dwp eNewsletter
Vol 2 : Ed 6 - November 2008
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| nowheresville |
| there is no such thing as a right to a view! |
This
was the finding of the recent Constitutional Case of Walele v City of
Cape Town & Others. Dr. Walele had objected to the building of a 4
storey block of flats on his neighbours’ property arguing that the flats
would block his view and result in a decrease of his property value.
The CPT Municipality responded by stating that both properties were zoned general residential, therefore the block of flats was allowed to be erected “as of right”, that the plans had complied with the zoning scheme requirements and had accordingly been approved by them.
Dr. Walele, feeling highly disgruntled with the reasons supplied by the CPT Municipality, approached the Cape High Court to have the decision reviewed. The court however dismissed the application and refused Dr. Walele’s request for leave to appeal.
After an unsuccessful petition to the Supreme Court of Appeal, Dr. Walele’s final attempt was to approach the Constitutional Court. The Con Court was requested to review the administrative decision of the municipality and in particular the issue of whether it fell within the scope of the Promotion of Administrative Justice Act (“PAJA”).
The Con Court granted Dr. Walele the right to approach it after considering that the issue was one dealt with by PAJA and accordingly, since Section 33 of the Constitution guarantees the right to just administrative action, the court was satisfied that Dr. Walele’s application for review of the administrative decision raised a constitutional issue.
Dr. Walele argued that the Municipality’s decision-maker had not considered the effect that the building of such flats would have on his property and that this violated his right to property protected by Section 25 of the constitution. He further asserted that the Municipality had violated his constitutional right to procedural fairness by failing to afford him a hearing prior to the approval of the plans.
The central issue before the court was whether the CPT Municipality properly approved the building plans and not whether Dr. Walele had a right to a view. The Court found that the Municipality had failed to comply with certain mandatory procedural requirements as prescribed by the National Building Regulations and Building Standards Act in that the plans were based simply on a signature of the Building Control Officer who made no recommendation to provide the Municipality with any basis for its decision to approve and pass the plans.
The court therefore set aside the judgment and order of the Cape High Court on the basis that the Municipality had not complied with Sections 6&7 of the Building Standards Act (which sections essentially provide for a detailed procedure to be followed in approving plans of this nature).
It was held that the Building Control Officer (BCO) must ensure that adequate information is placed before decision-makers in order for them to consider applications for approval of building plans properly and in a balanced way. Furthermore, the recommendations that the decision-makers make must serve to further this purpose and any approval of plans in the absence of such commendation may result in an invalid approval and the approval being set aside.
To sum it all up in layman’s terms: there is no automatic right to a view, you can only challenge the decision to pass plans if the powers that be don’t follow the correct procedure!
| contact us |
delport ward & pienaar
attorneys,
notaries & conveyancers
1st floor - cornerstone house
16 loop street
cape town
8001
telephone, cape town
+27-21-419.3733
telefax, general
+27-21-419.3743
telefax, conveyancing
+27-21-425.6782
telefax, collections
dept
+27-21-421.6625
telephone, london
+44-20-8133.0337
telephone, washington
dc
+1-202-657.6733
telephone, hong kong
+852-8139.7374
| info@dwp.co.za |
1st floor - cornerstone house, 16 loop street, cape town | docex 600, cpt | t, +27-21-4193733 | f, +27-21-4193743