Protecting a View in Australia: Common Law Principles, Restrictive Covenants and Planning Law

Views over land and waters may significantly enhance a property’s value. The common law has declined, however, to recognise the proprietary nature of a view, regarding it as a matter only of delight. This article evaluates the Australian position on the right to a view and considers mechanisms for its protection. It first examines the difficulties in using easements to protect a view. Then it considers the restrictive covenant as a basis for protecting a view, notwithstanding complications under Australian Torrens title systems and contemporary public planning schemes in most Australian jurisdictions that can override restrictive covenants. It then considers public land use planning law and concludes that it may be the most effective legal avenue for protecting a view in Australia, though it notes that the settings of the relevant planning instrument will be crucial in determining whether a particular right to a view will be protected.