A reader wants to know how to deal with a restrictive condition in the title deed which may affect building works he wants done on his smallholding.
The restrictive condition imposed is in accordance with the provisions of the Advertising on Roads and Ribbon Development Act, with specific reference to section nine.
This section states that no person shall erect or permit the erection of any structure within a distance of 95 metres from the centre line of a building restriction road.
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It adds that this can only be done if permission has been granted in writing by the relevant controlling authority.
The section also lists several works to which the restriction will not apply.
The reader should firstly establish whether or not the road concerned still falls within the definition of a building restriction road.
This is defined as any public road which the administrator has proclaimed as a building restriction road and which has not been de-proclaimed.
Section seven of the act allows for a public road or a section of it to be declared as a building restriction road by way of proclamation in the Provincial Gazette.
The withdrawal of any such proclamation also takes place through the gazette.
If the road no longer carries a restriction, the reader may have no concerns and there may be no necessity to address the title deed restriction.
It is quite possible that the intended building works fall within section nine’s exceptions.
There are two which may apply in the circumstances.
Firstly, it should be noted that the restriction under section nine shall not apply to an enclosure, a fence or a wall which is not higher than 1.6 metres.
Secondly, due to the land in question being a smallholding, a further exception which may apply is in respect of a dwelling or any other structure on a farm intended to be used for bone fide farming operations.
It is important to note that the controlling authority may consent or refuse consent in respect of any application made.
Alternatively, they can accept the request but prescribe certain conditions as to the nature of the intended works.
In the event of the authority having refused an application or having granted conditional consent, the applicant may seek to appeal to the minister.
The “minister” is defined as the premier of the province, who may dismiss or allow the appeal wholly or in part.
He can also grant the application or vary the permission granted by the controlling authority.
In closing, it is important for the reader to note that his failure to comply with the provisions of the act may result in him being found guilty of an offence which could result in a fine or imprisonment.
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