View Sharing Principles
Despite the maxim that there is “no legal right to a view,” many Planning Schemes in Victoria contain policy and overlays which seek to provide for a reasonable sharing of views.
As the preponderance of cases before VCAT on this issue demonstrates, there is often considerable debate and uncertainty as to the correct approach to determining what is a reasonable sharing of views.
Our office was involved in the recent decision in Gore v Greater Geelong CC  VCAT 1358, in which Andrew Iser (Senior Associate) appeared for the Applicants. In that case, the Tribunal found that a reasonable sharing of views:
- Does not require the preservation of existing views;
- Does not require an equal sharing of views;
- Does not require an ideal outcome;
- Will necessarily involve a degree of view loss;
- Is assessed against the existing interruptions to a panoramic view;
- Is assessed against the view that is lost within the overall panorama of views available, on both a qualitative and quantitative basis, having regard to the legitimate expectations of the person claiming that too much of their view is lost; and
- The expectations of the person asserting their view is lost are diminished by:
- The degree of built form the planning context is seeking to facilitate on the development site;
- Whether the person seeking to protect their views is in the “second row,” behind the development site;
- The degree to which the development on the land seeking to avoid loss of its views has maximized its own opportunities to obtain those views.
Importantly, the Tribunal agreed that a consideration of the views obtained from a sitting position should not be the test used to justify the preservation of views.
If you have a case involving (or potentially involving) protection of views, please reach out to one of our Planning Team to discuss.