Constitutional Court rules on building plan approval

A far reaching judgment concerning the manner of approval of building plans by a local authority was handed down by the Constitutional Court on 13 June 2008, which Durban attorney David Warmback says, has great importance in the town planning and development environment throughout the country.

In the matter of Walele v City of Cape Town and Others [2008] ZACCII, Warmback, a partner in Durban law firm Shepstone Wylie Attorneys, says the central issue was whether the City properly approved building plans submitted by the respondents, in terms of which they sought to erect on their property, a four-storey block of flats in Walmer Estates, Woodstock, Cape Town.

The applicant, Mr Walele owns the residential property adjacent to the property owned by the respondents on which the flats are to be erected, and had applied to the High Court to set aside the decision by the City of Cape Town to approve the building plans for the flats.

The dispute is one between neighbours and the need to strike the right balance between the landowners right to erect a building of choice on his or her land, and the rights of owners of neighbouring properties.

The Constitutional Court, according to Warmback, set aside the judgment and order of the Cape High Court, in which that Court dismissed the review application instituted by Mr Walele where he submitted that the erection of the flats would devalue his property.

Mr Walele raised numerous objections to the City's approval of the plans, primarily that the City had failed to comply with the mandatory conditions contained in sections 6 and 7 of the National Building Regulations and Building Standard Act 103 of 1977 ("the Building Standards Act"). He also argued that the decision-maker of the City had not considered the effect that the erection of the flats would have on his property which violated his right to property protected by section 25 of the Constitution and that the City had violated his constitutional right to procedural fairness by failing to afford him a hearing prior to the approval of the plans.

The respondents and the Amicus Curiae, the City of Johannesburg, Warmback says, argued that Mr Walele was not entitled to a hearing in relation to building plans of his neighbour and that the City had complied with the Building Standards Act. The High Court dismissed Walele's claims and his petition to the Supreme Court of Appeal was also unsuccessful. He then applied to the Constitutional Court for leave to appeal.

In a 6-5 split decision of the Constitutional Court, it was held that the City had failed to comply with mandatory procedural requirements contained in the Building Standards Act when read together with Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). In balancing a landowner's right of ownership with the rights of the owners of neighboring properties, it was held that the decision maker must independently apply his or her mind to the question of whether building plans should
be approved. The purpose of the recommendation by the Building Control Officer under section 7 of the Building Standards Act, Warmback says, is to furnish the decision- maker with grounds for the Officer's opinion.

“The mere endorsement and signature by the Building Control Officer did not, therefore, constitute a recommendation as contemplated in the Act and did not provide a sufficient basis for the independent decision required of the decision-maker.”

“It appeared from the facts that the few documents that were submitted to the decision-maker could not reasonably have satisfied the decision-maker that none of the disqualifying factors in section 7(1)(b)(ii) of the Building Standards Act would be triggered. The documents provided were held to fall far short as a basis for forming a rational opinion and that there was no evidence that certain critical information of the Building Control Officer was communicated to the decision-maker.

Warmback says the court held that Building Control Officers must ensure that adequate information is placed before decision-makers so that they can consider applications for approval of building plans properly and in a balanced way.

The court granted leave to appeal to Mr Walele, upheld the appeal with costs and set aside the City of Cape Town's decision to approve the plans and remitted the matter back to the City for a new consideration of the matter.
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