Barrister and mediator Sydney Jacobs continues his series as he questions whether nuisance will protect a view by examining past cases. For more of his insights into an array of property matters, follow his series here.
It is often said that nuisance will not protect a view: Phipps v Pears [1965] 1 QB 76; [1964] 2 WLR 996; [1964] 2 All ER 35 – building regulations relating to height etc. unless the structure creating the nuisance is unlawful: Campbell v Paddington Corp [1911] 1 KB 869 (stand erected by the respondent blocked a public highway). However, these authorities should be treated with caution and are not without qualification.
In Day v Pinglen Pty Ltd (1981) 148 CLR 289; 55 ALJR 416; 45 LGRA 168, the High Court held that an adjoining landowner who claimed that a building project would adversely affect the view of Sydney Harbour from her property was suffering sufficient impending detriment when taken with the threat of an unlawful act to confer standing to seek an injunction.
A striking example of a court holding that “visual pollution” constituted a nuisance is the UK Court of Appeal decision of Thompson-Schwab v Costaki [1956] 1 WLR 335; [1956] 1 All ER 652. The headnote reads at 652:
Each of the plaintiffs occupied a dwelling-house as his residence together with his family in a good class residential street in London. In the same street a house (adjoining that of the first plaintiff and near to that of the second plaintiff) was used by the defendants for the purposes of prostitution, their practice being to solicit men in nearby streets and to bring the men to the house. The plaintiffs brought an action to restrain the defendants from using the house for the purposes of prostitution, and they obtained an interlocutory injunction restraining the defendants “until after judgment in this action or until further order whether themselves or by their servants or agents or any of them or otherwise howsoever from using or causing or permitting to be used [the house] for the purposes of prostitution”.
Master Sanderson in Elwood v Pioneer Concrete (WA) Pty Ltd [2002] WASC 32 refused to strike out a statement of claim of a resident who complained of visual pollution.
So how has NSW law dealt with this issue? The Trees (Disputes Between Neighbours) Act 2006 (NSW), clothes the Land and Environment Court of NSW with jurisdiction to make orders in Class 2 proceedings that e.g. a hedge be pruned, if a certain threshold of interference with inter alia a neighbour’s view is reached. The historic reluctance of the common law and equity to protect a view, absent a covenant, was presumably background context to the Attorney General’s 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), which resulted in the inclusion of Part 2A in the Trees Act. The Review recommended that the new jurisdiction should be restricted to cases where the applicant had lost a view or solar access that was earlier available to them: see para [12] to Zhang v Davidson [2020] NSWLEC 1030.
The point I make in the title to this article, about betting ones’ hedge, is that if one cannot come to agreement with one’s neighbour about loss of a view due what may be construed as a hedge , then it will be in the hands of the court to resolve the dispute; and all litigation is, in a sense, a lottery. Prof Atiyah even wrote a book entitled The Damages Lottery, although that related to a different context.
In Haindl v Daisch [2011] NSWLEC 1145 [26], More SC (as His Honour then was) and Hewett AC observed:
“…. we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.”
In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Roseth SC’s view-sharing principles included at [26] ff:
Step 1 is the “….assessment of views to be affected. Water views are valued more highly than land views. Iconic views (e.g. 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, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured………”
Step 2 is that the “…the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries.”
Step 3 is that “…“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).”
In Scott v Rooney [2020] NSWLEC 1078, Tenacity and Haindle were discussed, and it was observed that “recognising the value of water views does not require slicing of the entire view” (at [25] ); and at [26] that :
“While Haindl shows that it is unreasonable to choose one part of an overall view and find that its obstruction alone must equate to a severe view obstruction, Tenacity clarifies that a part of the overall view might be more valuable than other parts. Obstruction of the most valuable part of a view might equate to a severe view obstruction, and here I find that to be the case.”
In Scott, the view loss was held to be from high-use areas of the dwelling, viz a deck, living rooms, the dining room and the kitchen; and an order duly made for regular pruning.
For example, see Hyde v Vagg [2020] NSWLEC 1009, where iconic views of Sydney Harbour Bridge, the Opera House and the CBD skyline were interfered with by a hedge of no particular cultural of environmental value. I canvass the main provisions of that Act where I deal below with the Encroachment of boughs and roots (as at the date of this update, at para [29.640], though cross references may change over time). The Court must be satisfied that the state of affairs is likely to continue or recur, before its jurisdiction is enlivened to make an order: Zhang (ibid), at [22]. Thus, where agreement between neighbours has been reached, there is no jurisdiction to make an order, if one party wishes the benefit of that agreement to run with the land. Naturally, a fresh application can be lodged if circumstances change: Zhang (ibid).
The defining features of a hedge were discussed by Preston CJ in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, eg whether trees are in close proximity. Thus, in Wisdom v Payn [2011] NSWLEC 1012, it was said:
“We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”
Thus in Scott v Rooney, [2020] NSWLEC 1078b, it was held that two olives did not form part of a lily pilly hedge.
(The above article is an extract from foreshadowed updates to my book, Injunctions: Law & Practice, ThomsonReuters, loose leaf, and in particular Ch 29 on Nuisance).
Sydney Jacobs obtained his Masters Degree in Law from Cambridge and practices in the areas of commercial/equity including real property , partnership disputes and building and construction law. Many contracts he is called to advise on, have mediation/arbitration clauses.
He has acquired in -depth experience in the area of property law including eg sales of property “off the plan”, challenging notices to complete, issuing notices to perform, obtaining easements via applications under Sec 88 K of the NSW Conveyancing Act , advising and drafting papers in applications to remove easements as being obsolete and seeking interim and permanent injunctions against interference with easements. His arbitration experience includes being a NSW Bar accredited arbitrator, appearing in arbitrations and technical references, and being part -author of what is understood to be the definitive loose -leaf arbitration service in Australia, published by ThomsonReuters.
He is the sole author of two other major services for ThomsonReuters , Commercial Damages and Injunctions: Law & Practice
Prior to being called to the Bar, Sydney was a commercial litigator with a construction law focus, at a Minter Ellison and Deacons James & Graham (now Norton Fullbright).
For a full list of his cases ,articles and Thomson Reuters publications , feel free to view
You may connect with Sydney via email sjacobs@13wentworth.com.au or LinkedIn
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