Watson v City of Charles Sturt No ERD-00-952 [2000] SAERDC 89 (20 December 2000)

Last Updated: 15 January 2001

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Commissioner Hutchings

Hearing

09/11/2000, 20/12/2000.

Catchwords

Application to vary a condition of consent for a semi-detached dwelling at Seaview Road, Tennyson refused - overlooking - ex tempore decision - obliqueness - intimacy - frequency and ease of - need to obscure views from study window - appeal allowed and provisional development plan consent granted with one condition.

Representation

Appellants: CHRIS AND SUE WATSON
Advocates: MR CHRIS WATSON

Respondent: CITY OF CHARLES STURT
Counsel: MR KYM TREDREA - Solicitors: NORMAN WATERHOUSE

ERD-00-952

Judgment No. [2000] SAERDC 89

20 December 2000

CHRIS AND SUE WATSON

v

CITY OF CHARLES STURT

ERDC No 952 of 2000

[2000] SAERDC 89

THE COURT DELIVERED THE FOLLOWING DECISION

1 On 13 July 2000, Archi-Build Pty Ltd on behalf of Mr and Mrs Chris and Sue Watson sought to vary a condition of consent for a semi-detached dwelling house at 21 Seaview Road, Tennyson. On 7 August 2000, Mr and Mrs Watson were informed thus by the City of Charles Sturt:

"That the use of clear, openable glazing within windows W8 and W9 will unreasonably impair privacy for adjacent properties and is therefore not in accord with Metropolitan Principle 10"

and their application was refused.

2 They appealed. No settlement was reached. The matter came to this hearing which commenced on site with an inspection of the residence and of the locality. Evidence was then given in Court by Mr John Caporaso, architect and Mr Timothy Harrison, town planner. My Kym Tredrea, of counsel, represented the City and Mr Watson his wife and himself.

3 At the conclusion of the hearing I concluded along the following lines.

4 This is one of those matters where the core issues become very clear, very early on. In this instance it is that of overlooking. Overlooking issues can exercise the minds of the Court and the parties in a number of ways but at the end of the day, the tests relate to site planning - good or bad. In this instance the designers of the project have gone to considerable trouble to come up with a reasonable plan but nevertheless that has lead to some overlooking situations.

5 On site I was reminded of some of the points that one must check off in dealing with overlooking. One of these is obliqueness of view. I noticed that many views were oblique. In fact from some windows they were obviously oblique and not direct. Another point is the intimacy of what is overlooked. In its general sense that can often mean people just relaxing in their backyards. Associated with this is frequency. For example, looking from the subject property towards the front of No 19 to the south-east, there may be frequent movement as people traverse the driveway but there might not be continuous activity of a private nature such as sitting and reading, chatting with visitors or whatever. Next is the issue of ease of overlooking and this is not great from most of the windows.

6 Putting all of these issues together, we are dealing with a situation of how reasonable or unreasonable the overlooking is. In this regard, I find no problems with overlooking from the bedroom. There are oblique views but it is not easy to move close to the windows to stare down unless one really puts one's mind to it. Looking into the private spaces at the front and rear of No. 19 is relatively difficult. While the distances are less then nine metres they are still difficult views.

7 With regard to the study window however, I do have a problem. This window looks directly into a small private yard which is surrounded by high brick walls and which will contain a swimming pool. The fact there may be some informal agreement between two neighbours is neither here nor there. Basically, in town planning, one cannot have regard to ownership because people come and go and it is the overall planning and design principles that must prevail.

8 That said, I ask the parties to confer on the best way of obscuring the views from the study into the private yard at No.21A. That may be the replacement of clear by opaque glass. It may be, as Mr Tredrea commented in passing, some sort of screen on top of the verandah. There may be some other solution that doesn't come readily to mind at this juncture.

9 I ask the parties to bring their designers together, to confer and return as soon as practicable having regard to their own commitments and the Court's list.

10 The parties returned on 20^th December 2000 at 9.30am and the Court ordered accordingly:

11 This appeal is allowed and the decision of the Council reversed, and provisional development plan consent is granted to Development Number 252/01435/00, being for a variation to the consent previously issued regarding upper storey windows at 21 Seaview Road, Tennyson, subject to the following condition:

1. The view from the first floor study window shall be obscured by the attachment of a louvre screen of the following specification:

KoolShade mini louvres set at 25 degrees and 23 louvres per inch installed on the outside of the window (W8) and in the reverse position to the normal sunshading position.

There will be an order accordingly.