Division: The Supreme Court of Appeal
Case No: 475/2002
Judgment date: 26 September 2003
Coram: Howie P, Farlam, Lewis, Heher JJA et Motata AJA
This is an appeal from a judgment delivered by Kondile J in the Durban and Coast Local Division of the High Court, dismissing an application brought by the appellant for an order reviewing and setting aside a decision of the third respondent, the North and South Central Local Council. The appellant's house was built twenty years ago behind a pre-existing house owned by a trust ("the trust") of which the first and second respondents are the trustees. It was specifically designed and positioned to maximise the outlook and surroundings, taking into account the development on the trust property.
The appellant attacked the third respondent's decision to approve the plans on three grounds:
- the nature of the development would derogate from the value of the affected property to such a degree that the third respondent was by virtue of the provisions of section 7(1)(b)(ii)(aa)(ccc) of the National Building Regulations and Building Standards Act 103 of 1977 precluded from approving the plans;
- the relevant official failed to apply her mind properly to the consideration of the plans; and
- that the plans were approved in breach of the provisions of the Town Planning Regulations ("the Act") because the rear space between the rear of the building and the rear boundary of the trust property was less than five metres.
Before considering the contentions of the parties, the relevant provisions of the Act and the Town Planning Regulations were set out. Regarding the third respondent's contention to approve the plans without considering a recommendation from a duly appointed building officer, Judge Ian Farlam found that: "The simple facts are that a power to approve plans was purportedly exercised, which, in the absence of the necessary jurisdictional facts, did not in law exist. There was therefore no valid approval. It follows that the appellant's attack on the third respondent's approval of the plans must succeed and the decision concerned must be set aside".
He then turned to the question of the derogation of value and the submission by counsel for first and second respondents that for the purposes of s 7 of the Act: a) the loss of a view is not something that should be taken into account, and b) the reference to value in the section referred to value assessed on the basis that no value is attributed to a view for planning purposes. In his view it is not possible to interpret the section so as to give the word "value" a meaning other than its ordinary meaning, namely market value. Therefore, once it was clear that the execution of the plans would significantly diminish the value of the property, then on its plain meaning the section will prevent the approval of the plans. Finally, the contentions regarding the rear space were dismissed as being without manifest substance.