1 The land the subject of this review is described as Lot 24 Marine Parade Swanbourne 6010. Two large "grouped dwellings", both facing the sea and on the foreshore, have been erected on the subject land; No 258 (to the south) and No 258A (to the north). The dwelling to the south, No 258, is the subject of this review (the subject land). The subject land is owned by the applicant, Mr Saunders.

2 This application for review essentially concerns the extent to which - and by what mechanism - Mr Saunders must respect the privacy of his long-standing neighbour Mr Auguste, who owns a large property immediately adjoining the subject land. Both neighbours share striking views of the foreshore and sea.

3 On balance, the Tribunal has concluded, for the detailed reasons that follow, that in the context of the previous approvals by the respondent (and otherwise), the applicant has failed to adequately meet the privacy standards guaranteed to his neighbour under the regulatory framework applicable to this decision.

4 In 2002, as a condition for the approval by the respondent to the development of the two grouped dwellings referred to, a condition was imposed (relevantly) that No 258 Marine Parade must provide "obscure glazing" for the entire length of two sets of windows on the southern side of the subject land. These windows are:

(1) those of "the retreat" (that is, a continuous four-panel full-length window for a room - sometimes referred to as the "rear living area" - located approximately half-way down the southern side of the subject land, on the second storey and set back some 3.5 metres from the boundary); and

(2) those of the living room (that is, also a continuous four-panel full-length window for the room - sometimes referred to as the "front living area" - located on the southern side immediately behind the front balcony, on the second storey and set back some 2.9 metres).

5 Importantly, the stated purpose of the condition was to protect the privacy of the southern adjoining neighbour at No 256 Marine Parade, (that is, land with a two-storey dwelling house owned by Mr Auguste).

6 Later, in 2004, the respondent, in effect, varied these conditions by approving two of the living room window panels being converted to clear glass (those nearest to the sea), with the remaining two panels required to be obscure glazed to 1.6 metres from floor level. An obscure balcony balustrade (on the south, at the front of the property) was approved for conversion to clear glass.

7 After a course of correspondence (or negotiation) with the respondent over the second half of 2004 and early 2005, a final proposal has emerged which is the subject of this review and which has been summarised by the respondent as follows:

"[T]he proposal seeks approval for the replacement of the obscure glazing of the four windows to the retreat, and the obscure glazing to 1.6 metres in height above finished floor level for the two living room windows, with clear glazing, for the full extent of all these windows."

8 The "trade-off", in effect addressing the southern neighbour's privacy, as proposed by the applicant, is summarised by the respondent as follows:

a) by the construction of a vertical screen on the eastern side of the second living room window to prevent overlooking to the south east;

b) by the construction of a 4.7 metre x 0.9 metre horizontally placed shade screen sail (20% perforated) set back 1.25 metres from the southern boundary, to a height of 3.8 metres, for the purpose of preventing overlooking to the south from the four retreat windows; and

c) by the construction of a 4.7 metre x 0.7 metre framed lattice screen (20% perforated) above the existing 2 metre high boundary wall, in line with the existing four retreat windows, for the prevention of overlooking to the south."

9 It is convenient to note here that the screening proposal extends beyond the subject windows to include two other sets of windows.

10 Apart from a concession by the respondent that the screens would reach a maximum of around 2.7 metres (and not 3.8 metres), neither of these summaries of the applicant's position is relevantly objected to by the applicant.

11 The applicant says, in short, that under the relevant planning instrument (the R-Codes, to which detailed reference will be made below) the privacy concerns, which he acknowledges, can be met by the application of the processes or standards under that instrument.

12 The respondent disagrees, and earlier, on 22 February 2005, the Council of the respondent resolved to reject the modified application. However, prior to this decision, the applicant had appealed to the Tribunal on 27 January 2005 on the basis of a deemed refusal by the respondent. In the event, nothing in this review turns on this outline of the procedural history of the matter.

13 The grounds of the rejection, which were also pursued in this Tribunal, were that:

(1) the proposed clear glazing would have a detrimental impact on the privacy and amenity of the southern neighbour; and

(2) that the proposed screening would insufficiently or inadequately achieve the object of protecting that neighbour's privacy.

14 The respondent has also rejected the applicant's argument that the "Performance Criteria" found under the R-Codes (a term which is explained below) could be satisfied by the applicant's proposals.

15 As is already apparent, it is common ground between the parties that the planning instrument described as the "Residential Planning Codes" set out in Appendix 2 to the Statement of Planning Policy No 1 (more commonly known as the R-Codes) is, by force of Part V of the City of Nedlands Town Planning Scheme No 2 (TPS2), wholly determinative of the issues between the parties in this review: see cl 5.1 of TPS2 which prohibits "development" - which this application is conceded to be - except in accordance with the R-Codes.

16 Generally speaking, R-Codes provide guidance, it must be said often in the most general terms, as regards both the design element that they are addressing, and the two methods of satisfaction of the prescribed standards (emphasis added at 12 - 13):

"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."

17 See also Lex Kingdom and City of South Perth [2005] WASAT 11 at [30] - [32] which sets out further relevant background material from the R-Codes.

18 We are presently only concerned with the R-Codes section dealing with "design elements" in respect of privacy (that is, part 3.8, of the R-Codes, at 81). First, with respect to the "Performance Criteria" under part 3.8, the R-Codes provide as follows (emphasis added):

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."

19 Secondly, with respect to the alternative of "Acceptable Development" under part 3.8, the R-Codes provide as follows (at 81):

"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. 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 habitable rooms other than bedrooms; and

• 7.5 metres in the case of unenclosed outdoor active habitable spaces (balconies, decks, verandas 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 m to the opening or equivalent."

20 It is worth setting out the introductory comments to these particular design elements which provide the context for judgments to be made by decision-makers and others in this area (emphasis added, at 77):

"The protection of privacy - meaning primarily the prevention of windows and outdoor living areas being overlooked by neighbours - has become a significant issue in recent years. It has been the inevitable consequence of the trend towards larger houses, especially of two or more storeys on smaller lots, and in former backyards. It is recognised that side setbacks alone cannot, realistically, be deemed to achieve adequate standards of privacy, because the setback distances required to achieve privacy are much greater than those provided in the Codes. Indeed it is inconceivable that any practical setback, even on a large lot, could achieve absolute visual privacy. The setbacks need, in many cases, to be complemented by thoughtful design, and supplemented by various screening measures.

Privacy is, to a large degree, a subjective and changing concept. Consequently, it must be understood that absolute privacy cannot be expected in all cases. Often, a high level of privacy may be achievable only at too high a cost, in terms of orientation, access to winter sunshine, security or some other desirable objective. Nevertheless, a reasonable level of privacy can usually be achieved through good design."

21 There are some other relevant passages of the commentary to the R-Codes which it will be necessary to refer to, and that material is set out below.

22 In this review, the applicant expressly eschews reliance upon the acceptable development criteria and has instead opted to demonstrate compliance with a performance based assessment. However, as is made clear from both the extracts above and the evidence referred to below, the two assessment regimes remain interconnected to some degree.

23 The Tribunal turns to the evidence led by the applicant in satisfaction of a performance-based assessment.

24 The applicant called Mr Michael Willicombe, who is an experienced architect, designer and planner. His evidence, including his video evidence and photographs taken on site (which the Tribunal has viewed), presented as his professional opinion, was as follows:

First, a summary of his evidence in relation to the rear living area (the retreat):

1. The proposed screens (see above) will prevent loss of privacy in relation to Mr Auguste's rear garden and will prevent overlooking from additional windows not part of Mr Saunders' present application.

2. The small gaps in the proposed screens, are in effect, contemplated by the R-Codes which themselves note that "protection from overlooking is not necessary for extensive areas of garden, especially where these can provide their own screening, for example with trees." (At 79).

3. The height of the proposed screen on the boundary wall creates no overshadowing, "no real adverse impact on the amenity of the neighbour" and is otherwise consistent with nil wall setbacks found elsewhere in the R-Codes.

25 As regards the front living area, Mr Willicombe's evidence was:

"1. The drawings submitted, by both the applicant and [the respondent] (horizontal cones of vision), as well as the videos and photographs submitted as part of this witness statement, all indicate that the proposed screens will do an effective job of preventing any loss of privacy of the adjoining neighbour's rear garden from [the retreat].

2. These same drawings, the videos and photographs also demonstrate that the proposed screens will also prevent overlooking from two other windows that are not in fact part of this application ie. These windows currently have no requirement for screening (from current approval). These windows are [stair landing] and [rear bedroom]. (Note: This is due to the original approval occurring under previous, less thorough, privacy requirements).

3. A site visit demonstrates these two findings are quite clearly correct.

4. Appliance of the Acceptable Development Criteria does not quite technically work on these screens as there is a small gap to the east (looking at the rear end of the neighbour's garden, away from the house) and to the west (overlooking the neighbour's single storey roof).

5. Application of performance based criteria (R Codes p79 para 3 text, and Cl. 3.8.4 P1) gives clear guidance that the minor obscure view to the rear of the neighbour's large garden is acceptable (R Codes p79 para 3 specifically gives clear direction that such a small area can be easily dealt with by the neighbour, if they [sic] deemed it a problem).

The height of the screen on the boundary wall is modest and has no real adverse impact on the amenity of the neighbour; it creates no overshadowing behind the existing house, and also falls inside 'acceptable development' criteria for nil wall setbacks, under the R20 coding the site was developed by (R20, ref. Clause 3.3.2 A2).

While it is not a direct matter of relevance the 'solving' of a real overlooking situation from [the side window to the retreat] at the same time with this proposed screening should be given some merit in planning considerations."

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.

29 Putting to one side the history of the development applications relating to the subject land; a reference to the neighbour's position; and complaints about the applicant's methodology used to meet the performance criteria, the respondent's case essentially is that the applicant's own material demonstrates "direct overlooking of habitable rooms and outdoor living areas" and that the proposed screening does not relevantly "[reduce] the impact of overlooking" and that the size of the proposed screens would disproportionately impact upon the neighbour's amenity.

30 The respondent also expressed concern about the excessive height, durability, permeability and perforation qualities (as the case is) of the proposed screens, but in light of the conclusions reached by the Tribunal on the central issues of this review, it is unnecessary to canvass this issue further.

31 The evidence was presented in the form of expert written evidence in a statement of Mr DC Arndt, who is a senior officer of the respondent and appeared as their advocate in this review.

32 Mr Saunders sought to have Mr Arndt's evidence, namely his expert opinion, significantly "discounted" (if not disregarded altogether) by reason of Mr Arndt's status as a Council officer and as an advocate for the respondent's case. He has a point. However, such practices on all sides have long been tolerated in Class 1 appeals and reviews in this jurisdiction (including in the former Town Planning Appeal Tribunal), and the Tribunal will ordinarily make an appropriate allowance for the practice in coming to its own view on what is the correct and preferable decision in any particular instance. In any event, this case seems to be an unsuitable vehicle for resolution of this issue, especially where the applicant's own expert is and has been so closely involved in the applicant's case (including work as an original designer of the subject land and as an adviser to and agent of the applicant).

33 The key written and oral evidence submitted by Mr Auguste (supported, in part, by a set of colour photographs) may be summarised as follows:

1. As to the applicant's living room windows, they provide "clear vision" to the front lower bedroom and allow one to see into the side window of the front bedroom. He had erected a "brushwood fence" at ground level "to prevent a clear vision from [the applicant's] open balcony and [living] room into [his] bedrooms and lounge".

2. In reference to the proposed screens, Mr Auguste said that he "[didn't] like living in a fortress". Alternatively, he complained that the proposed screens at the rear of the property were not high enough to prevent overlooking, were not durable enough for a marine environment, and were too perforated to ensure adequate privacy.

34 Mr Auguste said that a tree, close to the boundary, and which appeared in some of the photographs and the applicant's video (and provided some privacy in respect of his lower front bedroom), had recently been removed because it was in a dangerous condition. The Tribunal has accordingly viewed the photographic evidence in the light of this information.

35 As has already been made clear, this case essentially boils down to the making of a judgment by a regulatory authority (including this Tribunal) on the degree to which, in the understandable pursuit of what could only be described as potentially significant sea or other views, the applicant ought to be permitted to overlook his neighbour's property. That some significant overlooking will take place is both the source of Mr Auguste's consistent opposition to the current development application, and the raison d'être for the applicant's proposed screens.

36 To some degree, the Tribunal is assisted in exercising this judgment by various considerations which appear in the commentary to the R-Codes, apart from the material in the R-Codes already referred to. These matters are as follows (at 78 - 79, emphasis added):

"Overlooking from bedrooms and studies which may be occupied infrequently, mainly at night, without noise, and by relatively few people - is more easily tolerated than overlooking from active areas.

Of most concern are active habitable spaces - for example, living rooms, kitchens, activity rooms, balconies and outdoor living areas - that are at levels higher than 0.5m above natural ground level.

...

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;

• ensuring that overlooking windows are not transparent or not openable.

Often the most effective results will come from a combination of these.

...

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. Privacy screening can occur in various forms, including:

• permanent elements such as fences, balustrades, louvres, etc; and

• translucent or opaque (i.e. non-transparent) glazing.

Screening may be perforated to some degree to allow the circulation of air, provided it meets the objective of protecting visual privacy. A reasonable test of this is whether the screening prevents recognition of persons or the precise nature of private activity. Perforations should constitute no more than about 20 per cent of the total surface area."

37 This Tribunal takes as its starting point, the need to guard against this "privacy standard" set out in the R-Codes from being "eroded": Newman and Town of Cottesloe [2005] WASAT 83 at [48]. The Tribunal also acknowledges that:

"It is not the intention of the [R-Codes] to make habitable and outdoor spaces of a neighbour invisible from the neighbouring dwelling. An attempt is made in the [R-Codes] to achieve a compromise between avoiding overlooking and ... [enabling] reasonable development to proceed": Newman and Town of Cottesloe [2005] WASAT 83 at [38].

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.

41 The Tribunal orders that:

1. The application for review is dismissed; and

2. The decision under review is affirmed.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR P McNAB, MEMBER