Appeal court ruling on views halts developments

THE landmark Paola case heard in the Supreme Court of Appeal in October last year continues to halt developments which risk impinging on a neighbouring property 's view.

Last year the appeal court ruled that the view from a house was integral to the value of the property. The court also ruled that if a city council approved building plans that would spoil a neighbour's view, it was infringing on the rights of the affected owner and such plans should not be approved.

The latest matter involves the owners of Beachcomber Bay Lodge, which has a panoramic sea view on KwaZulu-Natal's southern coast , and a developer wanting to construct a six-storey building in front of the lodge.

Kay Naidoo, of Durban-based attorneys Livingston Leandy, who represented Greg Paola in October and is now representing the owners of the Beachcomber Bay Lodge, argued that the developers Pearlstar No14 cc had not been in possession of building plans approved by a building officer as required.

Naidoo also argued that the building was constructed it would block out the view and devalue the property.

Although the Hibiscus Coast municipality initially approved the plans, it then agreed they were not properly authorised and the developers submitted new plans.

The municipality's admission that the plans were not initially properly approved shows that planning authorities are taking heed of the Paola judgment.

In this case, the developers continued building and the municipality lodged an application in the Durban High Court to interdict the development, Naidoo said. Before the stop order was granted, however, the developers' attorneys said they would halt construction.

Louis Hansmeyer, representing the developers, said earlier this week they had reached an agreement with the municipality to stop work pending an answer as to whether authorities would approve the new plans or not. Hansmeyer was expecting an answer today.

Since the Paola case, the Durban High Court has also endorsed the view of the Supreme Court of Appeal. In November, the regional court set aside plans approved by the Ethekwini municipality for a property situated in Bellair and ordered it to pay costs .

In that case, Livingston Leandy also acted for appellant Rob Brusse against the municipality. Brusse had bought a property on Angle Road, a building listed in the Heritage KwaZulu-Natal register.

Brusse contended that if a neighbour carried out the alterations he had planned, it would completely obliterate the panoramic view enjoyed from his property, covering Sea View, Carrington Heights, the Bay of Natal and the Bluff.

The high court agreed , saying the planned development would impair his view and diminish the value of his property.

Article by: Nick Wilson Business Day 1st Edition - May 05 2004