As seasoned building designers will be aware, Rescode Standard B22 requires screening of first floor windows and balconies (and some ground floor windows) where they create overlooking opportunities into neighbours’ yards or windows.
Commonly, opaque screening (frosted glazing) is used to a height of 1700 mm above FFL to prevent such views. In increasingly compact infill areas, the need to protect against overlooking can result in new dwellings and apartments with all windows and balconies above ground floor screened, resulting in a very limited outlook or ‘milkbottle effect’ where occupants do not have horizontal views out of any windows.
A recent red-dot VCAT decision Taranto v Glen Eira CC  VCAT 1904 has called into question the long-held position of Councils and neighbours that all overlooking opportunities should be removed through screening, and that the duty to safeguard neighbours’ privacy trumps the future occupants’ right to an outlook from their first floor windows and balconies.
As a reminder, the purpose of this exercise (screening) is to give effect to the Objective of Standard B 22, which is
To limit views into existing secluded private open space and habitable room windows.
In Taranto, Member Liston observed;
It is important to observe that the planning scheme only seeks to limit overlooking, the planning scheme does not seek to absolutely prevent overlooking. Indeed, this outcome is emphasised by the fact that the standard only concerns itself with the privacy of open space and habitable room windows within 9 m and contemplates privacy screening which can be 25% transparent.
It seems to me that those who are responsible for the drafting of this particular planning scheme provision were conscious of the need to strike a balance between the interests of existing residents and those of future residents.
Member Liston went on to find;
Obscure glazing achieves a privacy outcome well beyond that mandated by standard B 22. However, obscure glazing to all windows and balconies can seriously affect the amenity of the future residents of the affected apartment.
In finding that horizontal louvre screens were a more appropriate privacy protection measure in this instance, Member Liston addressed a common complaint of objectors about a neighbouring development’s threat to existing privacy, asserting;
- In the consideration of privacy impacts it is important to turn your mind to the reality of how spaces within a dwelling are used on a day-to-day basis in seeking to reach a balanced decision.
- A person in a kitchen may in fact stand at a window for a considerable time while preparing food or washing dishes et cetera. On the other hand, a person in a living room is much less likely to stand at a window, the person is more likely to be sitting, reading, listening to music, talking to friends or watching television.
- Therefore, the actual privacy impacts are dependent on the reality of the day to day use of the space that creates the possibility for overlooking. For example, it may be possible for the resident of an apartment to stand at the edge of their balcony and look downwards to a neighbouring private open space. A more important question is, what is the probability of the resident doing so with any regularity?
These comments have given us hope that the common practice of requiring all first floor windows to be fully screened, regardless of what they look out onto, may be coming to an end. Clearly, it provides a ‘window of opportunity’ to contemplate less stringent screening for residential developments.
Applicant’s should use this decision to argue against the commonly held position that 100% of overlooking from new development needs to be screened.
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