Posted on November 19, 2015 by 8

View Sharing and Rights to Views

The Courts have acknowledged that views from a person’s home can have considerable value. However, that does not mean that a person has the power to protect and maintain their view as a legal, proprietary right.

Planning Principles re View Sharing

The Land & Environment Court has a well established planning principle in respect of the assessment of impacts of development on views  which was set out in Tenacity Consulting v Warringah Council (2004) NSWLEC 140 (“Tenacity”).  Also many councils have provisions in their local environmental plans aimed at allowing for reasonable sharing of views.

In my experience, some home owners have formed the mistaken opinion that they have a proprietary right to a view as a result of the decision in Tenacity.

A ‘planning principle’ is not binding law. It is described by the Court as a statement of a desirable outcome from a chain of reasoning aimed at reaching a planning decision, or a list of appropriate matters to be considered in making a planning decision. Although a planning principle is not binding on a decision maker, the Court will try to apply the principle consistently in appeals before it, unless it is inconsistent with the council’s applicable controls. If a planning principle is observed by the Council when assessing a development, the planning decision is more likely to be sound in the eyes of the Court.

In other words, if an application is made to a council for development which has the potential to impact on neighbouring views, then it is desirable that the council assess the impact on views in accordance with the 4 step process set out in Tenacity, including determining whether the impact is negligible, minor, moderate, severe or devastating.

However, Tenacity does not provide that anyone has a proprietary right to retain all or part of the views enjoyed (or capable of enjoyment) from their land. The Court specifically acknowledges that entire loss of a view in some cases (although a devastating impact) could be reasonable in the circumstances). Also the case is merely concerned with the planning decision, and does not deal with whether  a landowner can enforce any right to a view against another landowner.

No ownership of a View

That issue was dealt with by the High Court in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45, which remains good law today. The High Court held that a property owner does not own the views (spectacles) from his or her land. Justice Dixon stated: “I find difficulty in attaching any precise meaning to the phrase ‘property in a spectacle’. A “spectacle” cannot be “owned” in any ordinary sense of that word.”

This position has been reinforced in several subsequent decisions of the Court and, as a legal principle, remains relatively unchanged. In Robson v Leischke [2008] NSWLEC 152, His Honour, Preston CJ, summarised the limited powers available to an aggrieved land owner when, at paragraph [86] of his judgment, he stated:

…a defendant may erect a building or other structure such as a fence, or plant a tree on his or her land which interferes with the neighbour’s enjoyment of their land. The building, structure or tree may…spoil the neighbour’s view …yet such interferences are not actionable as a nuisance.

Proceedings by an Aggrieved Neighbour

It is not open to a neighbour to commence proceedings to challenge the merits of a decision by a Council to approve a development that causes “unacceptable” loss of views.

An aggrieved landowner may make submissions to the Council with respect to the anticipated view loss. However, the weight afforded to a submission must be balanced against many other considerations relevant to the assessment process pursuant to section 79C of the Environmental Planning and Assessment Act 1979. Accordingly, there is no guarantee that the submission will influence the outcome.

If the decision has already been made to approve the development, the only legal avenue available to an affected landowner is to commence civil proceedings against the council. However such a challenge would have to point to some error of law in coming to the decision such as a question as to the council’s jurisdiction to make the decision, or failure to take into account mandatory, relevant considerations. It is no sufficient to argue that the decision is bad, or even wrong.

Even if the neighbour were successful in overturning the decision of the council based on an error of law, the council may subsequently reassess the development application and issue a similarly devastating approval.

If a council considers that view loss is significant enough to refuse consent to a development and has refused consent, the applicant can appeal to the Land and Environment Court. As part of those proceedings,  objectors can have their voice heard in support of council’s refusal. However, an objectors’ rights in such proceedings are limited: see Megan Hawley’s previous blog on Managing Resident Expectations in Planning Appeals here .

Conclusion

Property owners have no right to a view; the law is clear on this point and has been since 1937. Tenacity did nothing to affect this position, although it does provide guidance to decision makers in respect of the proper assessment of impacts on views.

Homebuyers should be careful when purchasing a property the value of which is largely contingent on the retention of a view, particularly when that view has the potential to be blocked by a subsequent development.

Even a devastating impact on view loss may not be enough to cause a Council to refuse a development application. The decision is entirely up to Council and an aggrieved neighbour may not have a great deal of success in challenging any such decision.

The planning principle in Tenacity can be read here from paragraph 23 onwards.