Posted on April 23, 2015 by Frances Tse

Court upholds decision with ‘devastating’ impact on views

The Land and Environment Court recently upheld a decision by Warringah Council to grant consent to a development  which had ‘devastating impacts’ on the neighbour’s views despite a development control requiring reasonable sharing of views.

Goyer v Pengilly [2015] NSWLEC 54, was a challenge to the validity of a development consent for a dwelling which was brought by a neighbour whose view would be entirely lost as a result of the development.

The case highlights the difficulty in challenging consents based on what are essentially merit issues.

The neighbour claimed that the Council fell into legal error in granting the development consent by failing to take into consideration, as required by s79C of the Environmental Planning and Assessment Act 1979, a provision of a development control plan which provided that ‘[d]evelopment shall provide for the reasonable sharing of views’, and claimed that the decision was manifestly unreasonable. 

The view enjoyed by the neighbour was described as a partial view of the ocean including the horizon that was obtained from the first floor master bedroom from both a sitting and standing position from an oblique angle over the rear boundary. There were no other views from any other room in the house, and on this basis, the Council’s assessment report concluded that the view impact would be ‘devastating’.

Nevertheless, the Council considered that the view loss did not warrant a refusal because the proposed development was reasonable, generally compliant with the development controls and consistent with the objectives of the development control plan. It was also considered that the view loss resulted from the existing subdivision layout of the area.

It was clear from the assessment report that the Council had considered the relevant development control provision. The complaint was really that there was no proper consideration as the assessment report did not apply the provision as though it required retention of, and sharing of views.

The Court considered that the Council did not fall into legal error when determining the development consent because:

• it did take the relevant development control into consideration;
• in taking the development control and the surrounding matters relevant to the assessment of the DA into consideration, the Council concluded, as it was entitled to do, that in this circumstance it was reasonable that there be no sharing of views; and
• the development control plan did not prohibit consent being granted if the Council was not satisfied that the development did not provide for reasonable sharing of views.

What may be of most interest to many home owners is that the Court did not accept the neighbour’s argument that the development control which required a ‘reasonable sharing of views’ meant that a proposed development must permit the sharing of views where those views are pre-existing and cannot remove an existing view altogether.

The Court held that the word ‘reasonable’ in the control imported the potential that in some circumstances, a proposed development that wholly impedes an existing view may still be reasonable in all the circumstances.

The Court also rejected the argument that as the view impact was ‘devastating’ the decision was manifestly unreasonable. As well as highlighting that the Court, in a legal challenge to a consent, will not review the merits of the decision to grant the consent, the Court noted that whilst Council did consider that the view impact was devastating, the impact on views was only one consideration when determining to grant consent, and therefore the challenge was based on an incomplete understanding of the power being exercised by the Council.

The non-mandatory nature of controls in development control plans must be borne in mind. Where a control is in a development control plan, it must be taken into consideration, but the council will not be bound to apply the control strictly. Indeed to do so would breach the provisions of the Environmental Planning & Assessment Act 1979 which require development control plans to be applied flexibly and as a guide only.