Most Notably, His Honour, Preston CJ IN Robson V Leischke [2008] NSWLEC 152 at 86 Stated

“The use of land by the defendant, which does not cause something to emanate from the defendant’s land, although it nevertheless in some way interferes with the use and enjoyment by the plaintiff of his or her land, will rarely constitute an actionable nuisance. Thus, 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;

in the absence of an easement, restrict the flow of air onto the neighbour’s land; or

(c) in the absence of an easement, take away light from the neighbour’s windows,

yet such interferences are not actionable as a nuisance.”

Limited protection given by local councils and planning principles

Many local Councils adopt 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 and the ruling in Tenacity Consulting v Warringah Council (02) 9145 0900 NSWLEC 140 (“Tenacity”) as granting a legal right to a view. They do not. In Tenacity, 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 enunciated 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 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. But 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”.

In Tenacity, the court established a 4-step process Council can adopt when assessing the impact on views of a proposed development. The court also 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 neighboring views will not by itself prevent it from proceeding.

Rights of affected 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 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. However, even if such an action is successful, 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.

Also, if you believe Council have not adopted 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, the value of which depends substantially on having a view. 

Are you experiencing a similar situation?

If you are experiencing issues regarding this topic we can help. Please submit and inquiry or take more tangible step by booking an Initial Session where we will look at your existing paperwork and information and begin taking action.