The Effects of Infill on Residential Visual Privacy

Contents

How residential visual privacy became an issue in Edmonton—page 1

Council’s Motion on visual privacy—page 2

Work done to date—page 2

How infill can intrude (or not intrude) on residential visual privacy—page 2

Photos—page 3

Why infill should not intrude on residential visual privacy—page 4

Three examples: How zoning regulations can protect residential visual privacy:

Teatree Gully, South Australia—page 6

Portland Oregon—Page 7

Western Australia—Page 8

Edmonton’s case with sample photos—page 10

Best Practices—page 14

Conclusion—page 17

How residential visual privacy became an issue in Edmonton. 1.

[1] In 2009 Edmonton’s City Council and Administration embarked upon a vigorous program

of residential infill in mature neighbourhoods. That year Council released City Policy C551,

which states that “Residential infill is a priority to achieve three main goals: 1. Fiscal

sustainability; 2. Environmental sustainability; 3. Improved quality of

development….Specific locational criteria for residential infill are contained in the Zoning

Bylaw 12800 and attached City Procedure C551 – Residential Infill Guidelines” (attached to

the policy, not to the bylaw, also in 2009). Edmonton’s infill is therefore mainly driven by

statements in the Bylaw, Policy, Procedure (Guidelines), and also the more recent but critical

Infill Roadmap.

[2] In 2014 the Infill Roadmap was introduced as “A two-year workplan to advance infill,”

specifying 23 infill goals. A number of them were given top priority, including:

Loosening restrictions on garage and garden suites (Action 14) in addition to basement

suites (these are not counted in density totals), and

Allowing the subdivision of 50-foot lots (Action 15).

These priorities have been implemented, along with an active policy of densification through

transit-oriented development and a general tweaking of the Zoning Bylaw to loosen

restrictions on height, grade, storeys, and other regulations that might be perceived to impede

infill.

[3] In an apparent effort to mitigate the public effects of densification, the Roadmap also

prioritized:

An infill communications strategy between the city, builders, and residents (Action 1).

A “Good Neighbour Construction Guide” (Action 5)—completed.

An “Infill Action Insight Group” of citizens and builders to work with the city (Action 6)

as infill progresses.

Neighbourhood-specific planning based on indicators (Action 11).

Improved notification letters (Action 19)—completed.

Create a team of city staff specifically trained in infill permits and public engagement and

communication (Action 20).

[4] Unfortunately, densification priorities are being implemented far faster than mitigation

priorities, which have been almost entirely displaced by the advancement of amendments to

the Zoning Bylaw intended to escalate infill. One consequence has been that infill continues

to take residents by surprise. By default they forfeit any opportunity to advocate for design

elements that would lessen the effect of infill on their properties, such as the loss of privacy

that too often results from introducing a divergent built form into an established streetscape.

In large part, this indicates a need for the Zoning Bylaw and related policy documents to

quickly become more robust, clear, direct, and results-oriented where neighbours’ privacy is

concerned. Fortunately considerable work relating to privacy has been published in other

jurisdictions to assist Edmonton in its goal of becoming a leader in city-building.

2.

Council’s Motion on visual privacy.

[5] In response to a request from Grovenor, on April 13, 2015, Councillor McKeen moved and

Councillor Knack seconded the following motion, carried unanimously: “Privacy Screening

Zoning Bylaw Regulations and Possible Amendments--That Administration provide a report

outlining the Zoning Bylaw regulations relating to privacy screening for platform structures

and prepare a summary of options for possible amendments to the Bylaw, including the

results of preliminary consultation with stakeholders.” Initially, the report was due August

18, 2015 at Executive Committee, but Administration requested an extension to the first

quarter of 2016. It is High Priority Item 21 on Administration’s workplan, ‘All Zoning Bylaw

Implementation Projects,’ July 16, 2015: ‘Privacy Screening Zoning Bylaw Regulations and

Possible Amendments.’ Lead planner is Adam Sheahan.

Work done to date.

[6] A meeting was held on July 25, 2015, from 2:00-3:30 p.m. at the invitation of Planners

Colton Kirsop and Adam Sheahan, attended by Bev Zubot, EFCL Planning Advisor, and

Cassandra Haraba, Civics Chair, Grovenor Community League. The group discussed good

and bad privacy design, the contents of the bylaw, the contents of the motion, and public

involvement possibilities, including the possibility of including Development Officers and

development industry representatives. The planners’ initial public participation plan includes

placing an invitation in mature neighbourhoods’ September newsletters to become involved

by submitting contact information for future invitations to events, such as workshops.

How infill can intrude (or not intrude) on residential visual privacy.

[7] Privacy is the state of freedom from being observed or disturbed by other people. Research

indicates that people living in mature suburban neighbourhoods in cities tend to recognize a

heriarchy of spaces: social spaces, such as the street; semi-social spaces, such as the front

yard near the city sidewalk; and private spaces, including their home’s interior and the back

yard, and on occasion the front yard depending on lot layout.

[8] Residents value private indoor and outdoor space as a pre-eminent amenity. When infill

occurs they expect their privacy to remain protected by thoughtful and sensitive urban

design, but in Edmonton’s experience privacy rarely seems to be top of mind for designers

and developers. Primary dwellings and garage and garden suites can—and do--overlook

neighbouring private space in a variety of ways. Windows, balconies (both protruding and

inset), rooftop patios, and regular first-floor decks, if not sensitive to location and effect, can

overlook adjacent yards and decks and in fact can overlook multiple yards and dwellings,

having a resounding impact on many people’s comfort. For example, the following

photographs exemplify overlooking into neighbouring yards from external platforms.

3.

4.

Why infill should not intrude on residential visual privacy.

[9] Urban planning scholars investigating perceptions of privacy in both western and eastern

societies have found that infill that depletes privacy is harmful in multiple ways: It

diminishes residents’ comfort, it makes them less likely to accept the buildings and, worse, it

makes them more likely to resent the people who move into them. As innocent as those

people may be, by design they now intrude on the privacy of their new neighbours.

[10] Interviews with residents experiencing infill in Christchurch, New Zealand, looked at the

success of zoning bylaw attempts “to preserve the perceived right to be free from

surveillance and to give access to sunshine via recession planes, minimum `setbacks', height

restrictions, and the like. The interviews showed, however, that blanket measures such as

these may have met with only limited success given the highly individualised experiences of

suburban living and the often unique conditions surrounding new infill housing

developments.” Interviewees deeply resented windows and balconies overlooking their

homes and yards. “Interestingly, some respondents called this outright `theft' and considered

their neighbours to have `stolen' their landscape.” Environment and Planning B: Planning and

Design 2005, volume 32, pages 715 – 733. The results of making a city more compact: neighbours'

interpretation of urban infill. Suzanne Vallance, Harvey C Perkins, Kevin Moore Social Science, Parks,

Recreation and Tourism Group, Environment, Society and Design Division.

[11] Portland, Oregon found that “[m]ost residential areas zoned for medium density

development have established patterns of backyards, which create a much-valued “private

realm” of outdoor spaces that contrast functionally with the “public realm” of street

frontages. Infill development which intrudes significantly into the backyard realm can have

substantial privacy and solar access impacts and is often a key concern of neighbors.”

[12] The privacy impact of Western infill is perhaps most metaphorically revealed by its effect

on women in the Middle East. Research conducted in the traditionally Muslim city of

Damascus in Syria began with the working definition of visual privacy as “the ability to

conduct the everyday activities of the home without being observed and without fear of being

observed by those outside the home (i.e. neighbours and passers-by).” The writer found that

“the majority of women regard visual privacy at home from outsiders as extremely important.

Women surveyed who live in the modern neighbourhood often modify the original design of

their homes in order to increase the level of privacy. Thus, current urban design practices and

ordinances resulting in the development of the modern sections of Damascus do not

adequately meet women's desired level of visual privacy. This study concludes that urban

designers need to understand and incorporate core values of the culture in which they are

working, in order to meet the needs of a city's residents.” Residential visual privacy: Traditional and

modern architecture and urban design. Kheir Al‐Kodmany, University of Illinois at Chigaco. Journal of Urban

Design, volume 3, number 4, 1999, pages 283-311.

5.

[13] In anticipation of the objection that some people are too sensitive about privacy, Western

Australia has drafted a response that challenges builders to design considerately: “Privacy is

a valid cause for concern and plays an important role in residential amenity. However, aside

from cases of poor design, there is a large degree of subjectivity, often related to cultural

perceptions and concerns. A sufficient level of privacy must be reached by good design to

satisfy reasonable concerns.” There is good reason to believe that this requirement would

benefit parties on both sides of the fence. The following photo shows a poorly-designed

dwelling with balconies that overlook multiple back yards to the north. Not even the resident

in the yellow chair is comfortable sitting behind the openwork railing, as she is turning her

back to the public space behind her and facing the wall.

6.

Three examples: How zoning regulations can protect residential visual privacy.

[14] Jurisdictions in the US, New Zealand, and Australia have produced detailed policies and

procedures in support of regulations intended to reduce privacy loss for neighbours of infill.

We will look at Christchurch, Teatree Gully, South Australia; Portland, Oregon, and the

broad jurisdiction of Western Australia.

1. Teatree Gully, South Australia

https://www.teatreegully.sa.gov.au/webdata/resources/files/Urban%20Design%20Guidelines%20-

%20Residential%20Zone.pdf

http://www.sa.gov.au/__data/assets/pdf_file/0019/18253/Tea_Tree_Gully_Council_Development_Plan.pdf

[15] Regarding infill and privacy, the City of Teatree has developed this policy:

“Direct overlooking into habitable room windows and onto the useable private open spaces

of other dwellings from windows, especially from upper-level habitable rooms and external

balconies, terraces and decks, should be minimised through the adoption of the following:

(a) a building layout that maintains privacy

(b) location and design of windows and balconies

(c) screening devices to a height of at least 1.5 metres above floor level

(d) existing or mature landscaping

(e) adequate separation.

…Development should minimise direct overlooking of habitable rooms and private open

spaces of dwellings through measures such as:

(a) off-setting the location of balconies and windows of habitable rooms with those of other

buildings so that views are oblique rather than direct.

(b) building setbacks from boundaries (including building boundary to boundary where

appropriate) that interrupt views or that provide a spatial separation between balconies or

windows of habitable rooms.

(c) screening devices (including fencing, obscure glazing, screens, external ventilation blinds,

window hoods and shutters) that are integrated into the building design and have minimal

negative effect on residents’ or neighbours’ amenity.

…New development will use a variety of techniques to ensure the privacy of adjoining

properties is protected. Common techniques include the use of privacy screens to a height of

1.5m on balconies and obscure glass to 1.5m on upper storey windows. Other techniques are

to locate windows where they cannot overlook properties, and the use of landscaping and

walls of the building to screen views.”

7.

2. Portland, Oregon https://www.portlandoregon.gov/bps/49254

[16] Portland has produced an Infill Design Toolkit subtitled “Infill Design Strategies: Best

Practices for Context-Responsive Infill Design.” It looks specifically at ways to “Respond to

Basic Neighbourhood Patterns, Integrate Parking, Minimize Scale Contrasts, Limit Privacy

Impacts, Create Usable Outdoor Spaces, and create Alternative Housing Types.”

[17] Regarding privacy, the Toolkit recognizes that “Privacy impacts caused by infill

development, such as windows and balconies that compromise the privacy of adjacent

residents, are often significant concerns for neighbors. Thoughtful design can minimize such

impacts. There are many ways of achieving this, but all require careful consideration of the

relationship of the proposed development to specifics aspects of adjacent properties.

Locate and design windows and balconies to minimize overlook impacts on adjacent

yards and residential interiors.

Step back upper portions of taller buildings away from property lines adjoining nearby

residences and rear yards to limit overlook problems and solar access impacts.

Use sight-obscuring glass or window film, if it is not practical to locate windows in ways

that minimize privacy impacts. Such treatments allow access to natural light, a benefit

that can be further maximized by leaving upper portions of windows unobscured.”

[18] Portland then embeds the Toolkit procedures into its Zoning Code. For example, in the

Single Dwelling Zones, 33.110.4.d. “Privacy. If the side wall of the house is on the property

line, or within three feet of the property line, windows or other openings which allow for

visibility into the side yard of the adjacent lot are not allowed. Windows that do not allow

visibility into the side yard of the adjacent lot, such as a clerestory window or a translucent

window, are allowed.”

8.

3. Western Australia and the Cone of Vision

http://www.planning.wa.gov.au/dop_pub_pdf/State_Planning_Policy_3_1-Residential_Design_Codes_Print.pdf

http://www.planning.wa.gov.au/dop_pub_pdf/Residential_Design_Codes-Explanatory_Guidelines.pdf

[19] Western Australia has created the closely cross-referenced companion documents “R-

Codes: State Planning Policy 3.1: Residential Design Codes” and “R-Codes: Residential

Design Codes of Western Australia: Explanatory Guidelines.”

[20] A primary tool is the Cone of Vision, defined in the Codes as “The limits of outlook from

any given viewpoint…for the purposes of assessing the extent of overlooking from that point

outlined in clauses 5.4.1 and 6.4.1 as set out in Figure Series 10.” That Figure Series includes

a method of establishing the horizontal cone of vision, the minimum privacy separation

distances, and measuring privacy setbacks using the cone of vision. The cone of vision from

a protruding balcony, for instance, is more than 180 degrees. From a window it is about 45

degrees. The Guidelines indicate that “The impact of a particular development on the privacy

of a neighbouring property can be assessed by applying the concept of a cone of vision at any

point where a person is likely to be able to look on to that property….The relevance of the

cone of vision is readily apparent. The cone of vision is defined by the extent of the

opening….The concept of a cone of vision is a useful tool also for the design of screening

devices.”

[21] The Cone of Vision applies to all “active habitable spaces, for example, living rooms,

kitchens, activity rooms, balconies and outdoor living areas that are at levels higher than

0.5m above natural ground level….The basis for this is that the view from such areas can be

readily limited by a standard 1.8m high boundary fence, and while this may not restrict sight

lines in an upward direction, the impact of overlooking major openings to habitable rooms or

balconies situated above natural ground level would be limited. While it may be possible to

overlook an adjoining property from many situations, clauses 5.4.1 and 6.4.1 only seek to

control overlooking between:

• active habitable spaces and outdoor living areas of the development site; and

• the habitable rooms and outdoor living areas of the adjoining residential properties.”

[22] Methods of preventing overlooking include a combination of thoughtful, site-specific

design; increased setbacks; screening; and opaque, non-opening windows. When choosing

screening, “in order for such screening to be taken into account for the purposes of the

deemed-to-comply provisions, it must be regarded as permanent,” such as fences, louvres,

and opaque glass.

[23] Vegetation for screening, while often effective, is not necessarily permanent. Therefore,

“subject to consultation with the adjoining owner, the necessary planting may be located on

the development site, and would be the subject of a condition of planning approval to run

with the land.”

9.

[24] Breakable glass (as opposed to glass blocks) would also require a permanence condition.

[25] Perforated screening, such as lattice, is considered partial screening and therefore must be

assessed in consultation with neighbouring owners. In any event, “perforations should

constitute no more than about 20 per cent of the total surface area, with an upper limit of 25

per cent,…and a maximum 50mm visual gap is suggested as reasonable….In the case of

lattice screening, the visual permeable definition would be met by 50mm slats at a spacing of

50mm (that is 75 per cent coverage with gaps no greater than 50mm). Where fixed louvres

are used either for vertical or horizontal screening, the spacing required to meet the same

visual permeability standards will depend on the angle of view and the width of the louvre

blades.”

[26] The Codes themselves are more performance-based than prescriptive. Each section is

divided, with the policy rationale on the left (“design principles”) and the regulations on the

right (“deemed to comply when….”). The effect is to consistently remind readers of the

functional principles behind the regulations. Here is a sample section from the Codes:

“5.4 Building design

Objectives

(a) To design buildings and landscape to minimise adverse impact on the privacy of

adjoining dwellings and private open space.

(b) To optimise comfortable living, access to sunlight and solar energy to facilitate

sustainable housing development with particular regard for place and local conditions.

(c) To maintain the amenity of streetscapes and views along the street by ensuring that

associated outbuildings and other fixtures attached to buildings do not detract from the

streetscape and are not visually intrusive to neighbouring properties or adjoining public

spaces.

Design principles

Development demonstrates compliance

with the following design principles (P)

5.4.1 Visual privacy

P1.1 Minimal direct overlooking of active

habitable spaces and outdoor living areas

of adjacent dwellings achieved through:

• building layout and location;

• design of major openings;

• landscape screening of outdoor active

habitable spaces; and/or

• location of screening devices.

Deemed-to-comply

Development satisfies the following

deemed-to-comply requirements (C)

C1.1 Major openings and unenclosed

outdoor active habitable spaces, which

have a floor level of more than 0.5m above

natural ground level and overlook any part

of any other residential property behind its

street setback line are:

i. set back, in direct line of sight within the

cone of vision, from the lot boundary, a

minimum distance as prescribed in the

table below (refer Figure Series 10):

10.

Edmonton’s Case http://www.edmonton.ca/city_government/documents/PDF/C551.pdf

http://www.edmonton.ca/city_government/documents/PDF/Residential_Infill_Guidelines_Sept_2009.pdf

http://webdocs.edmonton.ca/InfraPlan/zoningbylaw/bylaw_12800.htm

http://www.edmonton.ca/city_government/documents/Infill_Roadmap.pdf

[27] Edmonton directs the development of infill in mature communities through Policy C551,

related Procedure (the Infill Guidelines), Zoning Bylaw regulations--the legal basis for

development permits--and the Infill Roadmap, a 23-item workplan for 2014-2016.

[28] The Infill Guidelines call for high-quality development, defined in part as “residential

infill that is compatible and complimentary to the neighbourhood” and that receives

“community support and acceptance.” The present state of the Zoning Bylaw, however, does

little to advance these objectives. Regarding residential visual privacy—one important aspect

of many that affect the compatibility and acceptance of infill—the bylaw contains scattered

and rather skeletal generic references to screening for visual privacy and against overlooking.

[29] An analysis of existing residential privacy provisions in Edmonton’s Zoning Bylaw

divides into clauses that address (a) the occupants of the new development and (b) the

residents of the surrounding properties. First, it is important to review existing Zoning Bylaw

definitions for uses of the outdoor space around a development:

“Setback” means “the distance that a development, or a specified portion of it, must be

set back from a property line. A Setback is not a Yard, Amenity Space [sic], or

Separation Space.”

“Yard” means “the part of a Site unoccupied by any portion of a building or structure 1.0

m or more above Grade, unless otherwise permitted in this Bylaw. A Yard is not a

Setback, Amenity Area or Separation Space.”

“Amenity Area” means “with respect to Residential Use Classes, space provided for the

active or passive recreation and enjoyment of the occupants of a residential development,

which may be for private or communal use and owned individually or in common,

subject to the regulations of this Bylaw….”

“Private Outdoor Amenity Area” is defined as “required open space provided and

designed for the active or passive recreation and enjoyment of the residents of a particular

Dwelling and which is immediately adjacent to and directly accessible from the Dwelling

it is to serve.”

“Separation Space” means “open space around Dwellings separating them from adjacent

buildings or activities, and providing daylight, ventilation, and privacy. Separation Space

is not a Yard.”

Platform Structures, defined as “structures projecting from the wall of a building that

may be surrounded by guardrails or parapet walls.”

There is no definition for either “privacy” or “overlook.”

11.

[30] These seemingly circular definitions serve the function of linking space and the allowable

projections into that space.

[31] A Setback or a Separation Space of at least 1.2 m may include projections of 0.6 m. Both

can include Platform Structures of 0.6 m in a space of less than 4.0 m, 2.0 m in a depth of at

least 4.0 m, to a maximum of 2.5m in a front Setback. The exception that unenclosed steps in

a side Setback can’t exceed 1 m above grade.

[32] A Yard is space that is free of projections over 1 m high.

[33] An Amenity Area may include projections such as ground or rooftop patios and “balconies

with a minimum depth of 2.0 m.” A Private Outdoor Amenity Area may consist entirely of

projections: It “may be provided above Grade, and may be located within any Yard other

than a Front Yard.”

Privacy for the occupants of the infill development—Edmonton Zoning Bylaw

[34] Residential zones RF1 to RF6 (single detached up to row housing—everything short of

walkup apartments) include a Private Outdoor Amenity Area, which could be placed in either

the side or the back Setback, at grade or above grade. It “shall be screened in a manner which

prevents viewing into a part of it from any adjacent areas at a normal standing eye level.

When such screening would impair a beneficial outward and open orientation of view, and

there is no adverse effect on the privacy of the Private Outdoor Amenity Area, the extent of

screening may be reduced.” (It is not clear why the Private Outdoor Amenity Area specifies

privacy at eye level and does not account for overlooking from surrounding properties.) Also,

in these zones the Development Officer may increase or reduce Separation Space “in the

event that buildings are not parallel, or diagonal views between opposite windows and

openings in different Dwellings become critical….” A little extra space alone does not stop

people from looking, however.

Privacy for residents of surrounding properties—Edmonton Zoning Bylaw

[35] In the Zoning Bylaw, Overlays are regulations that trump all other regulations where they

conflict or where the underlying regulations are silent. In 107 core communities, the

residential zones RF1 to RF5 are covered by the Mature Neighbourhood Overlay (MNO). In

the same communities, Zones RF6 and RA7 (the Medium Density Multi-Family Zone and

the Low-rise Apartment Zone) are covered by the Medium Scale Residential Overlay.

[36] The General Purpose of the MNO is, in part, “to ensure that new low density development

in Edmonton’s mature residential neighbourhoods is sensitive in scale to existing

development, maintains the traditional character and pedestrian-friendly design of the

streetscape,…[and] ensures privacy and sunlight penetration on adjacent properties….”

Regrettably, because privacy is not defined, the application of this clause is uncertain.

12.

[37] The MNO contains what amounts to perhaps the strongest privacy regulation in the

zoning bylaw: The mandatory clause: “Platform Structures greater than 1.0 m above Grade

shall provide privacy screening to prevent visual intrusion into adjacent properties.” But

because privacy screening is not defined, this regulation loses its forcefulness.

[38] A second MNO privacy regulation is purely discretionary: “…Where a structure is two or

more Storeys and an interior Side Setback is less than 2.0 m, the applicant may be required to

provide information regarding the location of windows and Amenity Areas on adjacent

properties, and the windows of the proposed development shall be located to minimize

overlook into adjacent properties.” Again, setback alone does not affect overlooking. But if

overlooking is a concern, it does not seem sufficient to make its prevention optional.

[39] The Medium Scale Residential Overlay states: “At a maximum height of 8.6 m…the

directly adjacent façade shall be stepped or sloped back at a minimum angle of 45

degrees…for a minimum horizontal distance of 2.5 m to optimize access to sunlight,

increase privacy and otherwise provide for an appropriate transition to the abutting

property.…Where provided outdoors, the common Amenity Area shall be designed to

facilitate active or passive recreational activities and shall: be designed to minimize overlook

into abutting Sites when provided on a rooftop or building terrace….” The bylaw does not

provide any performance measures, thus there is no method of knowing when a design

minimizes overlook to an acceptable degree.

[40] Sprinkled through the Zoning Bylaw are a few further, mild references to the privacy of

surrounding properties:

In the RF4 Semi-detached Residential Zone “…the Development Officer may require

information regarding the location of windows and Amenity Areas on adjacent properties,

to ensure the windows or Amenity Areas of the proposed development are placed to

minimize Overlook into adjacent properties.” Unfortunately, personal judgment is an

inconsistent standard, especially if unsubstantiated by definitions and metrics.

In the Commercial Office Zone “The Development Officer shall consider privacy and a

Sun Shadow Impact Study when any development is adjacent to a Residential Zone.”

Considering, of course, is not equivalent to preventing.

Where Garage and Garden Suites are concerned, “…windows contained within the

Garage Suite portion of the detached Garage or the Garden Suite shall be placed and

sized such that they minimize Overlook into Yards and windows of abutting properties

through one or more of the following:

a. off-setting window placement to limit direct views of abutting rear or side

Yard Amenity Areas, or direct view into a Garage Suite or Garden Suite

window on an abutting Site;

b. strategic placement of windows in conjunction with landscaping or the

placement of other accessory buildings; and

13.

c. placing larger windows such as living room windows, to face a lane, a

flanking street, or the larger of any Side Yard abutting another property….

d. No decks on Garage Suite or Garden Suite roofs shall be allowed.

e. Platform Structures, including balconies, shall be allowed as part of a Garage

Suite developed above a detached Garage only where the balcony faces the

lane or a flanking roadway….”

[41] ‘Minimizing’ overlooking and placing windows to limit ‘direct views’ seem a bit feeble in

consideration of the more robust attempts to protect privacy elsewhere. By contrast, Western

Australia, for example, defines ‘view’ more scientifically and clearly directs design with a

goal in mind. Furthermore, the terms used in clause (a) contradict their earlier definitions.

‘Yard’ means an area free of construction over 1 m high whereas ‘amenity area’ may include

construction. The fact that these terms have here been conjoined to create ‘yard amenity

areas’ strongly suggests that this aspect of the bylaw could use some fine-tuning. Clause (a),

moreover, is completely concerned with windows that look into yards or into other garage or

garden suites—not at all with windows that look into surrounding houses.

[42] Clause (b) is vague without more information. Clause (c) could lead to ‘larger windows’

looking into back-lane properties if they don’t have a laneway garage (many don’t). Placing

larger windows to look into a neighbouring side yard from a garage could amount to looking

into the back yard depending on the site layout—clause (a) has already recognized that side

yards can contain amenity areas.

[43] It is good that clause (d) prevents rooftop patios, but (e) could easily cause overlooking

into the back-lane neighbours’ yard if they don’t have a garage, or overlooking into their

garage or garden suite windows or onto their lane-facing balcony. Edmonton desires to

encourage suites of this nature but the reasonably foreseeable consequences of these

regulations demand attention. Picture unfortunate garage suite neighbours facing each other

from balconies mere metres apart across a laneway.

[44] In two zoning bylaw privacy provisions it is not clear whose interests are being protected;

they could apply to either or both the infill and the existing dwellings. In an infill

development, the “Development Officer may exercise variance power to reduce Separation

Space where other design solutions offer equivalent daylight, sunlight, ventilation, quiet,

visual privacy and views.” Likewise, in both the RF5 Row Housing Zone and the Urban

Character Row Housing Zone “…the Development Officer, having regard for the siting and

appearance of adjoining residences…may increase the Front Setback requirement to improve

sunlight exposure, views, privacy and to add general interest in the streetscape.” These

clauses are attenuated by the fact that the method of applying them seems subjective, none of

the amenities mentioned are defined, there is no requirement to collect evidence about the

surrounding sites, and there are no measurables to direct development.

14.

Best Practices

[45] Edmonton’s City Council desires that core communities accept infill, for a variety of

reasons. It is easier to accept infill that does not diminish the amenities of surrounding

properties, such as residential visual privacy. Because ultimately the Zoning Bylaw directs

development, its drafting ought to address privacy purposefully and thoroughly. However, it

is currently missing the rationales, definitions, and metrics that would raise the issue of

residential visual privacy to a level of prominence. Perhaps because the bylaw does not treat

privacy loss as a sufficiently salient concern, it is often disregarded by development staff.

Nonetheless, there are excellent examples from jurisdictions that have taken giant steps to

protect privacy while encouraging infill, as we have seen. The next idea to consider is the

ways in which those examples could inform Edmonton’s advance of infill.

[46] The best legislation lays out internally the public policy reasons it addresses. Keeping the

rationale top of mind helps ensure that the provisions are understood and appropriately

applied and avoids cross-referencing between documents. In the case of residential visual

privacy, the intent is to ensure as far as possible through design that the privacy of

surrounding properties is protected from overlooking into dwellings or outdoor private

amenity areas from windows and external platforms. For clarity, definitions should be nearby

in support of the public policy. Clear definitions are needed for residential visual privacy,

privacy screening, external platforms (inset, projecting, rooftop), including entrance stairs

and platforms, and height above grade, among other terms, drafted with care to avoid

contradictions.

[47] Now that laneway dwellings are allowed, the surrounding properties includes those to the

front, sides, and back, and infill design depends on the layout of those properties. Here, for

example, is a low front yard private amenity area located outside the existing home’s front

kitchen. The front yard itself is so long and full of mature trees that this sitting area is indeed

quite private. The infill next door permanently protected this private space with metal and

translucent glass the length of the veranda.

15.

[48] Privacy-aware infill thus requires site-specific design involving the surrounding

properties. This calls for a zoning bylaw provision for meaningful consultation with

landowners and residents so that the Development Officer has legitimate evidence from

which to craft the permit. Alternatively, an infill development could be designed to prevent

overlooking and privacy loss, regardless of the context of the infill site.

[49] On the one hand, privacy protection in our sample jurisdictions is mandatory, not

discretionary, but on the other hand it is performance-based, not prescriptive. This supports

the development industry’s stated objective in the Infill Guidelines for the zoning bylaw “to

provide flexibility in the regulation of residential infill projects to deal with the context

within which projects occur by developing infill guidelines that can be applied universally

but will cover a range of situations, and are performance based guidelines rather than detailed

regulations.” Privacy provisions, being site-specific or infill-specific, are performance-based

because they address the context of the infill site in relation to the uses and layouts of

existing buildings and outdoor spaces.

[50] Infill therefore relies first on good design to protect residential visual privacy of the

neighbours and, incidentally, the infill occupants. The building layout, location of windows

and external platforms, and the design of windows and external platforms, if sensitive to

surroundings, could also effectively prevent privacy loss on the infill site as well. Certainly

this should be a consideration. It is arguably the responsibility of the bylaw drafters to

anticipate and sensitively forestall potential privacy impacts that designers, builders, buyers,

and the general public might not think of until it is too late. There is good reason to believe

that it is worthwhile to benefit parties on both sides of the fence by designing well for

privacy. Infill occupants won’t intrude but also won’t be intruded upon and the reputation of

infill will improve.

[51] The Cone of Vision is attractive for its methodical approach. Where the cone of vision

indicates overlooking and the window or external platform cannot be avoided, the bylaw

could mandate clerestory or non-opening translucent windows and permanent platform

screening (translucent glass in metal, fixed louvres, and so forth) to a height of at least 1.5 m

above floor level that is integrated into the design. Note that Western Australia makes

permanent screening a condition that runs with the land. In Edmonton, as opposed to Western

Australia, vegetation is not necessarily permanent and is slow to grow so it should not be

relied on as permanent screening. In the picture below, the dying tree seems to have been

meant to screen the backyard from the overlooking openwork infill balcony.

16.

[52] The height above grade that should trigger privacy protections is a live issue. Western

Australia applies the Cone of Vision to all “active habitable spaces higher than 0.5m above

grade.” This might not be sufficient, for two reasons. First, people have been known to

mound the soil under their external platforms to make them comply with above-ground

measurements whereas they are higher than they should be, so for consistency any height

above the measured grade should count. Although that seems like a low threshold, it leads

directly to the second reason to tighten the above-grade requirement, illustrated in the picture

below. The deck might not even be 1 m above grade, judging from the bicycle wheel below

(most adult bike wheels are a mere 0.6 m in diameter). This height did not trigger existing

platform screening provisions in the MNO (1 m), and would barely exceed 0.5 m but,

whereas Western Australia relies on a 1.8 m fence to take care of privacy in similar cases, the

fence below is nearly that high but still doesn’t prevent overlooking. Perhaps the threshold

could be 0.3 m (1 ft) above grade.

[53] As illustrated below, perforated screening, such as lattice, is partial screening. It is also far

less permanent than metal and glass or other options. Similarly, fixed louvres would have to

be spaced to prevent visual permeability. If either is proposed the affected neighbours should

have meaningful input and a permanence condition should run with the land.

17.

In Conclusion

[54] The pictures below show that thoughtful infill builders recognize that residential visual

privacy is an important amenity and turn their minds to the impact of their development on

their neighbours. However, the current state of Edmonton’s Zoning Bylaw makes this a hit-

and-miss affair. But if Edmonton is to embrace infill then we should not risk bringing its

reputation into disrepute by settling for less than excellence. Edmonton should possess a

zoning bylaw of distinction.

Cassandra Haraba, B.A., M.A., LL.B.

Civics Chair, Grovenor Community League

August 2015