“The court has the discretion to issue a demolition order on a building even if the municipality has approved them, and this shows that all due processes are necessary, the neighbour’s approval in this case being the all-important step that was missed,” says Steward.
This is according to Lanice Steward, managing director of Knight Frank Anne Porter, who highlights a recent court case summarised in a Smith Tabata Buchanan Boyes newsletter that shows in doing so the person who goes ahead without approval could lose a lot when objections are brought forward.
In the court case, Ndlambe Municipality v Lester and Others, the property owner had his plans submitted and approved by the municipality. The plan was to build a second, larger building on the property as the one that existed was a small shack. The problem that arose is that a second dwelling was actually prohibited by the township conditions and a neighbour, Haslam, objected and applied, successfully, for an interdict against the building going ahead. Lester amended the plans and these (“the 2002 plans”) were also approved.
Lester then decided to proceed with a building that differed from the amended set of plans (things changed and he needed to make provision for his mother to live with him) and submitted another set, which were approved by the municipality but Haslam was never informed of the subsequent changes.
Once the building was almost complete Haslam realised the difference in plans and he brought an application to the review board because the building took away 75% of his sea view. After a series of amendments and re-submissions, which were rejected by Haslam, the last review ended in an order prohibiting the municipality from approving new plans, which meant that the only set approved were the original 2002 plans. As the building was substantially different from these, Haslam applied to the court to have the building demolished. The court ruled in Haslam’s favour, ordering the building to be demolished, citing Section 21 of the Building Standards Act.
“The court has the discretion to issue a demolition order on a building even if the municipality has approved them, and this shows that all due processes are necessary, the neighbour’s approval in this case being the all-important step that was missed,” says Steward. “There is a question to be asked here though - how did the municipality approve the plans in the first place?”
In another case, Pellencin v City of Tshwane Metropolitan Municipality, Pellencin appealed to the review board against the municipality, which was refusing to issue an occupation certificate.
Pellencin’s plans had been approved but during the building process some deviations from the approved plans took place. He then applied for the amended plans to be approved which showed the construction “as built”. The municipality refused and when Pellencin appealed to the review board they upheld his appeal. However, when Pellencin asked for an occupation certificate it was denied.
Pellencin went to the High Court for an order to compel the municipality to issue the certificate and this court ordered the municipality to issue the occupation certificate for the dwelling as the building plans did comply with the Building Standards Act and all applicable laws.
“In all agreements of sale these days, the seller needs to warrant that all buildings on the property are to specified plans or that, in the event that they’re not, they would be required to either get a draughtsman in to draw up plans and submit them for approval or the purchaser sign acknowledgement that there are no existing plans available,” says Steward.