A reader is concerned that the construction of a block of flats will negatively impact on the value of properties in the neighbourhood.
He would like to know what avenues are open if they wish to lodge an objection.
The former residential houses, he says, were demolished and the new owner’s intention is to build a block of flats.
There is concern that the flats will have a detrimental effect on the value of the neighbourhood properties as there will be additional traffic and an increase in noise.
His neighbourhood is apparently upmarket and the flats are being sold off relatively cheaply so he is also worried that the influx of first-time home owners and low-income families may “lower the tone” of the neighbourhood.
In addition, as housing in the area is well established and has a certain feel, the reader feels the new, industrial-looking building will stick out like a sore thumb.
He believes this will further negatively influence the values of the established properties.
The neighbours have kept a close eye on the process, from demolition to plans submission, and it appears the formalities have been adhered to.
See the reader’s question here.
The National Building Regulations and Building Standards Act sets out aspects relating to the municipal approval requirements and process.
Simply put, the act states that if the local authority are satisfied that the application in question complies with their requirements and any other applicable law, they shall grant their approval.
It also states that a building control officer shall make recommendations to the local authority regarding any plans, specifications, documents and information to be submitted.
Basically, the process appears straightforward – tick the boxes and the approval will be granted.
But he adds that another section of the act – 7(1)(b) – makes the matter more complicated.
It states that the local authority have to consider three things.
If they believe that the building erected will have the potential to disfigure the area, be unsightly or objectionable, and will devalue the adjoining or neighbouring properties, they shall refuse to grant their approval, providing written reasons.
These provisions clearly veer from formalistic requirements such as adhering to certain standards to a subjective consideration, with particular factors to be considered before granting approval.
The application of this particular section was the subject of litigation in a number of cases, most notably the Walele and True Motives 84 cases.
The crux of the Walele case (decided by the Constitutional Court) is, to put it simply, that if the local authority have even a slight concern of any of the section 7(1)(b) considerations coming to fruition, approval should be refused.
In the True Motives 84 case, heard in the Supreme Court of Appeal subsequent to the Walele case, the court determined that the Walele decision should not be followed.
It’s reasoning was that the interpretation and application of section 7(1)(b) was regarded as opinion and not law.
The court determined that more than concern was required and that it should be convinced that one or more of the considerations would occur, either in fact or in probability.
The Constitutional Court ruling in Turnbull-Jackson had to consider the differing views and confirmed that the decision of Walele was not wrong or mere opinion, as was decided in the True Motives 84 case.
Walele was interpreted to be applied as follows: section 7(1)(b)(ii) obliges decision-makers to make a finding whether each of the triggering factors in the section exist, either in fact or in probability.
If they find that they do probably or in fact exist, then they must refuse to grant the application.
If they find that they do not probably or in fact exist, they must grant the application.
The section must not be construed to mean that if the decision-makers are in doubt on whether there was compliance with each of the subsections, they must decline an application.
Instead, it must be interpreted to mean that if the decision-makers are uncertain, they must investigate the matter to satisfy themselves if there was or was not compliance.
The summary of the court sets out the requirements as to the local authorities’ obligation quite clearly.
It is framed positively, not on doubt.
The reader should consider, before embarking on what will no doubt be expensive and protracted litigation, his chances of success and whether he firmly believes the required factors exist or will probably be found to exist.
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