Who Owns the Landscape; and is there a Right to a View?

In contemporary Western societies, there is evidence of a widespread attitude that landscape can provide visual amenity to a community, and a view can give value to a vantage point, and each is therefore worth protecting. In question is the extent to which visual amenity is and should be protected when it conflicts with other interests. This chapter seeks to answer this question by considering the recognition and treatment of landscape and the view by the law. If the protections afforded to the view by both public and private law are weak, that is not the fault of the law. Rather it is a reflection of prevailing attitudes. Landscape is valued in art and literature, and paid lip service in planning legislation, but is not yet considered sufficiently valuable throughout Australian communities to override economic concerns. If, as seems likely, natural landscape and individual views become more rare, then communities will need to take more active steps to plan for them and put them in place, and we will require different and more forceful laws to defend them.

Keywords: Tree-change, landscape, visual amenity, Australian law, heritage, planning.