Neighbourly disputes over building plans

Disputes between neighbours tend to ensue where an owner decides to build on or renovate their property and the neighbouring owner believes that such building works will have a detrimental effect on their property rights. Neighbours who are disgruntled by the noise nuisance, possible obstruction of an existing view from their property, or the aesthetic features of the building works, may feel it necessary to object to the building works.

The question that must accordingly be posed is, do neighbours have a legal right to object to building works? And if not, what other remedies are available?

The National Building Regulations and Building Standards Act ("NBA") provides for the promotion of uniformity in the law relating to the erection of buildings in the areas of jurisdiction of local authorities. The NBA does not create a legal requirement for an owner to inform their neighbour(s) of a building plan application. In terms of the NBA, neighbours also do not have the right to object to building plans.

In Walele v City of Cape Town and Others, the Constitutional Court confirmed that neighbours do not have a general right to be informed of or have access to building plans or to object against them prior to approval. However, the Constitutional Court further held that the rights of neighbours are adequately protected by the duty placed upon the local authority to consider the rights of neighbouring landowners in term section 7 of the NBA.

It is important to note that there might exist a legal requirement for an owner to inform their neighbour(s) of a building plan application in terms of the by-laws of a specific local authority.

There are also certain exceptions to the general rule confirmed in the Walele case. Neighbours must be notified of building plans in the following instances:

1. Where the application for the approval of building plans is made at the same time as an application for rezoning of the said property; or
2. Where an application is made for the removal of a restrictive condition or covenant, for example, an application for the relaxation of a building line.

The local authority may also, in its discretion, invite neighbours to object to the building plans.

If an objection is submitted, it will not necessarily prevent the building plans from being approved. The local authority shall consider the objection and exercise its discretion whilst also considering the rights of the neighbours in terms of Section 7 of the NBA.

If the applying owner did not follow the correct procedural steps, aggrieved neighbours may have recourse in terms of the Promotion of Administrative Justice Act 3 of 200 ("PAJA"). An aggrieved neighbour could potentially have the decision of the local authority to accept the building plans reviewed if such neighbour has a right or legitimate expectation that was detrimentally affected by the decision. A legitimate expectation could, however, according to established legal principles, only arise from express representations or practices.

An aggrieved neighbour would have to exhaust all available internal remedies, if available, before instituting review proceedings under PAJA.

Should you be aggrieved by a neighbour's building plans or works, it is advisable to consult with the local authority and your attorney to discuss the reasons for your objections and the possibility of lodging an objection in the prescribed form.

Sources:

• Badenhorst PJ, Pienaar JM & Mostert H Silberberg and Schoeman's The Law of Property 5 ed (2006) Durban: Butterworths.
• The National Building Regulations and Building Standards Act.
• Van der Walt AJ The Law of Neighbours 2010 Cape Town: Juta.
• Walele v City of Cape Town and Others 2008 (6) SA 129 (CC).

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).