Rights to Light and Views in Residential Property (Australia)

What it is

A persistent client question on every project that goes higher than the neighbour: do I have a right to sunlight or to my view, and can the next door build block it? The short Australian answer is no. There is no general common law right to receive light, sunlight or a view over a neighbour's land. The protection comes from three other places: a registered easement, a restrictive covenant on title or the planning controls in the local council scheme.

This applies across every Australian state and territory. The position is the same in NSW, VIC, QLD, WA, SA, TAS, ACT and NT, although the planning rules that fill the gap differ.

The common law starting point

The English doctrine of "ancient lights", under which a building that had received unobstructed light for 20 years acquired a right to keep receiving it, was inherited at colonial settlement but was abolished by statute in every Australian jurisdiction during the 20th century. The Conveyancing Act 1919 (NSW) section 179 is the NSW version. Equivalent provisions exist in the Property Law Acts of each other state.

The result is straightforward. Unless a positive right has been created on title, the neighbour can build to the height and shape allowed by the planning scheme and the National Construction Code without any obligation to preserve your light or your view. The fact that your view was the reason you bought the house does not change the position.

Easements

A registered easement for light and air is the strongest tool. It is a registered interest on the title of the burdened (servient) lot and runs with the land. A typical residential light and air easement specifies a building envelope on the burdened lot. Anything built outside the envelope breaches the easement and the dominant owner can sue for an injunction and damages.

These easements are rare. They are usually created at subdivision, often by the developer to protect a feature lot or a view corridor. After settlement, getting a neighbour to grant a new light easement is a commercial negotiation and the price is rarely low.

Restrictive covenants

A restrictive covenant on title can also protect outlook. Common covenant terms cap building height, restrict the position of buildings on the lot or prohibit second storey extensions. These are common in estates developed by a single developer who wanted to protect resale values.

Covenants are creatures of contract registered on title and they bind successors in title. They can be enforced by the original covenantee and (more usefully) by the owners of neighbouring lots benefited by the covenant. Most state planning Acts also let a council enforce a registered covenant if the covenant has been recorded as a planning instrument.

Planning controls

The planning scheme is the main lever for most homeowners. Every local council scheme has controls that limit how a development can impact a neighbour:

• Setback and height controls
• Overshadowing controls (often based on a winter solstice shadow diagram)
• Privacy and overlooking controls (window placement, screening, balcony orientation)
• Daylight to neighbouring habitable room windows

In NSW the State Environmental Planning Policy (Housing) and the Apartment Design Guide set apartment overshadowing rules. In Victoria, ResCode (Clause 54 and Clause 55) controls overshadowing and overlooking for one and two dwellings and for multi-unit developments. Queensland uses the State Planning Policy and the local Planning Scheme. Each scheme has its own numbers.

If a development application can demonstrate compliance with these controls, neighbours generally cannot stop the build on the basis of lost light or lost view. They can however make a submission objecting to non-compliance with the relevant clause. A council can refuse or condition consent based on overshadowing.

What the courts have said

The position has been confirmed many times. There is no actionable nuisance in obstructing a neighbour's view (the leading statement is in Victoria Park Racing v Taylor (1937) 58 CLR 479). Obstruction of light only gives a remedy if a registered easement has been breached. Even where there is an easement, the courts read the easement narrowly against the dominant owner.

Builder context

For builders, the takeaway is procedural rather than legal. When designing or pricing an addition that will overshadow a neighbour or block a view, the questions are:

1. Does the design meet the local planning scheme overshadowing and daylight controls?
2. Is there a registered easement or covenant on either title that limits the building envelope?
3. Has a title search been done in the last 12 months that the designer has read?

The first two are dealbreakers. The third stops the project being stopped at framing stage by a neighbour with a registered easement that no one read. The cost of a title search is a few hundred dollars. The cost of demolishing a non-compliant first floor is much higher than that.

Where neighbour negotiation makes sense

If a design is borderline (just inside the overshadow rule, or close to the neighbour's view corridor) a conversation before the DA is lodged is the cheapest insurance available. A handwritten neighbour acknowledgment on the shadow diagram has resolved more residential disputes than years of litigation. Once the DA is in, positions harden.