Overlooking – VCAT Decision Confirms the Correct Interpretation of Standard A15

Andrew Iser
19 January 2023

This article provides commentary on the recent VCAT decision in Chow v Yarra CC [2022] VCAT 1391 in which our Senior Associate Andrew Iser acted on behalf of the Applicant to successfully oppose a permit condition that sought to extend the operation of Standard A15, the “ResCode” overlooking standard.

Yarra City Council granted a planning permit for demolition and the construction of a double storey dwelling in Richmond and applied a permit condition (condition 1(d)) which had the effect of significantly extending the area of secluded private open space that Standard A15 protects from overlooking.  Council relied on the older decision in Marquet & Anor v Yarra CC [2012] VCAT 343, which considered the overlooking standard that existed in the former Good Design Guide, to contend that Standard A15 required the limiting of overlooking up to a height of 1.7 metres above natural ground level of secluded private open space that was within 9 metres of balconies and windows.

We successfully argued that the Marquet decision applied a different test to that provided by Standard A15 and that the words “within a horizontal distance of 9m (measured at ground level)” expressly limits the area sought to be protected from unreasonable overlooking to that bounded within a cone commencing at ground level, 9 metres from the plane of the habitable room window or balcony, and then projecting up to a point 1.7 metres above the floor level of the viewing position.

Applying the Standard – Overlooking into secluded private open space (Source: Planning Practice Note 27 – Understanding the Residential Development Standards (ResCode) Page 22)

The Tribunal in its decision noted that Planning Practice Note 27 includes a ‘cone diagram’ which assists with understanding how Standard A15 is to be interpreted.

The Tribunal went on to accept that at the bottom of the ‘cone’, 9 metres from a habitable room window or balcony, only a person’s feet would be obscured from view, and the remainder of that person would be visible.  The Tribunal found that is the intention sought by the standard and that what Council was seeking to do by requiring a test to be applied 1.7m above ground level was to impermissibly extend the standard’s operation.

The Tribunal ordered that condition 1(d) be deleted.