Hall v City of Burnside

[2022] SASCA 39

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HALL v CITY OF BURNSIDE

[2022] SASCA 39

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Blue)

28 April 2022

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - APPLICATIONS

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL

ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL - ALLOTMENTS AND BUILDING SITES - POSITION OF BUILDING

Appeal against dismissal by the Environment, Resources and Development Court of appeal against grant of development plan consent in respect of a proposed development involving the construction of a split-level detached dwelling with garage and swimming pool on land in the Hills Face Zone under the Burnside (City) Development Plan.

The appellant had made representations to the Council opposing the proposed development on grounds including that it would impair the view over the Adelaide Plains from a public walking trail that proceeds past the land and the view from the Adelaide Plains of the Hill Face Zone.

When the Council granted development plan consent, it reserved its decision on the adequacy of four matters for further assessment prior to the granting of any development approval pursuant to subsection 33(3) of the Development Act 1993 (SA). These included details of the off form concrete being of a darker toning to meet the requirements of the Hills Face Zone and a detailed landscaping plan showing the location of planting to soften the built form and provide a landscape commensurate with the setting of that section of the Hills Face Zone.

The appellant contended before the Environment Court, and contends on appeal, that the reservations relating to concrete colour and landscaping were invalid under subsection 33(3) of the Development Act 1993 and this rendered the development plan consent invalid.

The appellant also contends on appeal that the Environment Court erred in its assessment of the planning merits of the development proposal.

Held:

1(per Bleby JA (David JA agreeing); Blue AJA dissenting) The Environment Court did not misconstrue the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill rather than to the objectives of preserving, enhancing and assisting in the re-establishment of the natural character of the zone (per Bleby JA at [25] (David JA agreeing); Blue AJA at [161] dissenting).

2(per Bleby JA (David JA agreeing); Blue AJA dissenting) The Environment Court did not err in its approach to the evidence relating to, and assessment of, the visibility of the proposed dwelling from the walking trail (per Bleby JA at [39]-[43] (David JA agreeing); Blue AJA at [171] dissenting).

3(per Bleby JA (David JA agreeing); Blue AJA dissenting) The Environment Court did not err in its approach to the assessment of the visibility of the proposed dwelling from the Adelaide Plains (per Bleby JA at [57] (David JA agreeing); Blue AJA at [181] dissenting).

4(per the Court) The reservations relating to concrete colour and landscaping were invalid under subsection 33(3) of the Development Act 1993 (per Blue AJA at [206] (Bleby JA and David JA agreeing).

5(per Bleby JA (David JA agreeing) The Environment Court exercised its own merits assessment of the development including the issues of colour and landscaping the subject of the reservations and this superseded the invalidity of the development plan consent granted by the Council (per Bleby JA at [73] (David JA agreeing)).

6(per Bleby JA (David JA agreeing) Appeal dismissed (at [74]).

Development Act 1993 (SA) s 33 and s 88, referred to.
City of Burnside v City Apartments Pty Ltd [2004] SASC 294; City of Mitcham v Frechman [1999] SASC 234; City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279; District Council of Munno Para v Remove-all Rubbish Co Pty Ltd (1985) 41 SASR 188; Mar Mina (SA) Pty Ltd v City of Marion [2008] SASC 120, considered.

HALL v CITY OF BURNSIDE
[2022] SASCA 39

1. BLEBY JA: I am grateful to Blue AJA for setting out the factual background to the dispute that is the subject of this appeal, the history of the matter to its determination by the Environment, Resources and Development Court (ERD Court),[1] the relevant provisions of the Development Plan and the issues joined. I adopt his Honour’s summary of those matters, subject to some further observations that I make below.

   [1]     Hall v City of Burnside & Anor [2021] SAERDC 12.

2. I approach the issues for determination using the same descriptions as employed by Blue AJA, namely:

   ·whether the Court misconstrued the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill rather than preserving, enhancing and assisting in re-establishing the natural character of the zone;

   ·whether the Court erred in its approach to the evidence relating to the visibility of the dwelling from the walking trail;

   ·whether the Court erred in its approach to the assessment of the visibility of the dwelling from the Adelaide plains;

   (the grounds relating to merits assessment)

   ·whether the colour reservation was a valid reservation; and

   ·whether the landscaping reservation was a valid reservation;

   (the grounds relating to the validity of reservations).

3. In City of Burnside & Ors v City Apartments Pty Ltd,[2] an appeal against a grant of provisional development consent for construction of a detached dwelling with associated works in the Hills Face Zone (HFZ), the Full Court observed:[3]

   It is well established that this Court does not re-visit the planning judgment made by the ERD Court with a view to substituting this Court’s planning judgment for that of the ERD Court.  The role of this Court is to correct errors of law or principle, or a substantial departure from the proper approach to the assessment of a proposed development.

   [2] [2004] SASC 294.

   [3]     City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294 at [9].

4. The ERD Court in the present case concluded that:[4]

   in the exercise of our planning judgment we have weighed the pros and cons of the development to decide where the planning balance lies. We have found that the proposal suitably accords with the intent of the Hills Face Zone and the relevant provisions of the Development Plan as a whole.

   [4] [2021] SAERDC 12 at [111].

5. The relevant Objectives and Principles of Development Control in the Development Plan are not drafted as statute, and are not to be interpreted as such. They are, in parts, quite prescriptive; it can become difficult on occasion to identify clearly whether a complaint is one of principle, such as a failure to apply the Development Plan correctly in some material aspect, or whether it goes no further than to contest a planning judgment. While certain of the grounds relating to the merits assessment have been carefully framed in terms of principle, they do to some degree fall into the trap of challenging the planning judgment. The second respondent submitted that this was a repeated defect in the Notice of Appeal.  Nevertheless, I am satisfied that each issue identified, as described above, sufficiently raises or includes a question of principle and can be determined at that level.

6. However, the Notice of Appeal, which is extremely lengthy and moves well into the realm of submissions, also engages with a number of matters that could only be described as challenges to planning judgment or challenges to descriptions of the evidence that would not warrant a grant of leave to appeal. Ground 8, which challenges the Court’s characterisation of the evidence as to whether the land retained any natural character, and Ground 9, which challenges the compliance of the proposed development with the Objectives of the Development Plan relating to the Metropolitan Open Space System, are instances of this. The issues as Blue AJA has described them reflect the matters of principle properly raised on the appeal.

   The grounds relating to merits assessment

   Whether the Court misconstrued the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill rather than preserving, enhancing and assisting in re-establishing the natural character of the zone

7. The ERD Court commenced its assessment of the merits of the proposed development by acknowledging the complexity of the undertaking, recognising that it was required to:[5]

   weigh up the “pros” and “cons” with due regard to the guidance afforded by such of the general planning precepts and policies in the Plan as may be relevant to the subject matter and the completing elements which have to be weighed in deciding where the planning balance lies.

   [5] [2021] SAERDC 12 at [75], quoting District Council of Munno Para v Remove-all Rubbish Co Pty Ltd (1985) 41 SASR 188 at 201 and City of Mitcham v Frechman & Ors [1999] SASC 234 at [19].

8. It further identified that the complexity of the assessment necessarily meant that the pros and cons of a proposal would overlap. Following that broad statement of approach, it moved directly to the Objectives, acknowledging:[6]

   The over-arching objective of the Hills Face Zone is the preservation, enhancement or re-establishment of its natural character. Natural character, in that sense, is defined as, ‘the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape. Additionally, natural character refers to the open character of the land in those areas of the zone where open grazing predominately [sic- currently] dominates.

   (Footnotes omitted)

   [6] [2021] SAERDC 12 at [76].

9. The Court then noted that the Plan ‘identifies low intensity agricultural activities and public/private open space as sought after activities in the zone’.[7] It cited Objective 1, whereas in fact that is a statement in Principle of Development Control (PDC) 1(a). I think that this was probably a slip, in that the Court had already accurately quoted the chapeau to Objective 1. In any event, that observation does not impact materially on the hierarchy of issues with which the Court was immediately concerned.

   [7] [2021] SAERDC 12 at [77].

10. Having identified the primary concern in Objective 1, the Court turned to the text of Objective 2, noting that while the HFZ is not a residential zone, the Plan ‘clearly envisage[s]’ residential development in the form of detached single storey dwellings and that such development will be visible from the Adelaide Plains.[8]

    [8] [2021] SAERDC 12 at [78], referring to PDC 1(a) and Objective 2(b).

11. I would not take issue with this expression. PDC 1(a) does envisage residential development, albeit in negative terms:

    1      Development should not be undertaken unless:

    (a)   it … is a detached single-storey dwelling, … 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.

12. Critically, the Court said, subsequently:[9]

    We consider that it is clear from the expert evidence of Messrs Outhred and Dawson that, in respect of this site, it is unlikely that all of the relevant provisions of the Plan could ever be satisfied. We therefore accept the submission of the Council, that the nature of this site is such that there will always be numeric non-compliances with the Plan. We agree therefore that the question for the Court is whether, in our planning judgment, the development is acceptable. In undertaking that task, we have applied our common sense and planning judgment in a practical way. We have had regard, as we must, to the on the ground reality, circumstances and context of the land. We have kept in mind that this land is suitable, under the Plan, for residential development of a detached dwelling.[10]

    (Footnote in original, emphasis added)

    [9] [2021] SAERDC 12 at [82].

    [10]   Development Plan, Hills Face Zone, PDC 1(a).

13. It is the highlighted sentence in this quoted passage that Blue AJA has identified as the premise from which the Court started. I agree with Blue AJA, applying City of Mitcham v MOL Pty Ltd,[11] that the necessary starting point is the premise that any development should preserve, enhance or assist in re-establishing the natural character of the zone. However, having regard to the language used at the outset of the ERD Court’s analysis, I think that the Court expressly recognised this.

    [11] (2003) 85 SASR 279 at [19]-[28].

14. The Court’s subsequent use of the word ‘suitable’ when describing the land may be said to jar, broadly for the reason identified above: residential development is permitted on terms referable to the development itself and its positive contribution to the natural character of the zone. However, given the Court’s identification at the outset of its analysis of the over-arching objective as set out in Objective 1, I would read its use of the word ‘suitable’ as identifying no more than that residential development is permitted, on terms. Whether it should be permitted in a given case is then a matter of planning judgment (subject to constraints of principle). I therefore do not read the Court’s characterisation of the land as ‘suitable… for residential development of a detached dwelling’ as purporting to usurp the starting point in Objective 1.

15. The next aspect of Mr Hall’s complaint concerns the Court’s view that given the nature and location of the Zone, topography would be the primary factor that dictated or influenced the location of a dwelling within it:[12]

    We consider that, given the location and nature of the Zone, the primary factor dictating (or influencing) the location of a dwelling within it, will be topography. That is reflected by both single storey dwellings being clearly anticipated and the recognition that multi-level buildings will be appropriate if topographic circumstances dictate.[13]

    (Footnote in original)

    [12] [2021] SAERDC 12 at [80].

    [13]   Development Plan, Hills Face Zone, PDC 8(a).

16. Relevant to this, the Court then went on to consider, and reject, the appellant’s submission that PDC 7 would have the effect of prohibiting any development on the allotment:[14]

    Rather, we consider that PDC 7 is directed to the siting of buildings, where possible, in an unobtrusive portion of a relevant site. That judgment is assisted by PDC 8 which identifies many of the key built form criteria applicable to this development. …

    (Emphasis added)

    [14] [2021] SAERDC 12 at [81].

17. PDC 7 commences:

    7      Buildings, including structures, should be located in unobtrusive locations …

18. The principle does not qualify the aim of unobtrusive location with the phrase ‘where possible’. Mr Hall’s complaint is that the above paragraphs demonstrate that the Court accorded a primacy to topography at the expense of unobtrusiveness. That is, the words ‘where possible’ indicate that the Court accepted that the principle of unobtrusiveness could be set aside where it was simply not possible to locate a building on an unobtrusive part of the site, due to its topography.

19. In support of this, Mr Hall pointed to a subsequent passage that he submitted demonstrated that the Court erroneously gave primacy to the minimisation of cut and fill (that is, in keeping with the natural topography), again at the expense of unobtrusiveness:[15]

    We have accepted the evidence of Mr Spinelli that his approach in this design was to utilise the flattest portion of the site for the majority of the building elements so as to minimise the extent of cut and fill. A consequence of this approach was to maximise the view and living space. Mr Hall submitted that approach as a vice, which militated against the exercise of our discretion to approve. We are not persuaded by that submission. It is readily apparent from the plans and the form of the land, that the driveway, upper garage level and lower dwelling have been designed so as to: step down the significant slope of the land; minimise its length; and, cut down the resultant extent of cut and fill required. The effect of that is to retain a low building profile. We further accept the evidence of Mr Hayter that such an approach provided the greatest opportunity to minimise the extent of excavation necessary, the length of driveway and the use of retaining walls and/or battered slopes.

    (Footnote omitted)

    [15] [2021] SAERDC 12 at [98].

20. Mr Hall’s submission was that the combined effect of PDC 2(a) and (b) was that while cut and fill should be minimised, the exception to this was where it can reduce the visual impact of buildings.

21. PDC 2(a) and (b) do not operate in a fashion of (a) general rule and (b) exception. PDC 2(a) and (b) provide:

    2      The excavation and/or filling of land should:

    (a)   be kept to a minimum so as to preserve the natural form of the land and the native vegetation;

    (b)   only be undertaken in order to reduce the visual impact of buildings, including structures, or in order to construct water storage facilities for use on the allotment; …

22. PDC 2(b) supports a minimalist approach to cut and fill. It does not contain an invitation to cut and fill at all costs to ensure that a building is as unobtrusive as conceivably possible. PDC 2(a) and (b) work in concert to minimise, in an overall sense, disruption to the natural form of the land and the visual impact of buildings. How those two goals are best achieved, in concert, is a matter of planning judgment.

23. The paragraph of the Court’s judgment quoted above represents the Court’s exercise of that judgment, in context. I do not accept that the Court erroneously prioritised topography and the minimisation of cut and fill over the reduction of visual impact. It simply made a planning judgment with respect to the development proposal that had to bring those two matters to account.

24. It did so having identified, at the outset, the over-arching objective of the HFZ as the preservation, enhancement or re-establishment of the natural character of the zone. It should be noted that the Court elsewhere considered those aspects of the proposal that would re-establish the natural character of the land. The land is infested with exotic plants; part of the proposal (which in turn raises issues in respect of one of the reserved matters) is, as the Court found, that the land will be cleared of its non-indigenous vegetation, save for some pine trees, and be comprehensively revegetated with native trees, shrubs and grasses.[16]

    [16] [2021] SAERDC 12 at [12].

25. It follows that I am not persuaded that the ERD Court erred by giving primacy to residential development and minimising driveway length and cut and fill rather than preserving, enhancing and assisting in re-establishing the natural character of the zone.

    Whether the Court erred in its approach to the evidence relating to the visibility of the dwelling from the walking trail

26. Mr Outhred, the expert planner called by Mr Hall, included the following statement in his expert report in his consideration of Objective 1 of the Development Plan:

    The walking track over Government Road provides an important connection between Gully Reserve and extensive other walking tracks to the north-east (including connections to Waterfall Gully and Cleland Conservation Park) and the Toll Gate circuit and Danthonia Reserve to the south-west. The section over Government Road provides the public with a panoramic vista of the Adelaide plains to the sea. Therefore, any impact of the development on a significant passive recreation component, should be carefully considered. I am of the opinion, that the proposed dwelling is too close to Government Road and will partially obstruct the panoramic views from Government Road of the Adelaide plains.

1. In cross-examination, he explained that he considered that this obstruction offended Objective 1(a). In his consideration of Objective 2, and specifically Objective 2(b), he said:

   Albeit that Government Road is limited in vehicle traffic, it is significant in respect to pedestrian traffic using the public walking track. Visual intrusion from the walking track along Government Road is important in view of the obstruction to the panorama of the Adelaide plains available from the track. The placement of the dwelling high on the land will partly obscure the panorama.

2. He also commented adversely on the visibility of the dwelling from the walking track by reference to PDC 8, and then the Metropolitan Open Space System supported by Objectives 46, 48, 50 and 51:

   The section over Government Road, adjacent the subject land, plays an important role, in achieving the follows [sic] outcomes:

   ·The provision of a visual and scenic contrast to the built environment between dwellings clustered lower along Sunnyside Road and dwellings clustered higher around Seaview Road – reference Objective 46(a)

   ·Contributes to the separation of different parts of the metropolitan area – reference Objectives 46(b) & 51(b)

   ·Accommodates a passive recreation and leisure activity, in the form of a scenic walking trail – reference Objective 46(f)

   ·Emphasises the open natural and rural character – reference Objective 48

   ·Ensures the face of the Mount Lofty Ranges is not impaired by visually intrusive development – reference Objective 50

   The Government Road link between Gully Reserve and Danthonia Reserve provides the public with a panoramic vista of the Adelaide plains to the sea. Therefore, any impact of the development on a significant passive recreation component, should be carefully considered.

   I am of the opinion, that the proposed dwelling is too close to Government Road and will partially obstruct the panoramic views from Government Road over the Adelaide plains and diminishes the outcomes contemplated in Objectives 46, 48, 50 & 51.

3. Mr Outhred was cross-examined on the relevance of each of these objectives, including to the effect that Objective 48 relates to development on public land. In any event, his central concern, which he developed in his oral evidence, was that the dwelling would obstruct views from the walking track on Government Road at a point where the best panoramic views from that track are available, and that this offended a number of Objectives of the Development Plan.

4. In support of these opinions, in Annexure 2 to his expert witness statement, Mr Outhred provided four photographs, taken from points described respectively as Positions A, B, C and D. He also provided a hand-drawn plan, showing an aerial view of each of those positions on the walking trail, their location with respect to the proposed dwelling and an overlay of the contour lines. He provided a legend that identified the height of each position as follows:

Position	Height (AHD)
A	302.9m
B	301.8m
C	301.1m
D	299.8mm

1. It is clear from the location of the positions of the plan in relation to the contour lines that the height of each position as marked on the plan is the AHD (Australian Height Datum) of the land above sea level. The plan then identified the garage roof height as being 301.5m and the dwelling roof height as 298.5m.

2. The second respondent led evidence from an expert planner, Mr James Hayter. Mr Hayter’s expert witness statement included the following:

   I note that the siting of the building is well below the ridge line and that the building will not be visible against the skyline. I also note that the natural contour on Government Road where it intersects the right-of-way extension to Seaview Road sits approximately 1m higher than the proposed height of the garage, or highest point of the proposed dwelling. From this point, a pedestrian or hiker on the walking trail will look over the proposed dwelling with uninterrupted views north and west to the Adelaide Plains.

3. Mr Outhred and Mr Hayter clearly had different views as to the extent of likely obstruction of the panoramic view over the plains. Mr Hayter then gave oral evidence in support of his view, referencing the data disclosed in Mr Outhred’s plan:

   As you were going through it in court yesterday I was making my little table and looking at it and my assessment was, I think, similar to what I have discussed this morning too.  If I take Mr Outhred's table, what I did is I added another column to it and that column was adding eye height.  So the eye height at 1.5 m, I've taken the same, so that at point position A, I looked at an eye height of 304.4.  At position B of 303.3.  At position C of 302.6, and at position D of 301.3.  Then I added another column to it, so that at position A, that made my eye height - or my eye height at 1.5 m - 2.9 m higher than the garage, the top level.  At position B it made my eye height at 1.8 m higher than the garage level.  At position C, it made my eye height at 1.1 m higher than the garage level and 4.1 m higher than the living level, second level and at point D, my eye height was two - sorry, my eye height was minus 200 mm, relative to the roof height and 2.8 - I'm sorry, it was 200 mm, so I was looking at the living level height, sorry, at the roof height, at the garage height. So at 200 mm I was - it was 200 - the garage was 200 mm higher than my eye height.

4. Having added a notional 1.5m to each of the AHD heights recorded in Mr Outhred’s plan, he then explained the conclusion in his report that the panoramic view would be unimpaired:

   So that was just using the assumptions of the dimensions and the contours which are given on that Annexure 2.  The other dimension that I took was that there's a distance of approximately 24 m between A and D, according to the scale given on Mr Outhred's diagram.  So in summary that gave me base information to do it.  My conclusion, which I've put in my statement, in my report, is that standing at point A, which I think it was identified by Mr Hall as an important stopping point at the top, is that you would see over the building.  I did a further analysis and looked at the predicted height of the pine trees at the bottom of the site.  So the dimensions I used on that was at approximately 100 m from that point to the bottom of the site, it does vary because of the nature of it, but approximately 100 m and I made the assumption that the pine trees were 15 m high.  I then took a line of sight from my eye height at 2.9 m high at that point and the top of the pine trees and my conclusion was that the building would not - you'd see over the building and the view as you're experiencing now would be the same with the building as the building was built in it. So it doesn't affect the view of the Adelaide Plains in any direction from that top point.

5. Mr Hayter’s analysis, then, was a dimensional analysis that expressly factored in an eye level of AHD + 1.5m. Mr Outhred’s opinion, that the panorama would be partly obscured, was not expressed to be on any quantified assumption as to the eye level of the viewer. However, the four photographs he took and annexed were, obviously enough, taken at eye level. It is clear enough that Mr Outhred was basing his opinion on the obstruction that he anticipated would be encountered at eye level.

6. Against that background, the Court found as follows:[17]

   Mr Outhred, in his assessment, considered that the proposed building would partly obscure the panorama of the Plains from four locations on the track.[18] In reaching our conclusion we do agree with his assessment – but not to the extent he propounded. We have adjusted the identified viewing locations of Mr Outhred by adding 1.5 metres to correspond to an average person’s eye level. We consider that approach to be more practical and of greater utility. Having taken that approach, we consider the roof of the development will be appreciably lower, when viewed from the track, than eye level.  At point A, the roof of the highest element (the garage and ancillary spaces) is 2.9m below the eye line we have considered. At Point B, it is 1.8 metres below that eye line and at Point C, it is 1.1 metre below. Only at Point D, does eye line and roof height align. At that point, the corner most portion of the garage level of the development will sit some 200mm higher than eye level although, from that position, views can also be achieved across the lower building and the roof; which is 2.8m below eye line.

   (Footnote in original)

   [17] [2021] SAERDC 12 at [104].

   [18]   Exhibit A9, Annexure 1; Point A at the junction of the right of way, Government Road and near the entry to the subject land; Point B some 15 metres north of point A; Point C some 10 metres or so further north again; Point D, further north again.

7. The adjustments incorporated by the Court are the adjustments to Mr Outhred’s table that Mr Hayter made. Those adjustments are of the form of the AHD figure as recorded in Mr Outhred’s hand drawn plan plus 1.5m so as to allow for the height of the standing viewer.

8. I do not read this passage as suggesting that Mr Outhred erroneously based his opinion on the likely perspective from ground level. The first sentence simply recognises that Mr Outhred expressed a general opinion of the interruption of the view of a pedestrian on the walking track. The paragraph then notes that in support of that general opinion, Mr Outhred provided information as to the relative heights of the various ground and building surfaces of the immediate area.

9. The Court’s adjustment of the identified viewing locations did not, on my reading, purport to correct a premise from which Mr Outhred had operated erroneously. Rather, it simply applied a figure to what was necessarily a common assumption of Mr Outhred and Mr Hayter, that the relevant question was the degree of interruption of the view from the eye level perspective of a standing person.

10. Mr Outhred did not quantify that assumption when expressing his opinion that the placement of the dwelling would partly obscure the panorama. Mr Hayter did not, in his statement of expert evidence, quantify that assumption either. He simply expressed a different opinion, that a pedestrian would look over the dwelling with uninterrupted views north and west to the Adelaide plains.

11. Mr Hayter only quantified that assumption in oral evidence with the benefit of Mr Outhred’s hand drawn plan. It was this act of quantification of the assumption that the Court considered to be ‘more practical and of greater utility’ than the generalised approach in Mr Outhred’s statement of expert evidence.

12. The Court was therefore faced with competing opinions based on the same set of assumptions. It saw value in quantifying the assumption in the manner done by Mr Hayter. It agreed with Mr Outhred’s assessment (contrary to the bald terms of Mr Hayter’s opinion) that the proposed building would partly obscure the panorama. However, it relied on Mr Hayter’s quantification of the assumption of eye level perspective to conclude that this obscuring would not be as bad as Mr Outhred thought. That was a planning judgment open to the Court. It was not based on any erroneous interpretation of Mr Outhred’s evidence.

13. Similarly, in circumstances where the Court accepted that the proposed building would partially obscure the panorama, I do not accept Mr Hall’s contention that the Court erred in only considering the view of a person looking horizontally or above the horizontal plane.

    Whether the Court erred in its approach to the assessment of the visibility of the dwelling from the Adelaide plains

14. The ERD Court’s conclusion that the proposed development would not be visually prominent when viewed from the plains was shortly put and explained:[19]

    In respect of the locality, there are numerous existing structures, of varying scales, colours and appearance, open areas (brown in colour) and areas of extensive trees and vegetation, which are viewable from the Plains below.

    We are satisfied, having regard to that context and having considered the whole impact of this particular development, that the development will not be visually prominent when viewed from the Plains.

    [19] [2021] SAERDC 12 at [107]-[108].

15. Earlier, the Court had referred to the evidence of Mr Damian Dawson, an expert planner called by the Council, summarising that evidence accurately:[20]

    Mr Dawson considered the dwelling would have a limited visual impact from the Plains. However, he said that in any event, any impact would occur in amongst a range of other buildings and structures on [adjoining] properties.

    [20] [2021] SAERDC 12 at [31].

16. On the question of visual impact, it is clear enough that the Court took into account the context of the existing structures. Mr Dawson’s evidence went further: on one view, at least, it seemed to invite a comparison with other structures and the effect of those structures in ameliorating the visual impact of the proposed dwelling.

17. Objective 2 of the Development Plan is expressed in part, as follows:

    Objective 2: A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to:

    (a)     preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone;

    (b)     limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plains;

    …

18. The commentary to this Objective then provides:

    The western slopes of the Mount Lofty Ranges in metropolitan Adelaide are an important natural asset to both the population of the urban area and the tourism industry. Development which is undertaken in this zone should not only preserve but should also enhance the natural character of the zone or assist in the re-establishment of a natural character.

    The term “natural character” refers to the natural topography, native vegetation and colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape. Additionally, natural character refers to the open character of the land in those areas of the zone where open grazing currently predominates. Thus, existing buildings should not be seen as setting a precedent when assessing the impact of a proposed development. Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.

    (Emphases added)

19. The short point arising is whether the Court erred in taking into account the context that included existing structures, when concluding that the proposed development would not be visually prominent when viewed from the Plains.

20. There was evidence, including from Mr Outhred, that the development would assist in the re-establishment of a natural character in the zone. That evidence was unrelated to the existence of other structures in the vicinity. Consistently with this, the Court elsewhere concluded that the development would, overall, assist in the re-establishment of the desired natural character of the zone.[21] That conclusion was reached without any comparison with existing structures.

    [21] [2021] SAERDC 12 at [95].

21. Counsel for the second respondent, Mr Hilditch, submitted that the prohibition of comparison with existing development in the locality was directed to the question whether the proposal preserves, enhances or re-establishes natural character. He further accepted that it prohibited what might be described as an incremental approach, that is, an approach to the effect that the existence of other visually prominent buildings in the locality rendered the existence of one more visually prominent building acceptable.

22. Mr Hilditch submitted, however, that the Court should be understood as doing no more than describing the surroundings, which includes the existence of other structures. It then simply asked whether the development would be visually prominent. This did not involve comparing it with the visual prominence of other buildings.

23. The first of the paragraphs of the Court’s judgment quoted above might be said to support either interpretation. Further, the evidence of Mr Dawson, which the Court noted, might be said to invite the problematic incremental approach described above.

24. The Court did not, however, go so far as to draw a comparison with the existing structures. Moreover, it continued, after the paragraphs quoted above:[22]

    We are further satisfied that the development accords with the objectives of the Hills Face Zone; to site structures including dwellings so as to limit visual intrusion when viewed from the Plains. The development will be visible, but it will not be obtrusive.

    [22] [2021] SAERDC 12 at [109].

25. There is an obvious tension between the need to describe the actual surrounding within which the development is proposed when assessing its degree of visual prominence, and the effective prohibition on an incremental approach that might look to justify one more development because of the existence of others, or otherwise draw a direct comparison between the proposed development and existing structures.

26. The Court could have expressed itself more clearly. Further, the evidence of Mr Dawson to which the Court referred tended to invite an erroneous, incremental approach. The Court considered the question of visual intrusion when viewed from the plains in ‘context’, which included the existence of other structures.   However, it considered the question of re-establishment of the natural character of the zone separately. In doing so, it did not conduct a comparison with existing development in the locality.[23]

    [23]   City of Mitcham v MOL Pty Ltd (2003) 85 SASR 279 at [14].

27. Having regard to the totality of the Court’s approach, I accept Mr Hilditch’s submission that the Court did not, in any material sense, go beyond giving a permissible description of the surrounding environment. It did not engage in an incremental approach in the sense described above, such as to treat the existing buildings as setting a precedent when assessing the impact of the proposed development. I am satisfied that the Court did not depart from the requirements of Objective 2 of the Development Plan.

    The grounds relating to the validity of reservations

28. The two reservations of which Mr Hall complained and are which the subject of the Notice of Appeal, were expressed as follows (being reservations 3 and 4, respectively):

    Details of the off-form concrete being darker toning to meet the requirements of the Hills Face Zone [the colour reservation];

    A detailed landscaping plan showing the location of planting taking into consideration the requirements of the Country Fire Service. The landscaping when mature to soften the built form and provide a landscape commensurate with the setting of that section of the Hills Face Zone [the landscaping reservation].

29. The ERD Court found that these reservations accorded with the intent of s 33(3) of the Development Act 1993 (SA) and that the Council Panel had lawfully used its power to reserve them.[24] It then said:[25]

    Alternatively, in the exercise of our planning judgment we have weighed the pros and cons of the development to decide where the planning balance lies. We have found that the proposal suitably accords with the intent of the Hills Face Zone and the relevant provisions of the Development Plan as a whole. We have concluded that consent should have been granted.

    [24] [2021] SAERDC 12 at [110].

    [25] [2021] SAERDC 12 at [111].

30. That is to say, the Court exercised its power under s 88(2)(b) of the Development Act to consider the matter de novo in any event. This did not involve the introduction of any new element: its jurisdiction was engaged by a third-party appeal against a decision to grant a development authorisation.[26]

    [26]   City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294 at [52]-[54].

1. In its merits assessment of the subject matter of the colour reservation, the Court said:[27]

   Having regard to PDC 9, we are also satisfied that the off form concrete of the dwelling and the bluestone pebbles of both roofed areas, will be low reflective and natural in colour. The concrete will not increase the visibility of the building to any unacceptable degree. …

   [27] [2021] SAERDC 12 at [94].

2. With respect to the subject matter of the landscaping reservation, it said:

   The development also satisfies the Bushfire Protection Area provisions relating to access for fire trucks, building siting and location of vegetation.[28] It provides appropriate domestic vehicle access and parking and also[29] sufficiently satisfies those provisions relating to the liveability and function of new dwellings.[30] It sufficiently satisfies those provisions relating to visual amenity, the appearance of development and the establishment of vegetation.[31]

   (Footnotes in original)

   [28]   Development Plan, Council Wide Principles 67(f), 132 and 138.

   [29]   Development Plan, Council Wide Principles 112, 179-181 and 188.

   [30]   Development Plan, Council Wide Objective 55 and PDCs 165-167, 174.

   [31]   Development Plan, Council Wide Objectives 11, 20 and 21 and PDCs 14, 56 and 67.

3. The Court reached these conclusions with the benefit of the second respondent’s architect’s response to the reserved matters. This response was provided on 21 April 2020 by email, after Mr Hall had appealed against the Development Plan Consent. That email included the following statements:

   3.  Details of the off form concrete being of a darker toning to meet the requirements of the Hills Face Zone.

   The insitu off form concrete will be constructed using Portland Grey cement which is natural grey in colour. It is intended that the colour will be similar to the examples included in the planning application, refer drawing SK08. As with the nature of concrete there will be some colour variation from light to darker tones so colour specification does not exist however a blend of these Dulux colours best represents the mottled effect of the insitu concrete: Ito, Vanessa Mae and Milton Moon, will be closest to what we are trying to achieve. It is important to note that the concrete with time will only get darker.

   [The email here inserted colour swatches of the described Dulux colours].

   4.  A detailed landscaping plan showing the location of planting taking into consideration the requirements of the CFS – The landscaping when mature to soften the built form and provide a landscape commensurate with the setting of that section of the Hills Face Zone

   Refer to Landscape Plan prepared by Oxigen.

4. The Landscape Plan referred to appears to be a Landscape Plan dated 21 February 2020. It includes various notes and descriptions of proposed plantings.

5. On 23 April 2020, Mr Spinelli, the Team Leader – Planning, who also gave evidence before the ERD Court, provided the Council with a Reserved Matters – Assessment Report, which concluded that each of the reserved matters had been satisfactorily addressed.

6. In circumstances where I have reached the conclusion that no error has been demonstrated in the Court’s subsequent merits assessment of the development proposal, it is strictly unnecessary to determine whether the Court was correct to hold that the Council Panel did not err in making the colour reservation or the landscaping reservation.

7. However, in case I am wrong in any of my conclusions on the grounds relating to merits assessment, I can indicate my conclusions on the grounds relating to the validity of reservations fairly briefly.

8. Section 33(3) of the Development Act provided:

   A relevant authority may, in granting a development plan consent, reserve its decision on a specified matter until further assessment of the relevant development under this Act.

9. As Blue AJA has noted, in Mar Mina (SA) Pty Ltd v City of Marion and Anor,[32] s 33(3) may be used in respect of something that is quite incidental to the development. It cannot be used where the specified matter bears upon the question whether development consent should be granted.[33]

   [32] [2008] SASC 120.

   [33]   Mar Mina (SA) Pty Ltd v City of Marion and Anor [2008] SASC 120 at [64]-[65].

10. The HFZ Development Plan contains Objectives and PDCs unique to the Zone, in support of its special character. I agree with Blue AJA that in order to assess the development against Objective 1 of the Development Plan and the commentary thereto, and in particular the defined and described aspects of ‘natural character’ in that Objective, it was necessary to know the colour proposed for the concrete. I include in that the most accurate available description of the shade of grey proposed. I also agree that this was necessary to assess the visibility of the development from the plains.

11. For the same reason, I agree that in order to assess the development proposal against the Plan, it was necessary that the Council be provided with a landscaping plan as described in Reservation 4. I also agree that it was necessary to know the proposed plantings in order to assess the likely visibility of the development from the walking trail and the plains.

12. While these matters might properly be able to be regarded as reserved matters in other development contexts, in the context of this development on the Western HFZ, they were not incidental to the development. I agree that they were not properly capable of being reserved matters. I therefore agree that the ERD Court erred in holding that they were correctly reserved.

13. However, as discussed above, the ERD Court engaged in its own merits assessment of the development that included the subject matter of the reservations to which the second respondent had, by then, provided answers. The Court made its own planning judgments with respect to the significant issues of colour and landscaping, with the benefit of those answers. No error has been shown in respect of the Court’s exercise of those judgments.

    Conclusion

14. I would dismiss the appeal.

15. DAVID JA:  I agree with the reasons of Bleby JA, and the orders he has proposed.

16. BLUE AJA:  Grantley Hall appeals against the dismissal by the Environment, Resources and Development Court (the Environment Court) of his appeal[34] against the grant by the Council Assessment Panel of the City of Burnside, the first respondent, of development plan consent. The development plan consent is in respect of a proposed development by Justin Finch, the second respondent, involving the construction of a split-level detached dwelling with garage and swimming pool.

    [34] Under section 86 of the Development Act 1993 (SA).

17. The land the subject of the proposed development is located in the Hills Face Zone under the Burnside (City) Development Plan. The relevant version of that plan is the version in force on the date of the application for development plan consent, namely the version consolidated on 8 December 2016 (the Development Plan).

18. Mr Hall had made representations to the Council opposing the proposed development on grounds including that it would impair the view over the Adelaide Plains from a public walking trail that proceeds past the land and the view from the Adelaide Plains of the Hill Face Zone.

19. When the Council granted development plan consent, it reserved its decision on the adequacy of four matters for further assessment prior to the granting of any development approval pursuant to subsection 33(3) of the Development Act 1993 (SA) (the Act). One matter was details of the off form concrete being of a darker toning to meet the requirements of the Hills Face Zone. Another matter was a detailed landscaping plan showing the location of planting to soften the built form and to provide a landscape commensurate with the setting of that section of the Hills Face Zone.

20. Mr Hall contended before the Environment Court, and contends on this appeal, that the reservations relating to concrete colour and landscaping were invalid under subsection 33(3) of the Act and this rendered the development plan consent invalid.

21. Mr Hall also contends on appeal that the Environment Court erred in its assessment of the planning merits of the development proposal. He contends that the Court misconstrued the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill rather than to the objectives of preserving, enhancing and assisting in the re-establishment of the natural character of the zone. He also contends the Court erred in its approach to the evidence relating to, and assessment of, the visibility of the proposed dwelling from the walking trail and from the Adelaide Plains.

    Background

22. Mr Finch is the owner of land situated at 15 Government Road Glen Osmond (the Land). The Land comprises approximately 6,097 square metres and is a pentagonal shape but is best envisaged as if it were a triangle with an eastern boundary, a south-western boundary and a north-western boundary. The eastern boundary is 98 metres[35] in length and fronts onto Government Road.  The south-western boundary proceeds west for 55 metres and then turns approximately 60 degrees to proceed north-west for 66 metres. The north-western boundary proceeds north-east for 56 metres and then turns approximately 15 degrees to proceed east-north-east for 38 metres.

    [35]   All dimensions in metres are rounded to the nearest whole metre unless otherwise shown.

23. There is a three metre wide easement (the SA Water easement) recorded on the title in favour of the Minister of Public Infrastructure (for SA Water) which proceeds along the initial 55 metre length of the south-western boundary from the Apex to the point at which that boundary turns to the north-west.

24. The south-eastern corner of the Land (which is approximately a right angle) is the highest point of the land, being about 303 metres AHD[36] (303 metres above mean sea level) and can be regarded as the apex of the Land (the Apex). The Land slopes downward from the Apex whether proceeding north along the eastern boundary, west/north-west along the southern boundary or north-west down the middle of the block. At the bottom of the block on its north-western boundary, the Land is about 273 metres AHD. There is therefore a fall of 30 metres from the Apex to the north-western boundary. The average gradient is approximately 1:3. The gradient is less steep (approximately 1:4) at the Apex and steeper (approximately 1:2.5) at the north‑western boundary. In general terms, land lying to the east of the Land continues to rise. 

    [36]   All heights in metres AHD are rounded to the nearest whole metre unless otherwise shown.

25. The Land is essentially undeveloped and contains four eucalypts, several pines, Hawthorn and olive trees and shrubs and grasses.

26. The Land is in the City of Burnside and lies wholly within the Hills Face Zone. The north-western boundary of the Hills Face Zone passes along the north‑western boundary of the Land so that land lying to the north of the Land is in a Residential Zone. Lying north of the Land are four houses on the southern side of Sunnyside Road situated in the Residential Zone.

27. Land lying to the east, south and west of the Land is in the Hills Face Zone.  Government Road is an unmade road. Lying east of the Land (on the other side of Government Road) is Gully Reserve, on which are trees, shrubs and grasses.

28. The Halls’ land (8 Seaview Road), on which is situated a double storey house, is situated slightly south of east of the Land on a track (Seaview Track) which is an extension of Seaview Road. Seaview Road is south-east of the Halls’ land. There are four houses on Seaview Road and a house (7 Seaview Road) opposite the Halls’ house on Seaview Track. There is a right of way over Seaview Track from the cul-de-sac at the end of Seaview Road to Government Road. This right of way provides access from Seaview Road to 7 and 8 Seaview Road and 9-13 and 15 Government Road.

29. Lying immediately south of the Land is 9-13 Government Road, on which is situated a single storey house, and lying further south is generally open land, on which are trees, shrubs and grasses. Lying west of the Land is open land, on which are trees, shrubs and grasses.

30. There is a walking trial which goes past the Apex of the Land and passes immediately to the east of the Land initially north along Government Road before curving around to the east through Gully Reserve. This trail can be reached by walking along the Seaview Track from Seaview Road and approaching the Apex from the east. Alternatively, it can be reached by walking along the Toll Gate Circuit and approaching the Apex from the west or from the south.

31. In January 2017 Mr Finch’s architect, Marco Spinelli of Architects Ink, lodged with the Council an application on behalf of Mr Finch for development plan consent in respect of the construction of a split-level detached dwelling with garage and swimming pool. The application recorded that the estimated floor area of the works was 469 square metres.

32. The application was accompanied by Architects Ink architectural plans SK01 to SK05, a set of photographs SK06, a surveyor’s plan SK07 and a civil engineer’s plan. The plans broadly showed five elements stepping down from the Apex:

    ·a concrete driveway (the driveway) four metres wide commencing on Government Road between the Apex and a point four metres north of the Apex, at a height of 302.3 metres AHD, proceeding initially west along the SA Water easement and then curving approximately 135 degrees to the right and ending at a height of 298.75 metres AHD leading to the hardstand;

    ·an almost rectangular concreted hardstand (the hardstand) to the north-east of the end of the driveway abutting the eastern boundary at its north-eastern end at a height of 298.75 metres AHD coupled with an open concreted area (the concrete terrace) abutting the driveway and hardstand at a height of 298.45 metres AHD;

    ·an upper floor north-west of the hardstand and concrete terrace comprising a garage with a finished floor level of 298.8 metres AHD and a guest bedroom, entrance foyer, stairway leading downstairs and gym with a finished floor level of 298.5 metres AHD and a roof level of 301.5 metres AHD;

    ·a lower floor north-west of and partially (to the extent of 1.8 metres) underneath the upper floor, comprising a master bedroom with ensuite and walk-in robes, an open eating and cooking area extending to an elevated terrace proceeding north-west beyond the pool, a living/dining/kitchen area, a bathroom, two bedrooms (each with ensuite bathroom) and a laundry with a finished floor level of 295.5 metres AHD and a roof level of 298.5 metres AHD; and

    ·a rectangular swimming pool with a base level of 291.65 metres AHD and a top of water level of 294.75 metres AHD.

33. The hardstand and driveway extended from the eastern boundary to approximately the SA Water easement adjacent to the south-western boundary. The upper level extended from 2.7 metres from the eastern boundary to three metres from the SA Water easement adjacent to the south-western boundary. The lower level extended from one metre from the eastern boundary to the SA Water easement adjacent to the south-western boundary.

34. Although not shown on the plans, Mr Spinelli gave evidence that the area of the upper level including the garage was 177 square metres; the area of the lower level (not including the terrace) was 292 square metres; and the area of the terrace and veranda was 228 square metres.

35. SK06 was a series of photographs showing indicative materials and finishes. Two photographs (numbered 5) depicted “exterior in-situ off form concrete walls”. One photograph depicted very light grey, virtually white, concrete walls. The other photograph depicted a light to mid grey concrete wall. One photograph (numbered 6) depicted “roof in-situ off form concrete walls”. It depicted light grey concrete roofing.

36. The set of architectural plans did not include a landscape plan showing either the removal of any existing trees or the planting of any new trees. There was merely a notation on the site plan that the site was to be revegetated with native grasses and unstructured native shrubs where disturbed during construction.

37. In March 2017 the Council sent a letter to the applicant stating that it considered the application to be for a non-complying kind of development. The applicant subsequently placed the application on hold.

38. In October 2018 Mr Finch’s planning consultant URPS prepared a Statement of Support, which the applicant submitted to the Council pursuant to regulation 17(1) of the Development Regulations 2008 (SA) (the Regulations). It described the proposal, including that it would have off-form concrete walls and roofing. It included several photographs of the site and vicinity.

39. The Statement of Support stated that the lower level was oriented to harness views over the Adelaide Plains. It stated that some minor native trees and shrubs would be removed to allow construction and the remaining trees and shrubs on the site would be unaffected. It stated that it was anticipated that the CFS would require little removal of vegetation around the proposed dwelling. It stated that earthworks would primarily involve excavation to create the bench levels for the dwelling. It stated that moving the dwelling further downward would locate it on steeper ground, cause driveway gradient issues and position the dwelling closer to denser vegetation.

40. In November 2018 the Council’s Development Officer – Planning sent a letter to the applicant stating that the Council had determined to proceed with assessment of the application. It said that various information was required, including:

    ·a Statement of Effect;

    ·schedule of colours relating to proposed concrete walls; and

    ·plan and schedule of proposed landscaping.

41. In May 2019 URPS prepared a Statement of Effect, which the applicant submitted to the Council in response to the Council’s November 2018 letter and stated that it addressed the Council’s request for further information. The Statement of Effect comprised the Statement of Support with modifications and additions. In relation to the last two requests for information referred to in the previous paragraph, it provided the following responses:

    Schedule of colours relating to proposed concrete walls;

    The concrete walls will be natural concrete colour, being a mottled grey colour. See example on Materials and Finishes drawing SK06 (images 5)

    Plan and schedule of proposed landscaping;

    It is proposed that the existing vegetation on the site consisting of grasses, shrubs and rocky outcrop will be largely retained in its natural condition to give the appearance that the new building has had minimal impact on the natural vegetation. It will be maintained as not to be a fire hazard.

42. No schedule of colours relating to proposed concrete walls or plan and schedule of proposed landscaping was provided to the Council as it had requested.

43. Because the proposed development was non-complying, public notification was required. In June 2019, representations were received by the Council from Mr and Mrs Hall (owners of 8 Seaview Road), the owners of 7 Seaview Road, the owners of 74 Sunnyside Road and the owner of 8-13 Government Road.

44. The owners of 7 Seaview Road expressed concern, amongst other things, about the impact of the development on their view and said that this concern would be overcome by reducing the height of the development or positioning it lower into the property. They observed that there was no landscaping plan and said that it was unclear which plants were being removed and what replacement planting there would be and invited provision of a landscape plan.

45. Mr and Mrs Hall expressed concerns amongst others about views from Government Road and the walking trail and submitted that the proposed dwelling would significantly impact those views and the amenity of the area because of its location, size, colour and lack of screening by native vegetation. They observed that there were apparently no plans to re-establish native vegetation. They submitted that grey concrete is not green or brown and is not a natural colour that blends in with a natural landscape. They submitted that significant improvement could be obtained by locating the dwelling down from the top of the spur away from the walking trail, using dark colours, breaking up the design of the building and planting native vegetation.

1. The Country Fire Service proposed various conditions in relation to the driveway and water supply. They referred to Part 2.3.5 of the Minister’s Code 2009 “Undertaking development in Bushfire Protection areas”, which mandates that landscaping shall include bushfire protection features that will prevent or inhibit the spread of bushfire and minimise the risk to life and/or damage to buildings and property. They observed (like the Halls and the owners of 7 Seaview Road) that no proposed landscaping had been detailed on the drawings provided. They proposed the following condition (the VMZ condition) in relation to vegetation management:

   A vegetation management zone (VMZ) shall be established and maintained within 20 metres of the dwelling (or to the property boundaries – whichever comes first) as follows:

   i.The number of trees and understorey plants existing and to be established within the VMZ shall be reduced and maintained such that when considered overall a maximum coverage of 30% is attained, and so that the leaf area of shrubs is not continuous…

   ii.Reduction of vegetation shall be in accordance with SA Native Vegetation Act 1991 and SA Native Vegetation Regulations 2017.

   iii.Trees and shrubs shall not be planted closer to the building(s) than the distance equivalent to their mature height.

   …

   vii.No understorey vegetation shall be established within 1 metre of the dwelling (understorey is defined as plants and bushes up to 2 metres in height).

2. In July 2019 Architects Ink prepared a revised set of plans which were submitted to the Council. SK01 to SK05 were essentially the same as the original version.[37] SK06 Materials and Finishes showed the same photographs as previously plus an additional photograph being “example of wall in natural colour” that showed light grey concrete walls. The roofing was now shown as local bluestone pebble roof ballast. Architects Ink produced new pages as follows:

   ·a page of photographs of other locations designated SK08 showing indicative bluestone pebble roof ballast and indicative unstructured existing planting with a notation “minimal vegetation around building to reduce potential bushfire fuel load”;

   ·a page of five Google Earth aerial images designated SK09 (and part of SK10) showing the land viewed from five locations;

   ·a page of a Google Earth street view image designated SK10 showing the view north-west from Government Road on which was transposed the proposed dwelling (SK10);

   ·three pages designated SK11 to SK13 showing ten CAD model images of the dwelling from various angles; and

   ·a page designated SK14 showing a winter sun study.

   [37]   SK05 contained an additional detail drawing of the retaining walls.

3. The SK10 image showed the back wall and roof of the upper level and the roof of the lower level visible from Government Road in the foreground obscuring the view over Adelaide such that only the densely built up metropolitan area (and the sea and sky beyond) were visible.

4. In August 2019 URPS sent a letter to the Council responding to the representations and the CFS response. It included as figure 3 two perspectives of the proposed dwelling viewed from Government Road. In relation to the location of the dwelling on the site, it stated:

   The siting of the dwelling was chosen based on the need to minimise the vehicle access length, manage the driveway gradient changes, and to locate the dwelling away from native vegetation situated lower on the site. Importantly, we note that the lower part of the subject site is the steepest part of the land (refer to the contour lines which are closer together), more densely landscaped, and close to other dwellings. An alternative proposal for a dwelling at the bottom of the site would likely cause significant planning concerns in respect of the steepness and length of vehicle access; access for fire-fighting vehicles; earthworks and building pad; removal of existing native vegetation; the creation of a 20m vegetation buffer zone around the dwelling; access to services; and overlooking and visual impact to dwellings on Sunnyside Road.

5. In relation to landscaping, it stated:

   The landscaping and architectural intent is to preserve the existing natural character of the site as much as possible, as sought by the Zone Objectives. To achieve this, the dwelling walls will extrude from the ground, with no perimeter paving or retaining walls proposed to support the dwelling. The dwelling will sit in an undisturbed landscape. A significant amount of existing vegetation is to be preserved, particularly on the lower portions of site. Some revegetation is proposed, comprising native grasses and shrubs in an unstructured/informal manner, to reflect the existing conditions on this site and in the Hills Face Zone generally. The species will be selected from Council’s planting guide…

6. In September 2019 the Council’s Planning Department prepared a report to the Council Assessment Panel recommending, subject to concurrence from the State Commission Assessment Panel, the grant of development plan consent in respect of the proposed development subject to two reserved matters (stormwater and all-weather road) and four conditions. 

7. In September 2019 the Council Assessment Panel resolved that, subject to concurrence from the State Commission Assessment Panel, development plan consent be granted in respect of the proposed development subject to four reserved matters and four conditions. The conditions included the VMZ condition proposed by the CFS.

8. The reserved matters were expressed as follows:

   That pursuant to section 33(3) of the Development Act 1993, the City of Burnside reserves its decision on the adequacy of the following matters for further assessment prior to the granting of any Development Approval:

   ·[Stormwater management – not relevant on appeal];

   ·[All-weather road – not relevant on appeal].

   ·Details of the off form concrete being of a darker toning to meet the requirements of the Hills Face Zone

   ·A detailed landscaping plan showing the location of planting taking into consideration the requirements of the CFS – The landscaping when mature to soften the built form and provide a landscape commensurate with the setting of that section of the Hills Face Zone

   The assessment of these reserved matters may result in the imposition of further conditions of Development Plan Consent pursuant to Section 42(1) of the Development Act 1993.

9. In September 2019 a delegate of the State Commission Assessment Panel sent a letter to the Council saying that the State Commission Assessment Panel concurred with the proposal to grant development plan consent.

10. In September 2019 the Council issued a Decision Notification Form to Mr Spinelli stating that development plan consent was granted and setting out the conditions and reserved matters.

11. In October 2019 Mr Hall appealed to the Environment Court against the grant of development plan consent. His grounds included that the Council did not have power to reserve the third matter (the colour reservation) or the fourth matter (the landscaping reservation) and the Council erred in various respects in its assessment of the planning merits.

12. In February 2020 a landscaping concept plan was prepared by Oxigen (the Oxigen Plan), which was subsequently submitted to the Council. It showed three existing eucalyptus trees towards the bottom of the Land being retained and the removal of all other existing trees. It showed the planting of trees, shrubs, grasses and ground covers in the lower section of the Land. Mr Hayter gave evidence that this covered 2,262 square metres.

13. The Oxigen plan showed native grass meadows planted below and for 20 metres on the north-western side of the dwelling. There were no trees or shrubs within 20 metres of the building, or above the 285 metre contour, on the north‑western side of the dwelling. It showed native shrubs and ground covers on the eastern and southern sides of the dwelling. Although multiple species of trees and shrubs were listed, there was no indication where any given species would be planted or that every species would be utilised.

14. In April 2020 Architect Ink sent an email to the Council stating that the insitu off form concrete would be constructed using Portland grey cement which is a natural grey colour as per the example shown on drawing SK08 in the original drawings. Portland grey cement is standard cement. The email said that it is in the nature of concrete that there will be some colour variation from light to darker tones. It attached three Dulux colours to represent the mottled effect of insitu concrete. It noted that concrete gets darker over time.

15. In April 2020 the Council’s Team Leader – Planning signed a Reserved Matters – Assessment Report (the Reserved Matters Report). In relation to the colour reservation, the report referred to the Architect Ink’s email, noted that concrete does not lend itself to the green and brown hues typically envisaged to preserve and enhance the natural landscape but stated that it was considered that the grey colour would darken over time and coupled with the siting of the building and the landscaping plan beyond the building footprint, the outcome was not considered to detrimentally affect achieving the primary objective for the Hills Face Zone.

16. Although the April 2020 email elaborated on the colour of Portland Grey cement, there was no change at all in the colour of cement from that proposed in the initial January 2017 plans: ordinary Portland grey cement was still to be used and the concrete was not “of a darker toning” as stated in the concrete reservation of the Council Assessment Panel.

17. In relation to the landscaping reservation, the Reserved Matters Report referred to the Oxigen plan and said that enhancing the natural character was achieved by removal of non-native trees and shrubs and planting of native trees and shrubs. It said that the landscaping was considered to address matters relating to reduced visibility of the built form, having provided for an increased vegetative buffer.

18. The reservation by the Council Assessment Panel was that “the landscaping when mature [was] to soften the built form”. Given that there was to be no planting at all within 20 metres of the building, or above the 285 metre contour, on the north-western side of the dwelling and no specification of species (or their heights) to be planted below that zone, the Oxigen plan did not ensure any softening of the built form when viewed from the north or west.

19. The report concluded that the reserved matters were considered addressed and an additional condition should be included requiring all landscaping shown on the Oxigen plan to be established to the reasonable satisfaction of the Council and the landscaping continue to be maintained in good health and condition.

20. In August 2020 the Environment Court heard the appeal.

21. In April 2021 the Environment Court dismissed the appeal.

    The Environment Court hearing

22. The Court undertook a view of the land and the vicinity.

23. Mr Spinelli was called by Mr Finch to give evidence concerning the proposed development. He also gave evidence about a three-dimensional model prepared by Architects Ink of the proposed development (the 3D Model), which was tendered.

24. Mr Hall gave evidence. His evidence included the frequency of use of the walking trail and his observations of people walking on the trail stopping in the vicinity of the Apex to look and take photos. He said that he also used the walking trail and believed that his view from the walking trail would be obscured to the extent of a third or a quarter.

25. John Outhred was called by Mr Hall to give evidence. Mr Outhred is a planner. He gave his evidence in chief in writing. In relation to visibility of the dwelling from the walking trail and the Adelaide Plains, he said in his written evidence in chief amongst other things:

    In terms of providing a natural backdrop to the Adelaide plains, the proposed dwelling is located high on the allotment in a position that is obtrusive when viewed from both the Adelaide Plains and the public walking trail, to the east. The face of the structure (including a swimming pool and raised protruding terrace) covers a height of over 9 metres and a maximum width of about 42 metres. In regard to colours, green or brown earthen tones are not used. While the steepness of the land means that structures will be observed from the Adelaide Plains wherever placed on Lot 15, the lower a structure, the extent of observation is less and has a greater potential to be screened by vegetation.

    …

    The third component of preserving and enhancing the natural character, is providing passive recreation close to the Metropolitan area. … existing adjacent land is presently providing passive recreation in the form of an open western extension of Gully Reserve and a walking track over Government Road… The section over Government Road provides the public with a panoramic vista of the Adelaide plains to the sea. Therefore, any impact of the development on a significant passive recreation component, should be carefully considered. I am of the opinion, that the proposed dwelling is too close to Government Road and will partially obstruct the panoramic views from Government Road of the Adelaide plains.

    …

    Albeit that Government Road is limited in vehicle traffic, it is significant in respect to pedestrian traffic using the public walking track. Visual intrusion from the walking track along Government Road is important in view of the obstruction to the panorama of the Adelaide plains available from the track. The placement of the dwelling high on the land will partly obscure the panorama.

    In regard to the specific content of PDC’s 7, 8, 9 & 13, I would make the following comments:

    ·The dwelling is below the ridgeline

    ·It will be visible from the Adelaide Plains with limited screening

    …

    The dwelling will not be seen above the skyline as seen from the Adelaide plains. However, there are locations along St Andrews Avenue, Oceanview Crescent and Mount Osmond Road, where views from gaps in vegetation would enable the dwelling to be viewed against the skyline, in light of the spur

    The dwelling has a minimal set back from Government Road – closest point at one metre (lower level) and 2.765m (upper level)

    Albeit that the highest point of the dwelling is about 900mm lower than the highest point of the land, portions of the dwelling will be set above the abutting public road. In particular, both levels will be about 3 metres higher than the corresponding adjacent point on the public road

    The setbacks from Government Road, adjacent the public walking trail, does not satisfy PDC 7(d) in terms of being ‘well setback’

    Insufficient setbacks from Government Road, compromises the function of the Metropolitan Open Space Network, in that the dwelling will be visibly prominent from the public walking trail

26. Mr Outhred attached as Annexure 2 to his written evidence in chief (Annexure 2) four photographs looking towards the property taken from positions on the walking trail which he labelled A, B, C and D together with a document showing the position of A, B, C and D along the walking trail on a plan of the proposed development. Position A was located close to the Apex and positions B, C and D were located progressively eastwards and downhill from position A. The height of positions A to D was shown as ranging from 302.9 metres AHD for position A to 299.8 metres AHD for position D. The roof height of the upper level was shown as 301.5 metres AHD. Contours drawn on the plan showed that in general terms the roof height of the upper level and the lower level would be about three metres higher than the corresponding adjacent point on Government Road.

27. Mr Outhred was cross-examined by counsel for the Council and counsel for Mr Finch. He was asked whether he considered that the proposed dwelling would be obtrusive when viewed from Glen Osmond Road Frewville as depicted in the photographs taken by Mr Dawson and he said that he did. He said that it would be obtrusive from anywhere on the Plains reasonably close to the Hills Face Zone not obstructed by vegetation.

28. In cross-examination, Mr Outhred said that, when viewed from the walking trail adjacent to the eastern boundary of the Land, the building would be quite visible and would be obtrusive. He said that, if the dwelling were repositioned a little bit further to the south, it would be less obtrusive because it would be further away from the walkway and would be lower down. It was put to Mr Outhred that the site had magnificent views to the CBD and beyond and he agreed.

29. The Court asked Mr Outhred about visibility of the dwelling from points A, B, C and D shown in Annexure 2. It was put by the Court to Mr Outhred that the field of vision of a person looking at the view would be 1.5 metres above ground level and he agreed. Mr Outhred said that, taking this into account, at point A there would be some blocking of the lower portions of the Adelaide Plains but one could still get a panorama looking over the roof and at point B and beyond there would be substantial blocking of the view. He said that the distance between points A and D was 24 metres and there would be blocking of the view for another ten metres or so below point D.

30. Damian Dawson was called by the Council to give evidence. Mr Dawson is a planner. He gave his evidence in chief in writing. In relation to the visibility of the development from the walking trail and the Adelaide Plains, he said in his evidence in chief:

    It is acknowledged that the subject land will be visible from the portion of the walking trail within the road reserve adjacent to the land and to a lesser extent from the continuation of the trail to the east. The north eastern corner of the lower level of the proposed dwelling will have a minimum set back of 1 metre from the boundary adjacent Government Road … The walking track is not located within the Government Road reserve at the point where the lower level is closest to the boundary. The trail is located further to the south east on land that is higher than the dwelling. The lower level of the building is set into the hillside with a wall height of between 2.4 and 3 metres. It is my estimation that users of the walking trail immediately adjacent to the subject land will generally retain the views out to the Adelaide Plains over the top of the lower level.

    … Whilst the upper level will be visible to users of the trail, the dark stained timber cladding, proposed landscaping between the building and the boundary and low, flat roof form will adequately minimise the visual impact of the proposal as people traverse the trail past the site. The orientation of the proposed building is such that the building is angled away from the walking trail with the narrow end of the building adjacent the eastern boundary. Once walkers have moved past the subject land the impacts of the proposal will reduce immediately given the topography of the land to the south and angle of the track as it leads away to the east. It is noted that at any given point along the trail walkers will be able to seek numerous dwellings and structures both within the locality and beyond.

    In my estimation the proposed dwelling will have a limited degree of visibility from the Adelaide Plains. In addition, when viewed from the Plains the proposed dwelling will be viewed amongst a range of buildings and structures on the adjoining properties…. I was able to view a portion of the subject land and adjoining dwellings on Seaview Road from a section of Glen Osmond Road, Frewville and to the west of the intersection of Cross Road and Fullarton Road, Highgate.

    Given the distance and the extent of other structures and buildings within the field of view I do not consider that the proposal will be readily noticeable from either viewpoint, which I consider as a reasonable representation of the general level of visibility of the site from the Adelaide Plains.[38]

    [38]   Citations omitted.

1. Mr Hall contends that the Environment Court erred in three broad, inter-related respects. First, the Court misconstrued the Development Plan by giving primacy to residential development and minimising driveway length and cut and fill rather than preserving, enhancing and assisting in re-establishing the natural character of the zone. Secondly, the Court erred in its approach to the evidence relating to the visibility of the dwelling from the walking trail. Thirdly, the Court erred in its approach to the assessment of the visibility of the dwelling from the Adelaide Plains.

   Construction of HFZ provisions

2. Mr Hall contends that the Environment Court inverted the Hills Face Zone provisions of the Development Plan by giving primacy to construction of a dwelling on the Land and to the dwelling being constructed on relatively flatter land at the top (minimising driveway length and cut and fill) instead of giving primacy to the objectives of the zone of preserving, enhancing and assisting in re‑establishing the natural character to provide a natural backdrop to the Adelaide Plains and limit visual intrusion of development in the zone.

3. It is well established that development plans are not construed in the same manner as legislation but nevertheless they must be daily construed (taking into account their nature and drafting) by planning authorities and by courts on appeals and reviews.

4. The objectives of the Hills Face Zone are set out at the beginning of the provisions of the Development Plan addressing that zone. There are two numbered objectives (extracted at [142] above). Neither objective includes or makes reference to residential development.

5. The principal objective is Objective 1 which includes the preservation, enhancement and assisting the re-establishment of the natural character of the zone to provide a natural backdrop to the Adelaide Plains and a contrast to the urban area; preserve and develop native vegetation and fauna habitats; and provide for passive recreation in an area of natural character. Paragraph (d) is expressed in negative terms of preventing the urban area extending into the western slopes of the ranges, which is a contraindication of residential development.

6. Objective 2 refers to the accommodation of public/private open space and low-intensity agricultural activities. It does not refer to the accommodation of residential development. In context, the reference to “structures” is a reference to structures associated with low-intensity agricultural activities (such as sheds or houses associated with agriculture) or public/private open space. Those structures themselves are to be located and designed in such a way as to preserve, enhance and assist in re-establishing natural character and limit visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide Plains.

7. In the commentary beneath the Objectives, it is explicitly stated that the Hills Face Zone is not a residential zone.

8. The principles of development control are more specific principles for the purpose of attaining the Objectives of the zone. Under PDC 26, the only complying development is farming without associated construction (roads, buildings or structures) or clearance of native vegetation.

9. The principles of development control include numerous limitations in respect of the construction of dwellings or other buildings or structures. The references to dwellings do not mean that residential development is an objective of the zone: dwellings would naturally be associated with agricultural activities which are accommodated in the Objectives. The limitations on buildings or structures include:

   ·the exclusion in PDC 1(a) of a dwelling other than a detached single-story dwelling;

   ·the criterion in PDC 1(b) that any development involving the construction of a dwelling preserve, enhance or assist in the re-establishment of a natural character;

   ·the criterion in PDC 2(b) that excavation or filling only be undertaken to reduce the visual impact of buildings or structures;

   ·the criterion in PDC 3(k) that the erection of structures not detract from the landscape character and visual amenity of the zone;

   ·the criterion in PDC 3(m)(ii) that development not result in loss of amenity to adjoining land or surrounding localities from the visual impact of buildings or structures;

   ·the criterion in PDC 7 that buildings and structures be located in unobtrusive locations;

   ·the criterion in PDC 8 that buildings and structures be unobtrusive and not detract from the desired natural character of the zone;

   ·the criterion in PDC 9(b) that the external materials of buildings be of dark natural colours such as brown and green so as to be unobtrusive, blend with a natural rural landscape and minimise any visual intrusion; and

   ·the circumstances listed in PDC 27 in which detached dwellings are non‑complying.

10. The fact that the principles of development control contemplate the construction of dwellings does not entail that residential development is an objective of the Hills Face Zone. On the contrary, the objectives of the Hills Face Zone are as stated above and do not include residential development of the construction of dwellings. Dwellings are merely tolerated provided that they do not impair achievement of the objectives of the Zone.

11. In City of Mitcham v MOL Pty Ltd[42] the Full Court considered the Hills Face Zone provisions of the City of Mitcham Development Plan which, at least in relation to objectives and PDC 1, were in materially identical terms to those of the Development Plan. The Full Court emphasised the primacy of the objectives and of the preservation, enhancement or re-establishment of the natural character of the zone. Debelle J (with Doyle CJ and Duggan J agreed) said:

    [42] [2003] SASC 166, (2003) 85 SASR 279.

    The provisions relating to the Hills Face Zone differ from most other provisions in the Development Plan in that they expressly state an intention to preserve the natural character of the zone and to restrict development in the zone.  The intention to preserve the natural character is expressed in both Objectives 1 and 2 as well as in Principle 1 of the Principles of Development Control.  Development is restricted in a way not usually found in other zones.  Save for open space zones or recreation zones or the like, the provisions relating to other zones speak of the kinds of development which might be permitted in that zone and controls on that development.  By contrast, in the Hills Face Zone, Principle 1 provides that 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.

    Only three kinds of development are complying forms of development.  They are agriculture, agistment of stock, and prescribed forms of advertising: see Principle 25.  The fact that development is restricted is emphasised by the long list of non-complying developments in Principle 26.

    The primary goal of the Hills Face Zone is expressed in Objective 1, namely, that it is a zone in which the natural character is preserved and enhanced or in which the natural character is re-established.  That goal is intended to achieve the five purposes expressed in paras (a) - (e) of Objective 1.  The intention to preserve, enhance or re-establish the natural character of the zone receives repeated emphasis in both Objectives 1 and 2 and in the two paragraphs which immediately follow them.  It is a matter of particular note that, although Objective 2 states that the zone is intended to accommodate low-intensity agricultural activities and public/private open space, those uses must be of a kind which preserve and enhance the natural character of the zone or assist in re-establishing it.

    …

    Principle 1 reinforces the goal of the preservation, enhancement or re-establishment of the natural character of the zone.  The principle is complementary to Objective 2.  It makes it clear that, although low-intensity agricultural activity and public open space area or a private use of an open character may be accommodated in the zone, development associated with such activities may not be undertaken unless, among other things, it preserves and enhances the natural character of the zone or assists in re-establishing it.

    The expression “natural character” is repeatedly used in the Hills Face Zone provisions.  It appears at least nine times in the Objectives for the zone.  It is again repeated in at least Principles 1, 6 and 9.  There can be no doubt that the overriding purpose of the Hills Face Zone provisions in this Development Plan is to preserve and enhance the natural character of the zone and, where possible, re-establish that natural character.

    …

    The Objectives spell out what is meant by the expression “natural character” in the second of the paragraphs following Objective 2...

    The repeated and constant use of the epithet “natural” is striking.  It is repeatedly used in expressions such as “natural character”, “natural topography”, “natural landscape”, “natural backdrop”, and “natural asset”.  In this context, “natural” means that which has been formed or constituted by nature in contradistinction to that which is artificially made or constructed: see Macquarie Dictionary and Oxford English Dictionary....

    The expression “natural topography” refers to the topography in its natural form.  The goal is that the topography will remain unaltered in its natural form.  Where it has been altered from its natural state, the most obvious form being quarrying, the objective is to re-establish the natural topography…  Next, native vegetation is to be preserved and enhanced subject to prescribed measures to reduce fire risk…  The third aspect of natural character is to preserve the colours of the natural landscape.  The reference to “greens and browns” is a clear reference to the fact that the appearance of vegetation, especially grasses, changes with the seasons.

    …

    It would be a mistake to assume that the Hills Face Zone has one form of natural character.  Plainly, it varies as one moves along the zone.  It varies from naturally wooded slopes to land of a more open character.  It contains a variety of topography.  In some parts there is a greater degree of development than in others.  In some areas, the interference with the natural character has been quite dramatic.  Quarries in the area of Burnside are an obvious instance.  However, no matter in what area the development is proposed the same goal remains, namely, of preserving, enhancing or re-establishing the natural character of the zone.  The importance of achieving that goal is emphasised in the last sentence of the paragraph which explains the meaning of the expression “natural character”...

    … Although it would certainly be incorrect to assert that the natural character of the Hills Face Zone is fixed, the current provisions of the Development Plan make it quite clear that the objective is that any process of the evolution will preserve, enhance or re-establish the natural character of the zone, not diminish it.[43]

    [43]   At [19], [20], [22], [23], [24], [25], [27] and [28].

12. In the present case, the Environment Court started with the premise that “the text under Objective 2 confirms that … residential development in the form of detached single storey dwellings is, clearly envisaged [in the Zone]” (see the first paragraph extracted at [139] above) and “this land is suitable, under the Plan, for residential development of a detached dwelling” citing PDC 1(a) (see the fifth paragraph extracted at [139] above). The Court referred to other principles of development control referring to dwellings.

13. As Mr Hall submits, this is to invert the analysis. As the Full Court held in City of Mitcham v MOL Pty Ltd, the starting point is the premise that any development should preserve, enhance or assist in re-establishing the natural character of the zone. The starting point must be to assess whether this objective is advanced or detrimentally affected by any proposed development. The Hills Face Zone provisions of the Development Plan positively do not treat land within the zone as being suitable for residential development.

14. The wording and context of the Court’s statement that “residential development … is clearly envisaged” shows that the Court was treating this as a positive. This statement by the Court was immediately followed by the statement that “the Zone anticipates, … that such [residential] development will be visible from the Adelaide Plains”, which was followed by the statement that the “way residential development can be located, and the form that development should take within the Zone, is also set out in some detail in the Plan”.

15. The wording and context of the Court’s statement that “this land is suitable, under the Plan, for residential development” shows that the Court was addressing the attitude of the Plan to residential development, as demonstrated by the Court’s reference to “under the Plan” and the footnote citing a provision of the Plan, namely PDC 1(a).

16. The Environment Court also said (in the fourth paragraph extracted at [139] above ) that the “Plan is concerned with the location of buildings on the land” and “PDC 7 is directed to the siting of buildings, where possible, in an unobtrusive portion of a relevant site”, which also proceeds on the basis that the starting point is that the construction of buildings is an integral part of the zone and an assessment of their obtrusiveness is subject to what is possible.

17. The Environment Court also started with the premise that, under the Development Plan, the primary factor dictating the location of a dwelling within the zone is topography of the land. The Court referred to the fact that locating the proposed dwelling at the top of the Land would minimise cut and fill and the length of the driveway. This elevated what are secondary considerations, namely the extent of cut and fill and the length of driveway, above the primary consideration, namely preservation, enhancement and establishment of the natural character of the zone.

18. It is also notable that the first part of PDC 2(b) provided that excavation and filling of land should only be undertaken in order to reduce the visual impact of buildings and structures, illustrative of the primacy given to limiting visual impact over limiting excavation and filling

19. The Court erred in law in its construction of the Development Plan. This ground of appeal is established.

    View from walking trail

20. Mr Hall contends that the Court erred in two respects in its approach to the evidence of Mr Outhred relating to the visibility of the dwelling from the walking trail.

21. Mr Outhred’s description of the extent to which the dwelling would be visible from the walking trail (as opposed to his opinion whether it was acceptable) was not challenged by Mr Dawson and Mr Dawson’s own description was not inconsistent with Mr Outhred’s description. Mr Outhred’s description was corroborated by SK10 prepared by Architects Ink which showed the upper level and the roof of the lower level clearly visible from Government Road in the foreground, significantly obscuring the view over Adelaide.

22. The Court discounted Mr Outhred’s description of the extent to which a dwelling would obscure the view from the walking trail, saying:

    We have adjusted the identified viewing locations of Mr Outhred by adding 1.5 metres to correspond to an average person’s eye level. We consider that approach to be more practical and of greater utility. Having taken that approach, we consider the roof of the development will be appreciably lower, when viewed from the track, than eye level.  At point A, the roof of the highest element (the garage and ancillary spaces) is 2.9m below the eye line we have considered. At Point B, it is 1.8 metres below that eye line and at Point C, it is 1.1 metre below. Only at Point D, does eye line and roof height align. At that point, the corner most portion of the garage level of the development will sit some 200mm higher than eye level although, from that position, views can also be achieved across the lower building and the roof; which is 2.8m below eye line.

    We are therefore satisfied that the proposal will not appreciably or unreasonably impede the views of the Plains available to walkers on the trail. By our assessment, it is only at Point D where views to the west are partially obscured by the corner of the upper level of the development.

23. Mr Hall’s first contention is that the Court erred in making this adjustment when there was no basis in the evidence that Mr Outhred had erred in his assessment in this way.

24. It was not put to Mr Outhred in cross-examination or by the Court that he had made an error in his description of the obscuring of the view by the dwelling by assessing at ground level rather than eye level. He was not cross-examined at all on the topic of eye level by counsel for the Council or Mr Finch. The only questions he was asked on the topic were questions asked by the Court and the effect of his evidence was that he made his assessment at eye level. It was not put to him that he made his assessment (erroneously or otherwise) at ground level or that an assessment at eye level would produce a different result to the assessment that he had in fact made. It would have been absurd for him to have made his assessment at eye level. The photographs in Annexure 2 that he took at points A to D were obviously taken at eye-level.

25. In these circumstances, it was not open to the Court to discount Mr Outhred’s description for the reason given. This discounting was the basis of the Court’s conclusion that the proposal would not appreciably or unreasonably impede the views of the Plains available to walkers on the trail (which is apparent from the use of the word “therefore” in the fifth paragraph extracted at [140] above).

26. The Court erred in law in discounting Mr Outhred’s description in the circumstances and this vitiates its conclusion in relation to the effect of construction of the dwelling on views from the walking trail.

27. Mr Hall’s second contention is that the Court erred in having regard only to a person looking horizontally or above as opposed to looking below the horizontal plane.

28. In the passage from its reasons extracted above, the Court concluded that the view would only be obscured (partially) at point D because it would only be at point D that a walker’s eye level would be below (to the extent of 200 millimetres) the roof of the upper level. The Court treated the view as being entirely unobstructed from points A, B and C, contrary to the evidence of Mr Outhred that there would be partial obstruction from these points (as well as from point D). However, if a walker only looked in the same horizontal plane as their eye-level or above, all that they would see would be sky. In order to view the Adelaide Plains and the Gulf, it is necessary to look downwards below the horizontal plane. Again, this approach was not put to Mr Outhred, nor was it the subject of any evidence from any other witnesses (nor indeed was it submitted by counsel for the Council or Mr Finch). The Court erred in law in discounting Mr Outhred’s description in the circumstances and this also vitiates its conclusion in relation to the effect of construction of the dwelling on views from the walking trail.

29. This ground of appeal is established.

    View from Adelaide Plains

30. Mr Hall contends that the Court erred in its assessment of the visibility of the dwelling from the Adelaide Plains.

1. The evidence of Mr Outhred and Mr Dawson was consistent in that the view of the Land from Glen Osmond Road and Cross Road is typical of the view generally from the Adelaide Plains (apart from the fact that the view from the former locations is virtually on the skyline). They differed in their assessment as to whether this was acceptable.

2. Mr Hall contends that the Court made its assessment only of the incremental effect of the construction of the dwelling over the effect of existing development and in so doing failed to undertake an assessment in accordance with the Development Plan on its proper construction.

3. The passage from its reasons for judgment extracted at [141] above included the following paragraphs:

   In respect of the locality, there are numerous existing structures, of varying scales, colours and appearance, open areas (brown in colour) and areas of extensive trees and vegetation, which are viewable from the Plains below.

   We are satisfied, having regard to that context and having considered the whole impact of this particular development, that the development will not be visually prominent when viewed from the Plains.[44]

   [44]   Emphasis added.

4. It is clear from the italicised passages that the Court adopted an incremental assessment, having regard to the numerous existing structures which are viewable from the Plains. It was only by having regard to the context that there were already numerous existing structures viewable from the Plains that the Court was able to conclude that the development “will not be visually prominent when viewed from the Plains”.

5. In relation to the construction of the Development Plan, as the Full Court observed in City of Mitcham v MOL Pty Ltd,[45] the Hills Face Zone provisions are unique, or at least unusual, in expressly stating an intention to preserve the natural character of the zone and restrict development in the zone. The fact that the objective is not only passively to preserve the natural character but also proactively to enhance and re-establish the natural character suggests in itself that the assessment whether proposed development complies with the Plan and the objectives is not to be undertaken merely on an incremental basis having regard to existing development.

   [45] (2003) 85 SASR 279.

6. In the commentary beneath the Objectives, it is stated that:

   Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality.

7. In City of Mitcham v MOL Pty Ltd[46] the Full Court said, in the context of addressing the amenity of the area:

   The fact that development has occurred in the locality is not a factor to which any real weight should be attached.  That is the consequence of the requirement in the Objectives for the Hills Face Zone which state that “each development should be assessed on the extent to which it preserves and enhances the natural character … rather than on the basis of a comparison with existing development in its locality”.[47]

   [46] (2003) 85 SASR 279.

   [47] At [14].

8. If a purely incremental approach were adopted assessing the impact of a proposed development on the natural character of the Hills Face Zone, as Mr Hall submits, this would lead to a progressive degrading of natural character and would largely prevent the objective of enhancing or re-establishing natural character because the addition of one more dwelling at a time visible from the Adelaide Plains is unlikely to be particularly prominent in the context of other dwellings. The clear intent of the Development Plan is that the objective is that development should proactively enhance and re-establish natural character.

9. The Court erred in law in its incremental approach to the assessment of the visibility of the proposed dwelling from the Adelaide Plains. This ground of appeal is established.

   Grounds relating to the validity of reservations

10. Mr Hall contends that the colour and landscaping reservations were not valid reservations under subsection 33(3) of the Act and this rendered the development plan consent invalid.

11. Section 33 relevantly provided:

    33—Matters against which a development must be assessed

    (1)     A development is an approved development if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters (insofar as they are relevant to the particular development):

    (a)the provisions of the appropriate Development Plan (development plan consent);

    (b)the provisions of the Building Rules (building rules consent);

    …

    (2)     An application may be made for all or any of the consents required for the approval of a proposed development, or for any one or more of those consents.

    (3)     A relevant authority may, in granting a development plan consent, reserve its decision on a specified matter until further assessment of the relevant development under this Act.

    (4)     A development will be taken to be an approved development when all relevant consents have been granted and a relevant authority has, in accordance with this Act, indicated that the development is approved.

    …

12. In Mar Mina (SA) Pty Ltd v City of Marion[48] the Council granted development plan consent to use land for, and construct, a primary school. The Council reserved two matters for further assessment and approval as reserved matters under subsection 33(3) of the Act. One of the matters was that a three metre high chain wire mesh fence be erected at least two metres inside the northern boundary of the property, details of which shall be submitted to Council for consideration and approval prior to development approval being granted. Debelle J held that the reservation was invalid and this in turn rendered the grant of development consent invalid.

    [48] [2008] SASC 120, (2008) 163 LGERA 24.

13. In relation to the construction of subsection 33(3), Debelle J said:

    It is first necessary to determine the meaning and effect of s 33(3). It empowers a planning authority to grant a development consent but at the same time reserve its decision on a specified matter until further assessment of the development. It is a curious provision in that it authorises a planning authority to make a grant of provisional development plan consent notwithstanding that some issues are still being considered. It is a power that must be exercised with great care.

    The primary purpose of s 33(3) is to enable approval of a staged development. It might also be utilised to deal with something that is quite incidental to the development and does not affect the question whether development consent should be granted. An example is an application for signs relating to the development. The grant or refusal of development consent for the signs may have no bearing on the issue whether development consent should be granted and the development can proceed whatever decision is made about signs.

    However, the power cannot be exercised in circumstances where the specified matter bears upon the question whether development consent should be granted.  When determining whether to grant development consent, a planning authority should consider the proposal as a whole.  It is necessary to consider every aspect because a particular matter may be fundamental to the issue whether development consent should be granted.  For example, a planning authority should not grant development consent to a large shopping centre that will generate a large volume of traffic but reserve the question whether the means of ingress and egress are satisfactory and whether there is adequate car parking.  The question whether there is adequate car parking as well as suitable means of ingress and egress are important matters affecting the question whether development consent should be granted to that shopping centre.  To grant development consent for the shopping centre and reserve the question of access and car parking has the consequence that the planning authority fetters the exercise of its discretion whether to grant or refuse approval of the means of access and car parking.  If a planning authority grants provisional development plan consent but at the same time the planning authority reserves an issue which is material to the grant of provisional development land consent, the planning authority puts undesirable constraints upon its later consideration of the question whether it is proper to grant consent for the reserved matter.  That in turn raises questions as to whether development consent has been granted.  The status of the development consent will be in question if the planning authority is not prepared to approve the proposed access and car parking.[49]

    [49]   At [63]-[65].

14. In relation to the validity of the reservation as to the fence, Debelle J said:

    In this case it is apparent that the Panel believes that a fence three metres high is necessary, presumably to prevent balls and other objects escaping from the play areas at the school into neighbouring residential property to the north. It is so firmly of the view that the fence is material to the grant of development consent that it has reserved the question whether to grant development consent for the fence pending an application to erect the fence. It has stipulated that it will not grant development approval under s 33(4) of the Act unless and until an application has been submitted for a fence three metres high and it has been approved. It is clear that the Panel believes that the fence has a material bearing on the question whether development approval should be granted. It is not an incidental question in the mind of the Panel. If that had been so, the Panel would not have stated that development approval not be granted unless an application for a fence three metres high has been made and is approved. The reservation of the issue of the fence does not accord with the intent of s 33(3). The reservation of that issue therefore renders the grant of development consent invalid.[50]

    [50] At [66].

15. In the present case, the colour of the dwelling and the existence and placement of landscaping were matters bearing upon the question whether development plan consent should be granted.

16. The colour reservation was expressed as follows:

    Details of the off-form concrete being darker toning to meet the requirements of the Hills Face Zone.

17. It is clear from the wording of the reservation itself “to meet the requirements of the Hills Face Zone” that the colour of the concrete was integral to the assessment as to meeting the requirements of the Hills Face Zone provisions of the Development Plan and hence to the question whether development plan consent should be granted.

18. This is also clear from the Hills Face Zone provisions of the Development Plan. The commentary below the Objectives clarified that the "natural character" to be preserved, enhanced or re-established refers amongst other things to “colours, such as greens and browns of non-reflective earthen tones, normally associated with a natural landscape”. In order to assess the development proposal against the Plan, it was necessary for the Council Assessment Panel to know the colour proposed for the concrete.

19. In addition, in order to assess the extent of visibility of the dwelling from the Adelaide Plains, it was necessary for the Council Assessment Panel to know the colour proposed for the concrete.

20. The landscaping reservation was expressed as follows:

    A detailed landscaping plan showing the location of planting taking into consideration the requirements of the Country Fire Service. The landscaping when mature to soften the built form and provide a landscape commensurate with the setting of that section of the Hills Face Zone

21. The wording of the reservation refers to two purposes of the required landscaping plan, namely “to soften the built form” and to “provide a landscape commensurate with the setting of that section of the Hills Face Zone”.  The existence and detail of the planting was integral to both the assessment of the appearance of the built form and to the assessment as to the preservation, enhancement or re-establishment of native vegetation and hence to the question whether development plan consent should be granted.

22. Again, this is also clear from the Hills Face Zone provisions of the Development Plan. The commentary below the Objectives clarified that the "natural character" to be preserved, enhanced or re-established refers amongst other things to “native vegetation”. In order to assess the development proposal against the Plan, it was necessary for the Council Assessment Panel to know the native vegetation planting proposed for the development.

23. In addition, in order to assess the extent of visibility of the dwelling from the walking trail and from the Adelaide Plains, it was necessary for the Council Assessment Panel to know the planting proposed on the eastern and southern sides of the Land (affecting the view from the walking trail of the dwelling) and the planting proposed on the north-western side of the dwelling (affecting the view from the Adelaide Plains of the dwelling).

24. The importance of both colour and landscaping could only be increased by the communications between the Council and the applicant before the Council Assessment Panel made its determination in September 2019.

25. In relation to landscaping, the plans lodged with the application in January 2017 did not show any planned planting (other than that the site was to be revegetated with native grasses and shrubs where disturbed during construction).

26. The Statement of Support produced in October 2018 did not propose any planting and said that it was proposed that the existing vegetation consisting of grasses and shrubs be largely retained in its natural condition.

27. In November 2018 the Council sent a letter to the applicant requesting a plan and schedule of proposed landscaping. The Statement of Effect produced in response did not propose any planting, no plan or schedule of proposed landscaping was provided and it stated that it was proposed that the existing vegetation consisting of grasses and shrubs be largely retained in its natural condition.

28. In July 2019 the Country Fire Service in its referral response observed that no proposed landscaping had been detailed on the drawings provided, and the same observation was made by Mr and Mrs Hall and the owners of 7 Seaview Road in their representations to the Council. In its response to the CFS referral response and the representations, URPS did not provide a landscaping plan and said that a significant amount of existing vegetation would be preserved, particularly on the lower portions of the site, and some revegetation was proposed, comprising native grasses and shrubs.

29. The revised plans submitted for approval, which were stamped by the Council as approved when development plan consent was granted, did not show any planting.

30. Given this history, it is clear that the applicant was resistant to producing a landscape plan and would likely be resistant to any planting that would obscure the view from the dwelling over the Adelaide Plains.

31. In relation to colour, the plans lodged with the application in January 2017 contained photographs showing ordinary grey concrete walls.

32. In November 2018 the Council sent a letter to the applicant requesting a schedule of colours relating to proposed concrete walls. The Statement of Effect produced in response did not provide a schedule of colours and merely said that the concrete walls would be natural concrete colour, referring to the original photographs SK06.

33. Given this history, it is clear that the applicant was resistant to any change in the colour of the concrete walls.

34. The colour reservation and landscaping reservation were not matters capable of being reserved under subsection 33(3) of the Act. The reservations were invalid and consequentially the grant of development plan consent was invalid. This ground of appeal is established.

    Conclusion

35. The Environment Court made errors of law in its assessment of the planning merits of the development proposal. However, the grant of development plan consent by the Council was invalid by reason of the colour reservation and landscaping reservation. The development plan consent must therefore be set aside and the application remitted to the Council for hearing and determination in accordance with law.

36. I would make the following orders for the disposition of the appeal:

    1.Appeal allowed.

    2.Orders made by the Environment Court set aside.

    3.In lieu of those orders, it is ordered that the development plan consent purportedly granted by the Council on 25 September 2019 was invalid and is set aside.

    4.The application by the second respondent for development plan consent is remitted to the Council for hearing and determination according to law.

37. I would hear the parties in relation to costs and any other orders.