April 7, 2017
“Diligence is the mother of good fortune” (Miguel de Cervantes)
Another warning to do your homework before you buy or develop property comes from a recent High Court decision to set aside a municipality’s approval of building plans.
From sea-view balconies to walled-in courtyards
- A 17-storey inner city building incorporated residential apartments on its higher floors, the municipality having passed plans for several apartments to be constructed with balconies or windows overlooking the common boundary with a neighbouring building. Some of these apartments provided city and sea views over the top of that building.
- Subsequently the developers of the neighbouring building obtained municipal authority to build several levels upwards, flush against the common boundary, right up against those apartments with balconies and only 3 metres from those apartments with windows.
- The effect of the added levels would have been “to change the character of the areas that were designed to be balconies into small courtyards confined between towering walls”.
- When they realised what was happening the affected apartment owners, who had not been given notice of the building plan application, rushed to court and obtained an interdict to stop construction pending a judicial review of the plan approval.
- On review, the Court set aside the approval of the building plans and ordered the municipality to reconsider them. In other words, Round 1 goes to the apartment owners, but the jury is still out on whether they or the neighbouring developer will ultimately emerge as the victors here.
Lessons for buyers: Legal restrictions and “legitimate expectations”
Note that this case, as the Court put it, was “not about any alleged right to a view. It arises out of allegations concerning what the applicants contend would be the unduly intrusive and objectionable character of an aspect of the building extension”.
What follows is a very simplified summary of a very complicated subject, not helped by some very divergent court decisions in the past. So take full legal advice on your particular circumstances. But work on the basis that you have no automatic entitlement to retain amenities like privacy, access to light, views and the like, so to stop your neighbour from building to your prejudice you will generally have to prove either –
- That the building is in contravention of a legal restriction – think title deed conditions, town planning/zoning/building restrictions and the like; or
- That the building, although complying with all legal restrictions, is “so unattractive or intrusive that it exceeds the legitimate expectations of the parties”.
What won this round for the apartment owners was the Court’s finding that the municipal officials had, through a misunderstanding of the law, “failed to consider and address the question whether a reasonable and informed purchaser ….. would foresee that the regulating authority, having approved balconies along the common boundary would permit the development of the adjoining erf in such a manner as to effectively destroy the utility of the balconies as such, and with the degree of overbearing intrusiveness that allowing a three storey solid wall to be built up hard against them would unavoidably occasion.”
That was a close shave for the apartment owners, so the important thing is to do your due diligence before buying a property. Factor in that your neighbour may in the future decide to take full advantage of his/her rights to develop and build, and if that happens you will find it difficult to complain. In this case for example the apartment owners “might reasonably have expected the views from those apartments to be blocked by future development ….. if regard were had to what was permitted in terms of the applicable zoning scheme regulations”.
A lesson for developers
Although generally it should be enough that your proposed new construction/development complies with all “legal restrictions”, there are exceptions. Make no assumptions here; they could be both mistaken and expensive.