Cape Town City and Another v Da Cruz and Another

• Jurisdiction: South Africa
• Citation: 2018 (3) SA 462 (WCC)

Cape Town City and Another v Da Cruz and Another
2018 (3) SA 462 (WCC)

2018 (3) SA p462

Citation	2018 (3) SA 462 (WCC)
Case No	A 313/17
Court	Western Cape Division, Cape Town
Judge	Hlophe JP, Fortuin J and Sher J
Heard	February 2, 2018
Judgment	February 2, 2018
Counsel	SP Rosenberg SC (with EF van Huyssteen) for the first appellant.; G Budlender SC (with HJ de Waal) for the second appellant.; JG Dickerson SC (with D Baguley) for the respondents.

Flynote : Sleutelwoorde

Local authority — Buildings — Building plans — Approval — Presence of statutory disqualifying factors — Test reaffirmed and explained — National Building Regulations and Building Standards Act 103 of 1977, s 7(1)(b)(ii).

Local C authority — Buildings — Building plans — Approval — Need to strike balance between rights of owners of subject property for which building plan approval sought, and rights of owners of neighbouring properties — Contextual assessment in terms of s 7(1) of Building Act requiring decision-maker to evaluate likely effect of proposed building on neighbouring properties, on their present and reasonably foreseeable future development — National Building Regulations and Building Standards Act 103 of D 1977, s 7(1)(b)(ii).

Local authority — Buildings — Building plans — Approval — Obligation of local authority to have regard to recommendations of building control officer — National Building Regulations and Building Standards Act 103 of 1977, s 7(1). E

Headnote : Kopnota

This was an appeal before the full bench of the Western Cape High Court against the decision of a single judge of the same division to set aside on review the City of Cape Town's approval of buildings plans submitted by the Simcha Trust (the Trust), in respect of planned renovations to a building (the F 'Oracle') situated on an erf it owned in central Cape Town. The applicants for review (the respondents on appeal) were the body corporate of, as well as an owner of one of the residential units in, the Four Seasons building, which was located on an immediately adjoining erf. At the time of the submission of the original plans, both buildings extended right up to the common boundary dividing them, as was permitted in terms of the applicable G zoning regulations. The Oracle stood four storeys high, and Four Seasons 17 storeys. Four Seasons' eighth and higher floors, which rose above the height of the Oracle, comprised residential units. They faced the common boundary, but were set back from it. The eighth-storey apartments were further provided with balconies. The building plans proposed the construction of an additional four storeys, which, if implemented, would result in the top three storeys of the H Oracle building eventually abutting, as a blank and solid wall, against the apartments on the eighth to tenth storeys of the Four Seasons building, along the common boundary. It was the applicants' view that such a construction would trigger the disqualifying factors set out in s 7(1)(b)(ii) of the National Building Regulations and Building Standards Act 103 of 1997, ie it would be 'unsightly or objectionable', it would 'disfigure' the surrounding areas, and it I would 'derogate from the value of adjoining or neighbouring properties'; accordingly, the plans had to be rejected by the City. However, the City approved the building plans on the recommendation of the building control officer. The applicants successfully applied to the High Court to have them set aside. The Trust resubmitted plans to the City, which approved them. In the court a quo, in terms of the Promotion of Administrative Justice Act 3 of 2000, J the applicants sought an order to once again set the plans aside.

2018 (3) SA p463

The High Court (a quo) held the following. In terms of s 7(1) of the Building A Act, properly interpreted, when considering whether to approve building plans, a local authority had to consider, first, whether the proposed building complied with relevant planning, building and zoning legislation, and, next, whether the disqualifying factors set out in s 7(1)(b)(ii) were triggered. The second part of the test — the contextual assessment — required the City to take appropriately into account the effect of the B development on the existing, and foreseeable future development of, neighbouring properties. The City had not, however, expressly concerned itself with the obligatory contextual assessment, wrongly concluding that there could be no question of the disqualifying factors being triggered where, as here, the planned structure would be fully within the parameters of the applicable zoning scheme. The City had to ask itself whether the C reasonable and informed notional purchaser of an apartment in the Four Seasons complex would have contemplated that the local authority would approve plans like the ones under consideration; it did not do so. The above failings rendered the City's decision to approve the plans reviewable on the basis of s 6(2)(d) (materially influenced by an error of law) and s 6(2)(e)(iii) (relevant consideration not considered) of PAJA. D

In the present matter the full bench dismissed the Trust's appeal, holding that the approval by the City of the Trust's building plans was indeed reviewable, principally on the basis of a misunderstanding of applicable law on the part of both the building control officer and the City.

Held, that the definitive interpretation to be afforded to s 7(1) of the Building Act was that set out in Walele v City of Cape Town and Others2008 (6) SA 129 (CC) E (2008 (11) BCLR 1067; [2008] ZACC 11). On such interpretation, the relevant decision-maker who had to consider an application for the approval of building plans had a positive duty to satisfy him- or herself not only that the plans were legally compliant, but also that the building which was to be erected in terms thereof would not (actually or probably) disfigure the area or be unsightly or objectionable or derogate from the F value of neighbouring properties. According to such an interpretation, in the case of doubt an application for the approval of building plans would therefore have to fail. (See [25] – [26].) However, the building control officer and the City, as was apparent from their report and memo, respectively, understood their duty to be one of assessing whether or not there were sufficient grounds for them to conclude, on a balance of probabilities, that G any of the potentially disqualifying factors would eventuate (see [32] and [58]). In doing so, they applied the test as set out in True Motives SA (Pty) Ltd v Mahdi and Another2009 (4) SA 153 (SCA) (2009 (7) BCLR 712; [2009] 2 All SA 548; [2009] ZASCA 4), later confirmed by the Constitutional Court to be wrong (see [27]). The proper approach which should have been adopted by them was to determine whether they were positively H satisfied, on a balance of probabilities, that any of such factors would not eventuate. (See [32].)

Held, that the decision-making of both the building control officer and the City was predicated on the invalid assumption that, simply because the Trust was entitled to build up to the common boundary, the owners of neighbouring properties were obliged to tolerate whatever the Trust wanted to I build in fulfilment of this right. Their fundamental premise — that an owner's development rights in terms of zoning, building and planning legislation reigned absolute and supreme over the rights of adjoining affected owners, irrespective of the effect of what was to be built — was not supported in common law and in terms of s 7(1)(b) jurisprudence, in terms of which local authorities were directed to refuse an application for the J

2018 (3) SA p464

approval A of building plans where it would result in an unsightly, objectionable or dangerous structure, or one which impermissibly diminished the market value of an adjoining property. (See [61] and [71].)

Held, that both the building control officer and the City failed to perform the statutorily prescribed contextual assessment in terms of s 7(1) of the building plans. Such an assessment required the relevant decision-makers B to have regard to what existed, and what might reasonably be anticipated was likely to be put up in the future, on neighbouring properties. They could not simply look at the building plans, on a one-sided basis, from the point of view of the development rights of the applicant submitting the plans. (This approach was demanded in the light of the constitutional injunction that local authorities had to strike a balance between the rights C of the owner of the subject property for which building plan approval was sought, and the rights of the owners of neighbouring properties.) (See [71] and [82].)

Held, that the City, in deciding whether to approve the building plans, did not have regard to the views and recommendations of the building control officer with respect to whether the disqualifying factors set out in D s 7(1)(b)(ii) had been triggered; it only considered the building control officer's views in respect of the issue of compliance in terms of s 7(1)(a). The City was, however, obliged to have regard to all the recommendations of the building control officer in arriving at its decision, and not just some of them. (See [56] – [57] and [72].)

Accordingly, the review was rightly granted (see [73]) on the basis of a material E error of law and a failure to take into account relevant considerations, but could also have been granted on the grounds that the decision was not rationally connected to the information which was before the decision-makers (in terms of s 6(2)(f)(ii)(cc) of PAJA). Appeal dismissed with costs (see [83]).

Cases cited

Administrator, F Transvaal, and Others v Traub and Others1989 (4) SA 731 (A): referred to

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