Trouble with the neighbours

Trouble with the neighbours

by Gunnar Dahl and Rinske Nel

Da Cruz and Another v City of Cape Town and Another, a judgment of the High Court, Cape Town on 13 January 2017, dealt with aggrieved neighbours challenging the City of Cape Town’s approval of building plans for the re-building of the Oracle building in the Cape Town CBD.  The applicants were the body corporate of and an owner in the neighbouring Four Seasons building.  Both the City of Cape Town (the Municipality) and the owner of the Oracle building opposed the application.

The National Building Regulations and Building Standards Act regulates the approval of building plans.  Note that a brief article cannot do justice to the intricacy of this Act and the relevant case law.

It was common cause in Da Cruz that:

– The Municipality had approved the building plans for the apartments in the Four Seasons building, and the apartments had been built in accordance with such building plans, long before the Municipality approved the building plans for the re-building of the Oracle building.

– The proposed re-building of the Oracle building would adversely affect owners of apartments in the Four Seasons building.  For example, the upward extension of the Oracle building would be built right up against the balconies of apartments in Four Seasons, effectively turning them into something resembling court yards.

The Municipality’s defence was that that it may approve any building plans within the applicable land use development restrictions in terms of the zoning scheme (and other legislation), and that neighbours were obliged to tolerate this, irrespective of any adverse effects on their properties.

The Court held that the Municipality was “fundamentally misguided” in its belief that it was entitled to adopt “an uncoordinated and potentially disharmonious approach … to the consideration of building plan applications.”  And further: “The functionaries failed to consider and address the question whether a reasonable and informed purchaser of a unit on the eighth floor of the Four Seasons building would foresee that the [Municipality], having approved balconies along the common boundary would permit the development of the [the Oracle building] in such a manner as to effectively destroy the utility of the balconies as such, and with the degree of overbearing intrusiveness that allowing a three storey solid wall to be built up hard against them would unavoidably occasion.”

The Court set aside the approval of the building plans for the re-building of the Oracle building, and directed that, in respect of the reconsideration of such building plans, the Municipality must appoint a different building control officer and decision-maker.

It is questionable whether an appeal by the Municipality in this matter will be prudent spending of taxpayers’ money. 

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