Question of a property owner's right to a view again highligted.
The recent Special Assignment television programme on Johannesburg development planning and local authority control has again spotlighted the question of a property owner's right to a view.
In Roman times, it was recognised that the attributes of air, light and view were sufficiently important to citizens to entitle them to protect those attributes attaching to their dwellings against encroachment by neighbours. Over time, those principles became significantly diluted on the basis that it was impossible to set hard and fast principles to apply to each and every case, and that such attributes were for the enjoyment of all, not individuals.
However, in a judgment late last year, the Supreme Court of Appeal revisited those rights, specifically in circumstances where there are direct economic consequences.
The particular facts of the matter are important, as these had a direct bearing on the final outcome. The appellant's house (built some 20 years before) had been constructed in such a manner so as to maximise the panoramic views from that property. The proposed development on an adjoining property (which had been completed by the time of the judgment) "substantially impaired" the "unsurpassed view" from the appellant's property.
The appellant originally attacked the validity of the local council's decision to approve the development on three grounds:
Inasmuch as the proposed alteration encroached on a five metre building line provided for in the relevant Town Planning Regulations, the approval of the plan by the local authority without the appellant's written consent constituted a breach of those Town Planning Regulations.
Due to the size, proximity and position of the proposed development relative to the appellant's own house, the development diminished the value of the appellant's property through the substantial impairment of a magnificent view.
The relevant official at the local authority had failed to apply her mind properly in considering and approving the plans.
The Durban High Court was not persuaded by these arguments and dismissed the review application. Subsequent to that judgment, the appellant discovered that the local authority had failed to appoint a building control officer to make recommendations in connection with developments, contrary to the requirements of Section 7 of the National Building Regulations and Building Standards Act. As part of his appeal against the finding of the Durban High Court, the appellant was permitted to lead evidence on these facts at the hearing before the Supreme Court of Appeal - an unusual procedure allowed only exceptional circumstances.
The decision of the Supreme Court of Appeal in favour of the appellant is based squarely on this last issue - that the approval of the plans was invalid for want of compliance with the provisions of Section 7 of the National Building Regulations and Building Standards Act, in that no building control officer had been appointed by the local authority, that accordingly no recommendation by such person had been made to the local authority regarding the proposed development in question, and that the local authority had accordingly approved the plans concerned without taking a required recommendation into consideration.
Ordinarily, having come to such conclusion, the Supreme Court of Appeal would not have dealt with any of the other points, it being unnecessary to do so. However, because the technical non-compliance might be cured later (i.e. the appointment of a building control officer, his or her investigation and recommendation, and the reconsidering and reapproval of the plans by the local authority), at the request of the parties before the court the Supreme Court of Appeal stated its opinion on the question of diminution of value through impairment of view.
The uncontested facts showed that the nature, extent and proximity of the development drastically impaired the appellant's view, and such impairment would significantly diminish the market value of the appellant's property. In the opinion of the Appeal Court, this would mean that, in terms of further provisions under Section 7 of the National Building Regulations and Building Standards Act, the local authority was precluded from approving the plans. In terms of those statutory provisions, the local authority must consider whether a proposed development will "probably or in fact derogate from the value of adjoining or neighbouring property".
It should be noted that the provisions speak simply of a "probability" that the "value" of an adjoining or neighbouring property will be diminished. There is no mention of degree. By the same token, the local authority needs to be "satisfied". This means a discretion which must be exercised in a reasonable fashion. Accordingly, there remains a large measure of uncertainty as to when precisely our Courts will follow the lead set by the Supreme Court of Appeal in this particular matter.
Pragmatism suggests that our Courts will follow an equitable approach. If it can be shown as a matter of fact that any proposed development will probably significantly diminish market value of neighbouring or adjoining properties through drastic impairment of views, it is likely that a Court will follow the Appeal Court's dictum in this regard. However, if the impairment of view is not so drastic as to result in a material reduction in value of the adjoining or neighbouring property, it is unlikely that a Court will prevent the local authority from approving plans.
A number of practical issues arise. Those seeking to have plans approved should ensure that the relevant local authority scrupulously follows the required process. Taking advantage of a failing by a local authority in this regard could well result in costly revision and delay further down the line.
Those aggrieved by the prospect of proposed developments should check that the required approval process has been complied with fully. If the complaint is that a proposed development will drastically impair view so as to result in significant reduction in the value of adjoining or neighbouring property, the aggrieved person should obtain the written comments of various property experts to confirm this (estate agents, sworn appraiser, etc), which comments should stipulate what the diminution in value is likely to be. Those comments should then be submitted to the local authority concerned, thereby enabling that authority to exercise its required discretion on an informed basis.
In addition, property owners should also exercise extreme caution before approving any documents given to them requesting changes to neighbouring properties. All of the ramifications of the proposed changes should be investigated carefully, in order to ensure that rights are adequately protected.
In November of last year, another Durban home owner followed that exact process in order to prevent construction on an adjoining property that would completely block his view. Based on the evidence of a valuator that the proposed alterations would seriously affect the value of the property through the impairment of view, the Durban High Court found in favour of the applicant homeowner.
The principles are clear. There is no absolute right for entitlement to a view. However, there is a right to protect the value of one's property. If the impairment of a view will be of such a degree as to significantly diminish the value of one's property, a local authority exercising its discretion in a reasonable fashion will, in our opinion, be obliged to reject plans that result in such impairment of view.
The Constitutional Court declined the application by the relevant local authority in the above matter that the Court reconsider the issues in toto. Accordingly, the direction given by the Supreme Court of Appeal stands as is.
As an aside, it should be noted that the Appeal Court also held in the matter decided late last year that the failure to adhere to building lines as set down in the relevant Town Planning Regulations constituted a further ground for the review and setting aside of the local authority's approval of the plans concerned. Property owners whose plans might entail such a transgression should ensure that the proper departures / waivers are applied for and that the relevant local authority scrupulously follows the required process, in order to avoid later comebacks.
Publisher: Cape Business News
Source: Cape Business News
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