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Environment Resources and Development Court of South Australia Decisions |
Decision of Commissioner Hodgson
Respondent CITY OF UNLEY:
Counsel: MRS S BLENCOWE - Solicitors: MINTER ELLISON
ERD-97-178
Judgment No. OE444
25 September 1997
THE COURT DELIVERED THE FOLLOWING DECISION
On 2 April 1997 the City of Unley ("the Council") granted development approval to an application by Mr M O'Callaghan ("the appellant") for development comprising the construction of a two storey addition to an existing detached dwelling at 5 Braeside Avenue, Myrtle Bank. The Provisional Development Plan Consent conditions attaching to that approval included the following:
"2. That the eastern upper floor windows be treated to avoid over-looking by being fitted by obscure glazed panels to a height of 1700mm above floor level with such obscure glazing to be kept in place at all times and the windows being only openable from the bottom to 200mm."
Mr O'Callaghan, being aggrieved by that condition, appealed to this Court against it.
A conference, conducted pursuant to section 16 of the Environment, Resources and Development Court Act 1993, did not produce a compromise or settlement, and accordingly, the matter proceeded to a hearing. At the hearing, the Council was represented by Ms S Blencowe, of counsel, while Mr O'Callaghan represented himself.
The Court inspected the subject land and its locality, received a number of exhibits, and heard evidence from Mr O'Callaghan, a licensed builder, and from Mr P Jensen, a qualified town planning consultant.
The proposal, the subject of these proceedings, comprises a second storey addition to an existing single storey detached dwelling, the addition comprising two rooms marked on the plans as bedrooms, together with a bathroom. All three rooms have windows facing east. The rooms are accessed by an internal stairway.
Mr O'Callaghan advised the Court that, prior to construction of the addition, he sought an amendment to the disputed condition, that amendment involving a reduction in the sill height of the two bedroom windows to 1500mm from floor level and incorporation of obscure glass to the whole of the bathroom window. This proposed amendment was not supported by the Council, and accordingly, an appeal was lodged with respect to the disputed condition. However, by agreement with the Council, the appellant proceeded with the construction of the addition, including the construction of the two bedroom windows in clear glass with the sill height at approximately 1500mm above floor level and with opaque glass to the whole of the bathroom window, this being done to afford the Council the opportunity to inspect the completed work and determine whether the disputed condition was appropriate. It appears that, having inspected the completed work, the Council remained of the view that the condition was appropriate.
The locality of the subject land comprises predominantly single storey detached dwellings on larger allotments, varying in size from approximately 600 to 1000 square metres. A few two storey detached dwellings exist in the area, some in the form of two storey additions to originally single storey dwellings.
The overall standard of housing and associated landscaping within the locality is high.
The evidence of Mr Jensen was that some six properties could be overlooked from the upstairs bedrooms, these being to the north, east and south of the subject land. However, in Mr Jensen's view, it was only the properties to the immediate north and south of the subject land (numbers 3 and 7, Braeside Avenue) which raised concerns about overlooking. The remaining properties were located at greater distances from the windows in question, and existing vegetation, fences and out-buildings largely screened outdoor areas from view.
Those provisions of the Development Plan which I consider relevant to the subject proposal are as follows:
Unley (City)
"Objective 19: The preservation and enhancement of the character and amenity of residential areas.
Principle 8: Buildings should be sited and designed in such a way as to provide privacy and access to sunlight for existing and proposed development. In this regard, attention should be paid to:
(a) the possibilities of overlooking and overshadowing of the adjoining development;
(b) the location of windows and doors in relation to adjacent development; and
(c) the possibilities of cutting off views for adjoining development.
Principle 17: Within residential zones:
....
(c) dwellings should provide and maintain privacy;
(d) no development should be undertaken which would impair amenity or the residential character;....
Principle 20: Buildings should be designed so as not to overlook or unreasonably overshadow windows or outdoor living areas of adjacent dwellings."
Metropolitan Adelaide
"Principle 9: Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.
Principle 10: Residential buildings should be located and designed so as not to unreasonably impair privacy and access to incident solar radiation:
(a) for adjacent properties; and
(b) for each dwelling and private open space."
Mr O'Callaghan, in evidence, acknowledged that partial views of the rear gardens of the residential properties to the immediate north and south of the subject land could be obtained from the windows of the two upstairs bedrooms of the dwelling on the subject land. However, he was of the view that the proposal did not breach the relevant provisions of the Development Plan relating to overlooking and privacy, and, in particular, Unley (City) Principle 20, for the following reasons:
(a) the separation distances between those areas of the adjoining properties overlooked and the windows from which overlooking could occur were such that, having regard to AMCORD (the Australian Model Code for Residential Development), no unreasonable overlooking from the upstairs bedroom windows would occur;
(b) the areas of the adjoining properties which could be viewed from the upstairs bedroom windows were not "outdoor living areas" as referred to in the Unley (City) Principle 20, such areas being, in his view, areas established for outdoor dining, entertainment, and relaxation, including patios, terraces, swimming pools and the like. Outdoor living areas did not, in Mr O'Callaghan's view, include lawned areas surrounding clotheslines, garden beds, carports or areas set aside for composting, wood storage or the like; and
(c) the rear garden area of 7 Braeside Avenue was already overlooked, to a significant degree, from 5 Braeside Avenue, there being only a 1500mm fence along the common boundary. That being the case, it was pointless to prevent overlooking from upstairs windows at 5 Braeside Avenue.
Mr Jensen's evidence was that "outdoor living areas" comprised those outside areas, associated with a dwelling, which, could not be seen from the street. On that basis, Mr Jensen said, the proposal was clearly in breach of Unley (City) Principle 20, which, in his view, had been framed by the Council to obviate all overlooking from new residential development. In this regard, Mr Jensen said, Principle 20 differed from the equivalent provision in many other Metropolitan Council areas, inasmuch as the latter typically sought to prevent "unreasonable" overlooking, rather than all overlooking.
While a number of the relevant provisions of the Development Plan address, in a general way, issues of privacy, overlooking and amenity associated with residential development, Unley Principle 20 provides a specific performance standard for new development with the potential to impact on residential privacy, requiring new development "not to overlook....windows or outdoor living areas of adjacent dwellings".
Despite the absence of any reference in Unley (City) Principle 20 to "unreasonable" overlooking, Mr Jensen acknowledged that the Principle could be applied only on the basis that some notion of preventing "unreasonable" rather than "all" overlooking was implicit in it. In his view, however, this notion extended only to the establishment of a 1700mm sill height or obscure glazing to the same height as a means of preventing overlooking. Inasmuch as a particularly tall person could overlook adjoining properties, even with a sill height of 1700mm, and a person of any height could, by standing on a chair, also overlook those properties, said Mr Jensen, the condition which the Council sought to impose was clearly directed towards preventing "unreasonable" overlooking but could not prevent overlooking absolutely.
Ms Blencowe made reference to a number of authorities on the issue of overlooking: Baker and Baker v City of Burnside 1996 EDLR 452; Mitchell Smith v City of Marion ERDC No. 517 of 1996; Hani and Hani v City of Marion ERDC No. 61 of 1997; and Denison v District Council of Victor Harbor PAT No. 175 of 1993, but invited me to distinguish those cases from that presently before me, on the basis that both the facts and the relevant Development Plan provisions differed from those applicable to this matter.
In Baker, I had occasion to consider the acceptability or otherwise of overlooking of the rear gardens of several adjacent dwellings from the upper level windows of a two storey dwelling, those windows being to a bedroom and study respectively, and made the following remarks:
"Issues of privacy and overlooking regularly arise when two-storey residential development is contemplated. Where such development is the subject of appeal proceedings, it is necessary for the Court, having regard to the relevant provisions of the Development Plan, to determine whether the degree of overlooking involved is excessive. However, it is not, in my view, realistic to expect that, in an area where multi-storey development is contemplated, implicitly or explicitly, the provisions of the Development Plan can be applied to the effect that no overlooking of any kind will occur."
Similar views were expressed by His Honour Judge Bowering in a decision of the former Planning Appeal Tribunal in Sorrell v Corporation of the City of Glenelg and Dendy PAT No. 470 of 1988:
"Undoubtedly, whenever a two storey dwelling (be it a detached dwelling house, flats or any other form of two storey dwellings) is constructed in an area where most of the existing development is single storey, there is always a risk that some overlooking will occur. Whenever a two storey dwelling is constructed adjacent to single storey development, the question is always one of balance, for, if concerns as to privacy were always pushed ruthlessly to their logical conclusion, there would be no two storey development at all. Absolute privacy, that is the creation of a situation in which the yard or garden of each dwelling cannot be overlooked at all is a desirable but rather elusive phantom. The question is really one of whether the design or location of a multi-storey development is such that it will or is likely to give rise to a level of overlooking which is, in the circumstances, either excessive or unwarranted."
In Baker, the Court had regard, inter alia, to Metropolitan Adelaide Principle 10:
"10. Residential buildings should be located and designed so as not to unreasonably impair privacy....
(a) for adjacent properties...."
and to Burnside Principles 17 and 89:
"17. Dwellings containing 2 storeys at medium densities should be....
(b) designed in a manner which....
(i) does not unreasonable create overlooking or overshadowing (of) internal and external living areas of other dwellings within the development or on adjacent premises."
"89. Development should take place in a manner which is not liable to cause a nuisance, including nuisance to the community, by ....
(c) loss of residential privacy."
In Sorrell, the Tribunal had regard to Principle 13(d) for the Glenelg (City), which was in the following terms:
"13(d)Within residential areas dwellings should be sited so as to maintain privacy and create individuality."
The conclusions reached by the Court and Tribunal respectively in the above matters were formed in the context of Development Plan provisions which clearly necessitated a qualitative assessment of whether overlooking was either "unreasonable" or of a kind which would result in a loss of privacy. Does the wording of Unley (City) Principle 20 have the effect of substituting a quantitative measure for the qualitative measures evident in the case law cited? In other words, is Principle 20 invariably breached in the event that any portion of the rear yard of an adjoining residential property can be viewed from a proposed upper storey window?
Having given close consideration to the submissions of Ms Blencowe, the case law cited, and the evidence of both Mr Jensen and Mr O'Callaghan, I have concluded that it is not. I have reached that conclusion for the following reasons:
(a) the measures sought by the Council to avoid overlooking from the upper floor windows, which are set out in the disputed condition, would not, on the evidence of both Mr Jensen and Mr O'Callaghan, prevent overlooking altogether, suggesting that the application of Principle 20 still required some level of qualitative assessment as to whether "unreasonable" overlooking was possible;
(b) Principle 20 refers to the need to design buildings so as to avoid overlooking of "windows or outdoor living areas of adjacent dwellings". It was common ground between the parties that windows of adjacent dwellings were not overlooked. There was, however, some disagreement between Mr Jensen and Mr O'Callaghan as to the meaning of "outdoor living areas". In Mr Jensen's view, the term encompassed all outdoor areas associated with a dwelling which could not be viewed from the street, whereas Mr O'Callaghan sought to distinguish between areas used for outdoor relaxation or entertainment (eg patios, swimming pools, decks or open verandahs) and areas devoted to utility functions (eg clotheslines, lawned areas, wood storage, compost bins and the like). It was evident from the view that those portions of the rear yards of 3 and 7 Braeside Avenue visible from the upstairs windows of 5 Braeside Avenue fell into the latter category. On balance, I am inclined to accept Mr O'Callaghan's view, on the basis that overlooking of rear garden areas not used for outdoor relaxation or entertainment is, as I see it, qualitatively on a par with the overlooking of front garden areas, porches, verandahs, carports and the like, which typically occurs in residential areas. Accordingly, although some overlooking of the rear yards of 3 and 7 Braeside Avenue is possible from the upper level windows of 5 Braeside Avenue, it is not, in my view, overlooking of "outdoor living areas", the latter being those areas which, because of the nature of their use, entail some sensitivity to overlooking.
Even if I am wrong in the latter conclusion, it seems to me that a qualitative assessment of the overlooking which can occur from the windows referred to is not such as to be "unreasonable". Both windows are to bedrooms, the dimensions and location of which render it highly unlikely that they will ever be used for any other purpose, other than perhaps a study. With window sill heights of 1500mm, as presently configured, a view of those portions of the rear yards of 3 and 7 Braeside Avenue which are capable of being seen from the upper level windows of 5 Braeside Avenue can only be obtained by standing directly at the windows; when seated, lying, or moving about elsewhere in either room, overlooking cannot occur. Furthermore, such views as can be obtained are relatively distant, the visible portions of the adjoining yards being, in the estimation of Mr O'Callaghan, between 15m and 22m from the windows in question.
In his evidence, Mr Jensen made reference to AMCORD design standards, with particular reference to the Council's requirement for obscure glazing of any portion of the upstairs windows less than 1700mm above floor level, this being one of the measures suggested by AMCORD as an appropriate means of addressing overlooking. While AMCORD has no statutory relevance, not constituting part of the relevant Development Plan, it is, in my view, a document to which some consideration can be given in instances where the Development Plan does not provide any, or adequate guidance as to the interpretation of performance measures set out in the latter. Such measures include, in this instance, avoidance of unreasonable overlooking and protection of residential privacy, and I note that, whereas obscure glazing of those parts of windows less than 1700mm above floor level is one measure suggested by AMCORD as a means of addressing overlooking, an alternative measure proposed is screening views of the private open space of adjacent dwellings up to a distance of 9m from the window concerned, suggesting that separation distances of more than 9m are sufficient to address privacy concerns.
Mr Jensen, who has been closely involved in the preparation of the current version of AMCORD, gave evidence to the effect that the separation distance of 9m reflected the fact that AMCORD was a national document, and therefore had to take account of the widely-varying expectations of residents in densely populated inner city areas of Sydney and Melbourne, as well as those living in more spacious environments. A more appropriate separation distance in the Adelaide context, said Mr Jensen, was probably 12m-15m, perhaps more.
Be that as it may, it seems to me that if AMCORD can be called in aid to support obscure glazing of upper level windows to a height of 1700mm, it is also relevant to have regard to the separation distance referred to in the same document, in assessing whether overlooking is unreasonable. Accordingly, while I place no particular reliance on AMCORD in concluding that the level of overlooking occasioned by the proposed development is not unreasonable, I am reinforced in that view by the separation distance referred to in that document. I note also that letters from the owners of 3 and 7 Braeside Avenue, tabled in evidence, indicate that the proposed development, and in particular the level of overlooking occasioned thereby, is not, in their view, "detrimental to the use and enjoyment of [their] outdoor living areas".
In concluding that overlooking from the subject development is not unreasonable, I have not overlooked the view, expressed by Mr Jensen in evidence, that because the present location and extent of outdoor relaxation/dining areas associated with the dwellings at 3 and 7 Braeside Avenue could be changed by future owners of such properties, (eg by installing a swimming pool), it was the responsibility of the Council, as the relevant planning authority, to ensure that such options were not foreclosed by allowing overlooking of areas not presently devoted to such activities. While that is a laudable ideal, it seems to me that its realisation requires the prevention of any overlooking at all, and for reasons I have already given, such an approach goes well beyond the bounds of preventing unreasonable overlooking. Substantial areas on both properties are not subject to overlooking from the subject windows, and should afford reasonable opportunities for expansion or relocation of existing outdoor relaxation/dining areas or for the installation of a pool. However, prospective purchasers of any established residential property have to make their own assessment of outdoor areas in terms of the extent and nature of any existing overlooking, and of their own sensitivity to any such overlooking. Such factors may, at times, become a key determinant of whether a particular property is purchased or not, but the possible intentions of future owners of adjoining properties cannot, in my view, be used as a basis for preventing the limited and distant overlooking which would result from the subject proposal.
I have given careful consideration to all the evidence, the submissions of counsel, what I saw on the view, and the relevant provisions of the Development Plan in concluding that the subject proposal, as constructed, does not conflict with those provisions of the Development Plan which seek to protect residential privacy and prevent unreasonable overlooking, in particular Unley (City) Objective 19 and Principles 8, 17, and 20, and Metropolitan Adelaide Principles 9 and 10. Having so concluded, I have decided that this appeal should be upheld and the disputed condition amended to reflect the window configuration as constructed.
There will be an order accordingly.
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