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Refusal Of Building Plans

Building Plans: Unsightly Buildings Versus Duty Of The Local Authority

Arisha Rajaram

With the aim of aligning South Africa with international standards, we have seen an increase in high-rise buildings, and modern structures. Whilst the intention of these structures is to enhance tourism and improve the economy, they may at times, negatively affect the neighbouring buildings.

The issue of a negative impact of a building is dealt with in the case of Trustees of the Simcha Trust v Da Cruz and Others and City of Cape Town v Da Cruz and Others [2019] ZACC 08 (Simcha Trust). The Simcha Trust case was brought before the Constitutional Court to determine the obligations on the local authority to apply the legitimate expectations test, and to take into account the appearance of the building and the area surrounding the building.

Facts of the Simcha Trust case

Simcha Trust is a property situated adjacent to the Four Seasons’ property. Between 2005 and 2007, Four Seasons erected a 17-storey building with balconies leaning into the Simcha Trust’s property, which was approved by the local authority of Cape Town. As a result, the balconies were erected on the building.

In 2007, the Simcha Trust submitted a building application to the local authority in Cape Town, which allowed for the construction of four additional stories of a building, owned by Simcha Trust. If implemented, the top three stories of the new building would touch the balconies of the existing building. The building application was approved by the local authority, and construction commenced.

The Four Seasons instituted a review in the High Court regarding the Municipality’s decision to approve the Simcha Trust’s plans. The approval of the development was set aside as a result of the local authority failing to take into account any disqualifying factors from the perspective of the neighbour (Four Seasons).

Issues to be determined

On application to the Constitutional Court, it had to be decided whether there is an obligation on the local authority to apply the legitimate expectations test when considering whether the surrounding area may be disfigured or the building itself may be unsightly or objectionable. Furthermore, the Constitutional Court was requested to determine the proper interpretation of a local authority’s duty in terms of the National Building Regulations and Building Standards Act 103 of 1977.

Requirements in terms of legislation

Duty of the local authority

In terms of section 7(1)(b)(i)(aaa) – (ccc) of the Act, the local authority may refuse to approve a building plan which may:

  • cause the appearance of the area in which to is to be erected to be disfigured;
  • be unsightly; or
  • derogate from the value of adjoining or neighbouring properties.

Legitimate expectations test

The legitimate expectations test has been discussed in the case of Camps Bay Ratepayers’ and Residents’ Association v Harrison [2010] 2 All SA 519 (SCA). The court held that the legitimate expectations test imposed a positive obligation on the local authority to ensure that a hypothetical purchaser of a neighbouring property would not have legitimate expectations that the proposed application would be denied because it is unattractive or intrusive.

Decision of the Constitutional Court

The Constitutional Court held that the local authority had applied the incorrect test when deciding if the building application should be disqualified. It further confirmed that the legitimate expectations test is an objective test, and section 7(1)(b) of the Act is an accurate translation of the duties of the local authority.

The local authority has the duty to consider whether there are any disqualifying factors present, and if so, these factors should be considered in isolation to the other requirements of the Act.

In other words, when considering a proposed building, the local authority should consider if the proposed building would exceed the legitimate expectations of a hypothetical owner of a neighbouring property, and if it may:

  • be so disfiguring of the area, objectionable or unsightly; or
  • derogate from the value of adjacent properties.

The impact of this judgment requires great consideration on the part of the local authority to apply the legitimate expectations test to all disqualifying factors. It allows for uniformity across the board to ensure that the hypothetical neighbour is protected from unsightly buildings and to ensure that the value of properties would remain market-related.

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