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VINALL v CITY OF HOLDFAST BAY & ANOR [2008] SAERDC 49 (10 July 2008)

Last Updated: 14 July 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

VINALL v CITY OF HOLDFAST BAY & ANOR

[2008] SAERDC 49

Judgment of Commissioner Mosel

10 July 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development application to vary the terms of an existing consent by reducing the length of a privacy screen and retaining an existing tree - third party appeal - Seacliff Policy Area 9 - Residential Zone - first consent reached by settlement - Consent Order issued - whether the appellants privacy is protected by the amended privacy screen to the extent urged in the Development Plan is the central question - assessment informed by the existing on-ground conditions - provisions in respect of privacy considered - when applied reasonably in the assessment of the proopsal to vary the consent, no conflict arises - appeal dismissed.

Development Act 1993; Environment Resources and Development Court Act 1993, referred to.

VINALL v CITY OF HOLDFAST BAY & ANOR
[2008] SAERDC 49

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This is a "third party" appeal against the decision by the City of Holdfast Bay ("the Council") to grant Development Plan Consent to an application by Mr Zeitz (Development Application No. 110/01154/07 – "the proposal") to vary Development Application No. 110/00884/05 ("the first application"). The proposal to vary the first application was submitted to the Council in December 2007. The Council treated the proposal as a Category 3 development. Representations in the nature of objections were received from three neighbours including Ms Vinall. The Council granted consent to the proposal in March 2008 subject to two conditions (refer para 3 below).
2 The relevant background to these proceedings is as follows:
• Mr Zeitz owns and lives in his house at 70 Myrtle Road Seacliff ("the subject land"). The northern boundary of the subject land, in part, forms the southern boundary of Ms Vinall’s property which is situated at 31 Maitland Terrace. Both properties are within the Seacliff Policy Area 9 ("the Policy Area") of the Residential Zone ("the Zone") in the Development Plan for the Council (the relevant version, herein after referred to as "the Plan" is dated 26 October 2006).

• The Council granted consent to the first application in April 2006. In general terms the application comprised single and two storey extensions to an existing dwelling. The first application was treated as a Category 3 development. Ms Vinall lodged a representation in due course.

• Being aggrieved by the decision of the Council in respect of the first application Ms Vinall exercised her right of appeal to this Court. The appeal did not proceed to hearing. Instead, certain amendments to the plans and a list of conditions were agreed and, as a consequence, an Order by consent was issued by the Court pursuant to s 16 of the Environment Resources and Development Court Act 1993. The Order is dated 16 August 2006 and was tendered in these proceedings as Exhibit R4.

• The proposal in effect seeks to vary Condition 12 of that Order. Condition 12 reads as follows:

12. A freestanding timber privacy screen shall be constructed adjacent to the common boundary between the land and 31 Maitland Terrace Seacliff ("the adjoining property") setback 1 metre from the boundary so as to adequately restrict views into the adjoining property to the reasonable satisfaction of the Council. The screen is to be constructed of western red cedar slats (with oil finish), with a maximum spacing of 20mm between slats and a height of 900mm above the height of the existing fence. Further details of the screen shall be provided at the Building Rules Assessment stage.

• The position of the abovementioned free standing timber privacy screen is shown on the Site Plan being Exhibit A of the Order and forming part of Exhibit R4 in these proceedings. This plan depicts, among other things, the privacy screen being almost 17 metres in length beside the northern boundary of Mr Zeitz’s land. It extends from the existing rear wall of the Zeitz residence to the western (rear) boundary.

• Mr Zeitz applied, in the proposal, to reduce the length of the privacy screen by about 3.4 metres. The plan on p 11 of Exhibit R1 depicts the privacy screen in its amended form. The purpose in making the application, according to Mr Zeitz, is to preserve the existing tree (Italian Buckthorn – Rhamnus alaternus). During the course of the proceedings it also emerged that the proposal will, if allowed, avoid the need to relocate the cubby house that now occupies the north western corner of Mr Zeitz’s land.

• The purpose and effect of the privacy screen is demonstrated on the plan on p 12 of Exhibit R1. It is to act as a screen to reduce the views to Ms Vinall’s land from the ground floor and verandah of Mr Zeitz’s house. The views would otherwise be unencumbered. The lateral effect of the reduction of the length of the privacy screen can be deduced from Plan 2.

• The privacy screen, in common with the additions and alterations to Mr Zeitz dwelling, are nearing completion. The extent of the privacy fence at the time of the hearing, the additional panel to complete it to meet the specifications of the proposal and the tree to be retained are all depicted in photo 2 on p 5 of Mr Batge’s statement.

The Scope of the Proceedings and the Appellant’s Grievances

3 The decision of the Council to grant consent to the variation to Condition 12 of the first application is itself subject to 2 conditions:

1. That the design and siting of the free standing screen shall be as shown on the amended plans, which depict its termination 3.5 metres from the western boundary submitted to and approved by Council unless varied by any subsequent conditions imposed herein.
2. That the existing mature tree in the north western corner of the site be retained and maintained to the reasonable satisfaction of Council, and be replaced with another of such variety as the Council shall approve in writing, should the tree die or become diseased.

4 Ms Vinall’s appeal can only be related to that decision. The scope of the appeal cannot embrace any complaint Ms Vinall may have about certain aspects of the Order in respect of the first application; namely whether the privacy screen is constructed in accordance with the Order or whether this screen or the balcony screen are effective in achieving their privacy objectives.
5 The evidence of Ms Vinall and Mr Zeitz leaves little doubt that any foundation of a good neighbourly relationship that might have existed has disappeared. So much so that Ms Vinall, in evidence, said she agreed to the terms of the Order "under duress’ but nevertheless expects the terms of the Order to be observed.
6 I accept that Ms Vinall is sincere in her views in this respect and her desire to ensure that the agreement stays in place. However I can put no weight on any of the circumstances that lead to the Order. To the extent that they are relevant in the assessment of the proposal, this Court must assume that the terms of the Order were made to address the specific issues with the unqualified consent of all parties.
7 Ms Vinall’s concerns, I think, go deeper than the impact on her privacy that might come about from the reduction in the length of the screen. At the most general level she is aggrieved at the ability of Mr Zeitz and the Council to vary the agreement reached, the terms of which are put in place by the Order. In effect, Ms Vinall seeks the Courts decision to prevent Mr Zeitz meddling with the agreement. Also Ms Vinall is, on the evidence, a person who is highly sensitive about privacy, whether it be in respect of her well kept garden or within her house. The privacy screen might have initially allayed her concerns. However, I glean from her evidence that, now that it is constructed, she now has misgivings about its appearance and effectiveness and is disappointed that the proposal to shorten its length now means that the tree on Mr Zeitz’s land that so troubles her by its invasiveness, will remain. Her views about this state of affairs appears to be influenced in large part by the removal of a large amount of vegetation on Mr Zeitz’s land (from which she gained considerable pleasure) to make way for implementing the first application.

Assessment

8 The prime purpose of Condition 12 in the consent Order is to afford privacy to Ms Vinall. It is not disputed that this condition has a valid planning purpose. That can be gleaned by reference to the relevant provisions of the Plan that are outlined below. Whether a privacy screen of the agreed design, height and length was necessary for the first application to be brought into reasonable compliance with the relevant provisions of the Plan is an issue that was not canvassed during the proceedings. An agreement was reached between the parties at that time. The terms of settlement, including Condition 12 was put in place by an Order of the Court. It is not relevant in these proceedings for this Court to comment on its terms.
9 It seems to me that the important question to be answered in these proceedings is not whether it is appropriate for Mr Zeitz to seek to avoid some aspects of the Order or whether the variations sought in the proposal as a matter of fact reduces the privacy afforded to Ms Vinall by virtue of Condition 12. The central question is this: will the privacy screen – in its amended form – together with the retained tree (or its replacement) meet, to an acceptable extent, the guidelines in the Plan (in respect of the first application) for the protection of Ms Vinall’s privacy and amenity? In answering this question, consideration must be given to the privacy to the neighbour immediately to the west of Ms Vinall’s property.
10 The latter question is one that would have been addressed in circumstances where the first application incorporated the privacy screen in its amended form, Ms Vinall having then the same objection as now and the matter proceeded to hearing.
11 The provisions that encapsulates the guidelines in the Plan for the protection of privacy and amenity are found in the Desired Future Character Statements (DFCS) for the Policy Area and the Zone and also in Council wide Objective 30(a) and Principles 44(c), 94(a), 106(a)-(e), 107, 115(h) and 255(h):

Seacliff Policy Area 9
... Development should reinforce the existing historic street pattern, urban form and have regard to the slope of the land, through:
...
(g) building design and siting to minimise overlooking and protect the visual privacy of neighbouring properties while recognising that the sloping topography and opportunity to build for coastal views means that some sites will naturally be higher than others and inclined to and able to achieve horizontal views over (but not necessarily into) those sites below. (emphasis added)
...
Residential Zone
Building design should be both domestic and contemporary in design and character and create physical and visual relationships between dwellings and their respective sites and localities that support and reinforce the Zone’s essentially suburban character through development that:
...
(g) minimises impacts on the privacy of neighbouring residents through building setbacks and orientation;
...

Council Wide
Objective 30: Residential areas which:
(a) provide safe, pleasant and convenient neighbourhoods and residential development that efficiently utilises facilities and services;
...
44 Development should:
...
(c) create a safe, convenient and pleasant environment in which to live.
...
94 Setbacks from side and rear boundaries should be progressively increased as height of the building increases to:
(a) not cause unreasonable visual impacts on the amenity of adjoining properties;
...
106 Direct overlooking from upper level habitable room windows10 and external balconies, terraces and decks to habitable room windows and useable private open spaces of other dwellings should be minimised by:
(a) building layout;
(b) location and design of windows and balconies;
(c) permanently fixed screening devices;
(d) landscaping; or
(e) adequate separation.
107 Permanently fixed external screening devices should be designed and coloured to blend with the predominant associated building materials.
...
115 Landscaping should:
...
(h) improve privacy and minimise overlooking;
...
255 Landscaping, including the establishment of plant species suited to the land, should be provided and maintained with development in order to:
...
(f) maintain privacy. (emphasis added)

12 There are some important observations to be made about those provisions. In the first instance the DFCS for the Policy Area in respect of overlooking and privacy makes allowances for buildings that are on sloping sites and which access coastal views. Secondly, the provisions when read as a whole, seek to avoid direct overlooking from within a building or from points immediately adjacent a building (such as an upper level of a building, a balcony, a terrace or deck). Third, the provisions do not suggest that complete privacy is warranted. Instead they speak of minimising the impacts on the privacy of neighbouring resident. Finally the provision explicitly advocates among other techniques, the use of vegetation and screening devices as means by which the privacy guidelines can be met.
13 The privacy screen has been constructed almost to the position and length depicted in the plans for the proposal in Exhibit R1. The dwelling additions are all but complete. The effect on Ms Vinall’s privacy can thus be observed from the verandah/deck immediately beside the ground floor of Mr Zeitz’s house. The appearance of the privacy fence in its amended form and the retained tree can be observed from Ms Vinall’s house and rear yard. In other words, the merit of Mr Zeitz’s proposal when assessed against the relevant provisions is ably informed by existing conditions on the land.
14 Mr Batge’s evidence, among other things, demonstrates the extent to which the sight lines from the subject land would change as a result of the reduced length of the privacy screen. When standing on the deck adjacent the additions to the ground floor of Mr Zeitz’s house a small wedge of the rear corner of Ms Vinall’s yard is theoretically exposed. I say "theoretically" because the tree to be retained virtually obliterates any views of that portion of Ms Vinall’s land as well as the nearest part of the neighbour’s land immediately to the west of Ms Vinall.
15 The health of the tree to be retained (to which Condition 2 of the consent appealed against relates) is considered by Mr Sheldrick (a qualified arborist) as good. This conclusion as well as his opinion about the conducive conditions for its continued growth was not seriously contested. That the tree is regarded as invasive is a proposition with which Mr Sheldrick agrees. However, so far as I can see there is nothing that arises from these proceedings that compels Mr Zeitz to remove it.
16 Having considered all of the evidence and material before me I am satisfied that the proposal to vary Condition 12, on any proper reading of the Plan, would not cause any conflict with those provisions that provide specific guidelines for the protection of a neighbours privacy and amenity. The ground floor of the Zeitz house is slightly elevated and takes some advantage of its westward (downward) slope. Those circumstances are envisaged in the DFCS for the Policy Area. The privacy screen in its amended form from my observation does not materially alter the level of privacy now available as a consequence of the Order. That is a conclusion also reached by Mr Batge. To the extent that vegetation may be used to satisfy the relevant provisions, it is clear that the tree to be retained is appropriately sited and achieves the intention of the Plan. Condition 2 of the consent makes adequate arrangement should the tree need replacement.
17 In all of the circumstances I have reached the conclusion that the privacy screen and associated tree retention in the amended form proposed adequately conforms with the terms of the DFCS for the Policy Area and the Zone, Objective 30 and Principles 44, 94, 106, 107, 115 and 225.
18 The appeal is dismissed. There will be an Order to that effect.

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1	This is a "third party" appeal against the decision by the City of Holdfast Bay ("the Council") to grant Development Plan Consent to an application by Mr Zeitz (Development Application No. 110/01154/07 – "the proposal") to vary Development Application No. 110/00884/05 ("the first application"). The proposal to vary the first application was submitted to the Council in December 2007. The Council treated the proposal as a Category 3 development. Representations in the nature of objections were received from three neighbours including Ms Vinall. The Council granted consent to the proposal in March 2008 subject to two conditions (refer para 3 below).
2	The relevant background to these proceedings is as follows:
•	Mr Zeitz owns and lives in his house at 70 Myrtle Road Seacliff ("the subject land"). The northern boundary of the subject land, in part, forms the southern boundary of Ms Vinall’s property which is situated at 31 Maitland Terrace. Both properties are within the Seacliff Policy Area 9 ("the Policy Area") of the Residential Zone ("the Zone") in the Development Plan for the Council (the relevant version, herein after referred to as "the Plan" is dated 26 October 2006).

4	Ms Vinall’s appeal can only be related to that decision. The scope of the appeal cannot embrace any complaint Ms Vinall may have about certain aspects of the Order in respect of the first application; namely whether the privacy screen is constructed in accordance with the Order or whether this screen or the balcony screen are effective in achieving their privacy objectives.
5	The evidence of Ms Vinall and Mr Zeitz leaves little doubt that any foundation of a good neighbourly relationship that might have existed has disappeared. So much so that Ms Vinall, in evidence, said she agreed to the terms of the Order "under duress’ but nevertheless expects the terms of the Order to be observed.
6	I accept that Ms Vinall is sincere in her views in this respect and her desire to ensure that the agreement stays in place. However I can put no weight on any of the circumstances that lead to the Order. To the extent that they are relevant in the assessment of the proposal, this Court must assume that the terms of the Order were made to address the specific issues with the unqualified consent of all parties.
7	Ms Vinall’s concerns, I think, go deeper than the impact on her privacy that might come about from the reduction in the length of the screen. At the most general level she is aggrieved at the ability of Mr Zeitz and the Council to vary the agreement reached, the terms of which are put in place by the Order. In effect, Ms Vinall seeks the Courts decision to prevent Mr Zeitz meddling with the agreement. Also Ms Vinall is, on the evidence, a person who is highly sensitive about privacy, whether it be in respect of her well kept garden or within her house. The privacy screen might have initially allayed her concerns. However, I glean from her evidence that, now that it is constructed, she now has misgivings about its appearance and effectiveness and is disappointed that the proposal to shorten its length now means that the tree on Mr Zeitz’s land that so troubles her by its invasiveness, will remain. Her views about this state of affairs appears to be influenced in large part by the removal of a large amount of vegetation on Mr Zeitz’s land (from which she gained considerable pleasure) to make way for implementing the first application.

8	The prime purpose of Condition 12 in the consent Order is to afford privacy to Ms Vinall. It is not disputed that this condition has a valid planning purpose. That can be gleaned by reference to the relevant provisions of the Plan that are outlined below. Whether a privacy screen of the agreed design, height and length was necessary for the first application to be brought into reasonable compliance with the relevant provisions of the Plan is an issue that was not canvassed during the proceedings. An agreement was reached between the parties at that time. The terms of settlement, including Condition 12 was put in place by an Order of the Court. It is not relevant in these proceedings for this Court to comment on its terms.
9	It seems to me that the important question to be answered in these proceedings is not whether it is appropriate for Mr Zeitz to seek to avoid some aspects of the Order or whether the variations sought in the proposal as a matter of fact reduces the privacy afforded to Ms Vinall by virtue of Condition 12. The central question is this: will the privacy screen – in its amended form – together with the retained tree (or its replacement) meet, to an acceptable extent, the guidelines in the Plan (in respect of the first application) for the protection of Ms Vinall’s privacy and amenity? In answering this question, consideration must be given to the privacy to the neighbour immediately to the west of Ms Vinall’s property.
10	The latter question is one that would have been addressed in circumstances where the first application incorporated the privacy screen in its amended form, Ms Vinall having then the same objection as now and the matter proceeded to hearing.
11	The provisions that encapsulates the guidelines in the Plan for the protection of privacy and amenity are found in the Desired Future Character Statements (DFCS) for the Policy Area and the Zone and also in Council wide Objective 30(a) and Principles 44(c), 94(a), 106(a)-(e), 107, 115(h) and 255(h):

12	There are some important observations to be made about those provisions. In the first instance the DFCS for the Policy Area in respect of overlooking and privacy makes allowances for buildings that are on sloping sites and which access coastal views. Secondly, the provisions when read as a whole, seek to avoid direct overlooking from within a building or from points immediately adjacent a building (such as an upper level of a building, a balcony, a terrace or deck). Third, the provisions do not suggest that complete privacy is warranted. Instead they speak of minimising the impacts on the privacy of neighbouring resident. Finally the provision explicitly advocates among other techniques, the use of vegetation and screening devices as means by which the privacy guidelines can be met.
13	The privacy screen has been constructed almost to the position and length depicted in the plans for the proposal in Exhibit R1. The dwelling additions are all but complete. The effect on Ms Vinall’s privacy can thus be observed from the verandah/deck immediately beside the ground floor of Mr Zeitz’s house. The appearance of the privacy fence in its amended form and the retained tree can be observed from Ms Vinall’s house and rear yard. In other words, the merit of Mr Zeitz’s proposal when assessed against the relevant provisions is ably informed by existing conditions on the land.
14	Mr Batge’s evidence, among other things, demonstrates the extent to which the sight lines from the subject land would change as a result of the reduced length of the privacy screen. When standing on the deck adjacent the additions to the ground floor of Mr Zeitz’s house a small wedge of the rear corner of Ms Vinall’s yard is theoretically exposed. I say "theoretically" because the tree to be retained virtually obliterates any views of that portion of Ms Vinall’s land as well as the nearest part of the neighbour’s land immediately to the west of Ms Vinall.
15	The health of the tree to be retained (to which Condition 2 of the consent appealed against relates) is considered by Mr Sheldrick (a qualified arborist) as good. This conclusion as well as his opinion about the conducive conditions for its continued growth was not seriously contested. That the tree is regarded as invasive is a proposition with which Mr Sheldrick agrees. However, so far as I can see there is nothing that arises from these proceedings that compels Mr Zeitz to remove it.
16	Having considered all of the evidence and material before me I am satisfied that the proposal to vary Condition 12, on any proper reading of the Plan, would not cause any conflict with those provisions that provide specific guidelines for the protection of a neighbours privacy and amenity. The ground floor of the Zeitz house is slightly elevated and takes some advantage of its westward (downward) slope. Those circumstances are envisaged in the DFCS for the Policy Area. The privacy screen in its amended form from my observation does not materially alter the level of privacy now available as a consequence of the Order. That is a conclusion also reached by Mr Batge. To the extent that vegetation may be used to satisfy the relevant provisions, it is clear that the tree to be retained is appropriately sited and achieves the intention of the Plan. Condition 2 of the consent makes adequate arrangement should the tree need replacement.
17	In all of the circumstances I have reached the conclusion that the privacy screen and associated tree retention in the amended form proposed adequately conforms with the terms of the DFCS for the Policy Area and the Zone, Objective 30 and Principles 44, 94, 106, 107, 115 and 225.
18	The appeal is dismissed. There will be an Order to that effect.