Property Law and Common Law

There have been various criticisms over this view that has been taken by the common law courts and it is not entirely defensible. The English Judiciary, around the time of the America Revolution recognized the negative easement which was there with respect to view, air and light. But there was a different approach that was taken by them for creating easements for these rights. The consequence of this was that right to air and light could arise by covenant or grant, prescription or implications whereas with respect to right to view this would arise only if there was a covenant or grant which mentions it specifically.

Further in the late 19^th century the case of Alfred also received criticism in England wherein the distinction between right of prospect and right to light was noted on the basis that while one was a matter of delight the other was that necessity. Such a view more than satisfactory was quaint. There was an inconsistency in common law which was exemplified by this statement with respect to tolerating of easement rights that were analogous, such as rights relating to air and light, but not for the rights that related to view. There were various other rumblings as well. There is no longer any relevance of the justifications of the policy behind the Alfred case. An example of this is the fear that was there that the right to view encumbrance over a property would fetter the estates free alienation or development may be hampered which was something that was understandable in the year 1610. However in the modern times this policy has become redundant in which the encumbrance of the interests are by multiplicity of burdens or charge, which may either be statutory or otherwise. Further it may be observed that such prohibitions on the right of view forming the property’s subject matter may have a justification where the right which is presumed arises prescriptively or impliedly, but not certainly where the same has arisen through grant which is express, specially where there has been a meeting of the law principles of a basic contract.

The faint echoes of nuisance is never far away when it comes to cases that are related to view obstruction. There is frequent employment of nuisance, being a tort that is proprietary, when exploring the properties boundaries. The struggle of High Court in Australia with respect to prospect as property has been discussed and deliberated at various forums. In Ahearn v. Havler which is an obstruction case there was an iron fence the height of which was of 7 feet 6 inches in the Auckland suburbs was considered by courts to not in fact be nuisance. But the matter shall always remain that of degree. There is reserved in Property Law itself a right of intervention when any kind of obstruction crosses the threshold of becoming a nuisance.  Thus there is watching brief role that property law has when it comes to interference with property. Conclusively it can be stated that the position of the common law that denying right to prospects and right to view is not entirely defensible.

Further the decision of Hutchens v City of Holdfast Bay established the view of the common law not defensible. In the Supreme Court of SA DeBelle J. handed down his opinion with respect to private view of the sea as being an amenity and opined that it was granted protection under the common law. This case an application was made for the consent of the development of a building that was three storied at Adelaide, the Sea Cliff’s Esplanade which comprised of two residential apartments, a food store for takeaways and car-parking. The argument against this development was that it would cause an obstruction to the view of the coasts which was being enjoyed currently at the property’s rear by the neighbors. The matter was brought before the court of Commissioner of the Environment and Development on the grounds that there was a right that there existed a right to the view of the sea and the development which was proposed by the respondent would lead to the obstruction of this view.

There (as already discussed above) has been generally previously considered that the views which are with respect to dwellings that are private such as the hill views, coastal or the sea are not any classified right but are instead subject to the land that is in front of it. It is widely considered that any view that the other land parcels have would be subjected to the approval of the council for any property development in the front of it. The enjoyment right of the views was not generally deemed to be in the category that is same as other rights such as that to air, light and using the land generally and enjoying one’s own property.

However, DeBelle J. opining in the appellants favour stated that there was a private right that the appellants had to the view of the sea which was being enjoyed by them currently from the their residential dwellings. It was ruled by his Honor that the amenities which are currently in existence such as the view of the view and being enjoyed by the residents had an overbearing effect on the others’ rights to be able to develop the land in a manner to be able to maximize their own view of the sea.

Thus, despite the fact that there are no rights which are given expressly to the owner of the properties with a view from the residence, this view broadened in this case by the opinion of DeBelle J. as he broadened the amenity definition so that includes aspects such as coastal and sea views. There was a potential legal protection that this case established for protecting the views from private residences.

Therefor, though it has been considered previously generally that views which are in association with private residents such as coasts, seas and views of the hill, are not to be classified as being rights, but are subject instead to the land that is before them. However, this case has recognized this right as being an amenity that is to be protected under the common law.

In contrast possessory and property right and determination of boundaries have been given under common is given sound protection.  In the situation where there is any kind of interference with the real property of an individual it would give rise to trespass of land tort or that of nuisance. It was opined in the case of Entick v. Carrington by Lord Camden LCJ that invasion of a property that was private even for a minute would amount to trespass. There can be no one who can set foot on a private property without the license from the owner. Further such person would be liable to action even if there has been no damage caused.

Further these rights have long been exercised against the officers of the government who are not acting within their lawful authority or the government itself. In the case of Plenty v Dillion  it was stated by Toohey JJ and Mason CJ and Brennan that the principles as stated in the Entick case shall be applicable to any person’s entry who is purporting to act within the Crown’s authority as well as any other individuals entry. Lord Denning was then quoted, adopting from the Earl of Chatham a quotation, by their honours stating that all forces of the Crown may be bid defiance by the poorest of man who is in his own cottage. It may not be a strong cottage, the roof may be shaking, the wind may be blowing through it, the rain and storm entering but it will not be allowed for the King of England to enter this cottage. There cannot be crossing of his force across the threshold of this tenement that is ruined unless; there is a strong justification under law for the same.

In the case of Haliday v Nevill it was stated similarly by Brennan J. that the abovementioned principle is applicable to both private persons as well as the government officers alike. A police officer who has entered or has remained on a property which is private without license or leave by the person in whose possession the property is or who is entitled to the possession of such property there is a trespass which has been committed and he has acted in a manner which is outside the his duty’s course unless his remaining or entering the property has been excused or authorized by the law.

Conclusively it can be stated that the manner in which the common law approaches the determination of the other boundaries of the property is not the same in which it approaches the boundaries of right to view or prospect status of the property. There is far more stricter approach taken by the courts in the course of the actions for determining if there has been any trespassing over the premises of the individual without his leave or license or unless it has been specified under the law, even from the Crown or the government or the officers of the government. It is only when it comes to the right of view that the common law has taken or more lax view opining it to be only a mere delight this is in contrast event to the approach it has taken towards the right to air and light (as mentioned above) which it has stated to be the necessity. However, this is defensible as there has been a change in the view of the courts and in the recent cases the right to view has been added to the list of amenities in the case of Hutchens v City of Holdfast Bay.

References

Candetti, Lora, "Private Views May Now Be Recognised And Protected By Common Law" (2007) 22Australian Property Law Bulletin

Gale, Charles James and Spencer G Maurice, Gale On Easements (Sweet & Maxwell, 1972)

Lee, Rosalind, "Nuisance - The Right To Light" (2007) 25 Property Management

"Light And Air-Extent Of The Right To" [1852] The Western Law Journal

Page, John and Ann Brown, "Scenic Amenity, Property Rights, And Implications For Pastoral Tenure In The South Island High Country" [2008] Paper Presented at University of Canterbury Law

Reeves, Alfred G, A Treatise On The Law Of Real Property (Little, Brown, 1909)

Ahearn v Havler [1967] NZLR 245, 248

Dalton v Angus [1881] a AC 740, 824

Entick v Carrington [1765] EWHC KB J98

Haliday v Nevill [1984] HCA 80

Hutchens v City of Holdfast Bay [2007] SASC 238

Nomar v Ballard [1915] 60 S.E.2d 710, 714

Plenty v Dillion [1991] HCA 5

Southam v Smout [1964] 1 Q.B.) 308, 320.

William Alred [1610] 77 ER 816 at 821

A Common Law Right | ALRC (2016) Alrc.gov.au <https://www.alrc.gov.au/publications/common-law-right-3#_ftn7>