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Planning – Views from Public Areas

In-House Memorandum

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Private Views and Public Planning

A beautiful view over a charming landscape is something that will always be highly valued. VCAT has frequently found that there is no right to a view. Even legal excursions through nuisance law have created no established rights[1]. However, the absence of an automatic ‘right’ to a view does not prevent a property owner expressing concerns as to the impact of a proposed development upon the view. This is because a view forms an integral part of the broad landscape quality of a site and its surrounds. This is particularly important where the view is significant and enjoyed over a wide area (e.g. a National Trust identified landscape).

The Significant Landscape Overlay (SLO) and the Environmental Significance Overlay (ESO) found in Victorian Planning Schemes can generally be taken to reflect local community policy. But the Scheme’s State sections[2] and its approval by the State Planning Minister must not be overlooked as reflecting broader community concern for protection of significant landscapes. Thus, whilst persons more deeply embedded locally in protection of significant landscape will be most directly affected, they may well raise issues of concern to the wider community. Nevertheless, objections based predominately on obstruction of a view can be complex and difficult. In a case involving a Wagyu Beef farm, and its impact on cleared and uncleared landscape, a Section 173 agreement was required to control implementation of a Farm Management Plan and its operations.[3] Likewise, in a case involving a proposed small horse stable, development was permitted because it was not visible and all other possible locations on the site had been fully explored[4]. Interesting judicial discussion concerning interference with a view as actionable in nuisance occurred in the Black Mountain case in 1973. In that case, the Supreme Court of the Australian Capital Territory considered that:

“Actionable nuisances include things which offend the sense of hearing and the sense of smell, and other senses, and there is no reason why the sense of sight should necessarily be excluded.”

The ACT Supreme Court found the communications tower could not be prevented by the local community as the proposal itself was not unlawful. In its judgment, the court looked to United States cases that had found wrecking yards and junk yards, when situated in residential areas, had been held to be nuisances[5]. It is important for objector and developer alike to consider the impact on surrounding views because, regardless of whether a view is impacted publicly or privately, it is relevant to assessment of a development proposal.   Hubert Algie, Cameron Algie 15 May 2014   FOR A PRINTABLE VERSION OF THIS ARTICLE CLICK HERE FOR THE PDF VERSION.

[1] Kent & Ors v Cavanagh [1973] 1 ACTR 43 at 53-54
[2] Clause 12 ‘Environmental and Landscape Values’; Clause 42 ‘Environmental and Landscape Overlays’; and Clause 56.05 ‘Urban Landscape’
[3] Targett v Mornington Peninsula [2011] VCAT 888
[4] Allen v Mornington Peninsula [2009] VCAT 644
[5] Particularly in America, where it has been successful in certain instances.
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