View Sharing – Tenacity Consulting v Warringah Council

The judgment of Tenacity Consulting v Warringah Council provides us with a four step assessment process to be used when making planning decisions with respect to view sharing.

What is “view sharing”?

The concept of “view sharing” is when a property enjoys existing views and a proposed development would “share” that view by taking some of it away for its own enjoyment. Strictly speaking, if a proposed development takes away the complete view this cannot be called “view sharing”, although such an outcome may be found to be reasonable in certain situations.

The concept of view sharing may be considered by local councils during the development assessment process, or the Land and Environment Court when an application is being considered on appeal.

The four step assessment

In Tenacity Consulting v Warringah Council (Tenacity Consulting) the Court provided a four step assessment process to guide whether or not view sharing is reasonable. In doing so, the Court also gave some helpful guidance as to what should be considered as part of each step of an assessment.

The four steps and the guidance provided by the Court in Tenacity Consulting is as follows:

Step One – Assessment of the views to be affected. “Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.”

Step Two – Consideration from what part of the property the views are obtained. “For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.”

Step Three – Assessment of the extent of the impact. “This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.”

Step Four – Assessment of the reasonableness of the proposal that is causing the impact. “A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable”

If you require further advice with respect to how the principles in Tenacity Consulting apply to your development or a proposed development affecting you, it may be best to speak to your local council, your town planner, or seek legal assistance.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.