The holder of a planning permit for alterations to his house, including the construction of a first floor balcony applied to VCAT for a review of a condition requiring a privacy screen on the balcony. Council required the privacy screen to prevent overlooking to this neighbour’s property.

The neighbour submitted that removal of the requirement for a privacy screen would constitute a breach of his right to privacy, which is a right contained in the Charter of Human Rights and Responsibilities Act 2006.

In dealing with this issue, the member applied the following 3-step process:

1. Is a human right protected under the Charter engaged by the planning proposal for which a decision must be made? In considering this, the scope of that human right must be considered, including any specific qualifications or limitations on that right in the Charter.
2. Would any particular decision or outcome would be incompatible with that human right?
3. Apply s 7(2) of the Charter to determine whether any limitation or restriction on the right is justified as part of the decision. Section 7(2) only allows limitations on rights if the limitation is reasonable in the context of a free and democratic society.

In relation to step 1, the Tribunal Member found that it was possible that the right to privacy may be engaged, but that would depend on the Tribunal assessing whether there would be actual overlooking from the proposal and the extent of that overlooking. (Note that this decision was referred to the member on a decision on law and that another member would determine the review on the merits).

As a starting point for applying step 2, the tribunal considered the nature of the right to privacy as outlined in the Charter. Section 13 of the Charter only protects against ‘arbitrary or unlawful’ interference with privacy. As the decision by VCAT about the screen would be based on consideration of the extent of overlooking and the constraints of the site, and would be in accordance with the planning framework and other relevant planning considerations, the tribunal found that the interference would not be arbitrary or unlawful.

As a result of the finding at step 2, it was not necessary for the Tribunal to decide step 3. However, the tribunal did not that, as per step 2, any decision in accordance with the planning framework would be likely to be a reasonable interference with the right.

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