The neighbour had insisted inter alia that the windows, balconies and outlets shown in the proposed plans were in breach of privacy standards which require a minimum separation of 6 metres between apertures of habitable rooms, where these directly overlook another dwelling. Moreover, the neighbour held that according to article 409 of the Civil Code, party walls should have a height of at least 1.8 metres from the highest floor level.
Following permit approval, the neighbour filed an appeal with the Environment and Planning Review Tribunal, reiterating the following arguments:
1. The proposed designs were not in keeping with privacy standards since the layout plans on the first floor showed a balcony overlooking the internal court yard of his residence;
2. The distance between the apertures of the proposed development to the rooms of his house amounted to 3.5 metres. This was in breach of policy (P41) of DC15 which prohibits windows or balconies overlooking the aperture of a habitable room of another dwelling, except where the distance is equal to, or greater than 6 metres or where privacy may be ensured by aperture design or the provision of screening.
3. No provision was made for the staggering of apertures such that they will not be directly opposite one another.
In reply, the Planning Authority stood by its decision to approve the permit. The case officer defending the appealed decision observed that the proposed depth of the replacement building was equivalent to that of the present building. It was also observed that applicant had ‘the right of a servitude window overlooking third party’, which aperture was being ‘replicated’ in the proposed drawings. The officer insisted that the objector’s claims were related to a common courtyard which he shared with applicant, hence policy (P41) of DC15 was not applicable. The Tribunal was also reminded that Policy P41 was not directed ‘at the maintenance of privacy between units within a building which may be grouped around internal spaces, such as an internal yard.’
In its assessment, the Tribunal observed that the redevelopment was acceptable in principle since applicant’s site was located within a residential improvement action area. The Tribunal also noted that the objector was primarily concerned with a walled aperture at ground floor level as well as the windows and terraces which were being proposed at the upper levels and overlookinghis garden. The Tribunal held that it was not competent to decide whether the window at ground floor level constituted a servitude. Nevertheless, the Tribunal found that the proposed windows and terraces for the upper levels compromised the neighbour’s privacy. After noting that the said apertures were not dictated by sanitary requirements, the Tribunal held that the rear boundary wall should be raised so as to screen the said windows and terraces from the neighbour’s view.