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Unfortunately, not. No one has a right to a view to be maintained for their property indefinitely. This can be quite devastating for someone who has enjoyed ocean views for a number of years, only to have someone else’s development pop up in front of it.
The legal principle governing rights to views can be identified as far back as 1937 with the case of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45 (Taylor), where Justice Dixon of the High Court held ‘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.’ In Tenacity Consulting v Warringah Council (2004) NSWLEC 140 (Tenacity), the Land and Environment Court established a set of planning principles on view sharing and what councils should take into account in assessing view loss impacts. Those things that should be considered include an assessment on whether view impacts on the surroundings are negligible, minor, moderate, severe or devastating.
However, planning principles are not law and cannot be enforced in the same way that a law can. The Court defines a planning principle to mean ‘a statement of a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision’.
Owners who are aggrieved by the impact a development might have on their views, may make submissions to the council assessing the development. That submission must be considered by the assessing officer of Council under section 4.15 of the Environmental Planning and Assessment Act 1979.
However, the submission will be one of many considerations which the assessing officer must have regard to and may not have the effect of stopping the development, even if the impact on your views are assessed as being ‘devastating’.
Aggrieved owners are not completely without a remedy though. An appeal can still be lodged against council’s decision if that decision was in some way deficient. An action to challenge the validity of the consent can have serious consequences for the developer and the council that issued the consent.
This is something that we know a lot about and can help you with. If you would like to know more about view loss and the rights that you have, contact us to see how we can help you.
Lorri is a director of PDC Law. Lorri combines excellent technical expertise with a common-sense approach to best represent her clients. She is one of few Accredited Specialists in Commercial Litigation in the Illawarra and Shoalhaven. This accreditation is testament to Lorri’s expert knowledge and skill in dealing with commercial disputes. In 2019 Lorri was awarded Regional Lawyer of the Year by Women Lawyers Achievement Awards.
