Do I have a right to a view?
No, property owners do not have a legal right to a view. If you are looking at buying a property with picturesque views, take care. If there is the possibility of a future development blocking those views then you will NOT have the right to prevent that development.
The dispute around James Packer's Crown Resorts involving views of Sydney Harbour from Barangaroo recently brought this topic again into the spotlight. The company, who run the Barangaroo Crown Casino, are seeking to prevent the Barangaroo Delivery Authority from approving a development which would obstruct the views of the Sydney Harbour Bridge and the Sydney Opera House from the casino. This case involves a different legal principle and is a contractual matter between the parties but it highlights an interesting point.
Property owners’ rights to views (or lack thereof) is a long-settled legal principle and is most notably examined by the High Court in Victoria Park Racing in 1937. The High Court held that the owner of a racecourse could not prevent a neighbour peering into the racecourse (and broadcasting racing results). The racecourse owners had no legal right over the “spectacle” of the horse race on their property. Put another way, if a property owner wants to display a Picasso on their front verandah, they cannot ask people walking by to pay for the ‘viewing’ rights. This cuts both ways and a “view” is not a quantity a landowner can exercise legal rights over.
This principle remains relatively unchanged to this day and has been reinforced and restated in many cases.
Seeking help from local Councils
Many local Councils have adopted planning controls which seek to address this and balance the reasonable sharing of views between neighbouring landowners. Such controls become one of many factors to be considered by Council when assessing a development application. Some property owners misinterpret these planning controls as giving them a 'right to a view'. They do not.
In a Local Court ruling in 2004, the court described in detail the factors Councils should consider when they are assessing the impact on views of a proposed development. However, the court merely expressed a planning principle, it did not establish a proprietary right for landowners to a view.
It’s important to understand the difference. A planning principle is not a binding law. It is a list of appropriate matters to be considered by Council in reaching a planning decision. If Council follows planning principles in reaching a planning decision, that decision is more likely to be upheld in court. Council may follow planning principles yet still approve a development application, even if the loss of views to a neighbouring property will be significant or even “devastating”.
The court also established a 4-step process Councils can adopt when assessing the impact on views of a proposed development. The court couched that impact on a scale from ‘negligible’ to ‘devastating’. Ultimately, if the proposed development is compliant with the relevant planning controls, the fact that the development has a detrimental impact on neighbouring views will not by itself prevent it from proceeding.
Your rights as neighbours to object
As part of the public consultation process, landowners affected by a development proposal may make submissions to Council with respect to the loss of their views. However, there is no guarantee that those submissions will have any bearing on the outcome of the development application. Community submissions are only one of many considerations the Council must consider as part of the assessment process.
An affected neighbour cannot commence proceedings against Council to challenge the merits of a Council decision to approve a development that causes loss of views. It is, however, open to an affected neighbour to commence civil proceedings against Council where there has been an error of law or non-compliance with the requirements of the planning process. In practice, even if such an action is successful, the Council can simply start over, reassess the proposed development and approve a similarly detrimental development.
As a property owner, you do not have a legal right to protect your view but you can and should lodge a submission to Council if a development is proposed that will impact your views.
If you believe Council have not complied with the appropriate planning principles or controls in assessing a development application, there may be merit in examining the process undertaken by Council.
As always, prevention is better than cure and you should do your homework if you are buying a property, particularly if its value depends substantially on having a view.
This article was written by Lawyer Mark Evans and co-authored by Law Cadet, Byron Turner.Back