The view from a property can often be a deciding factor in purchasing a property. Whether it overlooks the beach, a lake, or sweeping green hills, purchasers frequently cite this as a reason for choosing one property over another. However, purchasers as well as property owners need to be aware that they do not have a right to this view and with the increasing number of local developments, this view may not last forever.
In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45 the Court considered the legal issue of whether property rights could exist over a spectacle. In this case Victoria Park Racing (“VPR”) owned a racecourse which people would pay an entry fee to attend and bet on the races. Their neighbour, Mr Taylor, built an elevated platform on his property from which the races could be viewed. From this platform, an associate of Mr Taylor would commentate and announce race winners, which was broadcast from a radio station. This caused attendance and revenue to drop at the racecourse.
The High Court in this longstanding authority, determined that there are no property rights in a spectacle. Chief Justice Latham stated that “A spectacle cannot be owned in any ordinary sense of that word.” His Honour could not support VPR’s argument that because of the expenditure of money, they had created a spectacle which gave them quasi-property in the spectacle, as there is no principle which prevents a person from opening their eyes, seeing something, and then describing what they see.
In the more recent case of Robson V Leischke [2008] NSWLEC 152, Chief Justice Preston confirmed that despite interference with a neighbour’s use and enjoyment of their land, unless the owner has caused something to emanate from their land, there will rarely be an actionable nuisance against the owner. His Honour went on to state that a building, fence, or tree may be erected by an owner which interferes with the neighbour’s enjoyment of their land by spoiling their view, restricting the flow of air onto their land or taking away light from their windows, but these are not actionable as nuisance.
These cases confirm that a property owner has no rights to their view. Practically, when developments are being undertaken, Council receive a Development Application from the developer. Council then reviews the application taking into consideration the guidelines and procedures that must be adhered to in assessing a decision.
During the application process, neighbouring property owners are given the opportunity to lodge submissions which object to the development. However, an application is not likely to be refused based merely on loss of views.
The team at Baker Love Lawyers are well experienced in property law and able to advise and assist you in relation to the rights of property owners. Please contact the office on (02) 4944 3322 should you require any advice or assistance.
