Property - high court decisions

As real estate developers and agents know, some people are prepared to pay staggering sums for a property if it has panoramic sea views or the vista of rolling hills .

But as an owner of a property, do you “own” the view? And do you have rights to protect your view if it is threatened?

Property specialists and lawyers never seem to know for sure and two high court decisions and a ruling by the supreme court of appeals on the so-called right to a view produced two vastly different outcomes.

There was much expectation the issue would be resolved by the constitutional court hearing of the case Camps Bay Ratepayers’ & Residents’ Association and Another v Harrison and Another.

But in a judgment delivered last week, the constitutional court avoided dealing with the issue directly as it found that the applicants had not, in fact, relied on section 7(1)(b) of the National Building Act, which is the point of contention.

In the Camps Bay judgment, the court declined to grant Anthony Herman leave to appeal against an SCA judgment, thus ending a six-year battle he has waged against his neighbour, Gerda Harrison.

Harrison had applied for and was granted permission to convert her single storey cottage into a three-storey mansion in Camps Bay. The new building left Herman with almost no view.

Herman’s legal challenge against the new house was not based on his diminished view, but rather that Cape Town city planning officials should never have approved Harrison’s construction plans if they had correctly applied section 7 of the National Building Act.

Parts of this section stipulate that a local authority must refuse to approve any building plan where the proposed structure “will probably or in fact derogate from the value of adjoining or neighbouring properties”.

Two high court judgments and an SCA ruling have offered widely different readings of this section, especially on the interpretation of the word “value”, which has resulted in the two conflicting decisions now being part of the case law.

David Warmback, a partner in Shepstone & Wylie’s corporate and commercial law department, says though last week’s constitutional court judgment doesn’t fully resolve the various issues of conflict, it also doesn’t give any further “ammunition” to owners who believe that they may have the right to a view.

The first case to deal with the issue of value and a view was the 2003 case Paola v Jeeva in the Natal high court, in which the SCA set aside a local authority’s decision to approve plans for a development project on the grounds that it “substantially impaired” the “unsurpassed view” of the owners of the neighbouring property. According to Warmback, in that ruling, the SCA also accepted that the only possible interpretation of the word “value” is market value.

But an appeal against the judg ment succeeded on a single technical point that the local authority had failed to appoint a building control officer.

A year later, when an identical case came before the Cape high court, the judge in that matter decided because the SCA decision was based on a technical point of non compliance, it was not binding on the lower courts.

In the matter of Clark v Faraday, the applicant tried to interdict his neighbours from building on an adjacent vacant plot which they legally owned. He argued that the building would impair his view and diminish the value of his property.

But the Cape courts came to an entirely different conclusion on how the provisions of section 7 should be read and delivered a judgment that created the conflict with the SCA. This judgment established two important principles on the question of derogation from market value, which the constitutional court reaffirmed in the Camps Bay judgment .

So property owners looking to the courts for permission to claim ownership of their view will have to wait a bit longer. As things stand, there is no absolute right for entitlement to a view.

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