When Protecting a View, Be Clear About What You Are Looking At

Some Development Plans include provisions that seek to protect specific views.  But they are not always as clear as they could be about what constitutes the views being protected.

We have recently been involved in an ERD Court hearing where the primary focus was whether a proposed development in North Adelaide would have an unreasonable impact on views of the City from other properties in North Adelaide.

Unlike views of the ocean or a mountain range, the City is ever changing with new and taller developments occurring.  Views of the City also extend into the night as buildings and streets are lit up and unlit areas in the foreground and background disappear into darkness.

There was also much debate in this case regarding what constituted “the City” given that the Development Plan referred to the City in several ways, including as the entire Council Area or parts thereof interchangeably throughout.  The ERD Court found that:

“…based on the various ways the term ‘City’ is applied in this (Development) Plan, a legitimate argument can be made for any of the possible interpretations aired by the expert witnesses… we consider ‘City’ to include, at least, the whole of the Adelaide square mile within the terraces, as well as the various public, institutional and private buildings lining the northern side of North Terrace….(and) notable structures in the park lands and at lower North Adelaide…(including) Women’s and Children’s Hospital…”.

The ERD Court’s interpretation of what constituted “the City” for the purposes of the relevant provisions speaking to the protection of views meant that the impact on views resulting from the proposed development was proportionally less than it otherwise might have been on a narrower construction.

This decision emphasises the importance of clearly expressing policy intent in Development Plans.  Repetition of words and phrases in different parts of the Development Plan does not necessarily give greater weight to key planning issues.  If a view is to be protected, Development Plan provisions should be as specific as possible about what constitutes that view and the desirable extent to which it is to be protected.

The ramifications for the Planning & Design Code are significant. Our input into early drafting of the Code has been informed by the mantra “say it once, say it clearly”.  Given the ambitions of the Code to be consistent and clear, this will be more important than ever.