When building turns ugly – avoiding the pitfalls of illegal alterations and neighbour disputes

Relentless interest rate hikes and stratospheric building costs have put the idea of building a dream home out of the reach of most people.

Instead, buying an existing property and renovating it to your liking seems to offer a more cost-effective solution and a better return on investment than building from scratch.

However, the home improvement route comes with its own challenges and pitfalls, which can blow the budget, especially if you run into trouble with your neighbours or the local council.

According to Marguerite van Niekerk, a property law specialist at Herold Gie Attorneys, many people overlook the need to submit plans and check legalities when they do alterations or renovate their homes.

“Building legislation should be the first consideration in planning alterations or improvements, closely followed by careful consideration of the impact of the building on your neighbours,” says van Niekerk.

“If, as an owner, you choose to build or renovate without approved plans, a building inspector may serve an order to stop all building work immediately, which if ignored, may lead to the imposition of a fine or even further prosecution and a court order to demolish the structure concerned – a costly exercise!”

“Furthermore, if your plans offend your neighbours, they could dredge up seemingly insignificant objections in order to impede or halt construction.”

“All home owners planning to renovate, other than internal renovations which are not structural or need to comply with certain fire regulations, must make an application to the local council for approval of their plans, before commencing work on site.”

Whenever the nature of the work involves excavation of land, electricity supply, plumbing and drainage, you must contact your local authority to find out exactly what is required. Renovations such as putting in a pool, a fireplace or erecting a boundary fence all require planning approval.

Van Niekerk advises that the process concerning the approval or rejection of building plans involves the submission of a building plan to the council building plan examiners who scrutinise the plans to determine if all the major and essential requirements, laws and regulations have been complied with. “A copy of the title deeds, a zoning certificate and a completed application form must all accompany the building plans.”

“Following this, the council may call upon an applicant to make amendments to the plans before they can be accepted and entered onto the council’s electronic register. The Council will then determine the scrutiny fee, which is usually based on the square meterage of the plan.”

“The entire process really depends on the complexity of the proposed building plans, which will affect how long it takes to gain approval. An average waiting period is usually six weeks and you would be well advised to phone after four weeks to ask for an update and make sure that they have everything required.”

“However,” says van Niekerk, “when you submit an application for the approval of building plans, difficulties often arise with the application and/or interpretation of the provisions of the National Building Regulations and Building Standards Act (NBRBSA).”

“Section 7 of this act often causes controversy as it gives the local authority the discretion to refuse a building plan application on the grounds that it could negatively affect neighbouring properties if the area in which the building is to be erected will be disfigured, if the planned building work will be unsightly or objectionable or if it will detract from the value of adjoining or neighbouring properties.”

“This is theoretically a good rule to have, especially if one is the neighbour of someone planning to build or renovate. However the applicable provision makes reference to probability and there is no mention of degree – this means that a large amount of discretion must be exercised by qualified people.”

According to van Niekerk, this discretion is based on the formulation of an opinion and is therefore very subjective – which adds to the uncertainty surrounding the application of this provision.

“Consequently South Africa has seen an increase in the number of cases appearing before the courts where one neighbour is objecting to the commencement of another’s building activities – even though the plans have been through all the relevant channels and have been approved by the local authority.”

“In my opinion,” says van Niekerk, “the mere fact that neighbours don’t like the appearance of a building and postulate that their properties will reduce in value as a consequence, should not be the over-riding reason for the local authority to consider refusing a building plan application.”

“Genuine derogation of value would have to be extreme – such as the construction of an iron shack in an upmarket neighbourhood.”

“Restrictions on a landowner's right to develop his land are usually to be found in the applicable municipal scheme regulations and title deed conditions.”

“My recommendation for any alteration, is to establish the legal requirements upfront and then to resolve any possible issues with your neighbours and the council, before the first brick is laid,” concludes van Niekerk.

Article by: Catherine Pate On behalf of Herold Gie - www.heroldgie.co.za