The Legal Technicalities of Building Plan Applications
Waiting for building plans to be approved can be a worrisome period for a prospective developer. The outcome of such an application will have major financial consequences. Add to that the possibility of the local authority not knowing how to interpret the relevant legislation and you might find yourself reconsidering that investment decision.
Cape Town City & Another v Da Cruz & Another 2018 (3) SA 462 WCC
In the Da Cruz-case a prospective developer bought a four-storey building with the idea of developing an upmarket hotel. The developer delivered the building plans to the local authority, who approved the plans. The building adjacent to this four-storey building had balconies from the eighth floor up, which were all facing the boundary of the four-storey building. Consequently, the occupants applied to have the approval of the building plans set aside based on section 7 of the National Building Regulations and Building Standards Act, 103 of 1977 – and succeeded.
The court confirmed the decision of the Constitutional Court in Walele v City of Cape Town & Others 2008 (6) SA 129 (CC). In that case the court held that when building plans are considered, the local authority may not approve the plans unless it positively satisfies itself that the proposed building will not trigger any of the disqualifying factors referred to in section 7. This section provides that the building to be erected should not be erected in such a manner or be of such a nature or appearance that-
i. the area in which it is to be erected will probably or in fact be disfigured thereby; ii. the building will probably or in fact be unsightly or objectionable; iii. the building will probably or in fact derogate from the value of adjoining or neighbouring properties.
Thus, the plans should automatically be “rejected” until the local authority is satisfied that the disqualifying factors would not eventuate. The plans should not automatically be approved and only rejected once the local authority is satisfied that the disqualifying factors might eventuate. If any doubt exists, the local authority must refuse to approve the plans. The onus therefor lies with the applicant to satisfy the local authority that the disqualifying factors do not exist.
If the wrong interpretation of section 7 is used, and the plans consequently approved, disgruntled neighbours can use that as grounds to have the approval revoked. This is exactly what happened in the Da Cruz-case.
Janus Olivier