Not in my backyard!
finding by the Constitutional Court in June has serious implications for
the approval of building plans by local authorities. It also contains
important ramifications for property owners who face adjacent developments
which they feel will adversely affect the value of their properties.
In the case of Walele v City of Cape Town & Others with the City of Johannesburg as amicus curiae (an interested party), the facts are briefly as follows:
Concerned about property values
In September 2006 Dr Walele, the owner of land in Walmer Estate, Cape Town, became aware that his neighbour was in the process of building a four-storey block of flats on the adjoining plot of land. Concerned that the proposed building would adversely affect the value of his property he approached the Cape Town Municipality which advised him that (a) the neighbouring erven was situated in an area zoned general residential and that the erection of a block of flats as high as seven storeys was allowed 'as of right'; (b) that the plans complied with the zoning scheme requirements, and that (c) the building plans had accordingly been approved. According to the municipality, approval was given by the final decision-maker after the Building Control Officer (BCO) rubber stamped the application to be in order.
Dr Walele was dissatisfied with the reasons given and instituted proceedings in various courts. The Constitutional Court finally found in his favour.
The central issue in this judgement relates to the question of whether the Cape Town Municipality properly approved the building plans. The court held that it had failed to comply with mandatory procedural requirements as prescribed by the Building Standards Act.
Authorities must consider property values
Section 7 of the Act was specifically relevant. It prescribes that a local authority, when considering building plans, must investigate the issues mentioned in the section, namely (a) the final decision-maker must consider the recommendations of the BCO, and (b) if he is satisfied that the application for approval complies with the requirements of the Building Standards Act, he must grant the approval unless certain disqualifying factors apply: these are that the building will be of such a nature or appearance that the area in which it is to be erected will probably or in fact be disfigured, or that it will be unsightly or objectionable, or be dangerous to life or property, or and this is the relevant point that it will probably or in fact derogate from the value of adjoining or neighbouring properties.
Then, if the final decision-maker finds that any of the disqualifying factors apply, he must refuse to grant approval.
In Dr Waleles case, the BCO did not place this information before the final decision-maker. The court held that it is the duty of the BCO to place adequate information before the final decision-maker so that the latter can consider applications in a proper and balanced way. A BCO must serve this purpose. The approval of plans in the absence of such commendation means that the necessary jurisdictional element was lacking. The approval of the building plans in this matter was accordingly found to be invalid.
The finding has serious implications for the approval of building plans by local authorities
The finding has serious implications for the approval of building plans by local authorities countrywide (a concern raised with the court by the Johannesburg City Council as amicus curiae).
For example, it requires that:
The recommendation by the BCO to the decision-maker should contain the relevant facts concerning the disqualifying factors in section 7. The BCO should compile and submit a report. A single signature will no longer suffice.
Or, if the BCO does not furnish a report, the decision-maker will need to obtain the relevant information so as to enable him to come to a conclusion and he may not accept the signature of the BCO as sufficient recommendation.
In both instances, the process of compiling a report investigating the disqualifying factors will take time further delaying the municipal approval process which, countrywide, is already notorious for lengthy delays.
Moreover, the court recommended that although the Building Standards Act does not strictly require this, it would enhance the process if the BCO, at the stage of compiling his report, invites from owners of neighbouring properties representations about the impact the proposed building might have on their properties. This, again, will most likely have a severe impact on the process as one can expect that the owners of residential erven will object strongly to the erection of a block of flats next door.
The case highlights the ever-present potential for conflict between residential homeowners and, for example, developers. The courts decision is not going to make the approval process any easier, but the rationale behind the judgement, namely to give due consideration to the impact on the value of neighbouring properties, ought to be welcomed.
Published courtesy of IP Magazine
Article by: www.iafrica.com