22 November, 2021 In News

RENOVATION OF FREEHOLD PROPERTY

A property described as freehold, being full title ownership, differs from a sectional title property which refers to ownership of a unit comprising of a section and an undivided share in the common property. Before approving building plans, a municipality is required to consider various factors, including, inter alia, the impact that the proposed renovation will have on the surrounding environment and all relevant legislation.

BUILDING-PLAN APPROVAL

The building-plan approval process is governed by Section 7 of the National Building Regulations and Building Standards Act 103 of 1977:

7. Approval by local authorities in respect of erection of buildings

(1) If a local authority, having considered a recommendation referred to in section 6 (1) (a)—

(a)      is satisfied that the application in question complies with the requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;

[Para. (a) substituted by s. 4 (a) of Act No. 62 of 1989.]

(b)       (i) is not so satisfied; or

(ii) is satisfied that the building to which the application in question relates—

(aa) is to be erected in such manner or will be of such nature or appearance that—

(aaa)   the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb)   it will probably or in fact be unsightly or objectionable;

(ccc)   it will probably or in fact derogate from the value of adjoining or neighbouring properties;

(bb) will probably or in fact be dangerous to life or property,

such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal.

In terms of section 7(1)(a), if a local authority is satisfied with the application in that it complies with the requirements of this act and other laws, it must, within 30 days of receipt of such application, grant its approval.

In terms of Section 7(1)(b), should the local authority not be satisfied with the application, it must, within 30 days of receipt of the application, provide reasons for its refusal.

In considering whether to approve plans, the municipality’s Building Control Officer will consider a variety of issues, including the following: 

  • The impact that the proposed renovation will have on the environment; 
  • The heritage status of the environment; 
  • The health consequences;
  • The aesthetic impact of the build (visual-impact assessment);
  • Whether the proposed renovation will negatively impact the value of adjoining or neighbouring properties.

MUNICIPAL POLICIES AND BY-LAWS

Municipal policies and by-laws cannot be read in isolation. All relevant policies and by-laws should be considered when evaluating whether plans should be approved or rejected. 

Some examples of the policies and by-laws that would be considered by a Building Control Officer when assessing whether to approve or reject plans in the Cape Town CBD area include: 

  • Municipal Planning By-law, 2015; 
  • Zoning Scheme Regulations;
  • Urban Design Policy and Tall Building Policy; 
  • The City of Cape Town Spatial Development Framework;
  • City’s Development Management Scheme;
  • Economic Growth Strategy;
  • The Transit Orientated Development Strategy;
  • Densification Policy.

The failure on the part of the municipality to properly consider all applicable policies and legislation may result in such a decision being taken on review.

IMPACT ON NEIGHBOURS

One needs to strike a balance between the property owner’s right to build and the impact the proposed building activity will have on neighbours.

In the case of City of Cape Town and another v Da Cruz and another [2018] 2 All SA 36 (WCC), the court considered the above in relation to the framework for the approval of plans as provided for in the National Building Regulations and Building Standards Act:

“Section 7(1) has two parts. Section 7(1)(a) provides that if a local authority, having considered a recommendation by the Building Control Officer, is satisfied that an application for the approval of building plans complies with the requirements of the National Building Regulations and Building Standards Act and any other applicable law it shall grant its approval in respect thereof. Section 7(1)(b) provides that if it is not so satisfied, or if it is satisfied that the building to which the application relates is to be erected in such a manner or will be of such nature or appearance that it will probably or in fact be “unsightly or objectionable”, or will derogate from the value of adjoining or neighbouring properties, it shall refuse to grant its approval. The court approved the test applied in the case of Walele v City of Cape Town and Others, where it was stated that the provisions of section 7 had to be construed not in a literal but in a purposive manner, which took account not only of a landowner’s rights of ownership, but also the rights of owners of neighbouring properties which might be adversely affected by the erection of buildings in terms of plans which had been authorised. The decision-maker who has to consider an application for the approval of building plans has to be satisfied, not only that the plans complied with the necessary legal requirements, but also that none of the disqualifying factors set out in section 7(1)(b)(ii) would be triggered by the erection of the building concerned.” 

REMEDIES AVAILABLE TO AN AGGRIEVED PARTY 

  1. Interdict

It is important to note that an aggrieved party may approach a court if their property rights have been negatively affected. If an interim interdict is granted, building will have to cease pending the outcome of the relevant application, which, if opposed, may take several months.

An applicant who brings an application for an interim interdict must establish the following:

  1. a prima facie right;
  2. a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted;
  3. the balance of convenience must favour the granting of the interdict; and
  4. the applicant must have no other remedy.
  • Object to application

An aggrieved party may object to the application for the proposed renovations. The Building Control Officer will consider the objections when preparing his/her recommendation on whether or not the application should be granted or refused. 

  • Appeal the outcome of application

This appeal is in terms of Section 62 of the Local Government: Municipal Systems Act 32 of 2000.

Section 9(1) of the National Building Regulations and Building Standards Act also enables an aggrieved party to submit a written appeal to the National Building Regulations Review Board.

  • Review decision to approve plans 

An aggrieved party may also approach the court for a review of the decision to approve plans and for an order setting aside the planning approvals that were granted.