Background
An applicant sought approval to build a pergola at the rear of their home in Mosman, a suburb of Sydney. The local authority, Mosman Municipal Council, refused the application, prompting the applicant to appeal the decision to the Land and Environment Court of New South Wales. The council’s refusal was based on the proposed structure’s impact on water views from a neighboring property and its perceived bulk and scale.
The owner of the neighboring property at 9 Kardinia Road objected to the development, arguing the pergola would obstruct their views and have an adverse impact due to its size. During the court proceedings, the applicant amended the proposal to mitigate these concerns, including removing a retractable blind component and altering the structure’s height and setback.
The Court’s Holding
The Court upheld the appeal and granted development consent, finding the pergola’s impact on the neighbor’s views was not “significant.” The court first determined that the affected views were indeed “water views” protected by the local planning controls, but not views of “significant landmarks.” The central issue was whether the development would “significantly obstruct” these views from the neighbor’s living areas.
After reviewing view analysis photographs and expert evidence, Commissioner Targett concluded that while there was some obstruction, it was not significant. The court found that the amended design preserved whole and filtered water views and did not obscure key landmarks like The Heads. The court also dismissed concerns about the pergola’s bulk and scale, noting that the design was generally consistent with the established rear setback in an area with irregular property alignments. The appeal was successful, and consent was granted with conditions.
Key Takeaways
- A development will not be prohibited merely because it causes some obstruction to a neighbor’s protected “water views”; the obstruction must be “significant.”
- The court may find a view obstruction is not significant if the design preserves the essential character of the view and allows for whole or filtered views of the water to remain.
- In areas with irregular property lines, compliance with rear setback controls may be assessed on a merit-based approach rather than requiring strict uniformity with surrounding structures.
Why It Matters
This decision provides a practical application of “view sharing” principles in a jurisdiction where water views are highly prized and frequently contested. It clarifies that a developer can succeed in obtaining consent, even over objections, if they make reasonable design concessions to minimize view loss. The ruling underscores that while views are a key consideration, their protection is not absolute, and a development that is otherwise compliant and reasonable is likely to be approved even if it results in a partial, non-significant impact on a neighbor’s outlook.