By Gabriella Hijazi and Alyce Kliese

The Court has considered ‘high value’ side boundary views in assessing development impacts on neighbouring property in the case of Furlong v Northern Beaches Council [2022] NSWLEC 1208 (Furlong)

Background

The decision of Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (Tenacity) sets out a four step assessment process to guide whether view sharing is reasonable.

As part of this assessment process, consideration should be given to what area of the property the views are obtained from. To this respect, the LEC made the following comment in Tenacity:

[27] 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.”

Implication of Furlong

In light of the guidance given in Tenacity, side boundary views have been considered difficult to protect for homeowners who will suffer from view loss from a proposed development.

However, the decision by Commissioner Walsh in Furlong has clarified the following:

  1. although the decision in Tenacity makes it so that views across side boundaries are more difficult to protect than front and rear boundary views, that “does not mean the protection of views across side boundaries is not appropriate in some circumstances”; and
  2. the proper application of the decision in Tenacity requires that “the extent of view loss impact should be assessed from the property as a whole”.

Furlong has therefore extended the reach of the second step set out in Tenacity in circumstances where a proposed development would bring about severe view loss to side boundary views.. In Furlong, ‘severe view loss’ was taken to occur when a proposed development would block views that are of a ‘high value’ and not replicated in other areas of the property, even if those view were perceived from the side boundaries of a property.

What does this mean?

The key-takeaway from this decision is that views that are not perceived from the front and rear boundaries of a property can still be protected if they are of ‘high value’ and not replicated in other areas of the property. In such circumstances, the loss of ‘high value’ views could be considered to cause severe view loss and may be able to be protected.