretion, to a performance orientated code necessarily has implications for the administration of the development process. A performance orientation shifts the emphasis from compliance with Code provisions to performance based outcomes. A purely performance-based code would have administrative difficulties. Recognising this, the Codes provide a set of 'deemed-to-comply' provisions corresponding to the Performance Criteria. These perform a dual role, firstly by providing a straightforward pathway to assessment and approval, and secondly by providing guidance as to the level of response to a Performance Criterion that might be acceptable.

Consequently, the Codes recognise, and make provision for, the most common situations and design responses to the Performance Criteria. The intention is thereby to reduce the need for individual interpretation of the Performance Criteria. There is a concern that local government may tend to treat the Acceptable Development provisions as though they were prescriptive standards, and be reluctant to examine alternatives based upon the Performance Criteria. As all variables in the design process cannot be fully accounted for in the Acceptable Development provisions, especially in the elements relating to privacy, boundary setbacks and design for climate, the Acceptable Development provisions must, of necessity, be conservative. Consequently, it is incumbent upon a Council to consider each design outcome according to its merits."

[51]

26 The reference to the "cone of vision" above picks up the cone of vision referred to in the Design Elements (at 77) dealing with both horizontal and vertical components, and in the "Acceptable Development" criteria set out above. During the course of the hearing, the Tribunal attempted, unsuccessfully, to have the parties produce material, agreed between the parties as far as possible, setting out various horizontal cones of vision (at least) with respect to the overlooking of Mr Auguste's property. This occurred when the respondent produced, only at the hearing and only for the purposes of cross-examination, its own attempt at a cone of vision diagram. Such a course (that is, late production without notice) is completely unsatisfactory, and has contributed to the result that the Tribunal is left without any really suitable evidence on this point.

27 Nevertheless, both parties urged the Tribunal to "do the best it [could]" with the disputed material. Such exhortations hardly assist the Tribunal in reaching the correct and preferable decision in the matter based upon proper material. It cannot be beyond the ability of the experts in this matter to reach a more or less agreed position, and if not, to demonstrate precisely why that is not possible with reference to proper models and assumptions.

28 In part, because some significant overlooking is effectively conceded by the applicant, in respect of which he has taken noteworthy steps to ameliorate the problem, and in part, because we are dealing with a more generalised performance criteria, it is unnecessary to finally resolve how a cone of vision is to be applied in respect of this particular development. In any event, as is demonstrated by a recent decision of this Tribunal, the cone of vision requirements of the R-Codes are perhaps inherently problematic as they attempt to be "an objective measure for the subjective issue of views and privacy" and contain statements that "are not always consistent": Newman and Town of Cottesloe [2005] WASAT 83 at [38] and [48]. On review, see Newman and Town of Cottesloe [2005] WASAT 154.

[67]

38 It seems clear enough that the current proposal before the Tribunal (dealing with actively habitable rooms overlooking, as they do, a corner of a neighbour's bedroom and his outdoor entertainment area) generally seems to run counter to the central tenets of the R-Codes as manifested in the passages set out above. Those provisions particularly emphasise a combination of adequate measures with a starting point or presumption, in effect, generally favouring the protection of reasonable privacy where active living areas (as here) are involved. Thus interpreted, the developer bears the practical burden of persuading the regulatory authority that reasonable privacy has been protected, and in a way, that necessarily minimises the impact of the ameliorating measures on the amenity of the subject of the protection. Arguably, a past "compromise" to that effect has already been reached.

39 Here, discharging that practical burden necessarily is above what might be ordinarily thought to be usual in the sense that the respondent has already set standards (in terms of its previous approvals) premised on a reduced set-back and acquiesced in by the applicant which this further application would appear to erode. Then, there are the continued generally reasonable objections of an affected neighbour and a lack of a combination of ameliorating measures which are contemplated by the R-Codes. Doubt on all of these issues combined with hesitation as to both the wisdom and the aesthetics of a "hotch potch" of different screens on or near the boundary of the property leads the Tribunal to the view that the applicant has failed to discharge the burden placed upon him.

40 In short, after carefully considering all of the evidence and measuring it against the intent of the R-Codes, on balance, the Tribunal - influenced and informed in part by the context of what has already gone before - is not persuaded that the applicant has met the performance criteria that he himself advocates. The application for review should be dismissed.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (68 paragraphs)

Legislation Cited (1)

Cases Cited (1)

Saunders and City of Nedlands [2005] WASAT 190 (2 August 2005)