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A PROPERTY OWNER’S RIGHT TO A VIEW

I was recently consulted by clients for advice on whether or not they could prevent their neighbours from erecting a structure which would obstruct their views of the sea.

The question of whether or not a property owner enjoys a “right to a view” was given considerable exposure in the media a few years ago.  In a Natal court case which ended up in the Supreme Court of Appeal (SCA) a property owner successfully obtained a court order which set aside the municipality’s approval of plans submitted by his neighbour for the erection of a structure which would impair his panoramic views.

However, what was not commonly known was that the SCA set aside the municipal approval of the plans because the formalities required by law had not been complied with.  In simple terms the municipality had not followed the correct procedures when approving the plans.  The successful owner had accordingly prevented his neighbour from obstructing his view because of a “technicality” and not because he enjoyed a legal “right to a view”.

Some misleading articles appeared in the media about the case which led the public to believe that owners did in fact have a right to a view.  However, in a subsequent High Court case in the Cape a similar situation was considered and ruled upon.  In this case the judge effectively ruled that a property owner does not have a right to a view.

In my opinion an owner does not enjoy a right to a view in terms of our law and can accordingly not prevent other owners from erecting structures on their properties merely because such a structure would impair the owner’s views (even if the impairment of the views could adversely affect the value of the owner’s property).

The only restrictions (in my opinion) on a land owner’s right to develop his land are contained in the municipal zoning and building regulations and title deed conditions.  In other words if an owner wants to erect, for example, a double storey residence and such a structure is permitted by the zoning and building regulations then he should be entitled to do so (even if it impairs his neighbour’s views).

Owners who build their homes before owners of the surrounding properties must be aware that their views may be impaired when surrounding owners erect their homes.  They should not be able to prevent other owners from erecting dwellings which are permitted by the building regulations simply because it would obstruct or impair their views and because “they were there first”.   One owner should not enjoy better rights to his property than another owner.  If double storey dwellings would under normal circumstances be permitted on two adjoining properties, why should the owner who builds a double storey before the other owner be permitted to prevent his neighbour from erecting a double storey simply because it would obstruct his views and because he built his first?


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