The protection of views along Victorian coastal and regional areas has long been an area of concern for residential developers. Many planning schemes now include specific local provisions designed to provide guidance on view sharing and protection.
Clause:1 has recently been involved in a number of VCAT proceedings requiring consideration of the affect new development proposals have on established views. Permit applicants working on proposals with the potential to disturb significant views should be aware of the principles used by VCAT when determining whether or not the intrusion into existing view-lines is reasonable.
The first time the Tribunal held that views were an integral part of amenity and a relevant consideration in planning assessments was in Tashounidis V Flinders SC (1987). The principles set down in this decision are still valid today and have only been subject to review and alterations from time to time. These principles now serve as the yard stick in cases where view sharing becomes a contentious issue.
The principles derived from the Tashouidis case are as follows;
a) There is no legal right to a view
b) Views form part of the existing amenity of a property and their loss is a relevant question to take into account
c) The availability of views must be considered in the light of what constitutes a reasonable sharing of these views;
d) In addressing the concept of ‘reasonableness’ it is relevant to consider;
i) the importance of the view to be lost within the overall panorama available; and
ii) whether those objecting haven taken all appropriate steps to optimize development of their own properties.
e) Added emphasis will be placed on principles b) and c) above if the issue of views is specifically addressed in the planning scheme.
Two recent cases provide additional guidance on the issue of reasonableness as outline in points d)i) and d)ii) above.
In Healy and Others V Surf Coast S., Mc Taggart and Associates (P362/2005) objectors sought to review a decision to approve a second storey dwelling extension. The land was subject to the provisions of a SLO whereby significant recognition was given to the concept of view sharing. It was determined that the proposed extension would affect less than 30% of the objector’s view. It was argued by the applicant that with 60% of the objector’s view totally unaffected, the impact of the proposal did not unreasonably affect the neighbour’s outlook.
However, (with reference to point d)i) above) the Tribunal determined that the portion of view to be lost contained a significant natural feature and that the remaining 60% of the view (unaffected) contained the least significant elements of the panorama. Therefore it was held that the loss of view was unreasonable and although a double storey extension was to be expected on the subject site it should be designed with less impact on neighbouring views. No permit issued.
In Centrum Architects Pty Ltd V Surf Coast SC, Morling and Others an application for review was lodged by the permit applicant against Council’s NOD to refuse a planning permit. The applicant sought permission to construct a double storey dwelling and removal of native vegetation on land at Aireys Inlet. The land is covered by the Residential 1 Zone and is also covered by a Significant Landscape Overlay. One of the grounds of refusal issued by the Surf Coast Shire was;
The development would result in an unreasonable impact on the amenity of adjoining dwellings by way of interruption to the ocean and coastal views. The proposal does not achieve a reasonable sharing of the view and fails to meet the relevant performance standards of the Coastal Development Policy.
On review the Tribunal noted (with reference to the guideline contained in point d)ii) above) that the neighbouring properties views would be substantially affected by the proposal. However, it went on to note that almost all of the objecting parties’ dwellings were only single storey and had not been developed to their full potential. If all sites had been developed to their full potential they would benefit from the same panoramic views as the propose development. A permit was issued subject to conditions.
Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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