BACKGROUND AND SUMMARY
|The Constitutional Court of South Africa (the “Court”) recently handed down judgment in two applications seeking leave to appeal against the judgment of the Full Court of the High Court of South Africa, Western Cape Division, Cape Town (the “High Court”). The question of law before the Court was whether or not the legitimate expectations test applies to all of the disqualifying factors in section 7(1)(b)(ii)(aa) of the National Building Regulations and Building Standards Act No. 103 of 1977 (the “Act”).
Notwithstanding their lack of prospects of success; both applications raised a narrow point of law that demanded attention from the Court.
In 2005, the City of Cape Town approved a development application by the Four Seasons. The building plan entailed buildings balconies up to the boundary of the Four Seasons’ property. During 2005 to 2007, the Four Seasons erected a 17 (seventeen) storey building with balconies leaning into the adjacent property, owned by the Simcha Trust (the “Trust”).
The Trust submitted a building application in 2007 in terms of which it sought to build an additional 4 (four) storeys to the existing structure on its property. If implemented, the top 3 (three) storeys would touch the existing balconies on the eighth, ninth and tenth storeys of the Four Seasons’ building. The City of Cape Town approved the Trust’s application in September 2008 and construction commenced thereafter.
In 2012, Four Seasons instituted an application in the High Court wherein the High Court set aside the approval of the Trust’s building application on two grounds:
(i) the City of Cape Town’s official, in approving the building plans, was materially influenced by an error of law; and
(ii) the City of Cape Town’s official failed to take into account whether or not the proposed development gave rise to any disqualifying factors when viewed from the perspective of the neighbouring Four Seasons’ building.
Subsequently, the Trust and the City of Cape Town appealed to the Full Court of the High Court, wherein it was held that the decision makers had committed errors of law, inter alia:
(i) the incorrect test was applied when considering whether or not the any of the disqualifying factors were present;
(ii) it was assuming that an application could not be refused on the grounds of the disqualifying factors where the application complies with zoning requirements; and
(iii) the failure to take into account the impact of the building plans on the neighbouring property.
The Full Court of the High Court dismissed the appeal and, thereafter, a petition for special leave to appeal to the Supreme Court of Appeal was unsuccessful.
The Trust and the City of Cape Town then filed separate applications to appeal in the Court. The Court granted leave to appeal on the basis that the applications raised a constitutional issue and it was in the interests of justice to grant the appeal. Further, the Court had jurisdiction to consider the appeal because all reviews in respect of the Promotion of Administrative Justice Act No. 3 of 2000 concern the right to just and fair administrative action under section 33 of the Constitution of the Republic of South Africa, 1996.
On the directions issued by the Chief Justice, the Trust and the City of Cape Town each filed submissions, which were substantively the same. It was submitted that the disqualifying factors are disjunctive and should be considered separately and, further, the legitimate expectations test is suited to application in the context of derogation in value from a particular property, rather than the disfigurement of an entire area.
The Trust and the City of Cape Town contended that the question of whether or not a building disfigures an area involves a value judgment which only the building control officer can make.
Finally, it was submitted that it is unduly burdensome on the local authority to expect it to consult with all neighbours.
The Court confirmed that the legitimate expectations of an objective, hypothetical neighbour must be considered when assessing all disqualifying factors, which includes the possibility of derogation of value, disfigurement and unsightliness.
It was held that the correct approach to section 7(1)(b)(ii) of the Act is to be found in Walele v City of Cape Town  ZACC 11 in terms of which the local authority must be positively satisfied that there are no disqualifying factors present, separate from the requirements under the Act.
Accordingly, the Court dismissed the appeal.
When considering a proposed building application, the decision maker should consider whether or not the proposed building will probably, or will in fact, be so disfiguring of the area, objectionable or unsightly, or derogate from the value of adjacent properties, that it would exceed the legitimate expectations of a hypothetical owner of a neighbouring property.
Written by Sean Buskin and supervised by Kerry Theunissen