WHY AM I KEPT IN THE DARK?
Imagine you own a property in Walmer Estate, Cape Town with sweeping views of Table Mountain and Table Bay. One day you discover that your boundary wall has been damaged by your neighbours who are busy clearing their property in preparation for major new building work. This is the first time that you are alerted of your neighbour’s intentions and upon further investigation you discover that your neighbours have obtained building plan approval for the erection of a 4-storey block of flats on their property!
What about my views? What about my privacy? What about the deep, dark shadows that will be cast by the monolithic structure that my neighbours are intending to erect? Why did no-one tell me that they were planning to do this?
This thorny question, namely the right of an interested and affected party to be heard before an applicant’s building plans are approved, is one of the questions with which the Constitutional Court was required to grapple when dealing with an application for leave to appeal by Mr Walele, a resident of Walmer Estate, Cape Town. The unfortunate Mr Walele found himself in precisely the situation described above and his application to have the building plans of his neighbours reviewed and set aside had been refused by the High Court in Cape Town.
When, according to our law, may a property owner expect to be advised that a neighbouring property owner has submitted building plans for approval by the local authority?
Building plans are approved by local authorities in accordance with the provisions of of the National Building Regulations and Building Standards Act no 103 of 1977 (the “Building Act”).
Amongst other things, the local authority is required to ensure that the building plans for which approval is sought comply with the provisions of the Building Act and with “any other applicable law”. This means that the building plans submitted for approval must also comply with the provisions of the Land Use Planning Ordinance no 15 of 1985 (“LUPO”) and the relevant zoning scheme regulations.
The local authority will refuse to consider building plans if the plans do not comply with any of the provisions of LUPO or the scheme regulations. Instead, the local authority will advise the applicant of the non-compliance and will advise the applicant what steps need to be taken in order for the plans to become compliant with LUPO and the zoning scheme regulations.
Depending on the reasons for the non-compliance of the proposed building plans, the applicant may be required to advise interested and affected parties of the application which needs to be brought to bring the plans in line. For example, where an applicant is required to apply for the alteration of the land use restrictions applicable to the property, the local authority may require that the application be advertised if, in the opinion of the local authority, any person may be adversely affected thereby. If an owner is required to apply for the property to be rezoned , the local authority is obliged to advertise the application.
In these instances, surrounding property owners will be notified of the application that has been submitted and will be afforded an opportunity to object to the application concerned. This does still not afford surrounding property owners the opportunity to comment on the proposed building plans themselves, however.
Until the judgment handed down by the Constitutional Court on 13 June 2008 in the matter of Walele v City of Cape Town and others 2008 (6) SA 129 (CC), our courts have generally held that surrounding property owners are not entitled to be given notice that building plans have been submitted to the local authority for approval. This has meant that, as long as the local authority is satisfied that the building plans comply with the provisions of the Building Act and any other applicable law, the local authority has approved the plans without giving notice to the surrounding property owners that plans were being considered for approval.
The Constitutional Court held that Mr Walele could only successfully claim a right to be heard before the building plans were to be approved by the City if he could show that the decision to approve the building plans materially and adversely affected his rights or if he could show that he had a legitimate expectation to be heard.
The Court held that a legitimate expectation to be heard may arise either from a promise made by the decision maker (in this case the City) or from a regular practice which is reasonably expected to continue.
If the person is able to establish objective facts which give rise to a legitimate expectation, the next stage of the inquiry is whether procedural fairness requires a pre-decision hearing.
The Constitutional Court found that the mere fact that Mr Walele was the owner of the neighbouring property to which the building plans related did not give rise to an expectation to be heard before the building plans were approved by the City of Cape Town. Such an expectation could only have arisen if Mr Walele had succeeded in showing that the City had establish a regular practice of inviting neighbours to submit comments in respect of building plans that had been submitted for approval or had promised to advise the person concerned (in this case Mr Walele) that he would be afforded an opportunity to be heard before any such plans were approved. The court found that Mr Walele had not succeeded in proving either of the these requirements.
In conclusion, if building plans are submitted to a local authority for approval and if the local authority is satisfied that the building plans comply with the requirements of the Building Act and any other applicable law, the local authority is not obliged to notify neighbouring property owners that building plans have been submitted for approval unless the local authority has given the neighbouring property owners a legitimate expectation to be advised of the application.
In order for neighbouring property owners to succeed in proving that they have a legitimate expectation to be heard before building plans are approved, the neighbours will have to show that the local authority has either engaged in a regular practice of notifying interested and affected parties of building plan applications or that, in the particular circumstances of the case concerned, an undertaking had been given by the local authority to so advise the interested and affected parties.