Our panel has received a question from a reader whose neighbour has built student accommodation that he believes infringes on building regulations.
When the reader bought the property, there was already a garage and a carport – approved by the previous owners – on the perimeter. However, the neighbour has now built student accommodation on top of the garage without getting his approval.
The reader says the new structure encroaches on the legal building line and, even worse, has a 12-metre balcony overlooking his property.
Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says in terms of the Land Use Planning Ordinance No 15 of 1985, all properties are subject to conditions and limitations relating to the purpose for which they may be used as well as the buildings that may be erected thereon.
“The conditions typically relate to the number of buildings that may be erected as well as building line and height restrictions.”
Geldenhuys says the zoning of the area will determine the purpose for which the erf may be used, for example industrial, commercial or residential.
“Properties may not be used for a purpose other than that allowed in terms of the zoning. Student housing, for example, will only be allowed in a residential area if the zoning allows it, or if the municipality has given permission to depart from the zoning conditions.”
According to Schalk van der Merwe from Rawson Properties Helderberg the owner of an erf may not build new buildings or make alterations or extensions to existing ones unless it is done in accordance with approved building plans.
“This not only relates to buildings, but to any structure of a permanent nature, for example a carport or a wall.”
If an owner wishes to erect a structure or make alterations to existing buildings that do not fall within the conditions and restrictions relating to the particular erf, he will have to apply to the municipality for permission for deviation, says Van der Merwe.
“Alternatively the owner will have to follow the prescribed procedure to have the relevant title condition imposing the restriction, removed from the title deed.”
In the above instance, the neighbours – and any other party who may be affected by a deviation from or a removal of the condition – will have to be given notice thereof, according to Van der Merwe.
“The municipality will also have to advertise the application in the local newspaper, which will give any party with an interest in the application an opportunity to submit an objection.”
Van der Merwe says if the structure erected by the reader’s neighbour encroaches on the building lines and he never had the opportunity to object thereto, then there is a good chance that the neighbour did not apply for approval of the building plans, or for permission to exceed the imposed building boundaries.
“The reader can contact the municipality to ascertain whether building plans were submitted and approved.”
If not, says Geldenhuys, the municipality will be obliged, in terms of section 40 of the ordinance, to notify the neighbour to rectify the situation within a prescribed period by submitting an application for approval of the building plans.
“If the neighbour fails to adhere to the notice, the municipality must take steps against him to force him to comply.”
Geldenhuys says if the reader’s neighbour is renting the newly built structure to one individual, who happens to be a student, it may not necessarily be a contravention of the zoning restrictions.
“However, if there are a number of students living on the premises, it may very well be a contravention.”
The reader can refer this matter to the municipality for clarification, according to Geldenhuys.
To ask a property related question, visit www.propertyposer.co.za.