Updates: Details

There have been a spate of residential developments in the last 10 years and an issue which continually comes to the fore is ones right to the view from their property. This issue made headlines in 2003 when Mr Paola, a Durban resident, took his neighbours to court in an attempt to prevent them from erecting a structure which would interfere with his view of the Durban waterfront. The crux of Mr Paola’s argument was that the view added an inherent value to his property and by impeding that view the structure on his neighbour's property would devalue his property. The Durban and Coast Local Division of the High Court did not agree with Mr Paola and found in favour of his neighbours. Mr Paola was not satisfied with the outcome of the matter and appealed the decision to the SCA. The SCA found in Mr Paola’s favour as the local authority had failed to appoint a building control officer. The Court did not make its finding on the basis that a property owner's right to a view is to be protected. However, in its obiter dictum (a comment made in passing) the court indicated that where it can be shown that a loss of view may impact on the value of a property this has to be considered by the local authority before any building plans can be passed. This created the impression that one could prevent a person from developing their property if the development would have the effect of decreasing the value of the surrounding properties as a result of the view being diminished. This was tested in the Cape High Court in 2004 in the matter of Clark v Farraday. Similarly, in this matter Clark argued that the construction on a plot in front of his property would affect his view of Hout Bay beach which would in turn negatively affect the value of his property. Farraday argued that the construction complied with the necessary building requirements and that the possibility had always existed that the plot could have been developed. Faraday submitted that Clark should accordingly have foreseen that if and when the plot was developed it may have some impact on his view. The Cape High Court interpreted the decision of the SCA in Mr Paola’s case and came to the conclusion that the local authority was obliged to approve building plans if there was compliance with the Building Regulations and any other applicable laws. The position in relation to the question asked by the title hereto is therefore that a person is entitled to develop his property to the full extent prescribed by the law. In residential areas this normally means that one can build a double storey house. Your neighbours cannot object to the development of a neighbouring property as it should reasonably have been within their contemplation when they purchased their property that a person may wish to develop an adjacent property to the maximum permissible extent. Naturally, if someone wishes to erect a block of flats on what was previously a normal residential stand then the local authority is obliged to require that the permission of the affected neighbours is sought. Similarly, the neighbours are entitled to object.

Written by: Haydn Friis