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JJ
JJ, Attorney
Category: South Africa Law
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Experience:  Admitted Attorney 17 years experience
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what happens if neighbours do not consent to building plans

Resolved Question:

what happens if neighbours do not consent to building plans in a residential area
Submitted: 3 years ago.
Category: South Africa Law
Expert:  JJ replied 3 years ago.

Hi

Welcome to Just Answer!! Thank you for giving me the opportunity to assist you.

 

What does these plans involve? Do you ask for relaxation on boundaries? How does it affect them? Do they give reasons for their actions?

 

Regards

 

Johann

Customer: replied 3 years ago.

Property location: Johannesburg, Northcliff Ext 15, 2195. I have an existing structure on the property, main dwelling which will be converted into two 110 m2 cottages and a new main dwelling which will be constructed. Before I had the architect draw up the plans, she passed this by town planning and council which they agreed to. The drawings are now complete and part of the excercise is to have the neighbours sign off on the the site layout before submitting to council for approval. The new structure involves a basement/garage and a 1st and 2nd floor. Three neighbours has agreed whilst the fourth which is complex behind my property has not signed off nor given any reasons therefor. I have not requested for relaxation of boundaries. My new structure might block some part of their view if any as I have the garages cutt 2 meters below the natural ground line to alleviate the view problem.

Expert:  JJ replied 3 years ago.

Hi

 

I want to refer you to the next judgement:

 

 

True Motives 84 (Pty) Ltd v Madhi (543/07) [2009] ZASCA 4 (3 March 2009)

This judgment deals with the interpretation of section 7 in the National Building Regulation Act which contains the requirement that a local authority must satisfy itself, when considering an application by a residential property owner to authorise building works, that the nature and appearance of the proposed building works will not derogate from the value of a neighbouring property.

It necessarily also impacts on the avenues open to an objecting neighbour who wishes to attack the validity of the local authority's granting of approval.

 

 

The Facts

 

The parties in this matter were neighbouring owners of residential properties in the City of Johannesburg municipality (‘the municipality'). Mr A lodged building plans with the municipality that were subsequently approved. When the construction commenced, Mr B (the objecting neighbour) realized that the building works were extensive and that ultimately Mr A's house will be so big that it will have unobstructed views on his (Mr B's) property as well as on the other neigbouring properties; it also blocked sunlight to Mr B's property; and generally was, by reason of the size and design of the alterations, out of keeping with the architecture of the suburb.

Since it became apparent that negotiations between A and B were not going to solve the issue, Mr B approached the court for relief and asked that the municipality's approval of the building works be set aside because it (the municipality) did not properly exercise its judgment as required in terms of section 7 of the National Building Regulations and Building Standards Act 103 of 1977 (‘NBR Act').

Question before the court

Mr B claimed that the proposed building would reduce the value of his property in that it would, amongst other things, obstruct sunlight and invade privacy. He contended that sec. 7 of the NBR Act compels a local authority to satisfy itself that the erection of the building in consequence to its approval of a plan, will not derogate from the value of neighbouring property. The decision-maker in question, it was also claimed, failed to apply its mind to the question of derogation of value or had done so in a superficial manner which fell short of achieving the satisfaction which sec 7(b)(ii) required of him. He accordingly asked the court to set aside the municipality's decision.

Held

  • The court, in the first place, looked at the content of section 7(1)(b)(ii) of the NBR Act which reads as follows:
" If a local authority, having considered a recommendation referred to in section 6(1) (a) -
(a) is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;
(b)(i) is not so satisfied; or
(ii) is satisfied that the building to which the application in question relates-
(aa) is to be erected in such manner or will be of such nature or appearance that-
(aaa) the area in which it is to be erected will probably or in fact be disfigured thereby;
(bbb) it will probably or in fact be unsightly or objectionable;
(ccc) it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) it will probably or in fact be dangerous to life or property, such local authority shall refuse to grant its approval in respect thereof and provide written reasons for such refusal: Provided...

 

 

Interpretation of Section 7

  • The court concluded that upon a proper interpretation of section 7 the enquiry to the effect of the proposed building works on neighbouring properties (and the question whether it disfigures the area, will be unsightly or will derogate from the value of the neighbouring properties - postulated by subparas (aa), (bb) and (cc)) only arises if and when the local authority is satisfied in terms of sec. 7(1) (a) that the application in question complies with the requirements of the Act and any other applicable law.
  • The local authority may nevertheless refuse approval if any of the reasons mentioned in subparagraphs (aa), (bb) or (cc) are present; in other words if it appears that the proposed building works will disfigure the area, will be unsightly or will derogate from the value of the neighbouring properties, the municipality may refuse consent.
  • However, before it may refuse consent, it must satisfy itself that the proposed building will in fact or probably have one or more of the detrimental effects contemplated in the subsections.
  • The term "satisfy", said the Court, involves being satisfied that the outcome is certain, i.e. reaching a "positive conclusion " as to either fact or probabilities.
  • On the evidence presented, the Court found that Mr B failed to prove that the local authority did not apply its mind satisfactorily to the issue of derogation of value. Mr B suggested that the local authority was obliged to appoint a professional valuer to advise in relation to every plan for approval, but the Court found that to do so would be neither practical nor cost effective. The Court stated that it would be sufficient that a decision-maker applies his mind fairly to the facts in order to reach a rational conclusion and is not obliged to appoint a professional valuer, but may do so if he finds it appropriate.

The concept ‘reduction in market value'

  • The Court also felt it necessary to elucidate the issue of a reduction in the market value, stating that it was the price an informed willing purchaser would pay to an informed willing seller. The hypothetical informed buyer and seller will always be aware of the possible negative effects to the value of the property arising from the lawful exercise of rights as determined by the townplanning schemes and title deed conditions. Derogation from market value only commences when the influence of such aspects exceeds the contemplation of hypothetical informed parties.
  • The issue, when confronted with an application for review of a decision to approve a plan, is therefore not whether the value of a neighbouring property is in fact reduced by the approval of plans, but whether the local authority positively satisfied itself that the undesirable outcome will not (or probably will not) derogate from the value of the building.

In my view, and in light of the above case, I do not think that they can refuse you the consent and you should submit your plans to the municipality without their consent, stating that they refuse. They will then have to give reasons, having clear arguments around the devaluation as advised above.

 

I think that you will be fine in the process and that they will struggle to prevent this project from happening. Most of these case it is mere paranoia from neighbours because there are going to be builders in the area, posing a security risk. This is not a sufficient reason.

 

Regards

 

Johann

 

JJ, Attorney
Category: South Africa Law
Satisfied Customers: 4458
Experience: Admitted Attorney 17 years experience
JJ and 2 other South Africa Law Specialists are ready to help you

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