Landscaping to protect privacy – Super Studio v Waverley Council

The judgment of Super Studio v Waverley Council provides us with the planning principle in relation to the use of landscaping to protect privacy.

The development application and appeal

The applicant made a modification application to Waverley Council (Council) to amend an earlier development consent by varying certain windows and adding a new roof terrace, plunge pool and privacy screen. Council had no issue with the windows and plunge pool, however Council did object to the roof terrace and privacy screen.

Thereafter, the applicant lodged an appeal in the Land and Environment Court in relation to the deemed refusal of the modification application.

The Planning Principle

In relation to privacy, and in particular the use of landscaping to protect privacy, the Court relevantly stated:

…where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens.

The Court ultimately determined to approve thw windows and plunge pool, however due to privacy concerns the Court did not approve the roof terrace or privacy screen.

Key take-away from this judgment

Although landscaping can be used as a safeguard against overlooking, it is important to note that it will likely be given minor weight. Other treatments will be necessary to ensure that a certain and permanent solution is provided. It is unlikely that a councilĀ  (or the Court) will permit landscaping to be used as the main safeguard against overlooking.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.