Corporation of the City of Marion v South Australian Planning Commission and Planning Appeal Tribunal No. SCGRG93/1664 Judgment No. 4293 Number of Pages 11 Building Control and Town Planning (1993) 81 Lgera 312

[1993] SASC 4293

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Building control and town planning - Application for judicial review - consent given by South Australian Planning Commission to swimming pool/spa and enclosure - whether development prohibited by Principle 26 of the City of Marion section of the Development Plan - appeal by Marion Council dismissed by Planning Appeal Tribunal - whether development seriously at variance with Development Plan - application dismissed. Planning Act 1982.
R v The City of Munno Para; ex parte John Weeks Pty Ltd and Anor (1987) 46 SASR 400 and Courtney Hill Pty Ltd v South Australian Planning Commission and Others (1990) SASR 259, applied.
Paradise Developments Pty Ltd and Another v The Native Conservation Society of South Australia Ltd and Another (1993) 59 SASR 239, considered.

HRNG ADELAIDE, 19 November 1993 #DATE 30:11:1993
Counsel for plaintiff:     Mr G Manos
Solicitors for plaintiff:    Manos and Associates
Counsel for defendant:     Mr A R F Hall
Solicitors for defendant:    Crown Solicitor

ORDER
Application dismissed.

JUDGE1 MATHESON J This is an application by the plaintiff for judicial review and arises out of an application made by Leslie Geyer and Anna Geyer ("the Geyers") to the South Australian Planning Commission ("the Commission") on 13 January, 1993 for planning authorisation for what was described in the application as a "pool/spa and enclosure" at their existing dwelling house at 16 Gulfview Road, Seaview Downs ("the subject land"). 2. In or about 1990, the Geyers undertook excavation work on the subject land, but to the north of their existing dwelling house. As a result, the plaintiff communicated with the Geyers, who then applied to the Commission for planning authorisation to make the excavation, to construct a swimming pool and a rumpus room, and to erect a structure to enclose and cover the swimming pool. The Commission refused that application, and the Geyers appealed to the Planning Appeal Tribunal (the Tribunal"). In a determination delivered on 8 October, 1992, the Tribunal (constituted by his Honour Judge Roder, Commissioners Buttrose and Currie) dismissed the appeal, and confirmed the decision of the Commission. In their determination the Tribunal said, inter alia:
    "In effect, what we conclude is that to carry out the
    proposed development would require excavation far in excess of
    that intended under the Act and by the Development Plan for
    purposes not considered appropriate by the Development Plan in a
    manner not in accord with what is sought by the Development
    Plan. Then there would be site coverage considerably in excess
    of that proposed by the Development Plan. The resultant
    profile, whatever the appellants might think, would be one not
    in accord with the spirit of the Development Plan. There are
    other aspects of the Development Plan which would also be, to
    some extent, offended, as we have indicated. ... The Tribunal
    is not to be taken as saying that the appellants cannot have a
    swimming pool on the subject land, nor that they cannot have a
    rumpus room. We suggest that if they wish to pursue the
    proposition of additions involving a swimming pool and a rumpus
    room they obtain careful professional advice from experts in all
    aspects of their proposed development and that they accept that
    the form, size and siting of any such swimming pool or rumpus
    room or both may be somewhat different from that which they have
    had in mind. We also think much more care and concern must be
    accorded when considering any such further development to the
    developments on and the form of their neighbours' lands,
    although not necessarily to the strict wishes of their
    neighbours, which may themselves be directed more to the
    concerns the neighbours have as individuals than to the
development of the Hills Face Zone in this particular locality." 3. Subsequently, proceedings were instituted against the Geyers pursuant to s.36 of the Planning Act 1982 ("the Act") and on 25 January, 1993 an order was made by consent in the District Court requiring the Geyers to undertake certain works to reinstate the subject land unless the application out of which those proceedings arose should gain planning authorisation. The Commission gave the necessary planning authorisation on 27 April, 1993 subject to the imposition of six conditions, namely:
    "1. The development hereby approved shall be carried out
    in accordance with the plans accompanying the application
    approved by the Commission and contained in the docket SAPC
    44/189/249.
     2. The external finishes of the structures herein approved
    shall be in accordance with the materials specified below: Walls
    - PGH 'Tan Flash' Enclosure Roof - Suntuf 'Greca', Solar Gray
    and 2 sections 'Vergola' Enclosure - Glass Sliding Doors
    frontage 'Austin Grey' Stairwell Roof - Colorbond 'Ironbark'
    Pergola - Timber 'Mission Brown' Balustrades - 'Mission Brown'
    Fence - Colorbond 'Ironbark' All other external finishes shall
    have surfaces which are of a low light reflective nature and be
    of dark natural colours. All/any painting is to be completed
    within 6 months of erection.
     3. All further scarring or physical disturbances of the land
    shall be restricted to only that which is required for building
    and/or access purposes. Any excavated spoil shall be taken off
    site and disposed of in a legally approved manner.
     4. Providing a screen of additional trees and shrubs which
    shall be planted in accordance with the submitted landscaping
    plan so as to reduce the visual impact of the development when
    viewed from the surrounding locality. Trees and shrubs shall be
    planted immediately on completion of the development approved
    herein and maintained thereafter to the satisfaction of the
    Commission. All trees and shrubs shall be placed in excavated
    beds, of 2 foot depth and width and refilled with topsoil. The
    whole of the excavated area to be landscaped shall be covered
    with a 90mm layer of soil and a 10mm layer of topsoil and
    grassed.
     5. All development herein approved shall be constructed to
    accepted engineering standards in accordance with sound
    engineering practice.
     6. The applicants or other persons making the use of the
    subject land, shall, at all times, maintain in good and
    substantial condition to the satisfaction of the Commission in
    all respects, all buildings and structures, and the painting
    thereof, and all trees, shrubs and ground covers." 4. The plaintiff in these proceedings sought to appeal to the Tribunal from that decision of the Commission, and argued before the Tribunal that the application was for a "prohibited" kind of development. 5. The subject land is in the Hills Face Zone, and Principle 26 of the City of Marion section of the Development Plan specifies a number of kinds of development which are prohibited in the Hills Face Zone, including:
    "Detached Dwelling or additions to, or conversion of, an
    existing detached dwelling where the scale and design is such
    that:
     (a) the vertical distance between any point at the top of any
    external wall and the finished ground level immediately below
    that point on the wall exceeds three metres, other than gable
    ends of the dwelling where the distance exceeds five metres; or
     (b) there is a floor level directly above another floor level,
    except where the upper floor level is located wholly at or below
    finished ground level; or Detached Dwelling where the dwelling
    is to be constructed on an allotment on which a dwelling already
    exists" 6. The purported appeal to the Tribunal was heard by his Honour Judge Roder, who stated his conclusion thus:
    "... in my view nothing that is proposed in this
    development falls into that kind 'prohibited' by the Development
    Plan. Consequently no public notification of the proposed
    development was required. Consequently no right of
    representation in accordance with the provisions of Section 53
    of the Act arose nor did any right on the part of the Council to
    anticipate that it might institute an appeal against a decision
    of the Commission on the matter. Mr Manos put it to me that if
    I came to the conclusion that the proposed development is one
    which does not amount to one which is 'prohibited' I should
    nevertheless consider in these proceedings whether it is one
    which would be 'seriously at variance' with the provisions of
    the Development Plan so as to attract the provisions of
Subsection 47(9) of the Act which provides: '47 (9) In deciding
    whether to consent to a proposed development under this section,
    a planning authority - (a) must have regard to the provisions of
    the Development Plan so far as they are relevant to that
    decision; and (b) must not make a decision that is seriously at
    variance with those provisions.' I would avoid adopting Mr
    Manos' proposed course. I put it no more highly at the moment
    than that were the Tribunal not to be enlivened with
    jurisdiction to entertain an appeal it would seem somewhat
    irregular for it, in effect, to make a pronouncement of a
    declaratory nature. In my view in those circumstances any such
    approach as that put forward by Mr Manos would have to be made
    to another forum." 7. The plaintiff now seeks the following orders, inter alia:
     "2. An order in the nature of certiorari to move into this,
    Honourable Court to be quashed the decision of the Commission to
    grant consent to an application to undertake development dated
    (13th) January 1993 by LJ and AZ Geyer both of 16 Gulfview Road
    Seaview Downs and lodged with the Commission on 21 January 1993
    in respect of a development described as a 'pool/spa and
    enclosure' on the land situate at 16 Gulfview Road, Seaview
    Downs (the Application).
     3. An order in the nature of certiorari to move into this
    Honourable Court to be quashed the determination of the Tribunal
    constituted by His Honour Judge Roder delivered on 29 July 1993
    wherein the Tribunal determined that the Application was not to
    be regarded as being for a prohibited kind of development and
    that accordingly the application was exempt from the public
    notification provisions of the Development Control Regulations
    and it was unnecessary for the Commission to seek concurrence to
the granting of the application pursuant to Section 47(6) of the
    Planning Act.
     4. The following declarations:-
     4.1 A declaration that the Application was for a prohibited
    kind of development.
     4.2 A declaration that the decision of the Commission made on
    27 April 1993 wherein the Commission purported to grant consent
    to the Application is void and of no effect.
     4.3 A declaration that the Application was not exempt from the
    requirement to give notice in accordance with Regulation 33 of
    the Development Control Regulations 1982 as amended." 8. In support of the application to this Court, an affidavit of Louis Victor Monteduro, Senior Planning Officer of the plaintiff, was filed, and in opposition thereto, an affidavit by Philip Michael Smith, the Manager of the Development Assessment Branch of the Department of Housing and Urban Development of the South Australian Government, was filed. It was agreed that I could take into account the facts and arguments contained in those affidavits. 9. At the request of both counsel, I had a view of the subject land and notes were made from various viewing points. Subject to some observations which I will make later, I am content to adopt the following description of the subject land and its locality given by the Tribunal in its first determination (supra):
    "The subject land is located within the Hills Face Zone
    provided for by the Development Plan for the State authorized by
    the Act. It is shown on (Map Mar/10) in the Development Plan.
    The land is within Metropolitan Adelaide. The portion of the
    Hills Face Zone within which it lies abuts a Residential 1 Zone.
    The zone boundary runs through a reserve, which will be shortly
    mentioned, not far distant from the subject land. The subject
    land has a frontage to Gulfview Road at its junction with
    Morphett Road. It is irregular in shape and has an area of
    788.28 square metres ... On it a substantial two-storey
    dwelling built of cream concrete brick with decked areas and
    balconies over a garage has been built. A prominent
    air-conditioning unit sits on its roof. At the front of the
    allotment there is a wall developed garden area. The subject
    land, prior to the erection of the existing dwelling, had slopes
    in the order of about 1:5 or 1:4 at the most. The subject land
    slopes away from Gulfview Road in a north-westerly direction
    towards a reserve maintained by the Council. In addition to the
    reserve, the subject land is bounded by other residential-size
    allotments, one to the west belonging to Mr and Mrs Smith and
    that to the northeast by Mr Terry. A little to the south-east
    of the subject land is the O'Halloran Hill Recreation Park ...
    Within the Hills Face Zone within the locality residential
    allotments are on the whole smaller in area than allotments
    which are normally to be found in that zone at large. In the
    locality there are some 50 dwellings, a vacant residential
    allotment, various reserves, an Engineering and Water Supply
    water tank and portion of the O'Halloran Hill Recreation Park.
    About two-thirds of the dwellings in the locality are either of
    a split level type or of two storeys, built before current
    provisions of the Development Plan came into force. Many
    styles, with varying appearances, of buildings are represented.
    Some dwellings have swimming pools whilst others have tennis
    courts. Most have a number of outbuildings and structures about
    them ... The amenity of the locality is pleasant, being
    somewhat above average. It is enhanced by views of open spaces,
    large and small, Gulf St Vincent and built-up areas." 10. The proposed development is nowhere conveniently described in words. I will describe it as well as I can from the amended plan (referred to in the affidavit of Mr. Monteduro as Exhibit K). The proposed swimming pool room is to be connected to the dwelling house by a covered stairway abutting the boundary of the Terrys' house to the east. It will be built in the existing excavation that abuts the existing lawn to the north of the dwelling house, and will include a W.C. and a shower. There will be a new stairway to the west thereof and abutting the boundary of the Smiths' dwelling house. There will be so-called "suntuf roof sheets" over the swimming pool room, and a new suspended concrete slab over the W.C. and shower. There will be a new lawn area to the north of the swimming pool room. Shrubs will be planted along a new 1.8 metre high colour bond fence between the subject land and the reserve, and there will be a new pergola at the northern end of the western stairway. 11. I do not think it is disputed that the Geyers' proposal is an "addition to an existing detached dwelling" within the meaning of the relevant part of Principle 26 (supra). I will first discuss paragraph (a) thereof. In support of his argument that the wording of (a) indicates that it is aimed at what is visible from the outside, and not what is inside or underground, Mr. Hall, counsel for the respondents, referred to the following Principles of Development Control for the City of Marion (my underlining):
    "1 Development should not be undertaken unless:,
     (a) it is associated with a low intensity agricultural
    activity, a public open space area or a private use of an open
    character, or is a detached single storey dwelling, including
    outbuildings and structures normally associated with such
    dwellings, on a single allotment; and
     (b) together with associated native landscaping, it preserves
    and enhances the natural character of the zone or assists in the
    re-establishment of a natural character.
     ...
     3 The re-adjustment of allotment boundaries by land division
    should not:
     (a) increase the number of allotments wholly or partly in the
    Hills Face Zone; nor
     (b) result in the size or configuration of an allotment being
    such that a dwelling and associated outbuildings cannot be
    unobtrusively located when viewed from the roads within the zone
    or from the Adelaide Plains.
     ...
     6 Buildings, including structures, should be designed in such
    a way and be of such a scale as to (be) unobtrusive and not
    detract from the desired natural character of the zone and, in
    particular:
     (a) buildings should be of a single storey;
     (b) the profile of buildings should be low and the roof lines
    should complement the natural form of the land;
     (c) the mass of buildings would be minimized by variations in
    wall and roof lines and by floor plans which complement the
    contours of the land;
     (d) large eaves, verandahs and pergolas should be incorporated
    into designs so as to create shadowed areas which reduce the
    bulky appearance of buildings; and
     (e) the mass of buildings should be minimized by having
    separate vehicle storage areas.
     ...
     12 Additions to buildings should:
     (a) maintain the single storey profile of the building;
     (b) be located on the side of the dwelling which minimizes the
    obtrusiveness of the completed building; and
     (c) comply with the previously mentioned principles relating
    to the location and design of buildings.
     13 The number of outbuildings should be limited, and where
    appropriate they should be grouped together, located in
    unobtrusive locations and comply with the previously mentioned
    principles relating to the location and design of buildings." 12. I agree with Mr. Hall's submission, and stress that the draftsman of (a) has used the phrase "external wall". I also agree with the following passage from Judge Roder's judgment. He said:
    "I am satisfied that at no time was it intended that the
    vertical distance between any point at the top of any external
    wall and the finished ground level immediately below that point
    on the wall would exceed three metres ... Whilst appreciating
    Mr. Manos' point that the external wall in question in this
    case is a boundary wall and that the finished ground level
    immediately below a point at the top of the external wall might
    on the neighbour's side be altered at any time by action on the
    part of the neighbour the introduction of any such
    considerations would lead to uncertainty, possibly of a gross
    kind, if not to absurdities. The finished ground level to be
    taken into account must be that immediately below the point at
    the top of the external wall at the period of approval." In my opinion, the plaintiffs' arguments on paragraph numbered (a) of the relevant prohibition in Principle 26 fail. 13. When commenting on the Council's argument on paragraph numbered (b) in the prohibited kind of development under consideration (supra), his Honour Judge Roder said:
    "In my view the Development Plan is referring to the level
    of a floor in a building in the sense that that floor is part of
    a room or the like in a building which forms its lower enclosing
    surface, and upon which one can walk ... In the context of the
    Development Plan I am unable to reach the conclusion that the
    area above the toilet and the shower which would be used to gain
    access from the dwelling to the pergola area by walking over the
    top of it is an outdoor floor such as to amount to a floor for
    the purposes of the definition of the prohibition in the
    Development Plan. Consequently, I do not think that in the
    context of the Development Plan the concrete slab over the

    toilet and shower area is a floor assessable as a floor level
    directly above another floor level. ... What remains to be
    considered is whether the balcony area attached to the upper
    level of the existing building is a floor level directly above
    another floor level, the lower floor level being the floor level
    of the proposed stairwell. In this case, though the existing
    balcony which is a roofless projection of the existing
    first-storey floor slab of the householders' dwelling would
    stand above a horizontal surface, namely the upper landing of
    the staircase which would lead down to the swimmingpool room, it
    goes well beyond the ordinary usages of general speech in
    relation to dwellinghouses to think of that landing as a floor
    having a floor level. That landing is not a floor, with a floor
    level, of a building. As the Shorter Oxford English Dictionary
    defines a landing is 'A platform at the top of a flight of
    stairs or between two flights of stairs.' That landing is
between floor levels and is not in itself a floor level." 14. I respectfully agree with all that his Honour there says. The argument on (b) fails. 15. In my opinion, and essentially for the reasons given by Judge Roder, the proposed development was not prohibited. I now consider the plaintiffs' argument that the proposed development is seriously at variance with the Development Plan contrary to the provisions of s.47(9) of the Act. 16. In R. v. The City of Munno Para; ex parte John Weeks Pty Ltd and Anor
(1987) 46 SASR 400, the Full Court had to consider, I think for the first time, the wording of the present s.47(9) of the Planning Act, which was introduced by the Planning Act Amendment Act (No. 2) 1985. At pp.403-404, King CJ said:
    "I have reached the conclusion in the present case that the,
    planning authority's power to grant consent depends upon the
    proposed consent not being at serious variance with the
    Development Plan. I must say that I have reached this
    conclusion with some reluctance because it makes the validity of
    an important administrative act depend upon debatable questions
    relating to planning values and the degree of the proposed
    departure from the Development Plan. Such considerations cannot
    prevail, however, against the language and structure of the
    section. Courts are, of course, able to apply criteria, however
    imprecise, if Parliament requires them to do so: Sutherland
Shire Council v Finch (1970) 123 CLR 657 at 666, per Gibbs CJ.
    I think that the intention of the legislature in amending the
    section is too plain to be misunderstood. For good or ill,
    Parliament has decided that the validity of a consent is not to
    be determined by reference, as is usual, to defined legal
    criteria but is to depend upon the judgment of a court of law as
    to whether a proposed development is seriously at variance with
    the Development Plan. Care will be required on the part of the
    court, when such an issue comes before it on an application for
    judicial review, to confine itself to its legitimate role in
    supervising the legality of the planning process. The court
    must ensure that it does not become involved in matters of
    planning merits which are proper for the consideration of the
    appellate tribunal but which are not jurisdictional in
    character. An alleged serious departure from the plan can be
    the basis of intervention by the court on judicial review only
    if the existence and seriousness of the departure can be
    discerned plainly by the court from the material before it
    without the necessity of resolving debatable issues relating to
    planning merits. It is therefore necessary to consider whether
    the consent under review is seriously at variance with the
    provisions of the Development Plan. I think that it must be so
    regarded. I do not take that view merely because retail
    shopping is not included as one of the objectives of the zone F
    in which the proposed development is mainly located. Retail
    activities are not a prohibited use for zone F; and, even if
they were, the Act provides in s47(6) machinery for consent to a
    development involving a prohibited use. There may be minor
    retail developments, or developments of which retailing is a
    minor or incidental part, in a zone not intended for retailing,
    which, although at variance with the plan, could not be regarded
    as seriously at variance with it. The seriousness of the
    departure from the plan in the present case, to my mind, arises
    largely from the magnitude of the proposed shopping centre. It
    is a major retail shopping centre, and the proposal is that it
    be located in a zone whose objectives consist of commercial and
    service activities and do not include retail activities. The
    proposed development is a departure from the plan of such
    magnitude, in my opinion, that observance of the planning regime
imposed by the Act requires that, to accommodate it, there be an
    amendment to the plan. Such an amendment would be subject to
the scrutiny and procedures prescribed by the Act for such an
    amendment. I think that consent to such a proposal is at
    serious variance with the provisions of the Development Plan and
therefore invalid." 17. At p.416 White J said: "I think that a court in prerogative proceedings should only be prepared to find, as a matter of fact and degree in its practical judgment, that the development is seriously at variance with the plan when the variance is clearly established. In grey areas of uncertainty, the court would be likely to defer to the practical judgment of the responsible planning authority." (See also Paradise Developments Pty. Ltd. and Another v The Native Conservation Society of South Australia Ltd and Another (1993) 59 SASR 239 at pp.240-244). Mr. Monteduro stated in his affidavit that he had formed the opinion that the proposed development is seriously at variance with provisions of the Development Plan. He said that in forming that opinion, he had regard, inter alia, to the following facts:
    "a) The location of the land adjoining the Council reserve
    and the fact that the land rises up from the reserve thus giving
    prominence to any structures established on the land.
     b) Should the enclosure be established, the land as viewed
    from the north will appear to have been developed as a 3 storey
    building. It is noted that there is an existing substantial 2
    storey building erected on the land and the pool enclosure will
    give the impression of a 3 storey building which is contrary to
    my understanding of the planning restrictions and scale and
    design controls applicable within a Hills Face zone.
     c) The bulk and appearance of the pool enclosure which will be
    established over a substantial portion of the width of the
    allotment." 18. Mr. Smith stated in his affidavit, inter alia:
    "(Although the subject land is near) the boundary of
    residential development, it is on the side of the boundary which
    has been developed as a urban residential area. It is not (in)
    any respects realistic to assume that this land will be returned
    to a natural or open character in the foreseeable future.
    Accordingly, the objects of the Development Plan must be
    applied, in my view, having regard to the existing
    circumstances. The application comprises a single storey
    addition to an existing two storey dwelling. The extension is
    on the aspect of the existing dwelling which faces an area
    which, at all material times, has been zoned 'Residential 1'.
    While the provisions of the Development Plan in relation to the
    Hills Face Zone do not contemplate bulky two storey dwellings,
    the Geyer's application was not for a two storey dwelling; the
    dwelling on the land already existed at the date of the
    application. Also, while those provisions seek a natural or
    open character for that Zone, the Plan does envisage the
    erection of dwellings within the Zone, provided that they are
    consistent with the general siting and design criteria set out
    in Principles of Development Control applicable to the Hills
    Face Zone within the area of the Marion Council. The degree of
    rigour to be applied in assessing applications against those
    Principles is substantially influenced by the nature and
    character of the surrounding land. I would normally expect
    dwelling proposals in an area which is of an undisturbed natural
    character to be assessed differently from those proposed in an
    existing residential area. Having regard to the matters set out
    above, I do not regard the Geyer's application for a single
    storey addition to their existing detached dwelling to be
    seriously at variance with the provisions of the Development
Plan which were applicable to the application." 19. I have already quoted passages from the Tribunal's first determination on the locality of the subject land. As a result of my view thereof, I add some observations made from positions in the reserve to the north of the subject land, observations that become more pronounced as one moved further north. The houses in the locality are tightly packed. The tops thereof are at many different levels, especially on the eastern, north/eastern aspect. There are a great variety of deckings and fences at different levels, at different angles and at different heights and made of different types of construction. I also formed the opinion that the northern boundary fence, proposed by the Geyers, the trees and shrubs proposed by them and added to by the Commission's Condition 4, will together substantially limit the visual impact. 20. In Courtney Hill Pty. Ltd. v. South Australian Planning Commission and Others (1990) 59 SASR 259, the Full Court was concerned with a proposed development consisting of alterations and extensions to an existing shopping complex and car park situated in a District Commercial Zone, the proposed development extending into a Residential 2 Zone. At p.263 King CJ, Duggan and Mullighan JJ concurring, said:
    "Mr Hayes argued that it was irrelevant that the proposal
    was not a proposal for a new shopping complex where none
    previously existed, but rather for the extension of an existing
    complex. The argument, in its extreme form, was that the degree
    of variance from the Plan had to be determined by comparing the
    Plan itself with the proposal, ignoring the historical and
    factual context in which the development is proposed to occur.
    I cannot accept that argument. It seems to me that the extent
    of the variance from the Plan involved in the project must be
    judged in the context in which the project will be implemented.
    That context must include the fact that the existing shopping
    complex is a protected existing use which will continue. The
    impact upon the development of the town in accordance with
    proper planning objectives, of an extension to a shopping
    complex which is already there, appears to me to be quite
    different from the impact of a new complex of equal size. The
    Planning Authority cannot be precluded, as it seems to me, from
    assessing the reality of the extent of the variance from the
    Plan and that reality can only be assessed if the proposal is
    seen for what it really is, namely an extension of an already
    existing facility. I can see no foundation for Mr Hayes'
    argument that the Authority, and consequently the Court, is
    precluded as a matter of law from looking at that reality." 21. This authority clearly supports the respondent's argument and is highly relevant on this application. 22. Mr. Manos, counsel for the plaintiff, referred me to the following provisions of the Hills Face Zone of the City of Marion part of the Development Plan: Objectives 1(a), 2(a) and (b), the discussion under 2, and the Principles of Development Control 1(a), 2, 5, 6, 12 and 13. I have carefully considered these provisions, but in the end, and having regard to what is already in the locality, I am not persuaded that any variance from the plan is clearly established. 23. The application will be dismissed. Although I have decided against the plaintiff, I would like to say that - contrary to the submission of Mr. Geyer to me in Chambers, and on the material before me - the stance of the plaintiff herein was in no way unreasonable having regard to their responsibilities to their ratepayers, and to the immediate neighbours of the Geyers in particular.