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)