Presence of statutory disqualifying factors against approval of building plans

Local government

Presence of statutory disqualifying factors against approval of building plans: Section 7(1) of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) has two parts. In the first part s 7(1)(a) provides that if a local authority, having considered a recommendation by the local building control officer, is satisfied that an application for the approval of building plans complies with the requirements of the Act and any other applicable law, it shall grant its approval in respect thereof. In the second part s 7(1)(b) provides that if the local authority is not satisfied or if it is satisfied that the building to which the application relates is to be erected in such a manner or will be of such a nature or appearance that it will probably or in fact be ‘unsightly or objectionable’ or will derogate from the value of adjoining or neighbouring properties, it shall refuse to grant its approval.

The application of the section arose in Cape Town City and Another v Da Cruz and Another 2018 (3) SA 462 (WCC); [2018] 2 All SA 36 (WCC) where the appellant City of Cape Town (the City) approved of building plans submitted by Simcha Trust (the Trust) for renovations to a building owned by the Trust and which was situated in the central part of the City. The building consisted of four storeys. The renovations were intended to increase the building by four more storeys to eight. If implemented, the renovations would result in the top three storeys of the building eventually abutting, as a blank and solid wall, against apartments on the eight to tenth storeys of the adjoining building along the common boundary of the two buildings thus obliterating whatever view, space and light which the apartments in the adjoining buildings had. It was the position of the respondents Da Cruz, an owner of a residential unit in the adjoining erf, and the body corporate of that building, that the construction of the renovations would trigger the disqualifying factors set out in s 7(1)(b) of the Act in that they would be ‘unsightly or objectionable’, would ‘disfigure’ the surrounding areas and ‘derogate from the value of adjoining or neighbouring properties’. Notwithstanding the respondents’ objections to the building plans the City, acting on the recommendation of the building control officer, approved of them. As a result the respondents approached the High Court for an order reviewing and setting aside the City’s approval of the building plans. The order was granted, hence the present appeal to the Full Court.

The WCC dismissed the appeal with costs. Sher J (Hlophe JP and Fortuin J concurring) held that the basic premise from which the building control officer proceeded to consider the objections by the affected owners of adjoining properties and the body corporate was flawed. His understanding was that as long as the owner of the subject property sought, in its plans, to put forward a construction that was permitted by the zoning scheme, which was otherwise legally compliant in a formal sense, the owners of adjoining properties had to accept any intrusiveness that would result, even if it were gross and unreasonable, because that was the inevitable consequence of progressive development within the City. That amounted not only to a basic misunderstanding of the legal position, but to an abdication of the duty which the building control officer had to weigh up in regard to the envisaged development against the probable negative effect it would have on neighbouring properties.

The fact that plans for a proposed building were legally compliant with zoning, planning and building requirements did not mean that the building, which was to be erected in terms thereof should, on that account alone, be permitted to be erected by a local authority, particularly if the negative attributes of the proposed building were considered not to have been within the legitimate expectations of the notionally informed parties to a hypothetical sale. In giving effect to their duties in terms of s 7(1)(b), local authorities were required to strike a balance between the rights of the owner of the subject property for which the building plan approval was sought, and the rights of the owners of adjoining properties. That could not be done by the simple expedient of having regard only to the building plans under consideration in isolation and without regard to what existed, as well as what could reasonably be anticipated was likely to be put up in the future, on neighbouring properties. Whether or not a proposed building would disfigure an area, be unsightly or objectionable or derogate from the value of adjoining properties, required a judgment call that could only properly be made if it had regard to the area concerned and the neighbouring buildings in it.

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