CITY OF MITCHAM v FRECKMAN & ORS No. SCGRG-98-1399 Judgment No. S234 [1999] SASC 234

DUGGAN J. I agree with the orders proposed by Debelle J. I also agree with the reasons which have led him to the conclusion that the appeal should be allowed.

DEBELLE J. Colonel Light Gardens is a suburb which is significant in the history of town planning in this State. It was planned along garden city lines by Charles Reade, South Australia's first Government town planner. The suburb is within the area of the City of Mitcham ("the Council").

The issues in this appeal arise out of the question whether the respondent Mr Freckmann should be permitted to park a large furniture removal truck on his residential property which lies within this zone. The Council refused Mr Freckmann's application for development consent. Mr Freckmann appealed to the ERD Court which allowed the appeal. The Council now appeals to this Court.

Mr Freckmann owns a residential property at 7 Rochester Avenue, Colonel Light Gardens. He resides in the house with his wife. He conducts a furniture removal business from his house. His wife provides secretarial assistance. He employs another person on a casual basis. That person does not reside in the house. The parking of the truck required development consent. Item 5 of Sch 3 of the Development Regulations 1993 sets out activities or uses of land which do not constitute a development of land.

"The use of land and the use of any lawfully-erected building which is ordinarily regarded as (and is in fact) reasonably incidental to any particular use of the land and the building, or the land or the building, and which is for the substantial benefit of the person or persons who, in any capacity, are making use of the land and the building, or the land or the building, including, without limiting the generality of the foregoing, the following uses of land and buildings:

(d) the parking of any vehicle not exceeding 3000kg in weight (including the weight of any attached trailer) on land used for residential purposes."

As the truck exceeds 3000kg in weight and does not represent a use ordinarily regarded as incidental to the residential use of land, the proposed use represents a change in the present residential use of the land and hence a development for which consent is required. The parking of this truck in the manner proposed is neither a complying nor a non-complying use of land in this zone. The land can be used to park the truck only if the Council (or the ERD Court on appeal) should decide to grant development consent.

Freckmann had, therefore, been parking his truck on his property without consent. On 11 February 1998 the Council had issued a notice pursuant to s84 of the Development Act 1993 alleging that Freckmann had acted in breach of the Development Act in that he was using his land to park his truck and had not obtained a development consent pursuant to the Act. He was required to cease parking the truck. Freckmann responded to the notice in two ways. He appealed to the ERD Court against the Council's enforcement notice. The operation of the notice was suspended pending the hearing of the appeal. He also applied to the Council for development consent to park a 4.95 tonne truck within the driveway of his property. The Council refused to grant consent. Freckmann appealed to the ERD Court against the Council's decision.

Freckmann's appeal against the enforcement notice and his appeal from the Council's decision refusing development consent were heard together by the ERD Court. The court granted development consent subject to the following conditions:

"The truck shall be parked only in a position adjacent to the western wall of the dwelling as shown generally in Exhibit R4, so that: 1. it may be driven onto Rochester Avenue in a forward direction; and 2. no portion of the truck, when parked, shall extend south of the alignment of the rear of the front verandah of the dwelling."

Having made that decision, the ERD Court quashed the enforcement notice pursuant to s84 of the Development Act. The Council now appeals to this Court against both decisions. The issues in this appeal concern the question whether the ERD Court was correct in granting development consent. No issues arise on the enforcement notice. The enforcement notice will only be enforced if the ERD Court erred in its decision to grant development consent.

The Council called its town planner, Ms McConnell, and Dr Garnaut, a research associate at the University of South Australia. Evidence was also given by Mr Freckmann. The ERD Court inspected the subject land and its locality. The ERD Court had made orders joining the Colonel Light Gardens Resident Association Inc and the Colonel Light Gardens Historical Society Inc as parties to the appeal. They did not call evidence but made submissions to the ERD Court. Those parties are respondents to this appeal. They did not appear on the appeal. The protagonists on the appeal were the Council and Mr Freckmann.

The subject land is almost triangular in shape. It has a frontage to Rochester Avenue on its southern side and that is its main street frontage. On the east is an adjoining house property. There is a public lane to the west of the land. On the western side of the lane is a small shopping complex comprising a chemist, an automatic teller machine and a small supermarket and car parking area. The ERD Court called that "the neighbourhood centre area". The neighbourhood centre area has a frontage to Goodwood Road which is a major arterial road.

The land to the north, east and south of the subject land is developed as a residential suburb of low density comprising bungalow-style dwellings on relatively large allotments. The dwellings are, in the main, well maintained.

Mr Freckmann applied to park the truck on the western side of his land, that is to say, between his house and the lane. The truck will gain access to the land from Rochester Avenue. The truck is 7.62 metres long, 2.4 metres wide and 3.65 metres high. It is proposed that it will be parked on the driveway between 6.30pm and 8.30am on Mondays to Fridays and all day on Saturdays and Sundays. Occasionally it will be parked on the property outside those hours.

There are five objectives for this zone of which Objectives 1 and 2 are particularly relevant. They are expressed in these terms:

"Objective 1: A zone primarily accommodating detached dwellings at low densities on individual allotments where the "garden suburb" character, street layout and heritage is preserved.

Objective 2: A zone with a consistent residential building character, comprising detached, single-storey bungalow-style dwellings, and with wide tree-lined streets and developed parks preserved."

Those objectives are reinforced by principles of development control. The relevant principles are in these terms:

"Principle 1: Development undertaken in the Colonel Light Gardens Suburb Zone should primarily be for single-storey, detached dwellings on individual allotments.

Principle 2: Alterations and additions to dwellings should enhance and harmonize with the established residential building character within the zone and be compatible with the design, materials, finishes and colours of the building being altered.

Principle 3: New dwellings should be of a style which is compatible with and complements existing bungalows.

Principle 4: Non-residential development should complement the heritage character of the Zone. With the exception of development on Mortlock Park, development should cater for the needs of the local community.

Principle 5: Commercial and retail developments should be restricted to the Colonel Light Gardens Areas shown on Maps Mit/3 to 23.

Principle 6: New developments, and alterations and additions to existing developments should be compatible with the design, form, siting and materials of the existing buildings and the visual character of the Zone."

It is necessary also to note Principle 11 which lists developments which are characterised as non-complying in this zone. The parking of a truck is not listed as a non-complying development.

In deciding to allow Mr Freckmann's appeal and to grant development consent, the ERD Court first found that it was a significant fact that the proposed use was not listed as a non-complying development. It then determined that the proposal did not materially conflict with the Development Plan. It expressed itself in these terms:

"Zone Principle 11, which designates those forms of development which are non-complying in the Colonel Light Gardens Suburb Zone, is extremely restrictive. It lists not only those forms of commercial and industrial activity which are typically excluded from residential zones in metropolitan Adelaide, but also all forms of residential development other than a detached dwelling and group dwellings. Significantly, however, it does not include the parking of a vehicle in excess of 3000kg in weight. That being the case, it follows that, at least in some parts of the Colonel Light Gardens Suburb Zone, the parking of such a vehicle in association with a residential use of land may be acceptable. Whether it is acceptable in any particular instance will depend on the nature of the locality and the particular characteristics of the land on which it is proposed to park the vehicle, and whether it might be in conflict with other relevant provisions of the Development Plan. We accept the evidence of Dr Garnaut as to the special qualities which inhere in Charles Reade's design for Colonel Light Gardens. We also agree with the position stated by Judge Roder in his decision in Isaacson, that: 'changes which involve alterations to the basic roots of the concept behind the zone should perhaps only be undertaken with extreme caution so that what is already there and which has a lasting value is not in a position to be nor is in fact undermined.' Will the subject proposal involve 'alterations to the basic roots of the concepts behind the zone?' It is important to note that this statement was made in Isaacson in the context of a proposed division of one of the allotments forming part of the original Reade subdivision layout. In this instance that layout will be unaffected, as will the space around buildings that is also a key feature of Reade's plan. We acknowledge that the vehicle which the appellant wishes to park on his land is larger than vehicles typically associated with the residential use of land, although we note that it is by no means uncommon for other large vehicles, such as caravans, mobile homes, and boats on trailers, to be parked on residential land. The fact that the appellant's truck has a manifestly commercial function, in contrast to the recreational function associated with caravans or boats, does not alter the fact that the parking of any large vehicle on residential land affects, to some degree, the appearance of that land. Inasmuch as it is necessary to obtain planning consent for the parking of any vehicle weighing more than 3000kg on residential land, the question to be resolved then becomes whether the effects on the locality of the parking of the truck on the land is such as to conflict, to a material degree with the relevant provisions of the Development Plan."

This approach is flawed in a number of respects. Shortly stated, the reasoning proceeds on the footing of a presumption in favour of the proposed development so that it should be approved in the absence of any material conflict with the Development Plan. That is not a proper approach. In addition, there are other respects in which the ERD Court has erred in its consideration and they are noted in the following paragraphs.

The ERD Court begins by attaching significance to the fact that Principle 11 does not include the parking of a vehicle with a weight in excess of 3000Kgs and by concluding that it follows that at least in some parts of the Colonel Light Gardens Suburb Zone the parking of such a vehicle may be acceptable. There are at least three reasons why that approach is impermissible. First, it is a non sequitur to conclude that the absence of a form of development from the list of non-complying developments for a zone means that there are parts of the zone where such a use may be permitted. Dairies are not listed as a kind of non-complying development in this zone. Plainly, it does not follow that there are parts of the zone where a dairy would be a suitable form of development.

Secondly, the ERD Court has failed to give proper weight to Item 5 of Schedule 3 of the Development Regulations which has been quoted above. Among other things, Item 5 allows as a reasonably incidental use of residential land the parking of a vehicle with a weight not exceeding 3000Kgs. Item 5 does not create a presumption that residential land can not be used for parking vehicles in excess of 3000Kgs. It simply means that it is necessary to obtain development consent which might be granted or refused. Item 5, when considered with Principle 11, demonstrates that it is not possible to draw from Principle 11 any presumption in favour of vehicles with a weight in excess of 3000Kgs.

Thirdly, the ERD Court has created a presumption in favour of this use of land in inadmissible ways. It has been stated on a number of occasions that approach to be adopted by planning authorities when considering whether to grant or refuse planning consent is to consider all relevant issues without making any presumption for or against the proposed use. In other words, there is no onus which must be discharged by any party. That has been spelled out on more than one occasion by this court. In Hickinbotham Blue Gum Pty Ltd v Corporation of the City of Campbelltown (1981) 29 SASR 93 at 104 Jacobs J said:

"...the author of the Regulations has been able to designate that, within a particular zone, some uses are clearly permitted and some are clearly prohibited. In between, there is a whole range of uses which are thought not to be capable of such clear-cut demarcation. It is, therefore, left to the appropriate planning authority to determine in each particular case whether such use will, or will not, be permitted. That calls upon the planning authority to examine each application upon its merits, and to apply the relevant planning criteria in the exercise of its judgment and discretion. In that context, to say that the applicant cannot go ahead unless he gets consent is to say no more than that he can go ahead if he does get consent, and the form of words chosen by the draftsman is a mere matter of drafting preference. To hold otherwise, and to place some prima facie prohibition upon a consent use, is likely to deflect the planning authority from its duty to examine each application upon its merits, and from a neutral base."

To like effect are the observations of King CJ in Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321 at 325:

"Uses requiring consent are permitted if consent is given and prohibited if it is not. They are not to be looked upon as "primarily prohibited" any more than as "primarily permitted". It is an error, in my opinion, to approach the question whether consent should be given upon the basis that there is a presumption against the consent use. An application for consent should be considered, without the burden of any presumption either way, having regard to all relevant matters and in the light of the specific planning criteria indicated in s27(6) of the Act."

Although those observations concerned the provisions of the Planning & Development Act 1966-1967 and the Planning Regulations made thereunder, the same approach applies to applications made under the Development Act 1993.

This flaw in the reasoning of the ERD Court impairs its later reasoning. Having created a presumption in favour of the development, the court then identifies the question for it to determine as being:

"whether the effects on the locality of the parking of the truck on the land is such as to conflict, to a material degree, with the relevant provisions of the Development Plan."

That is not the correct question. The ERD Court has inverted the question by assuming that the proposal to park the truck should be allowed unless it is possible to identify a relevant provision of the Development Plan with which the proposal would conflict to a material degree. As already mentioned, the ERD Court was wrong to make a presumption in favour of the proposal. It is also wrong to frame the question whether to grant or refuse development consent as one which requires a determination whether the proposal conflicts to a material degree with relevant provisions of the Development Plan. The question whether the proposal conflicts with provisions of the Development Plan is part of the process of determining whether development consent should be granted or refused. But, if it is not possible to identify an express provision with which the proposal conflicts, it does not necessarily follow that the proposed development should be permitted to proceed. There might be factors which are implicit in the Plan which require a planning judgment to be made to refuse consent. For the reasons which follow, the proper approach is to consider the application on its merits, weigh the benefits and detriments by reference to the Development Plan, and then make a judgment whether to grant or refuse development consent.

Section 33 of the Development Act 1993 states the task for a planning authority when determining whether to grant development consent to a change in the use of land. It is to assess the proposed development against the provisions of the appropriate Development Plan. That simple statement obscures the complexity of the task. It is first necessary for the planning authority to examine the proposal and determine its nature: see reg 16 of the Development Regulations 1993. Having done so, the planning authority must assess the proposal against the appropriate provisions of the Development Plan_._ That will require the authority to identify the provisions which are relevant to the particular proposal and to determine whether they speak for or against the proposed development. The relevant provisions will, of course, vary from proposal to proposal. The task does not consist only in identifying relevant provisions of the Development Plan as a kind of checklist against which the proposal must be assessed. That is one aspect of the task. But it is important also to distil from the relevant provisions of the Plan the overall intent and purpose and the desired character of the zone in which it is sought to place the proposed development, a task which is often assisted by reference to the stated objectives of the zone and the principles of development control. Given that it is manifestly impossible to make provision in the Development Plan for every kind of development, the ultimate criterion by which a proposal might have to be judged is whether it is conducive to the desired character and amenity of the zone. The less conducive it is, the less likely that it might merit planning approval. In addition, as was noted in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 388, there may be occasions when the planning authority must resolve inconsistencies within the Development Plan_._ Those inconsistencies will often be resolved by considering the desired character and amenity of the zone.

Once the relevant provisions of the Plan have been identified and the purpose and intent and desired character of the zone have been ascertained, the planning authority must proceed to assess the proposal by reference to those factors. The Development Act, like its predecessors the Planning & Development Act 1966-1967 and the Planning Act 1982, is a practical code calling for practical application. I respectfully adopt the remarks of Jacobs J in District Council of Munno Para v Remove-All Rubbish Co Pty Ltd (1985) 41 SASR 188 at 201:

"...where the Development Plan neither permits nor prohibits a particular development, the task of the planning authority is to 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. But to suppose that the "pros" and "cons" are in watertight compartments, or that they do not overlap, is to ignore the complexity of the subject matter and the competing elements which have to be weighed in deciding where the planning balance lies."

In cases such as this, where the proposed development is neither a complying or a non-complying development, that is to say, where the Plan neither permits nor prohibits the proposed development, the task of the planning authority is to weigh the benefits and detriments, in other words, to weigh "the pros and the cons" of the proposed development by reference to the Plan. Ultimately, the planning authority must make a judgment whether the proposal will be permitted. If it is to grant the application, it must be satisfied that there are sufficient reasons for that decision, reasons which are based on acceptable principles of planning and the relevant provisions of the Plan. That judgment will have regard to the factors mentioned above. Thus, a proposed development might be approved if it is conducive to the objectives and desired character of the zone in which it is to be sited. It will be relatively easy in some cases to decide that the proposal is quite compatible with the amenity of the locality. In other cases, that test will be more difficult. It will be a question of fact and degree in every case, after weighing all relevant considerations, whether the proposed development should be approved.

The extent to which regard will have to be had to the Plan will vary from application to application. In some cases it will be necessary to determine whether the proposal is seriously at variance with the Development Plan: see s35 of the Development Act. But the operation of that provision does not have to be considered here.

In earlier decisions, this court has described the ultimate judgment as an exercise of an unfettered discretion by the planning authority to grant or refuse consent to the proposed development. The nature of that discretion was described in these terms by Jacobs J in Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 173:

"To say that the authority's discretion remains "unfettered" does not mean that the authority, having looked at and considered the Plan, can simply put it to one side and ignore it. The discretion is unfettered only in the sense that there is nothing in the Plan which is mandatory or necessarily compulsive; ultimately every planning decision rests upon a planning judgment on the particular case. But the discretion, though unfettered in that sense, must nevertheless - in accordance with well-established principle - be exercised not at large, but within the ambit, scope and purpose of the Act which confers it."

Those observations concerned what is to all intents and purposes the same Development Plan as now exists. They apply with equal force to applications under the existing Development Plan. It is preferable to describe the exercise of this unfettered discretion as the exercise of a planning judgment within the ambit, scope and purpose of the Development Act, the Development Regulations and the Development Plan.

The Court has failed to act in accordance with the principles which have been mentioned. In addition, it did not give full weight to the objectives of the zone with its significance for town planning in this State. It is important to reiterate those objectives.

The provisions of the Colonel Light Gardens Suburb Zone emphasise its garden suburb character and the desirability of preserving and enhancing that character. In addition, there is a clearly expressed intention to preserve the heritage of the zone. That is clear from Objective 1 and from the Principles of Development Control, in particular Principles 1 to 6. Under the heading "Objectives" the Plan briefly notes the history of this suburb and its significance as a planned garden suburb. It describes its design and development and, under the heading "Amenity and aesthetics", states:

"Overhead utilities have been located in rear service lanes and, as a result, the curved and treelined streets and wide parkways have a pleasant and attractive, uncluttered appearance which is further enhanced by terminating vistas and bungalow housing set well back from street frontages."

"Colonel Light Gardens is, today, a pleasant living area with mature landscape and well kept bungalows. Its attributes have, in the main, stood the test of time although there are opportunities for rehabilitation improvement and further development, including "The Strand" street frontages, some local parks, and enhancement of terminal vistas."

Thus, the clearly stated objective for this zone is that the land within this zone should continue to remain a pleasant residential living area and that it is desirable to enhance that characteristic of the zone.

In order to preserve the heritage of the area, the Plan of the zone discourages development which is not conducive to the residential character and amenity of the zone. These characteristics of the zone were emphasised in the following terms by Judge Roder in Isaacson v City of Mitcham (unreported, Planning Appeal Tribunal, No 322 of 1991):

"However, the Colonel Light Gardens Suburb Zone is not simply such a residential zone. It is one which has a very considerable planning, historical and social significance. That significance is made up of many elements, one of which involves the size of allotments within the zone, their forms and the purposes behind their creation in the size forms [sic] in which they were created. As has been made clear the zone is not, of course, to be frozen in history. Its ability to be a place for living must not be stultified. However, changes which involve alterations to the basic roots of the concept behind the zone should perhaps only be undertaken with extreme caution so that what is already there and which has a lasting value is not in a position to be nor is in fact undermined."

Those observations were made in respect of a proposed division of land. They apply with equal force to proposed changes in the use of land. The ERD Court had regard to the remarks but, in the passage quoted in par 13 above, has noted that the layout and the space around Mr Freckmann's house will be unaffected. That conclusion serves to minimise the significance of the zone. The preservation of this historically significant residential zone turns on more than merely preserving the layout of and the space around buildings. It also requires regard to be had to preserving the pleasant attractive and uncluttered appearance of the zone and its residential buildings. The presence of this large furniture removal truck is not on its face designed to preserve those features of this zone. Further, the presence of such a large furniture truck bespeaks a commercial use of the land, a use which is wholly inconsistent with the purposes of this zone which by Principle 5 seeks to contain commercial development to identified areas. Although trucks less than 3000Kg in weight are permitted as an incidental use of residential land, trucks in excess of that weight are not.

The court then noted that, although the truck was larger than vehicles typically associated with the residential use of land, it is by no means uncommon for large vehicles such as caravans, mobile homes and boats on trailers to be parked on residential land. The fact that the truck has a manifestly commercial function in contrast to the recreational nature of those nominated vehicles did not, said the court, alter the fact that the parking of any large vehicle on the residential land affects to some degree the appearance of the land. This reasoning begs the question whether it is desirable for such large vehicles to clutter residential sites, particularly in this zone.

The ERD Court concluded by noting that the proposal did not conflict to a material degree with the Development Plan. Its stated reasons were:

"(a) the amenity of the immediate locality, and, more particularly, the appellant's land, is already affected by the frequent movement of large vehicles within the laneway between that land and the shops within the neighbourhood centre area;

(b) the configuration of the appellant's land is such that the truck, when parked, is not readily visible from the adjoining residential allotment to the east;

(c) from our observations on the view, we are satisfied that the appellant's truck can be safely reversed onto and driven off the subject land without creating unduly hazardous conditions for traffic in Rochester Avenue; and

(d) when the truck is parked in the position nominated by the appellant, its visibility from Rochester Avenue will be limited primarily to areas immediately south and west of the subject land, from which areas the carparks serving the neighbourhood centre area are visually dominant."

The court also considered whether this first intrusion of such a use in this area would act as a kind of precedent and concluded that each case had to be considered on its own facts. It is apparent from the above passage that the ERD Court was heavily influenced by the fact that the lane on the western side of the land was frequently used by large delivery and other vehicles and that the subject land was very close to the neighbourhood centre area with its carpark. However, those factors reflect weekday activities in business hours. They are of a relatively fleeting nature. Generally speaking, their detrimental effect would be considerably less at those times when the truck would be parked on the subject land.

Mr Henry, who appeared for the Council, submitted that the ERD Court had also erred in that it had regard to the effects on the locality of the parking of the truck. It was his contention that the Colonel Light Gardens suburb zone differs from other residential zones in that its objectives and principles of development control require an application for a new development to be assessed against the provisions applying to the zone instead of its effect upon a locality. He referred in particular to Objectives 1 and 2 and Principles of Development Control 4, 5 and 6. Examination of the Plan shows that regard must be had to the effect of the proposed development upon the character and amenity of the locality but, in this zone, those considerations must be weighed with the objectives for the zone.

The Plan requires regard to be had to the effect of the proposed development upon the character and amenity of the locality, particularly in residential zones. Thus, Objective 9 of the Objectives for Metropolitan Adelaide which apply to all Development Plans in Metropolitan Adelaide spells out the objective of providing "safe, pleasant, convenient and efficient residential zones". The commentary states that the achievement of this objective can be assisted by development which, among other things, "enhances the residential character and amenity of the area in which it is to be sited". Indeed, the position could hardly be otherwise. If a proposed development has a sufficiently adverse effect upon the character and amenity of a residential area, the proposal is unlikely to be approved. It is, therefore, necessary when considering whether to approve a proposed development to have regard to both the Development Plan and the effect of the proposal upon the character and amenity of the area in which it is to be sited. Whether one has regard to the neighbourhood of the proposed development or the locality of the proposed development will depend upon the nature of the development.

This zone differs from many residential zones in that it places emphasis upon the need to preserve its heritage and to preserve and enhance its present form. In referring to "a zone with consistent residential building character, comprising single storey bungalow style dwellings", Objective 2 seeks to preserve that which already exists. That objective is reinforced by Principle 3. Thus, there is an emphasis upon requiring new development to be compatible with the zone as a whole as distinct from the effect upon the locality. That does not mean that regard should not be had to the effect upon the locality by which is meant the character and amenity of the locality. Instead, primary regard must be had to the objectives of the zone and, if appropriate, also to the effect upon the character and amenity of the locality.

The ERD Court has, therefore, erred in several respects when considering whether the proposed development should be permitted. As its reasoning concerning the basis for the decision depends on what are significant flaws in its reasoning, it is necessary to set aside its decision.

Mr Henry, who appeared for the Council, submitted that this court should set aside the decision of the ERD Court and restore the decision of the Council. There is much to justify this approach. In the result, there is little which speaks in favour of the proposed development and much which speaks against it. The only factors which the ERD Court identified which in any respect favour the proposal are listed in par (a) to par (d) in the passage quoted above. But, as already noted, the force of the observations in par (a) is diminished by the fact that there will be considerably less movement of large vehicles, if any, at weekends when most residents of the suburb will be at home.

It is important not to put the parties to unnecessary expense. However, an exercise of planning judgment is required to determine whether the application for development consent should be granted or refused. This Court does not have the specialist expertise required to make that judgment. Flaws in the reasoning of the ERD Court have been identified. What is now required is that the Court reconsider the matter and then makes its planning judgment. There is no alternative but to allow the appeal and remit the matter to the ERD Court for further consideration in the light of the principles expressed above.