DA Cruz and Another v Cape Town City and Another

• Jurisdiction: South Africa
• Citation: 2017 (4) SA 107 (WCC)

DA Cruz and Another v Cape Town City and Another
2017 (4) SA 107 (WCC)

2017 (4) SA p107

Citation	2017 (4) SA 107 (WCC)
Case No	6561/2015
Court	Western Cape Division, Cape Town
Judge	Binns-Ward J
Heard	October 20, 2016
Judgment	January 13, 2017
Counsel	JG Dickerson SC (with DW Baguley) for the applicants.; SP Rosenberg SC (with EF van Huyssteen) for the first respondent.; HJ de Waal for the second respondent.

Flynote : Sleutelwoorde B

Local authority — Buildings — Building plans — Approval — Duties of decision-maker — Must consider, in addition to building's compliance with technical and regulatory restrictions and prescriptions, contextual effect of finished product — Must consider effect on existing and future development of neighbouring properties — National Building Regulations and Building C Standards Act 103 of 1977, s 7(1)(b)(ii).

Local authority — Buildings — Building plans — Approval — Building plan's compliance with zoning scheme and building regulations not excluding existence of disqualifying factors set out in s 7(1)(b)(ii) of Building Act — Question of presence of disqualifying factors a substantial enquiry, D discrete from enquiry into compliance with applicable planning and building laws under s 7(1)(a) — National Building Regulations and Building Standards Act 103 of 1977, s 7(1)(b)(ii).

Headnote : Kopnota

This was an application in terms of the Promotion of Administrative Justice E Act 3 of 2000 (PAJA) for the review and setting-aside of the City's approval of building plans for the renovation and extension of the Oracle building, owned by the second respondent, in central Cape Town. The applicants were the body corporate of, and an owner of one of the residential units in, the Four Seasons building, situated on the erf immediately adjoining that on which the Oracle was built. The relevant background follows. F

At the time of the submission in 2008 of the building plans in question, both buildings extended right up to the common boundary line between the two properties, such that the Four Seasons building's first seven floors, comprising a parking garage, directly abutted the Oracle building, which stood at four storeys at the time. The Four Seasons' eighth and higher storeys, comprising residential apartments, extended above the height of the roof of G the Oracle, and were set back from the common boundary, such that residents on the eighth storey were provided with balconies facing the common boundary, overlooking the Oracle building's roof. In face of opposition by the applicants the second respondent in 2008 successfully sought the City's approval of its building plans, for the renovation of the Oracle building, as well as the upward extension of the building, flush H against the common boundary, above the height of the parking levels in the Four Seasons building. The impact would be that residents of the eighth-floor apartments in the Four Seasons would now, on the common-boundary-facing side, be presented with a towering solid wall; their balconies effectively being converted into small courtyards. The applicants applied to the High Court to set aside the building plans (at this stage I building had already commenced). The application was granted. The present application is for the setting-aside and review of the City's approval of the second respondent's resubmitted plans.

The central allegation was that both the City and the building control officer, whose recommendation the City was required to consider before making a decision to approve the building plans or not, had failed to properly address J

2017 (4) SA p108

the A requirements of s 7(1)(b)(ii) of the National Building Regulations and Building Standards Act 103 of 1977 (the Building Act). The section reads in relevant part as follows:

'(1) If a local authority, having considered a recommendation [of the building control officer] referred to in section 6(1)(a) —

(a)

is satisfied that the application in question complies with the B requirements of this Act and any other applicable law, it shall grant its approval in respect thereof;

(b) (i)

is not so satisfied; or

(ii)

is satisfied that the building to which the application in question relates —

(aa)

is to be erected in such manner or will be of such C nature or appearance that —

(aaa)

the area in which it is to be erected will probably or in fact be disfigured thereby;

(bbb)

it will probably or in fact be unsightly or objectionable;

(ccc)

D it will probably or in fact derogate from the value of adjoining or neighbouring properties;

. . .,

such local authority shall refuse to grant its approval in respect thereof and give written reasons for such refusal . . . .'

The City and the building control officer expressed themselves satisfied that the E requirements of s 7(1)(b)(ii) had been met. However, the applicants submitted that, in deciding whether the disqualifying factors set out in such provision had been triggered, the City had to address the reasonable expectations of notional purchasers of apartments in the Four Seasons building. The particular point was that such a purchaser would never have expected that the City, having approved balconies on the eighth floor of the F Four Seasons building, would then approve the further development of the Oracle building which would effectively render those balconies useless. The failure on the part of the City to address this issue, it was argued, resulted in the approval decision's being reviewable, on the basis of inter alia s 6(2)(d) (materially influenced by an error of law) and s 6(2)(e)(iii) (relevant consideration not considered) of PAJA. On their part the relevant G functionaries appeared to suggest that there could be no question of a building plan's triggering the disqualifying factors where the planned building would be erected within the parameters of the applicable zoning scheme; that was the case here — the relevant zoning scheme permitted a building to cover 100% of the erf, ie right up to the common boundary, H which was what the plans under consideration envisaged.

The High Court considered in detail the scope and purposes of s 7(1)(b)(ii) of the Building Act. In particular the court considered what a local authority was required by the provision to consider.

Held, that, common to planning and building legislation was the object of harmonious and co-ordinated building development. When it considered a I building plan application, a local authority had to have regard not only to the compliance of the proposed building with the technical restrictions and regulatory prescriptions in respect of building development on the building plan applicant's property, but also, as required by s 7(1)(b)(ii) of the Building Act, to the contextual effect of the contemplated finished product. It meant that the local authority, in deciding whether the proposed new J development would trigger any of the disqualifying factors, had to take

2017 (4) SA p109

appropriately into account the effect of the development on the existing, A and foreseeably future, development of neighbouring properties. (Paragraphs [45] – [48] at 130F – 132A.)

Held, that the contextual assessment, involving an enquiry into the existence of any disqualifying factors in terms of s 7(1)(b)(ii), occurred in the second stage of a two-part enquiry. The second part was undertaken only after the local authority had satisfied itself that the proposal was compliant with the B zoning scheme restrictions, the National Building Regulations and any other law that might be applicable to the proposed development. A positive determination of the building plan application in the first part of the enquiry should not be treated as a prognosticator of the determination of the second part, certainly not in a manner that would deprive the second part of the enquiry of its discrete and substantive import. In other words, in this case C the functionaries' satisfaction that the proposed building fell within 'the set development parameters' did not provide an answer to whether the disqualifying factors set out in s 7(1)(b)(ii) had been triggered. Neither could it be said that the zoning provisions regulating development of the second respondent's property that permitted development up to the boundary line conferred a virtually absolute right, nor that any building D erected within the parameters of the applicable zoning scheme restriction had to be tolerated by neighbours irrespective of its adverse effect on their properties. (Paragraphs [48], [49], [57.1], [57.3] and [66] at 131H – 132A, 132B – C, 136B – C, 136G and 140H – 141A.)

Held, that, in considering whether an aspect of the proposed building additions E would be objectionable or unsightly or give rise to a derogation from the value of some apartments in the Four Seasons building, the relevant functionaries were obliged to address the following question. Would a reasonable and informed purchaser of a unit on the eighth floor of the Four Seasons building foresee that the regulating authority, having approved balconies along the common boundary, would permit the development of F the adjoining erf in such a manner as to effectively destroy the utility of the balconies as such, and with the degree of overbearing intrusiveness that allowing a three-storey solid wall to be built hard up against them would occasion. Their failure to do so meant that the approval of the second respondent's building plan occurred in circumstances in which the decision-maker was materially influenced by an error of law (ie a misapprehension G of the import and requirements of s 7(1) of the Building Act) and in which there was a resultant failure by the decision-maker to take into account a relevant consideration, in breach of the...