Appeal court ruling on views halts developments

Posted On Friday, 07 May 2004 02:00 Published by
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The landmark Paola case heard in the Supreme Court of Appeal in October last year continues to halt developments which risk impinging on a neighbouring property 's view
By Nick Wilson

The landmark Paola case heard in the Supreme Court of Appeal in Octoberlast year continues to halt developments which risk impinging on a neighbouringproperty 's view.

Last year the appeal court ruled that the view from a house was integralto the value of the property. The court also ruled that if a city councilapproved building plans that would spoil a neighbour's view, it was infringingon the rights of the affected owner and such plans should not be approved.

The latest matter involves the owners of Beachcomber Bay Lodge, whichhas a panoramic sea view on KwaZulu-Natal's southern coast , and a developerwanting to construct a six-storey building in front of the lodge.

Kay Naidoo, of Durban-based attorneys Livingston Leandy, who representedGreg Paola in October and is now representing the owners of the BeachcomberBay Lodge, argued that the developers Pearlstar No14 cc had not been inpossession of building plans approved by a building officer as required.

Naidoo also argued that the building was constructed it would blockout the view and devalue the property.

Although the Hibiscus Coast municipality initially approved the plans,it then agreed they were not properly authorised and the developers submittednew plans.

The municipality's admission that the plans were not initially properlyapproved shows that planning authorities are taking heed of the Paola judgment.

In this case, the developers continued building and the municipalitylodged an application in the Durban High Court to interdict the development,Naidoo said. Before the stop order was granted, however, the developers'attorneys said they would halt construction.

Louis Hansmeyer, representing the developers, said earlier this weekthey had reached an agreement with the municipality to stop work pendingan answer as to whether authorities would approve the new plans or not.Hansmeyer was expecting an answer today.

Since the Paola case, the Durban High Court has also endorsed the viewof the Supreme Court of Appeal. In November, the regional court set asideplans approved by the Ethekwini municipality for a property situated inBellair and ordered it to pay costs .

In that case, Livingston Leandy also acted for appellant Rob Brusseagainst the municipality. Brusse had bought a property on Angle Road, abuilding listed in the Heritage KwaZulu-Natal register.

Brusse contended that if a neighbour carried out the alterations hehad planned, it would completely obliterate the panoramic view enjoyedfrom his property, covering Sea View, Carrington Heights, the Bay of Nataland the Bluff.

The high court agreed , saying the planned development would impairhis view and diminish the value of his property.

Business Day

Publisher: Business Day
Source: Business Day

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