Know your rights on building plans

LAST month the Constitutional Court heard the case of Walele vs City of Cape Town where Walele was aggrieved by the approval of building plans for his neighbour’s property, writes Kay Naidoo, of attorneys Livingston Leandy Inc.

The plans included the erection of a four-storey building, which he contended would devalue his property. He was also unhappy that he did not receive any notification of the proposed building works prior to the approval of the plan. He believed that he was entitled to receive prior notice and be given the opportunity to make representations to the municipality about the negative effects the proposed building will have on his property.

Walele lost in the Cape High Court and was not given leave to appeal. Undeterred by these losses, Walele proceeded to the Constitutional Court to come to his aid.

The Constitutional Court held that Walele had to establish that the decision to approve the neighbour’s building plans materially had adversely affected his rights or legitimate expectations. The court held that Walele was not a party to the plan approval process, and the granting of the approval by itself could not affect his rights.

The Constitutional Court, however, endorsed the approach of the Supreme Court of Appeal in the much publicised Paola case, where it held that a local authority is not authorised to approve building plans where the erection of the building will diminish the value of neighbouring properties.

The court, however, held that in the Walele matter there was a factual dispute as to whether Walele’s property had been devalued and accordingly could not make a finding on this aspect as no oral evidence was led. The principle of the Paola decision however stands.

The court held that the Building Standards Act prohibits land owners from erecting buildings on the land without prior approval of the municipality. While the approval of building plans itself cannot affect the rights of neighbours, the subsequent erection of the building may result in the rights of owners of neighbouring properties being affected. This warrants the provisions of the Building Standards Act being construed so that the spirit, purport and objects of the Bill of Rights are promoted.

The court held that if the approval of building plans permits the erection of a building which devalues neighbouring properties, it is liable to be set aside on review.

Naturally, necessary credible evidence must be presented to court on the issue of devaluation. The Constitutional Court held that in considering the disqualifying factors; for example, loss of value of neighbouring properties; the municipality must, in a manner of speaking, act on behalf of neighbours by ensuring that the disqualifying factors are not present before plans are approved.

This approach creates a self-contained protection that safeguards the rights of owners and therefore is not necessary for neighbouring owners to be heard before plans are approved.

The Building Standards Act requires that both the Building Control Officer and the person who approves the building plans on behalf of the municipality be satisfied that the disqualifying factors are not present. The Building Control Officer must recommend in writing to the plan approver that the disqualifying factors are non-existent.

The Constitutional Court came to the aid of Walele as it held that the municipality, when it approved the plan, did not properly apply its mind to the negative factors set out in the act. The plans were set aside.

The decision is an important one as it sets out guidelines that the municipality must follow when approving building plans.

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