Summary
Town Planning Scheme Regulations: Concept of height - interpretation and determination thereof.
Residential building: What it is - Interpretation and application thereof.
Official of the First Respondent: whether properly applied his or her mind in approving building and deviation plans - decision of the first respondent approving plans on 9 September 2003 and deviation plans on 30 June 2004 set aside - First Respondent called upon to comply with the provisions of section 39(1) of the Land Use Planning Ordinance 15 of 1985.
Section 7(1)(b)(ii)(ccc) of the National Building Regulations and Building Standard Act, 103 of 1977: derogation from value of adjoining or neighbouring properties - interpretation and application thereof.
Commentary
Bloubergstrand property owners (trustees of a trust) woke up one morning to find that their neighbour had started building operations. When the new building began to obstructtheir views, they made enquiries at the building department of the local authority. They inspected the building plans, and in their view there were at least two things wrong: the actual height of the building was in contravention of the applicable town planning zoning scheme, and the plans relied on incorrect measuring techniques for measuring height.
The trust lodged an appeal with the local authority against approval of the building plans. The appeal was dismissed, and the local authority approved 'deviation plans' for the neighbour, without even affording the appellant insight into these plans (access was denied based on s 48 of the Promotion of Access to Information Act).
The trust then approached the court for relief. The court granted relief, ordering that the building plans were not duly approved, and ordering the respondent to comply with the building height restrictions and zoning regulations.
It is an interesting tale of bungled administration, incorrect measuring of heights, and failure of the official mind to apply itself to the due approval of plans. It also contains interesting facts about zoning regulations and the process of approval of building plans. The "room with a view" law is also briefly but importantly touched on. There is very little in the text about neighbourly love.
A must-read for all attorneys advising clients on residential building projects. Pass this on to your land surveyor and architect friends and colleagues too.
Lizelle Kilbourn
Igqwetha Training Academy (Pty) Ltd
Full judgment
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