Can you protect your view?

Imagine that you have just purchased your dream property, complete with a picturesque view of the harbour. Until one day, your neighbour directly in front of you decides it's time for them to expand their family, and so they build another storey on top of their house, effectively blocking your view.

So, what can you do about it?  Unfortunately, not much.

The reason for this is that you legally cannot own your own view - there is no proprietary right relating to owners of property having a legal right to a view. This was established in the case of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45. Victoria Park owned a racetrack which charged admissions for entry, and Taylor was a neighbour to this racecourse. He set up a platform on his property to view over the fence to the racecourse, and charged people admission for it, to which Victoria Park responded by suing him for trespass. Trespass was not found, however; it was held that the racecourse had no legal right to the view of their property, or the 'spectacle' of the racing. This means that landowners could not exercise legal rights over their view, as it was not something that they could 'own.'

So, before you purchase that dream property of yours, remember that your picturesque view of the harbour could be taken away at a moment without legal penalty.

How to protect your view

All is not lost, as there are some laws in place which directly or indirectly provide methods to protect your view.

Trees (Disputes Between Neighbours) Act 2006 (NSW)

Current planning laws in place, for example such as the Environment Protection and Biodiversity Conservation Act 1999(Cth), are aimed at community wellbeing, protection of public interest and the protection of heritage sites. They are less so aimed at individuals and their private land. The Trees (Disputes Between Neighbours) Act ('the Act') was introduced as a way of allowing private landowners to protect their views if their neighbours block their view by trees or hedges.

It is important to note that this legislation applies only to hedges over 2.5m, and a group of 2 or more trees under section 14A. This means that if a lone tree blocks your view, you will not be able to make an application under the Act. You are able to file an application to court for a reason under section 14B, which is that either the sunlight to a window has been severely obstructed, or your view has been obstructed as a result of these hedges.

The Act provides a simple process to bring a claim under the Land and Environment Court of NSW (LEC). You must give 21 days notice to your neighbour, to provide a period to reach agreement before bringing the matter to court. The Act insists on mediation and to reach an agreement between neighbours before making an application. Then, the LEC will hold a hearing, which is generally informal compared to other courts.

Under the Act, the Court cannot make an order unless they are satisfied the applicant has made a reasonable effort to reach agreement with the owner of the land with the offending trees. The matters the Court must consider are listed under section 14F. These generally include the location of the trees, when they were planted, if they have historical, cultural, social or scientific value, the impact of the trees on the soil, and so forth. It is important to note that Councils place an emphasis on the protection of vegetation, especially if they are a native species. If the species are native, this will be an issue the Court takes into consideration.

If your neighbour is blocking your view by way of trees, then there is a chance you can make an application under this Act. However if your view is obstructed by a structure, then you will need to pursue other avenues.

Negotiating an easement

Negotiating with your neighbour for an easement could be a great way to protect your view from being obstructed. An easement is a nonpossessory right to use or enter onto the property of another. It allows you to access and use land that you do not own, for a specific purpose. For example, it could be something such as a right of passage through a backyard, a right to receive sunlight through a specific window, or for our purposes, a right to a view.

An easement is a proprietary interest; you have legal rights attached to it which allow you to sue if your easement is breached. An easement should be created through a written contract to solidify an agreement with your neighbour, granting you the right to a view. You must identify this view with specificity - as outlined in Re Ellenborough Park [1955] EWCA Civ 4, 'the right must be capable of forming the subject matter of a grant', as in it cannot be too broad or ambiguous. Simply creating the easement with the 'right to a view' will not grant you significant legal protection.

For example, 'the right of a view to the harbour' is not sufficient'. It would need to outline the harbour's scope and landmarks, such as 'the right of a view to Sydney Harbour, extending from the Sydney Harbour Bridge to the Sydney Opera House.'

Then, if your neighbour decided that they wanted to build another storey obstructing your view of the harbour, it would be in breach of this created easement. They are legally prevented from doing so, and if they go ahead with their development, you can pursue legal action, take down the structure, and pursue compensation.

Council submissions

If your view is blocked by a council development, there is a small chance, that you can provide submissions to prevent the development. It is good to keep this option in your scope however ultimately, is frequently unsuccessful unless you have very strong arguments.

Many local Councils have instruments in place to provide planning control when seeking out a new development. This means that they consider the public interest, including balancing viewing rights between the public and their neighbours.

It is vital to note that this is not the same as the Council admitting a right to a view. A planning principle is not a binding piece of legislation, it is only a guideline used by bodies to determine the scope of a development or new plan. They also do not need to consider this planning principle; it is one of many that they could potentially take into consideration.

Council developments generally invite public submissions. If a proposed development is in risk of blocking your view or right to receive sunlight, then you may make a submission stating so. This will have a limited impact; community submissions are only one stage of the development process, and if a submission is only from a single individual, them it is unlikely to be taken seriously. It is possible to commence civil proceedings against the Council after the development has been finalised, however only on the basis of a breach of law, and not because of the merits of the situation.

This is a limited option, but one that can be pursued; especially if the development will breach the view of you and your neighbours.

Nuisance

Nuisance is another limited option you can claim for protection of your view. Private nuisance is defined as the unlawful interference with a person's use of enjoyment of land or some right over or in connection with it (Gartner v Kidman (1962) 108 CLR 12)). Private nuisance can occur by causing interference with the enjoyment of land or a disturbance to comfort, health or convenience.

It is rare that pursuing a claim in nuisance will adequately protect your view. As outlined in Robson v Leischke [2008] NSWLEC 152, '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.' If you can demonstrate that your neighbour is causing a direct interference with your enjoyment of land, such as for example restricting light or airflow, then you may be able to claim nuisance and gain compensation or a Court order. However this interference must be substantial and unreasonable (Clarey v Principal and Council of the Women's College (1953) 90 CLR 170), so a significant interference must be present.

While a difficult avenue to pursue, it is an option available. 

Some other options

Some other general options are open to you if someone is obstructing your view.

If a fence restricts your view, you could see if it is within fence height limitations. If there is a tree in view, you could view the tree limitations for your area and determine if the tree is legally allowed to be planted, as some species of tree are prohibited of being grown due to their allergenic effects and size. Furthermore, if a neighbour is proposing to build a structure on their land you could have a look at the zoning limitations for your area, which will determine the size, location and use of buildings that are permissible for you to have. Looking at building guidelines for your zone is generally a helpful area to start.

The above are helpful options to consider when buying a property for its view. Pursing the above methods give you a higher chance of protecting your view and maintaining the value of your property.