For many people, the view from a property is an important aspect of both purchasing and owning a home. Views can add to both the value and amenity of a property, however in Queensland, attempting to protect views can be a complex undertaking.
While there are some limited actions available where there has been unlawful interference with a person’s use or enjoyment of their land, generally landowners do not have a right to a view. This principle extends to easements, and unfortunately an easement to preserve a view from a property will not be recognized by the Land Titles Office as it is not for an acceptable purpose.
Light and Air Easement
One option which may be considered is an easement for retention of light and air. An easement essentially gives the grantee of the easement rights in relation to the land the easement is granted over, and a surveyor must be engaged to prepare a survey plan identifying the easement area. Easements may be restricted in both height and depth and need not be two-dimensional.
The purpose of an easement for retention of light and air is generally to restrict the encroachment of structures within the easement area that will block a property’s access to light and air. While the effect of such an easement can be to preserve certain views from a property, the covenants contained in any proposed easement will need to be carefully considered to ensure that the purpose of the easement is not found to be invalid.
Covenants contained in any proposed easement will also need to be clear and precise, to ensure that each parties’ obligations are not open to interpretation. Once an easement is registered it can generally only be amended or surrendered with the consent of the owners of both properties affected.
With regards to maintenance of things such as vegetation, care must also be taken to ensure that restrictive covenants are used, as positive covenants will generally not be binding on future owners of the neighbouring property. For example, a covenant requiring a neighbour to maintain vegetation at a certain height will only be enforceable against the owners of the land at the time the easement is granted.
It is important to note that any landowner considering an easement for light and air will require their neighbour’s consent to an easement before it can be registered.
Due to the current provisions of the Building Act 1975, the registration of an easement benefiting your property will mean that your neighbour will need to obtain your consent to any proposed building work as part of their development application. For this reason, and due to the obvious restrictions any proposed easement will impose, landowners can be quite reluctant to agree to any easement being registered.
If you or your neighbour has suggested an easement for light and air, it is important to obtain legal advice in relation to the proposed arrangement to ensure that any terms are acceptable to both parties. If you require legal advice or assistance with negotiating acceptable easement terms, please contact the team at Miller Sockhill Lawyers.