Protection of views is debated by assessment panels regularly. It is rare for coastal development to occur without a representor voicing concern about loss of views.
In the matter of Hutchens v Holdfast Bay & Anor [2007] SASC 238, the Supreme Court made the following observations in relation to the protection of views:
…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 story [sic] 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 … 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. (underlining added)
This approach was applied in the recent decision by the ERD Court in the matter of Rennie v City of Charles Sturt & Anor: Forsyth v City of Charles Sturt and Anor.
The proposal was for a single-storey detached dwelling and garage on the Esplanade to the north of Henley Square. The neighbours used their third-party rights of appeal against approval of the application by Council. The neighbours were aggrieved by the loss of views towards the coast and of the Henley Jetty brought about by the proposed development.
The Commissioner found in favour of the proposed development, stating that:
- … the moderately low profile, well-articulated, single-storey dwelling whose main face is setback some 1.9m further than the default 5m setback value prescribed in this policy area is comfortably in conformity with the pertinent policy provisions…
- … a number of the relevant Plan provisions in this matter… seek to maintain the resident amenity or minimise impacts upon its valued features. This does not amount to protection of all existing views but views and other features of the amenity must not be unreasonably impacted.
- … the loss is of some peripheral views across neighbouring view corridors interrupted by an inherently suitable, single-storey, detached dwelling appropriately setback and designed in accord with the express terms of PA 17…
- … the interests of those whose views will be impeded in part, rather than blocked, by the proposal, do not outweigh the very substantial conformity of the proposal with the Development Plan. The loss of some peripheral views in the context of the retained views and general open westerly aspect retained at the affected sites is not so significant as to warrant a refusal…
Another useful ruling for those challenged by the consideration of new development and views impact.
