It has become a common occurrence to see skyscrapers shoot up in residential and commercial areas. Although this seems to be a trend of modern times, one can’t help but wonder whether the relevant considerations are taken into account when such building applications are approved.

In the recent consolidated Constitutional Court (CC) judgment of the matters of Trustees of the Simcha Trust v Da Cruz and Others and City of Cape Town v Da Cruz and Others the CC had to consider whether the legitimate expectations test, which is used to assess building plans that might negatively impact on the value of the adjoining or neighbouring properties, also apply to approving building plans of buildings that may disfigure the adjacent properties, be unsightly or objectionable.

In the matter of Camps Bay Ratepayers and Residents Association v Harrison the legitimate expectation test was described as an obligation placed on local authorities to be satisfied that a hypothetical purchaser of a neighbouring property would not harbour legitimate expectations that the proposed development or building application would be denied because it was so unattractive or intrusive.

In other words, the probability of whether a newly proposed building development will be unsightly, negatively impact the value of neighbouring properties and be considered as unsightly overall, should be taken into account with the legitimate prospective of a buyer or current owner of neighbouring properties

Section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act (“the Act”) set out a list of disqualifying factors whereby local authorities must refuse a building application. These factors are where the building to be erected:

  • will probably or in fact disfigure the area in which it is to be erected;
  • will probably or in fact be unsightly or objectionable; or
  • will probably or in fact derogate from the value of the adjoining or neighbouring properties.

The facts of the Simcha matter are briefly as follow. During 2005 the City of Cape Town approved a development application in terms whereof the building plan entailed building balconies up to the boundary of the property. Adjacent to the property was a property owned by the Simcha Trust. In 2007, the Simcha Trust submitted a building application wherein it sought to build an additional four storeys to the existing structure on its property. The Municipality approved the Simcha Trust’s application in September 2008 and construction commenced.

The Constitutional Court held that the decision-makers had applied the incorrect test in its decision whether the building application should be disqualified.

The Court confirmed the finding that the legitimate expectations of an objective, hypothetical neighbour must be considered when assessing all disqualifying factors, including the possibility of derogation of value, and also the possibility of disfigurement and unsightliness.

In other words, when considering a proposed building, the local authorities should consider whether the proposed building would probably, or will in fact, be so disfiguring of the area, objectionable or unsightly, or derogate from the value of adjacent properties, that it would exceed the legitimate expectations of a hypothetical owner of a neighbouring property.

If you are currently considering to renovate your property or if your company is involved in drawing up of building plans it is important to take into account the legitimate expectation test together with the relevant sections of the Act when drawing and submitting plans to local authorities for approval.

Marli Venter is an Attorney in the litigation department at Barnard Incorporated in Centurion

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