Protecting a Right to a View
In English law there is no such thing as a legal right to a view. This was established in Aldred’s Case 1610, which showed that to qualify as an easement a right must be “sufficiently definite”, whereas a right to view is far too general in terms of the land which bears the burden.
It should be noted that a right to a view is different from a right to light, which can exist in law though only in respect of a specific aperture, i.e. a right to receive light through a particular window. The fact that a right to a view cannot exist as an easement means that no matter how long a view has been enjoyed by the owner or preceding owners of land it can never be enjoyed “as of right”. It may however be possible to protect the view in other ways.
Licence to Enjoy a View
If you wish to preserve a particular view, because you enjoy it or because you believe it adds value to your property, it might be possible to enter into a contract, or licence, with the owner of any adjacent land who might have the potential to block the view.
A licence is a personal agreement between two people. It will not bind the land and will not be enforceable by or against subsequent owners, though it may be possible to add a term obliging the adjacent land owner to ensure that a future land owner enters into a similar agreement. For the licence to be enforceable a consideration (payment) would have to be made. This could be a lump sum or a regular payment. There is no upper or lower limit on the amount that would be necessary.
Restrictive Covenant Not to Build Etc
Another option is to encourage an adjoining land owner, and any land owner between you and the view, to enter into a covenant not to build on, or plant trees on, a particular part of their land which in the line of the view. Restrictive covenants attach to land and so will bind future owners as well as the owner who actually entered into the covenant. It is possible they can be removed by application to the Lands Tribunal, though generally not if the purpose for which they were created still exists.
The advantage of a restrictive covenant over a licence is that no payment needs to be made to future owners and they cannot decline to accept the restriction, though conversely there is less incentive to land owners to agree to enter into a covenant.
Existing Covenant Not to Cause “Annoyance”
It may be that an adjoining land owner decides he wants to develop his land, in which case he will not be interested in entering into a licence or covenant not to do so, or at least not unless any payment he receives in return is greater than the profit he would make from development.
If this is the case you should check your deeds to see if your land benefits from a covenant in respect of the adjoining land not to cause “nuisance or annoyance”. A recent case, involving a house on an estate next to the Thames, showed that such a covenant could be enough to prevent land from being developed if the development would obscure an existing view.
The owner of the land which was subject to the covenant obtained planning permission for a three storey side extension which if built would partially obscure the river views of five other properties. The owners of those properties objected, relying on the benefit of the covenant. The High Court decided that, whilst an obstruction of a view could not be regarded as a legal nuisance, it was capable of being an “annoyance”.
The test for whether an action amounts to annoyance is whether ‘reasonable people, having regard to the ordinary use of a house for pleasurable enjoyment, would be annoyed or aggrieved’, with that being judged by ‘robust and common sense standards’. On this basis the obscuring of the view was an annoyance and the covenant stood. The result might have been different if the view being obscured was one which would generally be considered less aesthetically pleasing, so if the view was across, say, a car park on which someone wanted to build an apartment block, a claim might fail because a reasonable person would not enjoy a view of a car park in the first place.
This case also highlights the need to check your deeds for covenants if you plan to build on your own land.
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