A landmark Constitutional Court decision recently clarified the long-standing rights of neighbours and property in an area in regard to obstruction, disfigurement of an area and the impact on property values which must be considered in regard to building plan approvals by the municipality.
The case involved a seventeen-storey city building (building A) which had been permitted to build balconies right up to the neighbouring (building B) four-storey building's boundary. The neighbouring building's owners (building B) then applied for approval of plans to add another four stories, but it appeared that balconies on three floors would touch the top storeys of the new additions. Despite strenuous objections, the building plans were approved by the municipality and the matter then headed for court.
The Court's decision came down to the fact that the building plans had not been properly approved and that it must be re-assessed, and the developer is accordingly back to square one. Potentially, a demolition order may even be on the cards if they are ultimately unsuccessful in having their plans passed.
The Court's decision is important for developers and owners planning to build, as well as for their neighbours. It makes it clear that no construction work can proceed without municipal approval of the building plans (note though that some categories of "minor work" may not require plan approval), and importantly, such approval process must take into account three vital disqualifying factors and the "legitimate expectation" test.
Central to the decision is a statutory protection for buyers and neighbours relating to various "disqualifying factors" which the Court held must be used to consider the impact of the building proposal on neighbouring properties, in a nutshell, whether it will it probably, or in fact, be so disfiguring of the area, objectionable or unsightly that it would exceed the neighbour's "legitimate expectations". The three factors are that:
- The area where the building is to be erected will probably or in fact, be disfigured by it
- The building t will probably or in fact be unsightly or objectionable; and
- The building will probably or in fact derogate from the value of adjoining or neighbouring properties.
While neighbours always had to be considered in regard to the "derogation of value" (i.e. reduction of value), this decision now for the first time also confirms that their viewpoints are relevant.
While this now gives neighbours stronger rights, the Court was clear that it does not extend to "sensitive neighbours" looking to object 'willy-nilly' and the "the legitimate expectations test" is objective, and not subjective based on the whim of a sensitive neighbour.
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