It is therefore far safer to try and get plans approved, even if this does involve taking them to five or six neighbours and asking them to confirm that they will have no objection to the proposed changes, he adds. According to Bill Rawson, chairman of the Rawson Property Group, certain property owners have regularly tried to get away with erecting buildings for which the plans have not received official approval. Regrettably sometimes they have succeeded – but the situation is now changing.
Rawson notes that a recent Smith Tabata Buchanan Boyes (STBB) newsletter has shown that this type of unlawful behaviour is less and less likely to be overlooked by the authorities in today’s South Africa. The STBB newsletter shows that there are two basic types of illegal structure - one which contravenes a statutory enactment under public law or one which constitutes the unlawful use of one’s own property under private law.
In both cases it should be noted that the courts have the right to order demolition, says Rawson. It is true that courts, while recognising that a building is illegal, have on occasions evoked what is known as the prejudice test by which they can allow the new structure to remain intact provided, in their opinion, it is not considered harmful (“prejudicial”) to neighbours or to the precinct in general.
In a recent case involving a home erected at Kenton-on-Sea in the Eastern Cape, the owner departed completely from the original plans, causing a neighbour to lose 75 percent of his sea view. This fact only became evident as the building neared completion.
When the neighbour objected, the owner claimed that all changes to the original plans had received municipal approval.
However, the objector was able to show that he had disagreed and opposed every one of these changes and had voiced his objections, with the result that the latest plan review had ended in a court order setting aside all changes approved and prohibiting the municipality from passing any new plans for this particular owner. This in effect meant that the only plans approved had been the originals from which the owner had then seriously deviated, explains Rawson. The court ordered the demolition of the new building. It argued that the inconvenience to the neighbours, and in particular to the one who had lost three-quarters of his view, was in no way minor or disproportionate. “In many of South Africa’s suburbs unapproved changes to properties are made regularly.” However, the Kenton-on-Sea case and others over the last two years show that it is increasingly risky to go this route.
The changes are likely to be picked up by building inspectors and if neighbours are prejudiced by them, they too, have every right to complain. It is therefore far safer to try and get plans approved, even if this does involve taking them to five or six neighbours and asking them to confirm that they will have no objection to the proposed changes, he adds.