GRAHAM NORRIS

Property Editor

THE recent Appeals Court judgment, which forces local authorities to give protection to views when considering building plan applications, may have some serious negative implications for the cost-effective development of and alterations to property, says Ian Slot, chairman of Seeff's National Committee.

"The case seems to create a tremendous amount of uncertainty as to what may and what may not be done with a piece of land. This is not at all a healthy state of affairs," Slot said.

He was commenting on the judgment in the matter between Umgeni Heights, Durban resident Greg Paola, the municipality and Paola's neighbours, Jaivadan and Tarulata Jeeva. "Prospective developers and purchasers who intend altering their properties will have no certainty as to what they can build, even if they strictly remain within the property's title deed restrictions as well as the area's zoning and planning restrictions," Slot said.

"The most important implication of the judgment is that, by law, plans may not be passed if the local authority, after consideration of the report by its suitably qualified building control officer, if this officer is of the opinion that the additions or developments 'will probably or in fact derogate from the value of adjoining or neighbouring properties'.

"The judgment introduces, among others, view as a de facto restriction of any additions to, or developments on, a property, along with the restrictions contained in propertiesa title deeds as well as in an area's planning and zoning regulations," Slot said. "The crux of the judges' decision was the absence, in this case, of a qualified building control officer in the employ of the local authority.

"Both parties to the case accepted that the market value of the property had been affected. "Contrary to what has thus far been reported, the view issue was actually incidental. The parties asked the court to express its opinion, and the opinion was that derogation of the property's 'fair market value' does preclude the local authority's approval of plans and that the loss or serious obstruction of a view does derogate from a property's value.

"And the court held that the word 'value' in the National Building Regulations and Building Standards Act (103 of 1977) must mean 'market value'. "We are, however, not certain that the last word has been written about the meaning of the word 'value' in the Act. "Simply put: Is the value of a property what an uninformed buyer would pay for it, or is the value really the lesser amount that an informed buyer, who is fully aware of what his or her neighbours are allowed to build in terms of their propertiesa title deed restrictions as well as zoning and planning regulations, would pay?

"If it is the latter, then surely one cannot argue that the value has been derogated from if an owner in front simply builds what they were always entitled to build in terms of their propertiesa title deed restrictions as well as area zoning and planning regulations? "The view aspect has to be argued and established in each case. This case does not imply, as reported, an automatic right to a view.

"What the judgment establishes is that each local authority must appoint a suitably qualified building control officers, who must make submissions to the local authority upon proposed developments and/or alterations. "If the local authority, having considered such a recommendation, believes that the proposed development or alteration 'will probably or in fact derogate from the value of joining or neighbouring properties' it may not - by law - approve such a development or alteration.

"The case raises very serious questions. What should the procedure and time frame of the local authority be? Do the local authorities have the funds, capacity and/or will to fulfil their legal obligation? Will they issue guidelines to inform owners in this regard, and what will the appeals procedure be?

"Also, how does one determine one's rights as a property owner or developer? If one has owned a property for a long time, does one's rights to a view outweigh the rights of an owner who has only recently purchased?

"Are appoved development or alteration plans approved by a local authority still valid? And what about infringing structures already built in terms of improperly approved plans? "This is, all in all, a quite unsatisfactory situation which we would hope will be resolved as speedily as possible in a manner that will allow for cost-effective and sustained use and development of property."

For further information, contact Ian Slot on 021 434 9175.