Rural Lifestyles, Community Well-Being and Social Change: Lessons from Country Australia for Global Citizens E-Book
35,66 €
Mehr erfahren.
- Herausgeber: Bentham Science Publishers
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
In our increasingly global world, individuals are highly mobile and interconnected. Politics, policies and technologies foster interconnection amongst and within countries as individuals relocate from one place to another. One key issue facing developed and developing countries is urban overcrowding. In Australia, urban density is one factor prompting institutions and individuals to embrace ‘rural revival’ as a possible solution to urban congestion and rural decline. In the past decade, rural Australia has received heightened publicity and interest as a lifestyle destination encouraged by national decentralization policies to alleviate urban overcrowding, particularly the metropolises Melbourne and Sydney, regional councils’ marketing initiatives and international refugee relocation.
Rural communities struggle in contrast with urban counterparts for several, often complex, reasons. The ‘realities’ of rural life are frequently marginalized while marketing campaigns evoke stereotypical imagery of idyllic lifestyles and bucolic pastures to sell dreams of country bliss to fatigued urbanites.
This edited e-book is a collection of articles that explores ‘rural realities’ of country life in Australia for global audiences interested in rurality, health and well-being. By transcending disciplinary-specific boundaries, this multi-disciplinary book not only presents contemporary challenges, but also equips readers with evidence-based knowledge to improve resilience in communities and individuals facing key issues such as aging, depression, disability, environmental degradation, limited service delivery and social isolation. Utilizing a variety of social science research methods, each chapter will enhance readers’ insights about rural amenities, geography, identity, culture, health and governance which impact wellbeing and lifestyle satisfaction. Collectively, this book exposes readers to ideas from a dynamic range of experts in the humanities, social and natural sciences to encourage a holistic approach to developing solutions for a complex social world.
The content of this volume will interest a wide audience of graduates and undergraduates, researchers, professional practitioners and policymakers involved with non-profit and government organizations, and interested community members.
Das E-Book können Sie in Legimi-Apps oder einer beliebigen App lesen, die das folgende Format unterstützen:
Seitenzahl: 1027
Veröffentlichungsjahr: 2014
Ähnliche
BENTHAM SCIENCE PUBLISHERS LTD.
End User License Agreement (for non-institutional, personal use)
This is an agreement between you and Bentham Science Publishers Ltd. Please read this License Agreement carefully before using the ebook/echapter/ejournal (“Work”). Your use of the Work constitutes your agreement to the terms and conditions set forth in this License Agreement. If you do not agree to these terms and conditions then you should not use the Work.
Bentham Science Publishers agrees to grant you a non-exclusive, non-transferable limited license to use the Work subject to and in accordance with the following terms and conditions. This License Agreement is for non-library, personal use only. For a library / institutional / multi user license in respect of the Work, please contact: [email protected].
Usage Rules:
All rights reserved: The Work is the subject of copyright and Bentham Science Publishers either owns the Work (and the copyright in it) or is licensed to distribute the Work. You shall not copy, reproduce, modify, remove, delete, augment, add to, publish, transmit, sell, resell, create derivative works from, or in any way exploit the Work or make the Work available for others to do any of the same, in any form or by any means, in whole or in part, in each case without the prior written permission of Bentham Science Publishers, unless stated otherwise in this License Agreement.You may download a copy of the Work on one occasion to one personal computer (including tablet, laptop, desktop, or other such devices). You may make one back-up copy of the Work to avoid losing it. The following DRM (Digital Rights Management) policy may also be applicable to the Work at Bentham Science Publishers’ election, acting in its sole discretion:25 ‘copy’ commands can be executed every 7 days in respect of the Work. The text selected for copying cannot extend to more than a single page. Each time a text ‘copy’ command is executed, irrespective of whether the text selection is made from within one page or from separate pages, it will be considered as a separate / individual ‘copy’ command.25 pages only from the Work can be printed every 7 days.3. The unauthorised use or distribution of copyrighted or other proprietary content is illegal and could subject you to liability for substantial money damages. You will be liable for any damage resulting from your misuse of the Work or any violation of this License Agreement, including any infringement by you of copyrights or proprietary rights.
Disclaimer:
Bentham Science Publishers does not guarantee that the information in the Work is error-free, or warrant that it will meet your requirements or that access to the Work will be uninterrupted or error-free. The Work is provided "as is" without warranty of any kind, either express or implied or statutory, including, without limitation, implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the results and performance of the Work is assumed by you. No responsibility is assumed by Bentham Science Publishers, its staff, editors and/or authors for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products instruction, advertisements or ideas contained in the Work.
Limitation of Liability:
In no event will Bentham Science Publishers, its staff, editors and/or authors, be liable for any damages, including, without limitation, special, incidental and/or consequential damages and/or damages for lost data and/or profits arising out of (whether directly or indirectly) the use or inability to use the Work. The entire liability of Bentham Science Publishers shall be limited to the amount actually paid by you for the Work.
General:
Any dispute or claim arising out of or in connection with this License Agreement or the Work (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the U.A.E. as applied in the Emirate of Dubai. Each party agrees that the courts of the Emirate of Dubai shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this License Agreement or the Work (including non-contractual disputes or claims).Your rights under this License Agreement will automatically terminate without notice and without the need for a court order if at any point you breach any terms of this License Agreement. In no event will any delay or failure by Bentham Science Publishers in enforcing your compliance with this License Agreement constitute a waiver of any of its rights.You acknowledge that you have read this License Agreement, and agree to be bound by its terms and conditions. To the extent that any other terms and conditions presented on any website of Bentham Science Publishers conflict with, or are inconsistent with, the terms and conditions set out in this License Agreement, you acknowledge that the terms and conditions set out in this License Agreement shall prevail.Bentham Science Publishers Ltd. Executive Suite Y - 2 PO Box 7917, Saif Zone Sharjah, U.A.E. Email: [email protected]
FOREWORD
I am delighted to be writing a foreword for this important eBook. Seventeen years ago I moved with my family from urban Britain to regional Queensland and have lived in regional Australia ever since. Even before making the move, we were made aware that many metropolitan folk assume the only reason to move to a regional area is to take a step back; a sea-change, a tree-change or a me-change.
My experience of regional Australia has not been one of sleepy towns with people idling their lives away. In fact my experience has been that people are every bit as dedicated and busy as their urban counterparts, probably more so. However, there is a real difference and that is there is a far greater sense of authenticity and connection in regional and rural areas. People matter, individuals matter and there is a much greater opportunity for a sense of genuine contribution to community and to feel you have made a real difference.
Living in regional areas, there can be a sense that regional policy is an afterthought and that those in our capital cities are more interested in doing things ‘for and to’ regional communities rather than ‘with and by’ to use Charles Leadbeater’s terms. Regional Australia is critical to the health and wealth of the whole nation and there we therefore need a better understanding of its issues and opportunities. We also need to ensure that rural and regional communities are involved in setting policy and determining solutions that affect their future.
The twelve chapters in this eBook deal with a very broad range of issues. Starting with landscape and social change, the various authors traverse migration, mental health issues, the lives of health professionals and through to questions of identity. They provide a deep exploration of aspects of rural and regional life. This is absolutely in line with the function of regional universities and academics to serve their communities through relevant research. I hope you enjoy this eBook and that it contributes to your understanding of rural and regional Australia.
PREFACE
In our increasingly global world, individuals are highly mobile and interconnected. Politics, policies and technologies foster interconnection amongst and within countries as individuals frequently relocate from one place to another. In the past decade, rural Australia has received heightened publicity and interest as a lifestyle destination of choice. Pushes from national decentralisation policies, aimed at alleviating urban overcrowding, particularly in the eastern metropolises of Melbourne and Sydney, regional councils’ marketing initiatives that seek to capitalise on ‘rural revival’ trends and international refugee resettlement plans have led to renewed interest in Australia’s country towns. Despite renewed interest, however, rural Australia continues to receive a small portion of government funding for healthcare, social services and infrastructure development as well as limited corporate interest. Nationally, Australia continues to be one of the most urbanised countries on the planet, with 84% of the population residing in a handful of major cities mostly along the eastern seaboard.
Subsequently, rural Australian communities struggle in contrast with urban counterparts for several, often complex, reasons. The challenges facing rural communities tend to remain marginalised whilst marketing campaigns advocate ‘moving to the country’ and utilising a host of stereotypical imagery associated with idyllic lifestyles and bucolic pastures to sell dreams of country bliss to fatigued urbanites. Against a backdrop of historical invisibility and deprioritisation, this eBook contributes to the production of knowledge and information exchange across locations and people interested in the challenges facing rural communities in a time of rural revival.
This edited eBook showcases original, empirical and contemporary social research of academic and practical relevance to disciplinary and trans-disciplinary audiences interested in community wellbeing and social change. In particular, it explores concepts of rural identity, examines infrastructure, health and social service delivery challenges and triumphs and considers how politics and practices congruent with ‘country life’ have changed as technologies and people become increasingly fluid and interconnected. The contributions from business and information technology experts, economists, educators, healthcare professionals, natural scientists, sociologists and social workers offer insights that aim to facilitate a multidimensional window into issues facing contemporary societies in a globalised world.
The eBook commences exploration of what ‘country’ means in Part One by first questioning assumptions about landscapes and their future sustainability. Chapter one considers landscape as a visual amenity which can be regarded positively or negatively by the various inhabitants of rural communities. What people think about their local landscape is argued as causally linked to the nature and degree of one’s attachment, expressed through a sense of landscape ‘ownership’ and/or ‘belonging’ to a particular place. Individual rights and obligations, or lack thereof, with the physical environment, particularly environmental degradation and vandalism, are explored followed by a historical journey into local and international case studies impacting planning and legislation governing who ultimately has achieved a ‘right to a view’. Chapter two continues examining the impacts environmental, aesthetic-seeking migrants have on their rural communities of choice. By questioning broader implications of lifestyle migration, this chapter provides empirical analysis that gives reason to consider how a multitude of individual impulses to live in ‘pretty’ places may have deeper implications, not only for housing and other infrastructure concerns, but moreover for communities who may find themselves at odds as individuals struggle and contest whose ‘rights’ are more worthy, or authentic, to protect.
Chapter three takes a historical, socioeconomic view of how politics, policies and practices affect lifestyle desires, migration trends and, ultimately, rural communities’ success or decline. By foregrounding the decades of 1930 and 1940, census data is used to detail how demographics, specifically age and gender, intermingled with geographical nuances, particularly war, global economic depression and technological and climatic changes, in similar patterns as elsewhere and with what consequences for a key agricultural region in rural Australia. As the chapter reveals, varied locations may experience similar conditions, such as drought and agricultural mechanisation in any historical moment, but such occurrences may differently affect prosperity measures. Offering a plethora of empirical evidence, this chapter showcases one rural region to demonstrate how such conditions failed to produce long-term economic decline. It is ultimately argued that the complexity of social, political and physical factors combined to produce unique and divergent outcomes and argues for the importance of cultural capital.
Chapter four extends examination of the negotiated struggle that occurs between individuals and their rural community environments by focusing on a different category of ‘lifestyle’ migrant – refugees. By comparing and contrasting four rural communities, the politics, policies and practices affecting ‘resettlement’ are closely examined. Drawing upon in-depth qualitative interviews, this chapter deeply fleshes out long-held stereotypes and concerns affecting both migrants and the communities in which they have settled. It highlights existing gaps in current social service provision, offering a pathway into the second part of the eBook, rural health and well-being.
By transitioning to a deeper focus on the connection between health and the physical and mental well-being of rural communities and their inhabitants, the second part of this edited collection offers both academic and practitioner-based insight into contemporary social problems. How rurality affects both the experience and treatment of mental health illnesses, namely depression and social isolation, forms the substantive content of this section. Ethnographies, surveys and interviews, as well as a range of secondary data, are used to concretely report how conditions unique to rural geographies and communities significantly affect the experience and delivery of healthcare services such as counseling, education, paramedics, nursing and social welfare support. Each chapter employs a different disciplinary and conceptual lens, yet the combined message is similar; in order to thrive in rural environments, individuals and communities need equitable access to the quantity and quality of services offered in advanced metropolitan locations. Gender, age, class and ethnic stereotypes continue to drive discourses and perceptions regarding what ‘rural’ individuals experience and need. Those living ‘on the margins’, whether they are rural women, farmers, or the disenfranchised, each contend with and face challenges that are different than their metropolitan counterparts. Identifying how to best reach and solve the many social and infrastructural conditions affecting the rural populations researched, particularly those in the remotest communities, is an aspiration driving each chapter. With most social and health services operating on the ‘smell of an oily rag’, the stories and wealth of experiences shared provide lessons to inspire social change, wherever one lives.
The eBook concludes with two chapters devoted to rural politics and identity. Having explored what attracts some individuals to rural communities in the first place, followed by chapters focused on the harsh realities that tend to accompany rural Australian life, the last section considers the important role culture plays in the interpretation of experience. Although individuals are concretely affected by their physical environment, how one interprets physical and social risks, such as the simple drinking of water, reveals the connection between geography and ‘the self’ is infinitely complex.
Individual thoughts and perceptions about one’s culture, and connection or disengagement with it, may be expressed symbolically as well as practically. As Chapters eleven and twelve demonstrate, postmodern societies manifest unique ways to construct ideas and identities. Whereas Chapter twelve discusses how technology has changed the interface between global literary activities, Chapter twelve counter-argues that, for all our technological advancement, many in rural communities still fail to achieve adequate literacy in a most fundamental aspect of human well-being – namely, the capacity to discern ‘real’ health risks associated with drinking water due to inequalities in systemic policies and perceptions.
Individually, the chapters in this eBook each advance timely, disciplinary-specific knowledge of interest and relevance. Its deeper strength and knowledge contribution lie, however, in its collective advancement in academic and applied thought on issues facing the many inhabitants of rural communities worldwide. While the examples drawn stem from rural Australia, the issues detailed and lessons learned are applicable globally. Unfortunately, barriers to physical, mental and social well-being continue to afflict all contemporary world citizens. Rare is the single text that successfully addresses, let alone solves, all social problems. This text sought to do neither. It has endeavoured, however, to prioritise commonalities in the human experience, specifically the desire to lead a healthy and fulfilling life in a comfortable physical environment, to reveal how rural communities may continue to experience disadvantage and inequity. This was achieved by asking leading experts in the social and natural sciences to share original research, data and insights compiled as a means to advance existing local and global knowledge about what contributes or detracts from rural individuals’ and communities’ capacity to prosper and thrive.
LIST OF CONTRIBUTORS
DEDICATION
The Editor would like to dedicate this eBook to all researchers who prioritise examination of underprivileged populations and places for the purpose of effecting positive social change. It is those who advocate for social justice for those at the margins of society that enable their unique experiences to be globally shared, by giving agency to their individual and collective voices, so those living in rural and remote geographies, in Australia and beyond, may be heard.
Who Owns the Landscape; and is there a Right to a View?
Max Staples*Abstract
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.
INTRODUCTION
Despite its large size, Australia is one of the most urbanised nations in the world. A high proportion of the population lives in a few major cities which are located on or adjacent to the coast. This trend has been strengthened over the past few decades, by immigrants from overseas who move directly to the cities, and by internal migration from rural holdings and smaller settlements to larger cities and towns.
Two movements of people, although relatively small, stand out as counter to this trend. The first has been described by the coinage “sea-change”, and refers to the
movement of people from the cities to less-populous localities located beside the sea. The Australian Broadcasting Corporation explored the phenomenon in a popular television drama series of the same name (Knight & Cox, 1998-2000). Along with the expansion of existing cities along the coast fringe, this movement has flooded the coastline with housing developments and people, whilst stimulating a rise in property values, unabated to date.
The second and more recent phenomenon has been a movement of people from the cities to the inland, for the most part to the fertile country of the Great Dividing Range and the Western Slopes, which has been identified by the term “tree-change” (Luck, Race, & Black, 2011). Whilst the numbers of people, notably the young, leaving regional and rural areas is still greater than the number of tree-changers who move the other way, it is significant that the process of depopulation at least to some degree has been reversed.
Government, planners and private enterprise would do well to pay close attention to the phenomenon of tree-change, so as to better understand and encourage an organic process which can help to maintain human services, tend to the environment, and contribute to living communities in the oft-forgotten rest of Australia outside of the major cities.
Tree-changers make a decision, with a greater or lesser degree of autonomy, about the respective merits of different locations. The change is in some measure about control. Unable to change the negative features of their previous environment, the tree-changer moves to where positive features exist, or can at least be built up. They will move to a place where they have greater direct control over their circumstances; or where they trust the broader community to preserve the values they want.
Each individual, or domestic group, will have their own set of motivating factors. Landscape, in the sense of the external physical environment, may act as a push, which repels them from their original address; or as an attractant, which draws them to the new. When the new landscape is a positive, a tree-changer will be reluctant to lose it.
Yet landscape is mutable. It changes according to natural events and human acts. Part of the change is cyclical and within bounds, such as change according to the seasons and recurring patterns of rainfall. When the landscape environment exceeds these bounds and changes sufficiently to lose the characteristics that made it attractive, the tree-changer may feel that they have lost the control they sought to assert over their own life by making their move in the first place. A view from their property is easily susceptible to change. It can be lost to the vantage point by obstruction, even where the originating phenomena remain.
BACKGROUND
Jeannie Baker’s remarkable picture book, Window (1991), serves to illustrate the process of change. In the beginning, a young mother and her baby son gaze out of the window of their home, at a wilderness of lush forest, native animals, and birds. As the son grows older, other homes appear amongst the trees. The yard is suburbanized, with a rotary clothesline and a concrete drive. Roads appear, and more of the forest is razed and subdivided for homes. Factories, shops and tower blocks are built, and the roads become choked with cars. Eventually the son grows to adulthood and has his own child, and the book concludes with the two of them looking out of the window of their new home, set in a different area of lush forest, but where the process of creeping subdivision has begun anew as indeed it must, because the protagonists of this tale, who have their own view built out, are also the antagonists of someone else’s tale, by blocking the view for them.
Baker’s (1991) book shows the problematic nature of the picturesque. We may each take a copy of her visually attractive book, and enjoy it at our leisure. The physical environment, by contrast, is a common, rather than an individual, good. By looking at it, we place ourselves within it, and alter its value for someone else. For this reason, the right of one person or group to a particular style of physical environment must be relative rather than absolute, because it may reduce another’s right. Tree-changers acquire property with visual amenity by means of spending money, or because they have sought out a “new” and unexploited location. They can hardly argue that later arrivals, with a similar sense of discovery, or with still more money, may not do the same.
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.
Rural settlements are of many types. A few rely, and thrive, on their proximity to employment opportunities, such as mines. In the mining villages of northern Australia, which are used as dormitories where the workforce flies in, and flies out to perform their shifts, visual amenity is of little account. It is rather those communities that consist of couples and multiple generations that may be particularly dependent on their capacity to provide visual amenity, when they do not possess other types of attraction, such as proximity to services, transport links, and large-scale employment. Local communities might reasonably look to the law to protect the visual elements that distinguish their own identity and help sustain their economy.
THEORETICAL LENS AND LITERATURE REVIEW
Traditionally, legal literature has dealt with land as a form of private property within national jurisdictions. Since the Second World War, the issue of landscape and its value has been taken up at by international bodies and made the subject of international agreements. The World Heritage Convention (UNESCO, 1972) and the European Landscape Convention (Council of Europe, 2000) for example seek to protect landscape on the grounds that it is an element of social identity. The literature that discusses this trend tends to do so in terms of rights, with notable variations of approach. English-language literature has used landscape as the jumping-off point for autobiographical musings about places and their role in the writer’s personal formation, as in Simon Schama’s (1995)Landscape and Memory and George Seddon’s (1997) more didactic Landprints: Reflections on Place and Landscape.
By contrast, Henri Lefevre (1991), a Continental scholar with a Marxist background, has sought to produce a coherent philosophical description of the production of space as a social process which is linked to particular perceptions of the social space and modes of production, The Production of Space. Lefevre regarded social space and the identity it bestows as inherently ideological, and therefore an element of hegemonic control by the ruling class.
Chris Butler (2009) laments that English-language and Australian writers who deal with the “spatial turn” in critical legal studies have not given sufficient recognition to Lefevre and the relativism of social construction. Butler argues that the concept of “interlegality”, where “legal spaces operate simultaneously on different scales”, can help overcome “the narrow, doctrinal closure of legal formalism” (2009, p. 5) which he regards as bad. Other English-language writers have been more eclectic in their enthusiasm for French theory. Fleur Johns (2005) in her consideration of the relationship between law and landscape combines Derrida and Merleau-Ponty with personal reflections and references to case law.
Despite Butler’s (2009) disdain, legal formalism is of benefit if a researcher regards the law as a means evolved by society to perform transactions between individuals, business and government. Certainly, the law will favour some sections of society and some interests over others. The intention of this chapter is to consider how the law in relation to landscape in Australia works, and to recognise some of the biases, and to ask what they mean; and to consider how the law can suit our future interests, because the law is capable of change and improvement. Without dismissing either the autobiographical or the relativistic approach, each of which has its worth, the writer hopes to present an overview of current law with the practical effect of illustrating what might happen if a person seeks to hinder or protect a view today.
By doing so we reveal a positivist bias, by proposing that the law in force in a liberal democracy at any time more or less represents the attitudes of the populace. In Australia, the law relevant to landscape falls into two types, the public and the private. In broad terms, statutory law, made by parliaments, is general, and enforced by the Crown on behalf of the people. It is democratic in the sense that the people are able to elect or dismiss the governments that make the law. Heritage legislation is arguably an exception to the democratic rule, where it has been passed by the Commonwealth and replicated by the States in response to international treaties emanating from unelected supranational bodies, such as the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Common law is made by the courts, and depends on individual people and bodies bringing private actions against one another over particular matters. Over time, the decisions of the courts build up into a body of precedent. Like statute, court-made law will express the currents of its time. The ground-breaking decision by the High Court of Australia in Mabo (Mabo v Queensland (No 2) [1992] HCA 23), which recognised for the first time a form of Aboriginal land title, shows the capacity of common law to adapt in response to changes in public opinion.
If the protections afforded to the view by both public and private law are weak, that is not, on a positivist interpretation, 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 landscapes and individual views become more rare, those that remain are likely to become more valued. Then, communities will need to take more active steps and employ more forceful laws to defend the landscape.
This chapter goes on to provide an historical review of the common and statutory law on the view in Australia, with comparison to the English and US situation and a case-study of how one significant landscape view was created and protected.
Ownership of the View in Common Law
A landholder seeking to defend a view as part of their property must by able to show the basis on which they own it. The facts that the view is in existence, and is pleasant, and even that it adds value to the property, are not sufficient.
In Australia, as in other modern jurisdictions, the rights of ownership of land are not absolute, because ownership devolves from the Crown. Even the Crown, which has the power to appropriate land, can do so only “on just terms” (Commonwealth of Australia Constitution Act 1900 (Imp), s 51(xxxi)).
Property, in its various forms, may be regarded as a bundle of rights (Gray, Edgeworth, Foster & Grattan, 2007). Different types of ownership are possible, depending on the particular rights that are recognised for that type. Fee simple, for example, entails the right to alienate or sell the property, as well as the right to quiet enjoyment, as the owner chooses. A leaseholder also possesses the right to quite enjoyment, but cannot sell the property.
“Quiet enjoyment” includes freedom from trespass, freedom from noxious smells, and freedom from excessive noise. It may even extend to a right to light, based on the common law principle that where a property holder has traditionally enjoyed a certain level of illumination at their windows, it may not be reduced by the actions of others (Colls v Home & Colonial Stores Ltd (1904)). Where these rights are interfered with, the property holder can sue for nuisance (Prosser, 1966). The right to light is likely to be increasingly litigated, where householders require light to power their solar cells. Rights do not extend to views.
In Australian common law, there is a well-established principle that there can be no ownership in a view. The leading authority was given in 1937, by Victoria Park Racing & Recreation Grounds Co Ltd v Taylor ([1937] HCA 45). The events of this case took place in inter-war Sydney, when horse-racing was highly popular and illegal betting shops flourished. Radio was a relatively new medium and was still exploring its own technological possibilities. The defendants, the wireless station 2UW, hungry for content like the new media of today, hit upon the ingenious plan of giving live broadcasts of the races at Victoria Park, without having to pay for them. The defendants formed an agreement with a landowner whose property adjoined the racecourse to erect an elevated platform on his land, from which it was possible to see the action on the track. On race days an employee of 2UW would climb up the platform, and provide a vivid commentary on each race and its results, by means of speaking into a telephone that was connected to the studio of the broadcaster. The live broadcasts proved popular, and upset the owners of the racecourse, who believed they were losing money because people were listening to the radio instead of paying to get into the track. The owners took legal action to shut down the broadcasts.
In deciding the case, the Court considered the meaning of “use and enjoyment.” Chief Justice Latham held that the defendants had “not interfered in any way” with the owners’ use and enjoyment of their land. The racecourse remained suitable for racing, the races were not interfered with, and no negative effect could be detected on the occupants. Mere looking was not a wrong. “Any person”, stated the judge, “is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence” (Victoria Park, 1937).
There is, in other words, no ownership in a view, because it is not one of the rights that attaches to property. It seems on the Chief Justice’s reasoning that it cannot be a right, for the reason that a view cannot have a value. The Victoria Park case refers directly to the view or sight that is provided by a spectacle, and concludes that the owner of the physical entities that create the spectacle has no right to the sensory effects of them: “a ‘spectacle’ cannot be ‘owned’ in any ordinary sense of that word” (Chief Justice Latham, in Victoria Park, 1937).
In his dissenting judgment, Justice Rich turned the reasoning around and found that it was the viewer who did not have the right. He sticks, nevertheless, to the same underlying premise as the majority decision, that no such right to a view can be found: the “real point” of the case was that “the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards” (Victoria Park, 1937). This is common ground with Chief Justice Latham’s observation cited above that the racecourse owners to protect themselves can raise the fence.
Australian law has upheld the decision in Victoria Park, which can be regarded as the English trend. In Phipps v Pears (1965), Lord Denning gives a salutary example:
Suppose you have a fine view from your house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if your neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as a right to a prospect or view.
This is a laissez-faire system of looking, which holds that appearances are accidental and cannot be protected either by the person who creates them or by the person who views them, and that neither holds a duty towards the other. It normalises free-loading, by making no allowance for, and not rewarding, the money and labour expended to improve a view, that may be enjoyed by others gratis. Yet arguments exist for the contrary.
John Locke, in his Two Treatises on Government (1689), propounded the theory that “Man” had a right to property when he took something out of nature and mixed with it his labour. “It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other men.” Thus, “no man but he can have a right” to that with which labour is joined (Lock, 1689, Chapter V: 27). By extension, a designer who creates on their own land a beautiful garden, for the sake of its visual appearance, would have by virtue of their expenditure of effort a special right to that appearance, that a passer-by has not.
American common law has gone some way towards recognising the expenditure of money and effort as a transformative act which entitles the owner to some form of property right (International News Service v Associated Press (1918) United States Supreme Court). Chief Justice Latham dismissed this notion of “quasi-property” in a spectacle in Victoria Park. His practical claim was that whatsoever a person can see, they are free to describe. He did not, however, take into account the sensory or aesthetic effects that a spectacle may have. A person watching an elaborate spectacle, such as a ballet or an opera, receives a value quite apart from their ability to then describe the spectacle. Similarly, a landscape view from the window of a tree-changer provides an effect quite distinct from its verbal description.
As things stand, in common law, a property-holder who loses a view cannot sue their neighbour, or other responsible party, for the loss of that view, because they never owned it. A view is not part of the range of potential rights to which a property-holder might be entitled. This runs counter to the Australian common-sense opinion about lifestyle and design, that a view of the surrounding landscape may be pleasing and may add value to real estate. Australian common-sense opinion is not universal. Well-heeled ancient Romans, as we know from the ruins, constructed their villas looking in, with blind walls to the exterior, so as to create their own private views. It is conceivable that houses of the future might possess “virtual views” that are digitally created, and not reliant on the features of the external physical environment.
Easements and Covenants
Perhaps unsurprisingly, a right to a view can exist, and a landholder may have an obligation to maintain a view, when the parties form an agreement with that intent. The relevance of these arrangements will be limited to situations where the landscape to be viewed is contained within one property (or more than one, if each property is a party to the agreement), and the view to be had is from one property, and the parties enter into the agreement prospectively. The right and obligation then derive from the agreement itself, rather than any higher law.
In common law, an easement is a relationship between separate properties, whereby one property, the “dominant tenement”, is allowed an advantage by another property, the “servient tenement” (Re Ellenborough Park [1956] Ch 131). A typical form of easement is for a right of way across the servient tenement. Traditionally, easements have been created by agreement and by usage.
In Australia there are now various statutory provisions for the creation of easements, even where one party does not consent. Section 88K(1) of the Conveyancing Act 1919 (NSW) allows for easements where they are deemed “reasonably necessary for the effective use or development” of the dominant land, and where the easement to be created is not inconsistent with public interest, and where adequate compensation has been made.
Common law has traditionally baulked at the creation of easements to protect vague and uncertain rights. Similarly, statutory provisions in Australia are limited to those rights which are considered capable of forming the subject matter of a grant. The legal opinion of a view, as we have seen in Victoria Park, is that it is nebulous. On this definition of a view, it cannot be the subject of an easement.
In the United States, where nomenclature and practice are different, an “easement for a view” is recognised. These easements were long considered a “restriction on land” and for this reason their duration was limited to thirty years. In the decision in Patterson v Paul, SJC-09847 (2007), the Massachusetts Supreme Judicial Court considered an easement which entailed a prohibition on the owners of the burdened property from building any structure upon any portion of the area subject to the view easement, and they categorised this condition as restrictive. The easement also granted the holders the right to enter onto the burdened land once a year to trim and maintain the vegetation on it, “so as to clear and maintain an unobstructed view across the entire view easement areas, exposing to view any and all, but not limited to, the waters of Pleasant Bay and the Atlantic Ocean, along with islands, marshes, beaches, and mainland promenades which present themselves.” The Court found this to be an active right which went beyond mere restriction. Thus they were able to characterise the entire easement as more than restrictive, and therefore valid in perpetuity.
Australian property-holders and their lawyers, where unable to make use of easements, have sought to employ the softer option of the restrictive covenant. Parties may covenant to what they wish, so long as it is within the law. In exchange for money, or as a condition of the original sale, a property owner may undertake not to extend their home and to trim their trees. The beneficiary of the covenant has the problem of trying to make it stick, or “run” with the servient tenement, through subsequent owners. An agreement between two parties, though freely entered into, cannot easily bind third parties into the future. Without such continuing protection, the owner of the dominant tenement can seek to sue the original servient owner, but will have no recourse against a new owner.
There are possible solutions to ensuring the covenant runs with the property, some of them cumbersome, such as the chain of personal covenants. In the English case of Wakeham v Wood (1982) 43 P&CR 40, the plaintiff had lived in his house for 33 years, with a view of the sea protected by a restrictive covenant. The defendant purchased the land subject to the restriction with knowledge of it at the time of purchase, and proceeded to erect a new structure which blocked the view, despite warnings. The Court awarded substantial damages.
Even where they run, restrictive covenants can be nullified by legislation and Local Environmental Plans, notably when they conflict with the interests of property development. Justice Young observed in Doyle v Phillips (No 2) that “[t]here is now no doubt that in the appropriate case a provision in a planning scheme ordinance or a local environmental plan may prevail over a restrictive covenant and render the latter pro tanto inapplicable.” In Owens and Anor v Longhurst and Ors (1998) he found that “the covenant had. already been nullified by the combined operation of s 28 of the [Environmental Protection and Assessment Act ] and cl 40 of the LEP”, and made the observation that “[u]nder s 89 of the Conveyancing Act 1919 for some years this Court has been extinguishing covenants and, indeed, even easements without compensation when they are in conflict with current efficient development of the land and are not providing any appreciable benefit to the covenantee.”
Where groups of landowners agree, they can lock in their desired covenants, including protection of the visual environment, within a large-scale planned development. One approach is to employ “community” or “cluster title” legislation, similar to strata titling, to low-rise estates with free-standing dwellings. The individual houses are each privately owned, whilst the rest of the grounds are under common ownership, and can be regulated according to a master plan.
More common in Australia is the legally-recognised concept of the “building scheme” or “scheme of development”, where an estate is sub-divided and each new lot is covered by mutually enforceable covenants, which take on the character of a local law, and remain with that property throughout subsequent sales (Sherry, 2008, p. 1). In this way, where an entire community is planned in advance, it is possible to legally protect aspects of its appearance and amenities; such as a view.
The entire suburb of New Rouse Hill in New South Wales has been planned in advance with private ownership, and therefore tight control, of the town centre. The website of the developers, the GPT Group, boasts:
Rouse Hill Town Centre. It's your Town Centre. Rouse Hill Town Centre is owned and managed by The GPT Group.
Imagine a place that breaks away from convention but is easily recognisable; a place where familiar faces and small surprises go hand-in-hand; where supermarkets sit side-by-side with your favourite stores; a place where you can soak up the sun with friends, while the kids discover the wonders of an environmental trail; a place where life, in all its facets, unfolds.
What makes Rouse Hill Town Centre so different? Well, as the name suggests, it's a town centre, not a shopping centre. It combines the traditional streetscape of a contemporary town with the convenience of the latest shopping, dining and lifestyle choices - both inside and out (GPT Group, 2012).
This is perhaps a more contrived prospect than tree-changers, motivated by environmental and sociological concerns, would accept. The privately-owned complex that the GPT Group describes as “your Town Centre” cannot be owned or controlled by the community that lives in the surrounding dwellings. From the description, it is evident that Rouse Hill is intended to appeal to a particular class of person, one that enjoys shopping, has independent children, and is affluent. Other classes of person might not be welcome.
The United States makes extensive use of covenants for planned communities, sometimes called ‘homeowner associations’ or ‘condominium associations’. They enable like-minded people to gather together in gated communities and subscribe to a common set of values, which are prescribed by common provisions in the deeds of each housing lot.
For tree-changers, there are potential pitfalls in community-wide covenants. One is that they involve relationships between properties, rather than between people. The benefit and the obligation each attach to a property, and are intended to maintain the value of that property. Non-economic benefits to individuals, or to communities other than the immediate property owners, are not recognised.
The second limitation is that they require a community to be planned in advance of its sale, and for each purchaser to agree to the covenant terms. Covenants do not apply to pre-existing landscapes, and can be imposed only with great difficulty on existing communities. It may be possible for property developers, or wise elders, to plan and run a community on strictures determined in advance. Where, however, the original covenants are not sufficient, or where they have erred, the planned community lacks flexibility in developing and adopting new conditions of operation, unlike an organic group.
Thirdly, community-wide covenants are more suited to preserving a man-made environment than a pre-existing natural one. They suppose the landscape will be divided into discrete private lots, which can be managed in a balance of rights and obligations to the general satisfaction of all the property owners. The notion of wilderness areas, or putting aside resources for any reason other than to benefit of owners, is not allowed.
The common law easements discussed thus far are essentially private. Australian legislation also allows for statutory covenants, between private individuals and governments, which can be binding on successors in title. Queensland for example allows for statutory covenants between a landholder, and the State of Queensland or another body representing the State or a local council, for purposes such as native refuge agreements and vegetation management voluntary agreements. The landholder in return might receive “protection of open space and natural values including amenity, scenic and buffer values”, and possible taxation benefits or rates remissions (Queensland Department of Environment and Resource Management, 2010). There are statutory limitations to the subject matter. Landscaping standards and building styles cannot be controlled. The legislation only allows for the covenant to be removed or varied in certain circumstances.
In other terms, the landholder offers to covenant to do something for the benefit of the environment that they could equally do on their own cognisance. Yet having once agreed to do it, they have wriggle room to get out of the agreement. Government, in its turn, is not bound, by the covenant, to environmental protection. These are strange devices, on the margin between public and private law, that do more to show the good environmental intentions of government, than to have practical effect.
Statutory Law
The actions available to protect a view that were discussed above, the tort of nuisance and easement and covenants, are essentially private law. Nuisance depends on a private individual or entity taking legal action against another person or entity on the grounds that a particular view has been diminished or removed; easements and covenants rely on the existence of a specific agreement that has been breached.
Planning law and environmental law, by their form and stated intentions, are public, insofar as they claim to set standards for all future development, and to uphold values of general benefit. In theory they are laws ‘about’ planning and the environment, rather than laws ‘for’ a particular sort of planning or to ‘protect’ the environment, and they provide the mechanisms by which development and urban change take place.
In New South Wales (NSW), by way of example, the chief legislation is the Environmental Protection and Assessment Act 1979. Allied to it in various ways are numerous plans, regulations, guidelines, circulars and directions. At State level and determined by State bodies are State Environmental Planning Policies (SEPPs) which set down planning principles for large geographical areas or for certain types of things.
At local level are the individualised Local Environmental Plans (LEPs) which are drawn up by each local government (or municipal or shire council, as they have traditionally been termed) in accordance with a template established at State level. State government provides a list of names and characteristics for possible zones, such as RU2 Rural Landscape, E2 Environmental Conservation, and E4 Environmental Living; and local government decides whether it is employ that category, if it has anything that fits.
Property developers lodge Development Applications (DAs) which are considered by the various consent authorities, whose decisions to allow, reject, or amend an application may be appealed up to the level of the New South Wales Land and Environment Court.
Already it may be apparent that there is some degree of favouritism in environmental planning statute. If the idea of that law is to be impartial and to provide a mechanism for the playing out of disputes between private developers and residents, it will in reality lend itself more readily to those with the stamina, money, resources, contacts, and strong vested interest to begin a fight and see it through to completion, than to those without. In fairness, it should be added that the better-resourced in a particular dispute is not always the developer.
Developers, from the owners of a suburban bungalow seeking to put on a modest extension, to multinational corporations building a skyscraper, are concerned with delay, red-tape, cost, and irrelevant requirements. They want speedy approval along the lines of their original application, without the interference of neighbours. Private landholders can be virulent in their criticism of a local council that sends their DA to the sub-committee for further consideration. Landholders as neighbours to proposed development, on the other hand, have the opposite concerns. They want their own loss of amenity to be taken into account, either by rejecting the DA outright, or by reducing it to a fraction of its original size. They want consideration of their objections to be scrupulous and to take as long as possible, and if they lose out to start, they want the right to appeal and to delay the process endlessly. A developer in one application may well be an objector in another.
It will, perhaps, come as no surprise that local governments in NSW have been variously characterised as “pro” or “anti” development. There have been accusations of corruption, particularly as regards local councils or their officers taking money from developers to favour their development applications (Independent Commission Against Corruption, 2008). But throughout the past decade in NSW the politically effective accusation has been the opposite one, that local councils were holding up development applications unnecessarily, either through incompetence or because they were in the thrall of anti-development and anti-progress Greenies, and were costing the State and their local area money. For these asserted reasons, in 2005 the NSW Labor Government took over many of local government’s planning powers (Creighton, 2011). The more expensive development proposals were decided at state level, by the minister rather than by the public service, which in turn led to accusations that state Labor was favouring the developers who were its cronies and who had contributed to its campaign funds (Nicholls, 2011).
In 2011, the newly elected O’Farrell Liberal-National Party coalition government passed legislation regarding planning laws, which claiming to be a victory for democracy and local representation. Brad Hazzard, Minister for Planning and Infrastructure, said on introducing the Bill:
