Hutchens v City of Holdfast Bay - [2007] SASC 238

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
HUTCHENS & ANOR v CITY OF HOLDFAST BAY & ANOR
[2007] SASC 238
Judgment of The Honourable Justice Debelle
27 June 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS
Application for development consent – construction of 3 storey building on Esplanade – building to obstruct coastal views enjoyed by appellants to rear of subject land – whether appellants entitled to preserve views of coast – appeal allowed.
Development Act 1993 s 4, s 5(1), 33(1)(a); Environmental Planning and Assessment Act 1979 (NSW) s 90(1); Planning Act 1982 s 4; Planning and Development Act 1966 s 5, referred to.
Architects Marshall v Lake Macquarie City Council (2005) 141 LGERA 1; Australand Holdings Pty Ltd v Sydney City Council (2003) 131 LGERA 255; Cecec (No.8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251; Day v Pinglen Pty Ltd (1981) 148 CLR 289; Humby v Woollahra Municipal Council (1964) 10 LGRA 56; IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62; MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59; Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; Tracey v Waverley Municipal Council (1959) 5 LGRA 7; Wentworth v Woollahra Municipal Council (1982) 56 ALJR 745, applied.
Alan Sheppard Homes Pty Ltd v City of Burnside (ERDC No. 249 of 1996); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; Bernstein v Skyviews & General Ltd [1978] QB 479; Campbell v Paddington Borough Council [1911] 1 KB 869; City of Mitcham v Freckmann (1999) 74 SASR 56; Craig v East Coast Bays City Council [1986] 1 NZLR 99; Day v Pinglen Pty Ltd (unreported, Supreme Court of NSW, 16 December 1981); ex parte Tooth & Co Ltd; re Parramatta City Council (1955) 55 SR(NSW) 282; Freeman v Shoalhaven Shire Council [1980] 2 NSWLR 826; Gartner v Kidman (1962) 108 CLR 12; Hassen v District Council of Murray Bridge (1984) 35 SASR 448; Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; Hunter v Canary Wharf Ltd [1997] AC 655; Re Penny & South Eastern Railways Co (1857) 7 El & Bl 660; 119 ER 1390; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161; Wentworth v NSW Bar Association (1992) 176 CLR 239; William Aldred's Case (1610) 9 Co Rep 57b; 77 ER 816, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"amenity"

HUTCHENS & ANOR v CITY OF HOLDFAST BAY & ANOR
[2007] SASC 238
Land and Valuation Division

DEBELLE J: This is an appeal from a decision of a Commissioner of the Environment, Resources and Development Court. The issues in the appeal essentially turn on the question whether the appellants are entitled to preserve views they enjoy of the coast at Seacliff and, if so, the extent to which they are entitled to do so. The appellants contend that the Commissioner erred in not taking into account the fact that the proposed development would essentially remove the views which they presently enjoy and so would detrimentally affect an amenity they enjoy.
The City of Holdfast Bay granted Mila Enterprises Pty Ltd approval to construct a three storey building on The Esplanade at Seacliff. The building was to be used as two dwellings and a shop. Provision was also made for car parking.
Two of the persons who had objected to the development application were the appellants, Ms Gayle Hutchens and Mr K. Totos. They appealed to the Environment, Resources and Development Court (“the Environment Court”) from the decision of the City of Holdfast Bay (“the Council”). A Commissioner of the Environment Court dismissed the appeal. Ms Hutchens and Mr Totos have appealed to this court from the Commissioner’s decision. The parties to the appeal are, therefore, the appellants, the Council and Mila Enterprises Pty Ltd (“Mila Enterprises”).
The Subject Land
The subject land is a rectangular shaped allotment with a frontage to The Esplanade at Seacliff. Adjacent to it on the north side is a three storey residential flat building. Adjacent to it on the south side is the Seacliff Hotel, a two storey building with car parking at the rear. The Seacliff Hotel is located at the corner of The Esplanade and Wheatland Street. On the other corner to the south of the hotel is a large residential complex which is partly of two storey and partly of three storey construction. Further south are a number of two storey dwellings.
At present a two storey building is erected on the subject. It is used as a shop and dwelling. The shop is at ground level. The dwelling is behind and above the shop. The building abuts the boundary of the land on the frontage to The Esplanade as well as on its northern boundary.
The land to the east of the subject land rises steeply from The Esplanade and, as the Commissioner found, development has occurred which takes advantage of the elevated coastal views. That development includes a number of large multi-level detached dwellings. The appellants reside in a two storey residential complex immediately to the rear of the subject land. It overlooks the subject land and has views west of the coast and to the sea beyond. It is one of the developments which has been constructed so as to take advantage of the views of the coast.
On the other side of The Esplanade is the beach at Seacliff and foreshore area.
The Proposed Development
Mila Enterprises seeks development consent to demolish the existing two storey building on its land and erect in its place a three storey building. At ground level the building will comprise a take-away food shop on the frontage to The Esplanade and behind it an under croft car park for eight vehicles. The first and second levels will each be used as a dwelling.
A Prior Application
This is not the first application made by Mila Enterprises to develop this land. In 2003 it had applied to construct a four storey building comprising a shop and car park at ground level and three dwellings, one on each of the three upper floors. The Council refused to grant development consent. Mila Enterprises appealed to the Environment Court which dismissed the appeal on 5 May 2005. The Commissioner who heard and dismissed the appeal described the proposal as "an avaricious use of a relatively small parcel of land in a sensitive setting". Mila Enterprises then applied to the Council for development consent for the development the subject of this appeal. The present proposal differs from the previous proposal in that one level (and with it one dwelling) has been removed, reducing the building from four storeys to three, reducing the overall height and bulk of the building, and increasing the setbacks from all boundaries.
The Development Plan
The subject land is located within a Residential D Zone in the Council's Development Plan. The provisions of the Development Plan for this zone comprise an introduction stating the intended development of the zone, a list of objectives for the zone and a number of principles of development control. The introduction and objectives are in these terms:
Introduction
The objectives and principles of development control that follow apply to the Residential D Zone shown on Maps HoB/9, 10 and 11. They must be read in conjunction with the relevant objectives and principles of development control for the whole council area.
The Residential D Zone covers three distinct areas within Brighton, one being development surrounding Jetty Road and The Esplanade in the vicinity of Jetty Road, another being the coastal strip from just north of Wheatland Street to the Caravan Park at Kingston Park and the third being development in Burnham Road, Kingston Park. The zone is intended to provide for a range of medium-density housing forms and a limited range of short-term tourist accommodation.
The zone is intended to primarily accommodate residential development however, a combination of the beach side location, pleasant environment and accessibility to facilities makes these locations suitable for the development of tourist accommodation in the form of holiday apartments, guest houses, and motels which generally maintain a residential character. Given the residential nature of the locality it is not intended to allow the development of tourist facilities which incorporate entertainment venues or other non-accommodation uses which may generate excessive levels of noise and traffic. Small-scale retail and food outlets which serve tourists and the local population may be development in appropriate locations such as Jetty Road which already accommodates local shopping facilities.
OBJECTIVES
Objective 1:      A zone primarily accommodating:
(a)detached and semi-detached dwellings, row dwellings, group dwellings, and residential flat buildings; and
(b)a limited range of residential tourist accommodation facilities.
Objective 2:      A zone accommodation a limited range of small-scale retail, and food outlets to serve tourists and local residents.
Objective 3:      Development which is designed and located so that the profiles of buildings complement the slope of the land.
It is not necessary for the purpose of this appeal to note all of the principles of development control. Those which are relevant are Principles 1, 2, 4, 5, 12 and 19:
1.Development undertaken in the Residential D Zone should be, primarily, detached and semi-detached dwellings, row dwellings, group dwellings and residential flat dwellings, and a limited range of residential tourist accommodation facilities.
2.Development within the zone may include small-scale retail and food outlets in appropriate locations.
4.Development should be designed and located so that the profiles of buildings complement the slope of the land.
5.All forms of one, two and three-storey residential accommodation are appropriate in the zone subject to compliance with the relevant principles of development control.
12.Development should not exceed three-storeys in height (the vertical wall height at any point, excluding gables, should not exceed 10.5 metres above natural ground level) except in the case of the following localities which are able to take advantage of the steeply sloping land within the zone:
(a)     north of Wheatland Street, where development may not exceed four storeys in height;
(b)     south of Wheatland Street and north of the Maitland Terrace, where development may not exceed five storeys in height; and
(c)     south of the Tourist Accommodation Zone where development should not exceed seven storeys in height, provided always that the total height of the buildings above ground level at any one point does not exceed three-storeys, as illustrated in Figure 6, Table HoB/3 and buildings between Maitland Terrace and the Tourist Accommodation Zone are sited in accordance with illustration Figure 6(d), Table Br/3.
19.Development should attempt to preserve the existing landform of the coastal cliffs through designs which relate to the slope of the land.
A number of provisions of the Development Plan refer to views and the protection of views enjoyed by those who reside in existing dwellings. I will shortly refer to them.
The Common Law and Views
It is a notorious fact that the capacity to enjoy a pleasant view will be reflected in the value of the land and improvements thereon and that has been recognised by judicial decision: see, for example, Day v PinglenPty Ltd (1981) 148 CLR 289 at 300; IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62. Coastal views and views over water and waterways tend to have a higher value than views over land.
However, views, like privacy, are not specifically protected by the common law, although a tort of unjustified invasion of privacy might be developing: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [58], [106]-[111], and [185]-[191]. In William Aldred's Case (1610) 9 Co Rep 57b at 58b (77 ER 816 at 820-821), it was held that, while an action lies for obstructing light or air, no action lies for obstructing a prospect. The court reasoned that a prospect is “a matter only of delight, and not of necessity” and the law does not give an action for such things as delight. Thus, it was not possible to acquire a right in the nature of an easement in a view or prospect. See also Hunter v Canary Wharf Ltd [1997] AC 655 at 685, 709, 726. In addition, the law of nuisance does not protect a view: Gartner v Kidman (1962) 108 CLR 12 at 46; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201. One difficulty with the protection of a right to enjoy a view is that it might conflict with the principle that an owner of real property owns the airspace above the land, at least to the extent necessary for the ordinary use and enjoyment of the land or structures upon it: Bernstein v Skyviews & General Ltd [1978] QB 479.
Planning Controls and Views
Notwithstanding the absence of a specific common law right to protect a view, the introduction of planning controls has provided particular remedies. The fact that a person enjoys a view will invest that person with a special interest sufficient to give that person standing to sue to obtain equitable relief: Day v Pinglen Pty Ltd at 299-300; Wentworth v Woollahra Municipal Council (1982) 56 ALJR 745. Where a planning authority has acted negligently in the performance of its powers in failing to give notice to a person affected and to hear that person, and has permitted the erection of a building obstructing the views enjoyed by that person, the planning authority will be liable either for damages for the loss of the opportunity to be heard in answer to a building application (which might equate to an amount equal to the diminished value of the subject land): Craig v East Coast Bays City Council [1986] 1 NZLR 99 or damages for the loss of the view: Freeman v Shoalhaven Shire Council [1980] 2 NSWLR 826. Those two decisions are to be compared with Wentworth v Woollahra Municipal Council where it was held that there was no entitlement to damages for infringement of a statutory duty to give notice of a development application. Where the loss of a view is caused by the performance of works or the carrying out of an undertaking authorised by statute, there is no entitlement to compensation: Re Penny & South Eastern Railways Co (1857) 7 El & Bl 660 (119 ER 1390). Where unauthorised works are carried out which obstruct a view, damages may be recovered: Campbell v Paddington Borough Council [1911] 1 KB 869.
It is not necessary for the purposes of this appeal to determine the precise extent to which the common law recognises a view. It is sufficient to note that the introduction of planning controls has provided a means by which those who enjoy pleasant views from existing buildings may take steps to prevent the construction of a building which will obstruct those views. The capacity to do so will depend on the terms of the planning controls.
In Cecec (No.8) Pty Ltd v Mosman Municipal Council (1960) 5 LGRA 251 it was held both that the relevant planning legislation protected views of Sydney Harbour and that the protection of views was a factor to which regard should be had when determining whether development consent should be granted. An application had been made for development consent for a building of fifteen floors to contain 111 home units. The building was to be erected on the foreshore at Balmoral. The subject land was within a Foreshore Protection Area. The proposed building would have obstructed views of quite a number of residents behind. Clause 42(1)(a) of the relevant planning ordinance provided that, where an application is made to erect a building or use land within a Foreshore Protection Area, the planning authority was required, when considering the application, to have regard to “the aesthetic character of the proposed building or use as it would affect the view to and from the adjacent waterway and its foreshores”. Sugerman J addressed the issue of views in these terms:
Apart from those who live on the flat land of the foreshore behind the Esplanade, who have (and in any event can have) little or no view, the residents of the amphitheatre for the most part enjoy expansive and uninterrupted views of the harbour and its wooded foreshores. The area generally has retained much of its natural vegetation and appearance and is on the whole a pleasant, open area, distant from the main arteries of traffic and from the more urban-seeming portions of the municipality, reached from the city only by two bus journeys or by ferry and bus, and quiet and secluded except in summer week-end and holiday periods when the beach and foreshore reserves attract a considerable body of visitors. These general characteristics of the area, preserved by the building restrictions and policy hitherto in force and pursued, have attracted residents who prefer such surroundings to the environment of a high density residential area and must be materially affected by the introduction into the area of high density residential development, in increasing degree as the amount of such development increases.
More specifically, that the views at present enjoyed by many residents would be affected, even by a single building of the type proposed and even though it be designed and oriented so as to produce the least possible effect on existing views, is not really disputed. The effect would vary in degree according to the situation of the residence, its distance from the proposed building, and the angle from which the proposed building would be seen, that is, how much it would present to the view of its lengthy side elevation and its shorter rear elevation respectively. Few residents would be affected to the same extent as one of the locally resident witnesses, who, having built some eight years ago a pleasant, modern house with expansive views, would have 50 per cent or more of his present outlook obliterated and replaced by a close view of the long and high side wall of the building. However, there would be an effect, greater or less, upon the existing views from many residences by partial obliteration or, where the degree of obliteration is not large, by a splitting of the existing view and the introduction into it of a novel, dominating, and, according to one opinion which has been expressed in evidence, discordant, element. It is apparent that an increase in the number of multi-storied buildings (even within the limits of the tentative building code earlier mentioned) would aggravate this effect, and that a stage could be reached at which views from many residences would be obliterated altogether or replaced by glimpses through the open spaces remaining between tall buildings.
The object of the relevant legislation includes the preservation in proper cases of such existing characteristics of a neighbourhood as may be worthy of preservation in the interests of local residents or of the public generally. Not only may such preservation be an element in the “public interest” referred to in cl.27, proviso, par.(f) of the Ordinance, but it is also the consideration, or one of the considerations, underlying such provisions as those of pars.(b) and (e) of the same proviso and of cl.42(1)(a). That there will be forces in operation towards change from the existing situation, and that in some cases it may be necessary or desirable, on one ground or another and with more or less immediacy, to yield to these forces and suffer a greater or less degree of change to occur, must also be amongst the postulates of those who administer such legislation. Since the operation of these forces is no longer left to the virtually unregulated initiative and enterprise of individual owners but is subjected to statutory regulation and control, it may become necessary to resolve conflicts between the desire for conservation and the pressure towards change and to reach and give effect to decisions concerning what ought to be preserved and what changes should be allowed and at what time. In the preparation of a planning scheme this is a function of a legislative character entrusted to the planning authority, but, in so far as such schemes reserved discretions to the responsible authorities entrusted with their administration, it becomes a function of those authorities.
In the past questions of this general character have arisen with respect to the introduction into a residential area of some development of an alien character, such as an industrial or a commercial building. This Court has in such cases had regard to, amongst other relevant considerations, the interest of the local residents in the conservation of the existing character of the locality. A recent instance is Wiggins v Kogarah M.C. where the Court referred to that interest as a factor for consideration resting in that case “not on mere local prejudices or on the resistance of uninformed opinion to innovation, but on a genuine desire on the part of the council to maintain the characteristic appearance of a neighbourhood of this type, in conformity with habits and modes of thought in this community.” Although there must be differences in the particular considerations involved where the question is rather one of introducing into a residential area of one character new residential development of a different character, there is a basic similarity in the general nature of the problem – cf. Hopkins v Rockdale M.C. It is difficult to generalise in cases where much must depend upon the particular circumstances. However, it is useful to refer for guidance to Balgowlah Investments Ltd v Manly MC. where some generalisation was attempted which, although directed to the question of “injury to the amenity of the neighbourhood” under cl.27 of the Ordinance in its original form, seems capable of wider application. It was there said: -
In general in cases of this type the question must become one of ascertaining what measure of immunity from the particular kind of disturbance in question those in or concerned with the neighbourhood are justly entitled to expect in the light (in cases like the present case) of its existing state of development and in the light of all other relevant circumstances. The claim of an applicant to introduce some new development must be tested against these just expectations of those who are in the neighbourhood (as owners, occupiers, or residents, or otherwise) or concerned with it (that is, according as the particular claim may require, the public generally, or some particular section of it, or those of its members who resort, or have occasion to resort, to the neighbourhood which is in question. (Citations omitted)
Shortly put, the balancing of interests in respect of views was a relevant factor when determining whether to grant development consent. The impairment of views of other residents was one of the factors which caused Sugerman J to affirm the council's decision to refuse development consent.

In Day v Pinglen Pty Ltd, Ms Day succeeded in obtaining an order declaring that the building which obstructed her view of Sydney Harbour had been constructed pursuant to a development consent which had become void. The matter was remitted to the Equity Division of the Supreme Court of New South Wales. Kearney J held that the upper storeys of two units of that building should be demolished to restore the view previously enjoyed by Ms Day: Day v Pinglen Pty Ltd (unreported, Supreme Court of NSW, 16 December 1981). In doing so, he relied on s 90(1) of the Environmental Planning and Assessment Act1979 (NSW) which listed the factors to be considered when determining a development application. They included:
(d) the social effect and the economic effect of that development in the locality.
In IDA Safe Constructions Pty Ltd v Woollahra Municipal Council at 88, McClelland CJ reached a like decision in reliance on s 90(1)(d). In that case the proposed development was permitted subject to a condition that the top storey be eliminated and the one immediately beneath be stepped back to permit the objectors to the proposed development to continue to enjoy views of Sydney Harbour. In both decisions, the adverse effect of a proposed development on a view from a building and the consequential reduction in value if the view was a relevant factor in determining whether the development consent should be granted.
In Australand Holdings Pty Ltd v Sydney City Council (2003) 131 LGERA 255 the Court dismissed an appeal against a deemed refusal of an application to erect a ten storey building in Potts Point. The planning controls included a development control plan which specified performance criteria which had regard to “visual impact and views”. The Court held that while there is no legal right to views, the amount of views which would be lost by the proposed building was unacceptable. In that case the view was described as “a stunning harbour view”.
An instance of planning legislation or planning controls providing more direct protection for views is clause 61 of the Local Environment Plan for the Warringah Council. It states that development is to allow for the reasonable sharing of views. The provision was considered in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23 at [24]–[30] In that decision, a developer had appealed against the Council's decision refusing development consent. The proposed development intended to demolish an existing building and erect a three storey building. The new building would have obliterated views which neighbouring residents had of the Pacific Ocean and Manly. The Court said:
24Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable.
25The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.
26The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
27The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Siting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
28The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
30Applying the above principles to 7 Bellevue Place, I would classify the view to the ocean and Manly as highly valuable, what most people would describe as magnificent. It is now available from four levels from the rear. The proposal would obliterate views from the lower three levels from sitting and standing positions. From the fourth level it would obliterate it from sitting positions and reduce it from standing positions. In my opinion, the impact would be severe.
The Court held that the proposal significantly and unreasonably reduced the amenity enjoyed by occupants of adjoining residential development and affirmed the council's decision refusing development consent. The principles expressed in that decision have been consistently followed since by the Land and Environment Court in New South Wales: see, for example, Architects Marshall v Lake Macquarie City Council (2005) 141 LGERA 1 and MCC Energy Pty Ltd v Wyong Shire Council (2006) 149 LGERA 59.
These decisions demonstrate that planning controls which expressly or by implication require regard to be had to the views enjoyed by those who already reside in a locality will be used in appropriate cases to prevent the construction of a building which will obstruct those views. Where such controls exist, a planning authority must have regard to them when determining whether to grant development consent. The planning authority must do so, not only where the planning controls expressly require regard to be had to that factor, but also where a reasonable interpretation of the planning control requires it. It is unrealistic to attempt to list all those instances of a planning control of the latter kind. One instance is s 90(1)(d) of the Environmental Planning and Assessment Act1979 (NSW) which required a planning authority to have regard to "the social effects and the economic effect of the proposed development on the locality. That was a sufficient prescription to require regard to be had to views given that they affect the value of residential property.
It would be inappropriate, if not unrealistic, to attempt to prescribe the circumstances in which views from an existing development will be protected from obstruction by a new building. Each case will depend on its own facts. What can be said, however, is that, if views are enjoyed from a single storey dwelling it would be unlikely, generally speaking, that development consent would be refused for a single storey dwelling which would obstruct those views. That is because both are permitted forms of development in a residential area and the construction of a single storey dwelling is a reasonable use of the land. However, the position might be quite different in the case of a multi-storey development which will obstruct the views enjoyed by those residing on upper levels in an existing two or three storey development. The factors which will determine that question are outlined in Tenacity Consulting Pty Ltd v Warringah Council. The relevant development plan might require other factors to be considered as well. It is necessary to balance the interests of those who seek to develop a site with the interests of those who already reside in the relevant neighbourhood or locality. That balancing may result in the interests of existing residents prevailing over those who seek to develop land.
A planning authority must, therefore, have regard to the views enjoyed by residents of existing development when determining whether to grant development consent to a new building which will obstruct those views. Regard must be had to the nature and extent of the view, the extent to which the view will be obstructed by the proposed development, and the reasonableness of the proposal as determined by reference to the planning controls.
Amenity
Quite often, planning controls refer to the amenity of a neighbourhood or locality. On occasions, planning controls have provisions to the effect that the proposed development should not impair the character and amenity of a neighbourhood or locality. For the reasons which follow, provisions of that kind require planning authorities to have regard to the protection of views enjoyed by existing residents.
In ordinary usage, the word “amenity” in this context means the pleasantness of a place: see Oxford English Dictionary which defines “pleasantness” to mean “agreeable to mind, feelings or senses”. The term “amenity”, therefore, denotes that which is agreeable to either the mind, feelings or senses. The definition of "amenity" in the Macquarie Dictionary expresses the same concept, namely, “the quality of being pleasant or agreeable in situation, prospect, disposition, etc”. Views are but one aspect of amenity.
The term “amenity” has the same meaning in planning controls. The expression "amenity of the neighbourhood", when used in relation to a residential area, refers to those characteristics of the neighbourhood which make it a pleasant place in which to live: see the discussion in ex parte Tooth & Co Ltd; re Parramatta City Council (1955) 55 SR (NSW) 282 at 305-308. Sugerman J adopted this meaning in Tracey v Waverley Municipal Council (1959) 5 LGRA 7 at 14:
“Amenity” is not confined to the negative factor of freedom from physical discomfort through the effects of noise, smell, and other matters referred to in the proviso to cl. 27 of the County of Cumberland Planning Scheme Ordinance. It relates also to the preservation of such characteristics of a neighbourhood as make it pleasing in appearance as well to the passerby as to the resident, and as well to those across the road, who may be unaffected by noise etc., as to the adjoining and other occupiers on the same side. “Amenity” may be taken to express that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence' – Report of Minister of Local Government and Planning on Town and Country Planning 1943-1951 (1951) Journal of Planning Law, p.377), cited with approval by the Supreme Court in Ex parte Tooth & Co. Pty. Ltd.; Re Parramatta City C. (Citation omitted).
In Humby v Woollahra Municipal Council (1964) 10 LGRA 56 at 65 Else-Mitchell J referred with approval to those remarks and explained the concept of amenity as it applied to a coastal area:
The concept of amenity in town planning is wide and flexible; it is not confined to negative factors of freedom from disagreeable conditions but extends to the preservation of existing features which make a locality pleasant (Tracey v Waverley M.C.); and when coupled with likely future amenity must be taken to include the orderly development of the locality so as to reduce those conditions which are disagreeable and to increase those which are pleasant. Most harbour and river foreshores in the residential parts of the County of Cumberland possess amenities which only the waters of harbour or river can provide. Some of these may be said to have an active quality because they facilitate pursuits such as sailing, boating, and, in safe waters, swimming – whilst others may be said to be of a passive nature because they stem from the aesthetic enjoyment or agreeable character of water front features, natural or artificial. (Citations omitted).
In the case of residential development on a coast, the word "amenity" will include the enjoyment of such pleasant factors as coastal views and sea breezes.
Provisions which refer to the preservation or protection of the amenity of the neighbourhood (or locality) will, as a general rule, be sufficient to require a planning authority to have regard to views enjoyed by residents which might be obstructed by the proposed development.
Public and Private Aspect of Amenity
It is apparent from the passages just quoted that “amenity” has both a public and a private aspect. Thus, Sugerman J referred in Tracey v Waverley Municipal Council to “such characteristics of a neighbourhood as make it pleasing in appearance as well to the passer by as to the resident”. Similarly, when Else-Mitchell J referred in Humby v Woollahra Municipal Council to the active quality of amenity as well as its passive nature, he impliedly referred to both the public and private aspects of amenity. The public aspects are those aspects which may be enjoyed by any member of the public who resorts to the area as well as those who reside within it. The private aspects refer to those aspects of an amenity enjoyed by those residing in the neighbourhood.
Statutory Definition of “Amenity”
Since the enactment of the Planning and Development Act 1966, planning legislation in this State has adopted a definition of “amenity” which is consistent with that expressed in the decisions mentioned above. The definition of the Planning and Development Act 1966 was in these terms:
“amenity”, in relation to an area, a planning area or a locality, includes such quality or condition in the area, planning area or locality as contributes to its pleasantness and harmony and to its better enjoyment.
Section 4 of the Planning Act1982 also defined “amenity”:
amenity of a locality includes any quality or condition of the locality that conduces to its harmony, pleasantness or enjoyment.
Section 4 of the Development Act1993 expresses the definition of “amenity” in very similar terms, namely,
amenity of a locality or building means any quality, condition or factor that makes, or contributes to making, the locality or building harmonious, pleasant or enjoyable.
This definition applies when the term “amenity” is used in a development plan: s 5(1) of the Development Act. Most, if not all, development plans made under the Development Act have provisions which refer to and in many cases seek to protect amenity. When those provisions are relevant, it is necessary to examine the provisions and the context in which they appear to determine whether they relate to an amenity enjoyed by the public or by private individuals or by both.
In some instances, development plans have provisions to the effect that a proposed development should preserve the character and amenity of a locality. Given that “amenity” refers, among other things, to views, a planning authority, when assessing a development application to erect a building which will obstruct views enjoyed by those existing in the locality, must have regard to the interests of those whose views will be obstructed by the proposed development.
For these reasons, when a proposed development will obstruct views of those living in buildings in a neighbourhood or locality, the relevant planning authority must consider whether there is any provision in the Development Plan which protects those views and have regard to that fact.
The Development Plan and Views
The Council’s Development Plan contains a number of provisions which deal with the question of views or, as they are called in some of the provisions, vistas. A review of those provisions shows that they fall into three groups, those which deal with views available to the public, those which deal with views capable of being enjoyed by both members of the public and from private property, and those which deal with views from private property.
One obvious example of the provisions which deal with views available to the public is Objective 10 which is in these terms:
A development that recognises significant views and vistas of the coast and Southern Mount Lofty Ranges…with appropriate advertising signage, street furniture, underground wiring and well designed buildings.
That Objective is intended, among other things, to ensure that development does not impair views of the coast and the southern Mount Lofty Ranges which are generally available in the Council area.
Objective 33 which appears under the heading “Residential Development” in the statement of provisions which operate throughout the Council area is an example of an objective with both a public and a private aspect. It is in these terms:
Preservation of existing attractive environmental conditions in stable, well established areas where change is not warranted to protect the amenity enjoyed by existing residents and other users of land.
Its public aspect is apparent in its reference to “other users of land”, an expression which is wide enough to include all who resort to the area for any purpose. The reference to “the amenity enjoyed by existing residents” is a reference to both the public and private aspect of amenity. Existing residents will enjoy the amenity as they move about the locality and will enjoy it privately in their occupation and enjoyment of their respective dwellings.
Principle 56 which also appears under the heading “Residential Development” in the provisions which operate throughout the Council area is an example of a private aspect of amenity. It provides:
Dwellings should be sited to gain maximum advantage of views.
The principle refers to the ability to construct a dwelling so as to obtain the best view possible from within that dwelling. It is a principle which by its terms can only apply to the occupants of that dwelling and thus has a private aspect.
A number of provisions in the Development Plan are relevant to this application. They are Objective 33 and Principle 56 to which reference has already been made. Two other relevant provisions are Principles 2 and 4 of the Principles of Development Control which operate throughout the council area. They are in these terms:
2Urban development should create a safe, convenient and pleasant environment in which to live.
4      Development should take place in a manner which:
(a)     will not interfere with the effective and proper use of any land; and
(b)     will have a proper relationship with any continuing use of land or building on the site of that development.
Those Principles expressly require regard to be had to existing development and require a proposed development not to interfere with the effective and proper use of any land. That last requirement is relevant when considering any development which might obstruct the views enjoyed from an existing development. That conclusion is reinforced by Principle 56 which has already been noted. Existing dwellings will have been constructed in reliance upon Principle 56 and will have been built so as to gain the best available views. Equally, a proposed development will seek to rely on Principle 56. Plainly, it is necessary to maintain a fair balance between the interest of those who have built in reliance on Principle 56 and those who intend to rely on it. Where the proposed dwelling is to be constructed between an existing building with views of the coast and the coast itself, the proposed building will enjoy views of the coast in any event. The development proposed in the present case is a good example. It will have an unobstructed view of a coast.

Another relevant principle is Principle 49 which expressly requires that the proposed development not impair the amenity of the locality. It states:
Development in a residential zone should not impair its character or the amenity of the locality as a place in which to live.
The expression “the amenity of the locality as a place in which to live” refers, among other things, to an amenity enjoyed from one’s dwelling. It therefore includes the enjoyment of views from a private dwelling. It requires that a new development should not impair views enjoyed by those residing in existing dwellings.
The topic of views is also dealt with by Objective 83 and 84 and the comment which follows them. For present purposes, the relevant provisions state:
Objective 83: Design of quality in respect of the appearance of development so that:
(a)the amenity of localities is not impaired by the appearance of land, buildings and objects; and
(b)landscapes of aesthetic merit, including sites an localities of natural beauty, are conserved.
Objective 84: Land and buildings maintained free of vermin, weeds and unwarranted accumulation of materials.
The city should be an attractive and pleasant place in which to live, as well as being healthy and convenient. If the city dweller is to enjoy looking at his surroundings, attention must be given to the aesthetic qualities of both natural and man-made features. The design of individual buildings should be of high standard and related to adjacent buildings.
Both objectives are concerned with the amenity of the locality. They are directed to the locality in which the development is proposed. They speak of preservation of the amenity of the locality. Their concern is that the amenity is not impaired by a proposed development. The objectives have both a public and a private aspect, which is clearly expressed in the first paragraph of the commentary. The public aspect lies in the fact that it refers to the amenity of the locality. In the first paragraph that is spelled out by the statement that the city (that is to say, the Council area) should be “an attractive and pleasant place on which to live”. Its private aspect is expressed in the second sentence of the first paragraph which refers to the desirability that “the city dweller is to enjoy looking at his surroundings.” Enjoyment of looking at one’s surroundings involves both looking at surroundings from one’s dwelling as well as when moving about the locality.
Principle 154 is another provision which operates in all zones. It also has a public and a private character. It is in these terms:
154Development within urban areas should maintain or improve the amenity of the locality by:
(a)     preserving important views;
(b)     not overshadowing the foreshore;
(c)     incorporating and maintaining suitable landscaping; and
(d)     enhancing or maintaining the recreational and open space character of the foreshore.
Given its context, the reference to views is to coastal views. That is confirmed by the fact that it appears in the Development Plan under the heading “preservation of scenic amenity and other values” and because it is in that section of the Development Plan dealing with coastal areas. The term “views” in this principle refer both to views enjoyed by the public who resort to the area as well as to private views enjoyed by residents in their dwellings. That is because the object is to maintain and improve the amenity of the locality. Important views are enjoyed both publicly and privately.
There are, therefore, a number of provisions in this Development Plan which seek to protect views. Those views are not limited to views in the public domain. Some of those provisions refer to both the public and private aspect of the views and others refer only to the private aspect of the views.
I list the provisions in the Council’s Development Plan intended to protect views enjoyed from existing dwellings. They include Principle 56 which encourages the siting of dwellings to obtain the best view. It is pointless to do so if the Plan permits the construction of a new building to obstruct those views. Objective 33 and Principle 49 are perhaps the clearest expressions of an intent to protect views enjoyed from existing dwellings. Both are expressly concerned with protecting the amenity enjoyed by existing residents. The enjoyment of views are but one aspect, indeed a very important aspect, of amenity in a coastal area. That protection is reinforced by Principle 154 which directly protects views as well as by Principles 2 and 4 which require that new development not interfere with the effective and proper use of land and should create a pleasant environment in which to leave. Objective 83 further reinforces that position.
In reaching this conclusion, I do not overlook Objective 34 which provides:
Realisation of the maximum development potential of individual sites consistent with the other objectives, and the objectives for the applicable zones.
The objective is but one of a number of provisions in the Development Plan. As expressly stated in the objective, it must be read bearing in mind all other relevant provisions in the Development Plan. The objective does not assist the respondents. It cannot prevail over other provisions in the Development Plan, not only because of the terms in which the objective is expressed, but also because, if it did, it would negate the force of the Development Plan. The objective only serves to reinforce the conclusion that the question whether development consent should be granted requires regard to be had to all of the terms of the Development Plan.
The Development Plan which applies in each local governing area is a fundamental document in the administration of town planning and the regulation and control of building development in that area. It is a public document made by authority delegated to the Minister under the Development Act and is to that extent a statutory instrument. It is not, however, delegated legislation. It is a document expressing planning policy for the local governing area couched in the language of desired objectives and principles rather than legal obligation: Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 454; Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187. Nevertheless, it is the planning control which operates in each local government area. As Wells J said in Hassen v District Council of Murray Bridge at 454, it is “in the front line” of planning control. Whereas the cardinal planning control under the Planning Development Act 1966 was the planning regulations, the Development Plan now occupies that cardinal place. The Development Plan contains the objectives and principles that guide a planning authority when considering whether to grant or refuse development consent. The Development Act by s 33 requires effect to be given to it. The common law freedom of an owner to build on his land is now subject to the provisions of the Development Act and the objectives and principles embodied in the Development Plan. Once the intent of the Development Plan has been determined, effect should be given to it. It is for that reason that the force and effect must be given to those provisions of the Development Plan which protect views.
The Residential D Zone and Views
The provisions of the Development Plan relating to the Residential D Zone do not contain any provision expressly protecting views. However, as the introduction to that zone states, the provisions expressed in the plan for that zone “must be read in conjunction with the relevant objectives and principles of development control for the whole council area”. As just noted, the Development Plan contains relevant objectives and principles relating to protection of views.
Both Objective 1 and Principle 1 of the principles of development control for the Residential D Zone expressly provide that development in the zone should be primarily residential. The stated intention is that development should be, primarily, detached and semi-detached dwellings, row dwellings, group dwellings and residential flat dwellings with a limited range of residential tourist accommodation facilities. It is common ground in this appeal that the take-away food outlet is an appropriate form of development. The issue concerns only the fact that the proposed building is three storeys high and so obstructs the views from the appellants' dwellings which are behind it.
Principles 5 and 12 deal in different ways with the size of a residential building. They are in these terms:
5All forms of one, two and three-storey residential accommodation are appropriate in the zone subject to compliance with the relevant principles of development control.
12Development should not exceed three-storeys in height (the vertical wall height at any point, excluding gables, should not exceed 10.5 metres above natural ground level) except in the case of the following localities which are able to take advantage of the steeply sloping land within the zone:
(a) north of Wheatland Street, where development may not exceed four storeys in height…
Principle 5 contains an important qualification. While it states that buildings up to three storeys high are appropriate, that statement is subject to the building complying with the relevant principles of development control. The relevant principles of development control include those principles which seek to protect views, namely, Objectives 3 and 33 and Principles 2, 4, 49 and 56.
The building the subject of this appeal is in the locality north of Wheatland Street. Although Principle 12 is not stated to be subject to any relevant principles of development control, it is a necessary consequence of the terms of the Development Plan that it is subject to those principles. That is not only a consequence of the council-wide provisions but is more directly a consequence of the terms of Principle 5.
For these reasons, Principle 5 and Principle 12 in the Residential D Zone must be read as being subject to those objectives and principles of development control whose purpose is to protect views enjoyed by residents in existing dwellings. Thus, when determining whether a proposed development should be permitted, regard should be had to the question whether it obstructs views enjoyed by residents of existing dwellings.
In reaching this conclusion, I do not overlook the fact that, unlike some other residential zones in the Council area, the provisions of the Residential D Zone do not expressly protect views. For example Principle 8 of the Principles of Development Control for the Residential (Foreshore) Zone states:
Development should not unduly restrict views of the sea or the waterfront from the front of any existing building on adjoining land abutting South Esplanade, Adelphi Terrace or Patawalonga frontage
The fact that such a provision exists in certain residential zones does not mean that the absence of such a provision in the Residential D Zone has the consequence that views are not protected in the Residential D Zone. They are protected by the council-wide provisions as well as by the terms of Principle 5 of the Principles of Development Control for the Residential D Zone. To contend otherwise is to argue that an express reference to one matter is an indication that another matter is to be excluded, a principle expressed in the maxim expressio unius est exclusio alterius. That maxim must be applied with caution even when interpreting a statute: Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; Wentworth v NSW Bar Association (1992) 176 CLR 239 at 250. In the latter decision the High Court said:
It has often been said that the expressio unius maxim is one that should be applied with caution. It can only be applied if "the intention it expresses is discoverable upon the face of the instrument". And to the extent that the maxim is concerned with the drawing of an inference (specifically, a negative inference), it can only be applied if the inference is not inconsistent with other provisions of the Act and is otherwise permitted by the ordinary rules of construction. (Citations omitted)
The statement of that principle, especially as expressed in the last sentence, negates the application of the maxim to the construction of the Development Plan. The intent of the Development Plan must be gleaned from all examination of all relevant provisions. A single provision standing alone rarely controls the intent of the whole Plan. Its intention is to be gathered from all the relevant provisions: City of Mitcham v Freckmann (1999) 74 SASR 56 at [18] to [21].
The reason why some provisions expressly protect views and others do not can be explained by the fact that this Development Plan is a merged plan which incorporates elements of the Development Plan for the City of Brighton and elements of the Development Plan for the City of Glenelg, before those two Councils merged. However, I do not rely on the fact of that merger.
For these reasons the Commissioner erred when he held that there was no protection of private coastal views in this Residential D Zone. He said:
30I note that Council Wide Objectives 3 and 10 and Principle 154 were introduced to the Development Plan as part of a Coastal Areas Plan Amendment Report prepared by the Minister. In that context, it seems clear that the views and vistas of the coast referred to therein are those obtained from the public domain, rather than from private property. Taken together, the entire thrust of the Coastal Area provisions is the protection of the ecology and appearance of coastal areas, both for reason of environmental protection and for the enhancement of public enjoyment of such areas. Inasmuch as the Council has not sought to incorporate protection of views into those parts of the Development Plan which speak directly to residential development in coastal (and other) areas, it is drawing a long bow indeed to suggest that the Coastal Area provisions of the Plan have introduced protection of private coastal views.
31I am reinforced in that view by the fact that it would have been relatively simple for the Council to have arranged building height limits in areas adjacent to the coast to achieve some de facto protection of views for occupants of properties not enjoying a direct coastal frontage. In allowing development of up to three-storeys along the esplanade, the Council could hardly fail to be aware that significant impairment of views from properties further to the east inevitably would result from realisation of the development potential thereby created.
The Commissioner then held that the proposal satisfied the provisions of the Development Plan relating to form and design and affirmed the Council’s decision granting development consent. For the reasons expressed above, the Commissioner has erred in holding that the Council’s Development Plan does not protect private coastal views. The Development Plan clearly provides a means to protect private coastal views. It may be true that Objectives 3 and 10 are intended to preserve views gained by the public. However, Principle 154 has both a public and a private aspect, a fact which the Commissioner has overlooked. In particular, the Commissioner has failed to have regard to other provisions which clearly protect views from private dwellings. The reasoning in paragraph 31 fails to have regard to the qualification in Principle 5 which requires development to comply with relevant principles of development control. The Commissioner has, therefore, failed to apprehend the true intent of the Development Plan.
The Commissioner has erred in another respect. In his reasons at paragraph 26, the Commissioner said:
26Where the Development Plan allows for development to a height greater than that presently prevailing in a locality, the mere fact of a difference in height cannot, in my view, be used as a basis to reject a proposal which satisfies the relevant provisions of the Development Plan. As I commented in my decision in Alan Sheppard Homes Pty Ltd v City of Burnside and Ors ERDC No. 249 of 1996, at 21:
Clearly, when the zoning of a locality contemplates forms of development additional to those already existing in that locality, the inevitability of some change to the appearance of that locality has to be recognised. Those provisions of the Development Plan which seek to ensure that new development harmonises with the prevailing character of that locality cannot, in my view, be interpreted so narrowly as to obviate any change.
In that passage, and in particular in the quotation from the decision of Alan Sheppard Homes, the Commissioner has overstated the effect of the Development Plan. Where a Development Plan provides (as it does in this Residential D Zone) that development may be appropriate to a particular height, that does not have the necessary consequence that a proposal to construct a building to that height is to be permitted. The difference in height is but one of the factors to be considered when determining whether to grant development consent. If the proposed building is so high that it is detrimental to the character and amenity of the area, it might well be refused. On the other hand the height of the building may not be detrimental to the character and amenity of the locality and that may be a factor which points to the conclusion that the development consent should be granted. Difference in height is not, standing alone, a basis to reject a proposal. It must be weighed with all relevant factors. However, the extract from Alan Sheppard Homes suggests that the Commissioner is proceeding on the footing that the fact that the zoning contemplates forms of development other than those currently in existence necessarily means that change is inevitable. That is to overstate the effect of the Development Plan. Whether that is to be the consequence will depend on the terms of the Development Plan, the nature of the proposal, and the effect of the proposal upon the relevant neighbourhood and locality. Each proposed development must be considered against the provisions of the Development Plan: see s 33(1)(a) of the Development Act. While a change in the character of the locality might be appropriate on one site, it will not necessarily be appropriate on another. That consideration is emphasised by the terms of Objective 33, quoted above. It expressly states that there will be areas where change is not warranted. The fact that a new development might not harmonise with the prevailing character and amenity of the locality might in appropriate cases be a reason for refusing development consent. The Commissioner’s reasons imply a presumption in favour of the proposal and that is an incorrect approach: City of Mitcham v Freckmann at [16].
A View Should be Protected
As the Commissioner has erred in determining an issue so fundamental to the question whether development consent should be granted, the appeal must be allowed. The question then arises whether the development consent should be remitted to the Environment Court for hearing and determination in the light of these reasons. This Court does not decide issues of planning principle. As a general rule, once it has corrected an error of law, it will remit the matter to the Environment Court for hearing and determination in accordance with its reasons. However, in this case the issue is so clear and depends so directly on the terms of the Development Plan protecting views that it is appropriate for the Court to determine the question.
As they look directly west between the Seacliff Hotel and the three storey residential flat building to the north of the proposed development, the appellants enjoy a view of the coast. They have a clear view of the sea and the horizon. The view is available from the upper level at the front of their dwellings. It is a notorious fact that coastal and sea views are highly regarded and are in keen demand. The proposed development will affect the view that the appellants now enjoy. If the proposed building is erected, they will have nothing but the barest glimpse of the sea and the horizon on either side of the proposed building. Instead of a pleasant view, they will look directly at the rear walls and roof of the proposed building. To all intents and purposes, they will lose their view to the west. It will be an extreme loss of the view they currently enjoy.

The proposed development complies with the Development Plan in that the Plan states that three storey residential accommodation is appropriate in this zone. However, it is appropriate only if it also complies with relevant principles of development control. Notwithstanding that the proposed building is of a height which may be permitted in an appropriate part of the Residential D Zone and notwithstanding the fact that in other respects it complies with the Development Plan, the proposal effectively obliterates the appellants’ view. It does not, therefore, comply with all relevant principles of development control. It offends the principles relating to views to such an extent that development consent must be refused. In addition, it does not preserve the existing land form contrary to Principle 19. Conformity with Principle 19 can be effected by reducing the height of the proposed building to two storeys. That will give the appearance of buildings being stepped down the slope. The existing buildings on either side of the proposal are likely to remain for the foreseeable future. The height of the roof of the three storey flats is to all intents and purposes the same as the height of the roof of the Seacliff Hotel. The height of the roof of the proposal is noticeably higher than both. The proposal is such a complete obliteration of the views enjoyed by the appellants and so adversely affects their amenity that it is entirely inconsistent with those provisions of the Development Plan which protect views. No one has a monopoly upon views. At the same time, that does not entitle the proponents of a new building to obstruct the views currently enjoyed by others especially where, as here, it is possible to construct a new building at a level which will permit those behind to continue to enjoy the views at present available to them. Development consent should not, therefore, be permitted.
For these reasons, the appeal will be allowed. The decision of the Environment Court will be set aside. There will also be an order setting aside the decision of the Council made on the 16 August 2005 granting development consent and in lieu thereof there will be an order refusing development consent.