When a loss of views calls for a challenge

Recently, Urbis has addressed this issue in two locations: one where a view of the Sydney Harbour from a commercial property is in dispute and the other related to a coastal beach view from a residential property in Victoria.

Generally, views are not owned and are shared and there are no guarantees that views from a development will be maintained. However, there are situations where the loss of a view may be challenged. While each situation will require a complex planning and legal evaluation, the general principles were laid out by Senior Commissioner Roseth SC in Tenacity Consulting v Warringah Council (2004) NSWLEC 140. The Planning Principle established a four-step process for considering the impact of a development on views.

1. An assessment of the value of views to be affected by reference to their nature, extent and completeness.
2. A consideration of how views are obtained and what part of the property the views are obtained from.
3. A qualitative assessment of the extent of the impact in terms of severity particularly as to whether that impact is negligible minor, moderate, severe or devastating.
4. An assessment of the reasonableness of the proposal causing the impact particularly in terms of compliance with applicable planning controls and whether a different or complying design must produce a better result. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable.

Each case will need to be assessed on its merits. However, where a development will potentially obstruct a view from your property, it is worth keeping these four points in mind. In both recent cases where Urbis has been involved, the key debate centred on the fourth of these points – is the development non-compliant with a planning instrument, control, or overlay.

This is a debate that won’t be going anywhere soon. That’s our view, anyway.