Brief Summary

Property Law — Neighbour disputes — Enforcement of development agreement — Applicant sought to compel first respondent to comply with a written agreement regarding property development and to rectify building works in contravention of title deed conditions — Applicant also sought to interdict further non-compliant construction and to review decisions by the City approving building plans — Court held that the first respondent's development contravened the agreement and title conditions, and granted the applicant's relief.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an opposed application in the Western Cape Division of the High Court, Cape Town, in which the applicant sought wide-ranging relief arising from the redevelopment of a neighbouring property in Bakoven on the Atlantic Seaboard. The proceedings combined claims for contractual enforcement and interdictory relief (including demolition and remedial work) with judicial review of municipal decisions approving building plans.

The parties were Ms Christine Phillips (applicant), the owner of an erf adjoining the development site, Mr David Stuart Bradbury (first respondent), the developer and owner of the redeveloped property, and the City of Cape Town (second respondent), which had granted various planning departures and approved building plans. The dispute was rooted in an agreement concluded between the first respondent, neighbouring owners (including the applicant), and the local ratepayers’ association, under which neighbours would not object to certain planning departures in exchange for development restrictions secured partly by registered title deed conditions.

The application was launched in September 2013. It initially sought orders compelling the first respondent to bring the structure into conformity with the agreement and associated plans, interdicting further non-compliant work, and reviewing and setting aside the City’s approval of building plans (with an extension of time under PAJA). In February 2014 the applicant amended the notice of motion to add a review of an earlier set of plans approved in April 2010, again coupled with a request for condonation/extension under PAJA.

During the hearing, the applicant sought a referral of disputes of fact to oral evidence, which was refused (with reasons), though the court left open the possibility of renewing the request. The court also conducted an inspection in loco immediately before argument. The first respondent brought a counter-application seeking removal of a timber screen erected on the applicant’s balcony, alleged to be unlawful.

The general subject-matter of the dispute concerned the legal consequences of material deviations from agreed development plans and registered title conditions; the appropriate remedy where a dwelling has been built substantially differently from an earlier agreement; the availability of specific performance in the form of demolition; and whether the City’s approvals could be reviewed and set aside under PAJA despite substantial delay.

2. Material Facts

Before redevelopment, the first respondent’s property contained a dwelling, a separate single garage with a flat roof, and a swimming pool. In approximately 2008, he applied to the City for approval of plans for a new dwelling. The property was then subject to the City’s zoning scheme regulations (as published in Provincial Gazette 4649 of 29 June 1990), including a “scenic drive” provision (section 93) intended to preserve views from Victoria Road, and a height restriction of 6 metres above finished ground level (section 98(4)(b)). The property was also subject to pre-existing title conditions, including a building frontage/setback requirement from Victoria Road and side streets.

It became clear by November 2008 that the proposed development would contravene the scenic drive provision and would exceed the 6-metre height restriction. The first respondent therefore began a process—through his town planner—of engagement with neighbours and the Camps Bay Residence Ratepayers Association (CBRRA) to secure support for required departures.

This process culminated in a written agreement dated 9 July 2009 between the first respondent and affected parties including the applicant and the CBRRA. The agreement’s core exchange was that the neighbours and the CBRRA would not object to the departure applications, in return for the first respondent’s undertaking to develop the property in a manner acceptable to them and in accordance with plans incorporated into the agreement (“the agreed plans”). The agreement provided, among other things, for restrictions on height above mean sea level, non-trafficable flat roofs, restriction to a single dwelling house, and that certain restrictions would be registered against the title deed by notarial deed. It further provided that the first respondent could not deviate without written consent of affected parties and that variations had to be in writing and signed by all parties.

The agreed plans contemplated a dwelling with basement, ground, and upper levels, with particular setbacks intended to reduce intrusion on the applicant’s privacy. They provided for retention of the existing garage and garden configuration and included stepped setbacks (including a 6-metre setback on parts of the upper level) and a “kink” in the western wall alignment influenced by the retained garage.

In May 2011, five clauses of the agreement were incorporated into a notarial deed and registered as title deed restrictions, including an “envelope” limitation for future development, restrictions on subdivision, and restrictions on use (private residential only).

The City granted a departure from the scenic drive provision in November 2009 in terms of LUPO, noting that neighbours had not objected. The City later granted a further departure on 9 April 2010 to permit exceedance of the 6-metre height restriction, describing it as a “technical” departure. Building plans dated November 2009 were approved by the City on 21 April 2010.

A key factual contention advanced by the applicant (and relevant to her case as framed) was that the November 2009 plans upon which departures were granted and the April 2010 approval was based differed from the agreed plans, including changes to the positioning/extent of the ground floor (removal of the “kink”), although still retaining some agreed features (such as setbacks and the garage). The judgment treated as common cause that the structure ultimately built was not in accordance with the agreed plans and that there were extensive deviations, though the reasons and implications of those deviations were contested.

From September 2010, demolition and construction commenced. The relationship between the parties deteriorated, with disputes about construction impacts and, by April 2011, a dispute over a boundary wall position prompted the applicant to retain a land surveyor. This led to the applicant becoming aware that the building under construction was not aligned with approved plans, resulting in a City building inspector issuing a cease works order in relation to unauthorised work (a roof/pergola structure), which the first respondent ultimately demolished.

In May 2011, the applicant complained to the City that the building was non-compliant in several respects, including alleged absence of the 6-metre upper-level setback, concerns about a swimming pool and other deviations, and she sought access to approved plans. A protracted consultative process followed from December 2011 to May 2012, consisting of multiple meetings involving the applicant’s representatives, the first respondent’s professional team, and City officials. The first respondent submitted revised (“rider”) plans; the applicant and CBRRA objected; nevertheless, the City approved revised plans in July 2012 (“the 2012 plans”). These plans included, among other features, a new garage and a swimming pool.

By mid-July 2012, the applicant knew that the City had approved the 2012 plans and that the first respondent intended to build in accordance with them. The first respondent’s attorney wrote to the CBRRA and copied the applicant and her legal representatives, stating that if litigation was intended it should be served promptly. Despite ongoing disputes, the application was only launched in September 2013, by which stage the dwelling was close to completion. The first respondent obtained occupancy certificates in October 2013, shortly after the application was instituted.

The court found it common cause that the completed works materially deviated from the agreed plans, including (as framed by the judgment) ground-floor elements nearer than 4.5 metres to the boundary (including the new garage), first-floor elements nearer than 6 metres, the construction of a swimming pool and associated changes to the garden/lawn concept, and changes affecting roof/deck areas and privacy-related features. The first respondent’s evidence was that demolishing and rebuilding to the agreed plans would be extremely costly and extensive.

3. Legal Issues

The dispute required determination of both private-law remedial questions and public-law administrative review questions, as well as the application of legal standards to a heavily fact-specific building dispute.

On the private-law side, the principal legal issue was whether the applicant was entitled to specific performance of the 2009 agreement and corresponding title conditions, particularly in the form of a mandatory interdict compelling demolition and reconstruction to align the dwelling with the agreed plans, and whether further (negative) interdictory relief should be granted to prevent future non-compliant construction.

This aspect primarily concerned the application of legal principles (discretion as to specific performance) to the facts, and required a value judgment about fairness, hardship, prejudice, and the practical consequences of demolition.

On the public-law side, the central issue was whether the applicant could obtain review and setting aside of the City’s plan approvals (2010 and 2012) under PAJA, including whether the PAJA 180-day time bar should be extended under section 9(2) in the interests of justice. This required determination of whether delay was unreasonable, whether a full explanation for delay had been provided, the extent of prejudice, and an assessment of the applicant’s prospects of success on the merits of review.

That portion of the dispute involved questions of law (the effect of PAJA sections 7 and 9, and what constitutes “applicable law” under the building-plan approval regime), together with the application of those rules to the chronology and the applicant’s conduct.

A further issue arose from the first respondent’s counter-application: whether the applicant’s timber screen was unlawful and should be removed, which turned on the absence of produced approval and the court’s acceptance of the first respondent’s case that it was unauthorised.

4. Court’s Reasoning

Specific performance and demolition

The court treated it as settled that an order of specific performance is granted at the court’s discretion, exercised judicially on the facts, with the aim of preventing injustice. The court applied the approach described in Benson v SA Mutual Life Assurance Society, including that justice may require refusing performance where it would operate unduly harshly on the defendant, and that the remedy must accord with legal and public policy.

The court accepted that it had the power, in principle, to order demolition of non-compliant works, and referred to Trustees, Brian Lackey Trust v Annandale for the proposition that courts have a “natural aversion” to ordering destruction of economically valuable building works. Although that case concerned an encroachment onto a neighbour’s land, the court treated its discussion of neighbour-law considerations—reasonableness and fairness in resolving conflicting ownership interests—as relevant to the present context.

Applying these principles, the court considered the nature and degree of non-compliance, the reasons advanced by the first respondent, the prejudice to the applicant if specific performance were refused, the prejudice to the first respondent if demolition were ordered, the role and effect of the lengthy consultative process, and the applicant’s delay in instituting proceedings.

On the first respondent’s conduct, the court rejected as non-cogent the explanations offered for failing to comply with the agreement and title restrictions. It emphasised that the agreement required strict adherence to the agreed plans and barred deviations without written consent, and it characterised the explanation that it “did not occur” to the first respondent to disclose amended plans to neighbours as disingenuous. The court considered it difficult to avoid the conclusion that, having secured neighbour consent for departures on the basis of the agreement, the first respondent did not deal openly with affected parties when circumstances changed.

However, despite this critical view of the breaches, the court’s remedial analysis focused on whether demolition would be fair and equitable in all the circumstances. A central factual consideration was the cost and scale of demolition and reconstruction. The first respondent’s quantity surveyor estimated the cost of rebuilding to the agreed plans at approximately R6.2 million and described extensive associated works. The applicant placed a much lower estimate (about R1.041 million) before court, but the court found that estimate excluded consequential internal reinstatement costs (plumbing, electrical, kitchen, installations) that could not be ignored when assessing hardship to the first respondent. The court concluded it was not possible on affidavit to determine a precise figure, but it considered it highly unlikely the cost would be less than R2–3 million, which it regarded as very substantial.

The court also evaluated the likely incremental benefit to the applicant if reconstruction were ordered. It accepted that rebuilding to the agreed plans would probably afford greater privacy, but found no evidence that the improvement would be striking. It noted that the setback differences were often a matter of approximately 1.5 metres (6 metres versus 4.5 metres). It further considered that reconstruction could revive entitlements under the agreed plans that were not present in the as-built arrangement, such as a cantilevered awning/pergola structure on the upper level, which the applicant had strongly opposed when previously constructed and later demolished.

The court placed weight on the consultative process between December 2011 and May 2012. Although it found no formal variation agreement was concluded, it held that the applicant had “considerable input” into what became the 2012 plans and that this engagement produced compromises tending to alleviate privacy impacts (including planters and window design choices). The court regarded these negotiated outcomes as reducing the justification for the most drastic remedy.

Delay was treated as a significant discretionary factor. The court found that by mid-July 2012 the applicant knew the 2012 plans had been approved, knew they differed from the agreed plans, and knew the first respondent intended to proceed. The court accepted that the applicant experienced difficulty obtaining copies of plans, but found that she had sufficient knowledge to act much earlier and that living next door meant she could observe the ongoing construction. The court considered there was no reasonable justification for waiting some 14–15 months after July 2012 before launching proceedings, especially given that occupancy certificates were issued shortly after institution.

The court also considered a practical contradiction: the agreed plans could not be approved in their original form due to the City’s lawful road improvement line requirements affecting the east corner. In the court’s view, this undermined the coherence of compelling performance strictly to plans that could not be implemented without modification to satisfy municipal requirements.

Weighing these factors cumulatively, the court concluded that ordering demolition and reconstruction would be unduly harsh to the first respondent and would not yield corresponding meaningful benefit to the applicant. It therefore refused the applicant’s principal “positive interdictory” relief.

Negative interdictory relief and undertakings

Although the court refused broad future interdicts, it accepted that some of the applicant’s fears—particularly about the roof of the new garage becoming trafficable and about privacy-protecting planters—were not fanciful, noting that the garage roof had at one stage been clad with wooden decking before removal after objections.

The court recorded that counsel for the first respondent addressed these concerns through undertakings that could be made an order of court. The court considered it salutary to convert these undertakings into enforceable orders. Beyond those targeted protections, the court found the applicant had not established a sufficient basis to infer a likelihood of future construction in breach of the agreement or title conditions, particularly as the project appeared complete.

Review relief under PAJA: extension of time and merits prospects

The court treated the review relief as governed by PAJA section 7(1), requiring review proceedings to be instituted without unreasonable delay and within 180 days of knowledge or when knowledge ought reasonably to have been acquired. Because the applicant was outside that period for both the 2010 and 2012 approvals, the threshold question was whether time should be extended under PAJA section 9(2), which permits extension where the interests of justice so require.

Relying on the Supreme Court of Appeal’s articulation of relevant factors (as cited in Aurecon South Africa (Pty) Ltd v Cape Town City), the court considered the nature of the relief, the extent and cause of the delay, the impact on administration of justice and other litigants, the adequacy of the explanation covering the entire delay period, the importance of the issue, and prospects of success.

On the facts, the court found that the applicant was aware of the substance of the 2010 plans by at least April 2011 (through commissioning a planner’s report and engagement with City inspectors) and certainly by October 2011 when a full report identifying alleged deviations existed. Yet review of the 2010 approval was only sought in February 2014, representing a delay of years. Regarding the 2012 plans, the court found the applicant knew by mid-July 2012 of the approval and her objections, but did not bring the review by the end of January 2013 (the PAJA 180-day benchmark) and instead instituted proceedings in September 2013.

The court rejected the applicant’s primary explanation that she relied on the City as “guardian” of her interests, holding that it conflated the City’s duty to regulate compliance with approved plans with the applicant’s responsibility to enforce private contractual rights. Once approvals were given, the City was functus officio as to the approval decision (while still empowered to act against construction that was not in accordance with approved plans). The court accepted that the applicant had difficulties obtaining copies of plans, but held she had enough knowledge of the discrepancies early on and, in any event, could have obtained the record through timeous review proceedings. The court also noted that the issue about PAIA difficulties was raised late in reply, leaving the City without an opportunity to explain its approach, and that the applicant had been able to inspect City files by September 2012.

In assessing prospects of success on the merits, the court considered the applicant’s principal review grounds and found them weak. It held that a private agreement between neighbours does not constitute “applicable law” for purposes of section 7 of the National Building Regulations and Building Standards Act 103 of 1977 (NBRBSA), and that the City was neither obliged nor permitted to enforce such a private agreement when deciding to approve building plans. The court similarly found that the registered title deed conditions relied upon by the applicant were not “applicable law” in the relevant sense (distinguishing title conditions imposed under statutory planning instruments from those created by private agreement), and that in any event the relevant title conditions were registered only in May 2011 and could not have affected the 2010 approval.

The court further reasoned that building plans submitted in support of departure applications need not necessarily be identical to the plans later approved under the NBRBSA, because the departure and building-plan approval processes are distinct. It accepted the City’s position that where amendments do not affect the substance of the departure, requiring a fresh departure would be unsensible, and noted that if an authority intended to link a departure to a particular plan set, it could do so by imposing conditions under LUPO, which had not been done.

Regarding the note on the City file suggesting that the 2012 plans had “the approval of all the parties”, the court considered the explanation for the note unsatisfactory. However, it accepted evidence that objections had in fact been recorded and considered by the Building Control Officer, whose recommendation made clear that objections existed but that compliance requirements were nonetheless met. The court concluded that the note did not, on the facts as presented, justify setting aside the approval.

Finally, the court weighed prejudice and the importance of finality: construction was long complete, occupancy certificates had been issued, and granting condonation would expose the first respondent to substantial prejudice if the reviews succeeded. Taking all factors together, the court held it was not in the interests of justice to extend the PAJA period for the 2010 approval (by more than three years) or the 2012 approval (by approximately eight months beyond the 180-day outer limit). It therefore held that it had no authority to entertain the review applications without an extension and dismissed the review relief on that basis, referencing Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd.

Counter-application and striking out

The City brought an application to strike out portions of the applicant’s replying affidavit as scandalous, vexatious, or irrelevant. The court found it unnecessary to determine that application given the outcome on the merits, but remarked critically on the excessive length of the replying affidavit and reiterated that an applicant cannot make out a case in reply, referencing the SCA’s remarks on prolixity.

In the counter-application, the first respondent sought removal of a timber screen erected on the applicant’s balcony as an illegal structure. The applicant asserted that the City had approved it but failed to produce approval despite a Rule 35 notice. The court accepted there was no basis to dispute the first respondent’s claim that the screen was unauthorised and ordered its removal.

Costs

Although the applicant failed to obtain substantial relief, the court differentiated between the first respondent and the City on costs. As to the first respondent, the court considered it inappropriate and unfair to award him costs given the court’s findings that he materially breached the agreement, failed to deal candidly with neighbours regarding deviations, and engaged in conduct that made it appear he “had his cake and ate it.” The court held that a costs award in his favour would send the wrong message in circumstances where neighbourly consent for departures had been secured by agreement and then materially disregarded. The court therefore ordered that each party bear their own costs as between the applicant and the first respondent, in both the main application and the counter-application.

As to the City, the court held it had been drawn into proceedings mainly by the review relief, and the applicant had failed in that relief. The court rejected the submission that the City should bear its own costs simply because officials participated in consultative meetings. It also held that the Theron note issue was insufficient to justify depriving the City of costs. The applicant was ordered to pay the City’s costs, including the costs of two counsel.

5. Outcome and Relief

The court granted limited relief against the first respondent by making specified undertakings an order of court, requiring him to retain the privacy-related features and to keep the garage roof non-trafficable. The remainder of the applicant’s application, including the demolition/specific performance relief, broader interdictory relief, and the review relief, was dismissed.

The first respondent’s counter-application succeeded, and the applicant was ordered to remove the timber screen on her balcony within one month, failing which the Deputy Sheriff was authorised to remove it.

As between the applicant and the first respondent, each party was ordered to bear their own costs in both the application and the counter-application. The applicant was ordered to pay the City’s costs, including the costs of two counsel.

Cases Cited

Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A).

Trustees, Brian Lackey Trust v Annandale 2004 (3) SA 281 (CPD).

Aurecon South Africa (Pty) Ltd v Cape Town City 2016 (2) SA 199 (SCA).

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC).

Opposition to Urban Tolling Alliance v South African National Roads Agency Ltd [2013] 4 All SA 639 (SCA).

Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA).

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000.

Promotion of Access to Information Act 2 of 2000.

National Building Regulations and Building Standards Act 103 of 1977.

Land Use Planning Ordinance 15 of 1989.

Roads Ordinance 19 of 1976.

Townships Ordinance 33 of 1934.

Municipality of the City of Cape Town Zoning Scheme Regulations (Provincial Gazette 4649 dated 29 June 1990), including section 93 and section 98(4)(b).

Rules of Court Cited

Uniform Rule 53.

Uniform Rule 35.

Held

The court held that, despite material deviations from the 2009 agreement and the agreed plans, an order compelling specific performance by demolition and reconstruction would be unfair and inequitable in the circumstances. The court exercised its discretion to refuse demolition relief, primarily due to the disproportionate hardship and cost to the first respondent, the limited demonstrated marginal benefit to the applicant, the applicant’s substantial delay in instituting proceedings despite knowledge that the 2012 plans had been approved and would be built upon, and the practical difficulty that aspects of the agreed plans could not be implemented due to lawful municipal road line requirements.

The court held that the applicant was not entitled to the review relief because she failed to bring review proceedings within the PAJA time limits and did not show that extension of the 180-day period was in the interests of justice. The court further considered that the applicant’s merits prospects on review were weak because a private agreement and privately generated title restrictions did not constitute “applicable law” binding the City’s plan approval decisions under the NBRBSA, and because departures and building plan approvals are distinct administrative processes.

The court held that limited protective relief should nonetheless be granted by making certain undertakings enforceable: the first respondent was ordered to keep specific privacy-protecting features (including planters and a steel balustrade) and to keep the garage roof non-trafficable.

The court held that the first respondent’s counter-application succeeded and ordered the applicant to remove an unauthorised timber screen on her balcony.

On costs, the court held that it would be inappropriate for the first respondent to recover costs given his material breaches and conduct, and ordered each party to bear their own costs as between them. The court held that the City was entitled to its costs (including two counsel) because it was successful and should not be penalised for participating in consultative processes.

LEGAL PRINCIPLES

The judgment applied the principle that specific performance is not granted as of right but lies within the court’s judicial discretion, exercised to prevent injustice and to avoid results that operate unduly harshly on a defendant, with regard to legal and public policy considerations as articulated in Benson v SA Mutual Life Assurance Society.

In considering demolition as a form of specific performance or mandatory interdict, the judgment applied the consideration that courts show a natural aversion to ordering the destruction of economically valuable building works, and that in neighbour disputes considerations of reasonableness and fairness are prominent in determining appropriate relief, as discussed in Trustees, Brian Lackey Trust v Annandale.

The judgment applied PAJA’s requirement that review proceedings be instituted within 180 days and without unreasonable delay, and that an extension of time under PAJA section 9 depends on whether the interests of justice require it, assessed with reference to factors including the nature of the relief, the cause and extent of delay, the adequacy of the explanation covering the whole period, prejudice, the importance of the issue, and prospects of success (with reference to Aurecon South Africa (Pty) Ltd v Cape Town City).

The judgment applied the principle that administrative decisions (including departures) remain effective until set aside by a court and cannot be ignored simply because their background circumstances are disputed, consistent with the approach referenced from MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute.

On municipal plan approvals under section 7 of the NBRBSA, the judgment applied that a local authority approves plans if satisfied of compliance with the Act and “any other applicable law,” and held on the facts and argument presented that private agreements between neighbours and privately generated title deed restrictions are not, for these purposes, “applicable law” that the municipality is required (or entitled) to enforce through the building plan approval function.

Phillips v Bradbury and Another (15570/2013) [2016] ZAWCHC 129 (10 October 2016)