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May 2022

1024 684 Prevance - Bridging Finance South Africa

Can your neighbour object to building plans?

Nothing can disrupt a person’s life as much as a dispute between neighbours and even more so when there are building works and renovations involved. Disputes of this nature tend to escalate where one owner decides to build on their property and the neighbouring owner is of the opinion that the renovations will interfere with his property rights. As a result, neighbours who are of the opinion that their rights are being violated by either obstruction of views, the aesthetics of the renovations or even excessive noise, may want to address the problem by preventing the approval of building works by the Local Authority.

Although the application for approval of building plans is lodged with the Local Authority, they are required to adhere to the requirements set out in the National Building Regulations and Building Standards Act.  It is therefore important to note that this Act does not create a legal obligation for any owner to notify their neighbours of their intent to apply for building plans nor does it create a right for the neighbours to object.

The Local Authority have a duty in terms of section 7 of the National Building Regulations and Building Standards Act to consider the rights of neighbouring properties and can therefore, within their discretion, request that the neighbour be informed and consent to the prospective building works in terms of their By-Laws.  A neighbour must be informed of building plans where the application for building plans is made simultaneous to an application to rezone the property or where an application is made to remove a restrictive condition (e.g. application for the relaxation of a building line).

During the approval process the Local Authority must also objectively determine if the interference of building works will be reasonable by taking into account various factors listed in the Act:

  • The measure or extent of the interference
  • The suitability of the plaintiff’s use
  • The duration of the interference
  • The time the interference took place
  • The sensitivity of the plaintiff to the harm; and
  • The possibility of avoiding or mitigating the harm.

In conclusion, if an objection is submitted, the objection itself does not necessarily prevent the Local Authority from approving the building plans. The Local Authority will within its discretion apply the factors and weigh up the rights of the different parties prior to making a decision regarding the approval.

If the aggrieved neighbour does not agree with the approval, they will have the option to object to the approval and follow the internal procedure available for such objections.  Only after they have exhausted all other remedies and are of the opinion that the owner did not follow the correct procedure, will they be able to apply for setting aside of the approval in terms of the Promotion of Administrative Justice Act.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)


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Property Owners: Your Rates Could Quadruple for Unauthorised Land Use

“The said penalty … was imposed due to the fact that the property was being used in contradiction to its zoning” (extract from judgment below)

Municipalities all have the right (and the duty) to regulate land use in their areas, and amongst other sanctions, properties that are used unlawfully or without authorisation can be subjected to rates and charges on a penalty tariff.

These penalties can be steep, and the Supreme Court of Appeal (SCA) has now held that they can be imposed without the municipality first having to change the property’s category on its valuation roll to “illegal or unauthorised” use. All it has to prove is that it acted in terms of a lawful rates policy.

The house whose rates bill quadrupled

  • A house valued (on the municipality’s valuation roll) at R1,650,000 had its monthly rates bill quadrupled from R898-01 to R3,592-05.
  • The municipality took this step after notifying the owners of their “wrongful and unlawful use of the property as a student commune, in contravention of the town planning scheme and zoning thereof without the necessary authorisation.” Authorisation was necessary, said the municipality, because the commune was a “commercial concern”.
  • This after the owners had let out two of their five bedrooms to “students or young professionals” and had continued to do so despite two years’ worth of notices from the municipality to terminate the unlawful use, and despite a High Court interdict against the continued contravention.
  • The legal challenge mounted by the property owners against the penalties was based on a series of legal arguments, and the Court’s analysis thereof (on appeal from the High Court) will be of great interest to property professionals.
  • For property owners however, the practical punchline is that the SCA upheld the penalty charges, and the owners must pay them.

If your neighbour breaches land use laws…

That punchline is also important for neighbours, because in practice unlawful land usage of this nature will often only come to a municipality’s notice when a concerned neighbour blows the whistle.

So, if you think your neighbour is about to open up an unauthorised office, commercial or other non-permitted operation next door, and if you can’t settle the matter peaceably over a cup of neighbourly coffee, call in professional help immediately. Just the threat of a quadrupled rates bill could be enough to make the problem go away.

Different strokes for different municipalities

Property owner or neighbour, find out what your local authority’s land use and rates policies are. This particular case related to the City of Johannesburg Metropolitan Municipality, and your local municipality will have its own land use bye-laws, which could well be less or more restrictive than Joburg’s.

Check the zoning before you buy property

Perhaps the property owners in this case planned all along to let out rooms, and perhaps that extra income is what put this particular house within their financial reach. If so, the mistake they made was in not checking the local zoning upfront.

Knowing the zoning and building restrictions in your chosen area is also vital if you want to avoid unpleasant surprises, like a new neighbour opening up a guesthouse or building a triple story which cuts off your sea views. Ask your lawyer to check for you before you offer.

This article originally appeared in LawDotNews and is reproduced with the permission of Gerings Attorneys and DotNews

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