About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2017
>>
[2017] ZAWCHC 1
|

|

Da Cruz and Another v City of Cape Town and Another (6561/2015) [2017] ZAWCHC 1; [2017] 1 All SA 890 (WCC); 2017 (4) SA 107 (WCC) (13 January 2017)

Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6561/2015
Before: The Hon. Mr Justice Binns-Ward
Hearing: 20 October 2016
Judgment: 13 January 2017
In
the matter between:
JOAO
JOSÉ RIBEIRA DA
CRUZ
First
Applicant
THE
BODY CORPORATE OF THE FOUR SEASONS
SECTIONAL
TITLE SCHEME (SS
269/08)
Second
Applicant
and
THE
CITY OF CAPE
TOWN
First
Respondent
THE
TRUSTEES OF THE SIMCHA
TRUST
Second
Respondent
JUDGMENT
BINNS-WARD
J:
[1]
Section 7(1) of the National Building
Regulations and Building Standards Act 103 of 1977 (‘the
Building Act’)
[1]
has been a fecund root of litigation and the subject of strikingly
divergent judicial interpretation. This is yet another case
arising
from the approval of building plans by a local authority in terms of
the provision.  The applicants, who are the body
corporate of a
17-storey mixed use building in central Cape Town called ‘Four
Seasons’ and the owner of one of the
residential units in the
building, have applied for the judicial review and setting aside of
the decision by the municipality of
the City of Cape Town to approve
building plans for the remodelling and upward extension of a building
on the immediately adjoining
erf (Erf 5284, Cape Town) known as the
Oracle building.  The City was cited as the first respondent and
the owner of the adjoining
erf as the second respondent.  Both
respondents opposed the application.
[2]
The City had originally approved building
plans for the work on Erf 5284 in 2008.  Building operations
commenced shortly thereafter,
but they were soon discontinued due to
the adverse economic conditions prevailing at the time.
Construction was resumed only
in 2012.
[3]
The approved building plans provide for the
renovation and extension of the Oracle building to comprise a
structure consisting of
eight floors above the ground floor, with a
roof terrace over part of the new top floor.  The newly created
sixth floor of
the Oracle building will be at a level that more or
less corresponds with that of the eighth floor of the Four Seasons
building.
[4]
Affected owners of units in the Four
Seasons building, who had not been given notice of the building plan
application, became excited
by the building activity only when it
became apparent, during 2012, that the levels being added to the
Oracle building were being
built flush with the common boundary,
right up against the balconies of the apartments on the Table Bay
facing side of the applicants’
building on the eighth storey,
and more or less three metres from the windows of the apartments on
the ninth and tenth storeys
on that side of the Four Seasons
building.
[2]
[5]
The second respondent acquired the Oracle
building in 2006.  It was reportedly in a derelict condition at
that time and stood
only four storeys high.  The Four Seasons
building was erected adjacent to it between 2005 and 2007.  The
first seven
storeys of the Four Seasons building, which provide a
parking garage, were built right up to the common boundary line
between the
two properties so as to directly abut the Oracle
building.
[3]
The residential accommodation in the applicants’ building
comprises apartments on the eighth and higher storeys.
The
levels on which the apartments are situated are set back about three
metres from the common boundary with Erf 5284.  The
roof space
above the top floor of the parking garage between the common boundary
and the set back façade of the eighth to
seventeenth storeys
was designed to provide small balconies for the apartments on the
eighth floor.
[6]
Prior to the upward extension of the Oracle
building, the apartments on the Table Bay facing side of the Four
Seasons building,
being at a higher level, would have looked out over
its roof.  It is not disputed, however, that purchasers of
apartments
between the eighth and tenth floors of the Four Seasons
might reasonably have expected the views from those apartments to be
blocked
by future development of Erf 5284 if regard were had to what
was permitted in terms of the applicable zoning scheme regulations.

This case is therefore
not
about any alleged right to a view.  It arises out of allegations
concerning what the applicants contend would be the unduly
intrusive
and objectionable character of an aspect of the building extension on
Erf 5284.
[7]
Erf 5284 was zoned as General Commercial
subzones C4 and C5 (a so-called ‘split-zoning’) in terms
of the erstwhile zoning
scheme of the City of Cape Town.  By
virtue of certain transitional provisions under the current zoning
dispensation, the
erstwhile scheme continued to be of effect for the
purposes of the determination of the building plan application.
The zoning
permitted 100% building coverage of the property.
Accordingly, 0 metre building setbacks were permissible on all
its
boundaries.  As far as may be determined from the
photographic evidence, it seems that the pre-existing building on Erf
5284
took full advantage of the permitted coverage provision.
Similarly, the Four Seasons building appears to cover the entire

property on which it was erected, with setbacks only above the
parking levels.
[8]
Aerial photographs put in evidence show
that it is commonplace in the area, which is in the inner city, for
adjoining buildings
to be built right up against each other.  It
is evident that they are usually designed with this in mind.
The photographic
evidence depicts the walls on the boundaries between
adjoining erven as invariably blank, or mainly blank; that is without
windows
or living spaces such as balconies.  The Four Seasons
building is a striking exception to the rule.  But even the Four

Seasons building has a blank wall on its Harrington Street façade,
presumably with an eye to the future development of the
adjoining erf
on that side which, on the photographic evidence, appears currently
to have an old building on it.
[9]
The area in issue was categorised as an
urban conservation area in terms of the erstwhile zoning scheme.
The council’s
consent in terms of reg. 108 was
consequently required for the proposed extension of the Oracle
building.  As pointed
out in the departmental report prepared in
respect of the second respondent’s application for the required
consent, ‘[t]
he consent relates to
heritage/aesthetic aspects and has no bearing on development
rights
’.
[4]
In other words, the determination whether consent should be granted
would be governed by the council’s perception of
the impact of
the appearance of the proposed building in its urban environment.
[5]
The aerial photographs afford a good impression of the general
appearance of the building within its urban context.
It does
not stand out as incongruous.  There is no challenge to
council’s decision to grant the required consent.
The
case is therefore also not about the general character or outward
appearance of the extended Oracle building; it is about an
aspect of
it that would not be of concern to passers-by on the pavement, or,
indeed, to the owners or occupants of any neighbouring
buildings
other than the Four Seasons building.
[10]
Construction of the additions to the Oracle
building had reached a relatively advanced stage before it was halted
pursuant to an
interim prohibitory interdict granted by Dolamo AJ
on 12 December 2012, at the instance of a number of unit owners
in
the Four Seasons building.
[6]
One is consequently able to obtain a real impression of the effect of
the extended building on the affected apartments in
the Four Seasons
building.  That, no doubt, was the reason the court was asked by
the applicants to conduct an inspection
in
loco
before hearing argument in the
application.
[7]
A graphic depiction of the effect is given in the set of colour
photographs attached as annexure JC8 to the first applicant’s

founding affidavit.  The confining effect on some of the
apartments in the Four Seasons building of the solid unbroken wall
of
the Oracle building being built flush against the boundary is amply
illustrated by those photographs.  The effect is most
striking
at the eighth floor level, where there were balconies.  The
effect of the construction on Erf 5284 has been to change
the
character of the areas that were designed to be balconies into small
courtyards confined between towering walls.
[11]
The interim interdict was granted pending a
judicial review of the City’s 2008 decision to approve the
plans.  The ensuing
review application was upheld and the
approval of the building plans was set aside in terms of an order
taken by agreement before
Desai ADJP.  Absent any defence
predicated on the advanced state of the building work
(cf.
Chairperson, Standing Tender
Committee and Others v JFE Sapela Electronics (Pty) Ltd and Others
2008 (2) SA 638
(SCA), especially at paras. 28-29), the challenge to
the building plan approval had to succeed in those proceedings
because, notwithstanding
the judgment in
Walele
v City of Cape Town and Others
[2008]
ZACC 11
,
2008 (6) SA 129
(CC),
2008 (11) BCLR 1067
given four months
earlier in litigation to which the City had been actively party, the
City’s decision had been made without
reference to a motivated
recommendation by the building control officer in terms of s 6(1)(a)
of the Building Act.
[8]
Although the 2013 review application was not opposed, the
second respondent sought a compensatory order against the City,
as
well as an order that the City should pay both its and the
applicants’ costs in the interim interdict proceedings.

Those issues were determined in proceedings heard separately by
Rogers J.  The relief sought by the second respondent
was
refused.
[9]
[12]
The second respondent thereafter
resubmitted the building plans for approval in substantially
unaltered form.
[10]
They were circulated in the ordinary course for consideration and
comment by the City’s interested technical departments.

After certain issues raised (in respect of matters such as
certification by a structural engineer that the building would be
able
to sustain the additional loading to be imposed by the additions
and amendments to the plan to address Fire Services’
requirements)
had been addressed, the application was given a clean
bill of health.  Comments from the applicants were then invited,
and
upon their receipt the second respondent was afforded the
opportunity to reply to them.
[13]
The applicants’ comments were set out
in a 13-page letter, dated 23 January 2015, from their attorneys
of record to Mr Henshall-Howard
(Mr Howard), the City’s
Head of Building Development Management.  The letter had
attached to it a number of photographs
(not identified in the
founding papers, but presumably illustrating the position as depicted
in annexure JC8 referred to earlier).
Much of the letter was
given over to a summary of the history of the jurisprudential
treatment of s 7(1)(b)(ii) of the Building
Act.  It was
contended that purchasers of units in the part of the Four Seasons
building that abutted Erf 5284 could not reasonably
have anticipated
that the City would allow building development on that property right
up against the boundary above the parking
levels in the Four Seasons
building.  This was so (it was argued) because the effect would
be so unattractive, intrusive and
overbearing that no reasonable
decision-maker could allow it in terms of the Building Act.  In
the result, so it was contended,
the erection of the proposed
building extension would be unsightly and objectionable and occasion
an impermissible derogation from
the value of the affected units in
the Four Seasons building.  The attorneys emphasised that the
effect of the proposed building
was such as to at least instil doubt
in the minds of the decision-maker, which was all that was necessary
(so they submitted) to
mandate the compulsory refusal of the building
plan application.  Suggestions were made as to how the second
respondent might
address the objections to the plan by setting back
from the common boundary the part of the Oracle building that was
regarded as
unduly intrusive on the Four Seasons building.
[14]
The applicants’ attorneys also
recorded a request to meet with Mr Howard and the building
control officer on site ‘
in order
that our clients’ position may be fully understood
’.
The attorneys contended that an on-site meeting would be
‘
indispensable to a proper
appreciation of whether or not the building proposed by
[the second respondent]
will probably or
in fact be unsightly or objectionable, derogate from the value of our
clients’ property or be dangerous to
life or property
’.
This made it clear, I think, that the applicants were not contending
that the additions were objectionable in the
sense that they would
disfigure the neighbourhood, but rather in the much narrower context
of their effect on certain units in
the Four Seasons building.
(Section 7(5) of the Building Act
[11]
appears to contemplate cases in which the proposed building might be
acceptable in most respects, but objectionable in some or
other
detail.)  Mr Howard and the building control officer did not
take up the proposal that they should meet with the applicants’

representatives on the site.  In response to an averment in the
founding papers that as far as the first applicant was aware
‘
neither
the building control officer nor the decision-maker visited the
inside of the second applicant’s property
’,
Mr Howard stated, somewhat opaquely, ‘
the
City cannot be expected to inspect a site from neighbouring
properties
’.
[12]
[15]
The
applicants’ attorneys’ letter of objection was forwarded
to the second respondent for comment.  It provided
a detailed
response, dated 9 February 2015, drafted by counsel and the second
respondent’s attorney.  The gist of it
was that existing
development on the Four Seasons building could not be permitted to
compromise the second respondent’s ability
to develop its
property to the maximum extent permitted in terms of the zoning
scheme.  The notion that the nature of the
development
undertaken first by an adjoining property owner might impinge on the
ability of the neighbour to subsequently exploit
the development
potential of its property was untenable, so it was argued.
Paragraph 16.2 of the response bears quoting
in
extenso
, for it highlights that the
current case raised out of the ordinary questions :
The windows of the Four Seasons
apartments face onto the common boundary in a situation in which two
adjacent erven are zoned to
allow 100% coverage with a zero setback,
windows should
never
be designed or constructed on the common boundary between [?such]
erven.  Facades facing common boundaries are architecturally

reserved for store rooms, lifts, services, stairwells, passages
(sic).  These uses are non-habitable and for this reason do
not
require windows in terms of the NBR.[
[13]
]
The problem in this case has arisen because, in order to extract
maximum value from the erf, the developers of the Four
Seasons
most
unusually
designed habitable rooms on the common boundary.  To extract
further value the rooms were given windows (and, at the lowest
level,
a veranda) to exploit the views and light then in existence between
the buildings.  As a result of this, Four Seasons
was required
to step the residential floors back in order to comply with statutory
requirements.  SABS 0400-1990 [part of
the National Building
Regulations] stipulates light and vent requirements of a vertical
distance of 1/3 of the horizontal distance
affected by the absence of
light and vent (sic).  The Four Seasons building had to be
constructed in compliance with these
requirements.
(Underlining and bold print reproduced as in the original.)
[16]
On 25 February 2015, the building
control officer rendered a recommendation in terms of s 6(1)(a)
of the Building Act.
The recommendation was addressed to
Mr Howard, who was responsible under delegated authority for
determining the building
plan application.  It ran to eight
closely typed pages containing 42 numbered paragraphs.  The
recommendation recorded
that the building control officer had
conducted a number of site inspections and was familiar with the
subject property and the
neighbouring properties.  The building
control officer’s report noted that ‘[s]
ince
all of the surrounding properties are developed,
[he]
was able to evaluate the probable
impact of the proposed building on those properties and on the
area
’.  (Had he accepted the
invitation to visit the Four Seasons building he would have been able
to evaluate the
actual
impact
on the balconies on the eighth floor.)  I shall consider the
content of the report in some detail presently.  It
contains
indications that the building control officer failed in material
respects to appreciate the scope and purpose of s 7(1)(b)(ii)
of
the Building Act and the import of the related jurisprudence to which
he said he had had regard.
[17]
The plans were approved by Mr Howard on the
same day that the building control officer’s recommendation was
produced.
Mr Howard composed a memorandum, also dated
25 February 2015, in which he purported to set out his reasons
for approving the
application.  He recorded that he was aware of
‘
the history of
[the]
project
’
and had had regard to the building control officer’s
recommendation and assessed the plans also taking into account
the
submissions by the legal representatives of both the applicants and
the second respondent.  I shall discuss the memorandum
in some
detail later in this judgment.
[18]
Shortly after it had received notification
of the approval of the building plan application, the second
respondent put the applicants
to terms to bring any proceedings they
might wish to institute to challenge the approval, failing which
building work would resume.
The current proceedings were
thereafter commenced before the given deadline.
[19]
At
the heart of this case is the applicants’ contention that the
further development of the Oracle building site to provide
higher
levels built flush up against the balconies on the eighth floor of
the Four Seasons building is something so exceptionally
intrusive and
objectionable that it would not reasonably have been foreseen by any
notional purchaser of an affected unit in The
Four Seasons building.
As to the reasonable expectations of purchasers of units in the Four
Seasons building prior to the
redevelopment of the Oracle building,
the first applicant averred in his founding affidavit
[14]
that ‘[a]
n
important consideration is that the City approved the
[Four Seasons]
building.  It
approved the balconies on the eighth floor.  A reasonable
notional purchaser and seller of a unit in the
[Four Seasons]
building would, I say,
never expect that the City – having approved those balconies –
would then approve a building
on the next property which has the
effect of rendering those balconies entirely useless
’.
I shall revisit this averment, in the context of the City’s
response to it, later in this judgment.
[20]
The application for review is expressly
founded on the allegation that the decision to approve the building
plans was –
(i)
materially
influenced by an error of law; (s 6(2)(d) of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’))
(ii)
not
rationally connected to the information before the decision-maker;
(s 6(2)(f)(ii)(cc) of PAJA)
(iii)
taken
because relevant considerations were not considered; (s 6(2)(e)(iii)
of PAJA) and
(iv)
so
unreasonable that no reasonable decision-maker could have made it
(s 6(2)(h) of PAJA).
[21]
Section
7(1) of the Building Act provides in relevant part:
(1) If a local authority, having considered a
recommendation referred to in section 6(1)
(a)
-
(a)
is
satisfied that the application in question complies with the
requirements of this Act and any other applicable law, it shall
grant
its approval in respect thereof;
(b)
(i)
is not so satisfied; or
(ii) is satisfied that the building to which the
application in question relates -
(aa)
is
to be erected in such manner or will be of such nature or appearance
that -
(aaa)
the
area in which it is to be erected will probably or in fact be
disfigured thereby;
(bbb)
it
will probably or in fact be unsightly or objectionable;
(ccc)
it
will probably or in fact derogate from the value of adjoining or
neighbouring properties;
(bb)
will
probably or in fact be dangerous to life or property,
such local authority shall refuse to grant its approval
in respect thereof and give written reasons for such refusal:
Provided that …
[22]
As mentioned at the outset, the proper
construction of the provision, and accordingly how it falls to be
applied, has been the subject
of divided judicial opinion.  The
City’s functionaries say that they had reference to the
jurisprudence in their assessment
of the building plan application in
this matter.  It is therefore useful for present purposes to
preface the discussion by
examining the relevant case law.
[23]
In
Walele
supra, at para. 55 of the majority
judgment, the provisions of s 7(1) of the Building Act were
construed to have the following
effect:
Accordingly the decision-maker must be satisfied of two
things before granting approval. The first is that he or she must be
satisfied
that there is compliance with the necessary legal
requirements. Secondly, he or she must also be satisfied that none of
the disqualifying
factors in s 7(1)
(b)
(ii) will be triggered
by the erection of the building concerned. This is so because any
approval of plans facilitating the erection
of a building which
devalues neighbouring properties, for example, is liable to be set
aside on review. An approval can be set
aside on this ground
irrespective of whether or not the decision-maker was satisfied that
none of the disqualifying factors would
be triggered. All that is
needed for an applicant to succeed is to prove to the satisfaction of
the reviewing court that the erection
of the building will reduce the
value of his or her property. The legislature could not have intended
to authorise an invalid exercise
of power. In order to avoid this
consequence, the decision-maker must at least be satisfied that none
of the invalidating factors
exist before he or she grants approval.
This interpretation is consistent with the obligation to promote the
spirit, purport and
objects of the Bill of Rights. It demonstrates
that it is not only the landowner’s right of ownership which
must be taken
into account, but also the rights of owners of
neighbouring properties which may be adversely affected by the
erection of a building
authorised by the approval of the plans in
circumstances where they were not afforded a hearing. The section, if
construed in this
way, strikes the right balance between the
landowner's entitlement to exercise his or her right of ownership
over property and
the right of owners of neighbouring properties. The
interpretation promotes the property rights of the landowner and
those of its
neighbours.
[24]
A finding by the majority in a subsequent
judgment of the Supreme Court of Appeal, in
True
Motives 84 (Pty) Ltd v Mahdi and Another
[2009] ZASCA 4
, 2009 (4) SA 153 (SCA),
[2009] 2 All SA 548
,
2009
(7) BCLR 712
, that para. 55 of the judgment in
Walele
was
obiter
was disapproved by the Constitutional
Court in
Turnbull-Jackson v Hibiscus
Court Municipality and Others
[2014]
ZACC 24
, 2014 (6) SA 592 (CC),
2014 (11) BCLR 1310.
In
True Motives
,
the majority held (at paras. 22 and 23 of the judgment of
Heher JA):
The requirements of s 7(1)
(b)
(ii) are as follows:
(a)
If
the local authority is satisfied (ie, as with ss 7(1)
(a)
,
capable of reaching a positive conclusion) that the building will,
for instance, disfigure the area, it must refuse to grant its

approval. This involves being satisfied that the outcome is certain.
(b)
If
the local authority is satisfied that the building will
probably
have a detrimental effect specified in subparas (aa) or (bb) it must
refuse its approval.
(c) If the local authority is not satisfied on either of
the aforegoing then the refusal of the building plans is not mandated
or
indeed allowed by s 7(1)
(b)
(ii). The decision-maker must
then act on its positive finding with respect to the requirements of
s 7(1)
(a)
.
…
on the aforegoing analysis a
local authority may entertain some level of concern about whether a
proposed building will disfigure
the neighbourhood or derogate from
the value of neighbouring properties (and so on), but that concern
may not be at a high enough
level for it to be satisfied that the
undesirable outcome is probable. If that is the state of its mind (or
that of its authorised
decision-maker) with respect to these issues,
the local authority must approve the plan.
[25]
The
difference between the construction of s 7(1)(b)(ii) applied in
Walele
and
that in
True Motives
was described in
Camps Bay Ratepayers’
and Residents’ Association and Another
v Harrison and Another
[2010]
ZACC 19
,
2011 (2) BCLR 121
(CC),
2011 (4) SA 42
, at para. 33, as
follows:
…
according to
Walele
the local authority cannot approve plans unless it positively
satisfies itself that the proposed building will not trigger any
of
the disqualifying factors referred to in s 7(1)
(b)
(ii).
If in doubt, the local authority must consequently refuse to approve
the plans. According to
True
Motives
, on the
other hand, a local authority is bound to approve plans, unless it is
satisfied that the proposed building will probably,
or in fact,
trigger one of the disqualifying factors referred to in s
7(1)
(b)
(ii).
If in doubt, the building authority must consequently approve the
plans… Moreover, while
Walele
imposes an obligation on the local authority to ensure the absence of
the disqualifying factors, no such duty arises from
True
Motives
.
[Footnotes omitted.]
Having noted the difference, the court in
Camps Bay Ratepayers’
found it unnecessary for the purposes of that case to resolve the
situation created by the conflicting interpretations of the
provision.
[26]
The court did, however, highlight that an
implication of s 7(1) of the Building Act was that
considerations beyond compliance
with any statutorily imposed
restrictions had to be taken into account by a local authority in
deciding a building plan application
submitted in terms of s 4
of the Act.  So, at para. 40 of the judgment, Brand AJ
conceived of a building compliant
with all the ‘
legally
imposed restrictions
’ that
nevertheless might derogate from the value of surrounding properties
in a cognisable sense by reason of its being ‘
for
example, so unattractive or intrusive
’
as to exceed ‘
the legitimate
expectations
’ of the notional
purchasers of the surrounding properties when they acquired those
properties.  The local authority
would be obliged in terms of
s (7)(1)(b)(ii) to refuse to approve a building plan for the
erection of such a structure.
(The majority in
True
Motives
had also allowed that a plan in
respect of a proposed building that would be compliant with the
requirements of the Act and any
other applicable law might
nevertheless trigger a disqualifying factor in terms of
s 7(1)(b)(ii).
[15]
)
[27]
A definitive and ultimately authoritative
construction of s 7(1)(b)(ii) of the Building Act was
subsequently given by the Constitutional
Court in
Turnbull-Jackson
.
The court (once again by a majority) confirmed the interpretation
given in the majority judgment in
Walele
.
The majority judgment pointed out that the court’s decision in
Camps Bay Ratepayers
had been concerned with a matter arising out of alleged
non-compliance with s 7(1)(a) of the Building Act, and
reiterated
that that judgment had not resolved the ‘
Walele
-
True Motive
controversy’ in respect of the proper construction of
s 7(1)(b)(ii).
[16]
The court nevertheless endorsed the observation in
Camps
Bay Ratepayers
that ‘[i]
f
derogation of value is raised in the context of an acceptance that
there has been compliance with restrictions imposed by law,
there
will be derogation of value as envisaged in s 7(1)(b)(ii) only if
“the new building . . . is, for example, so unattractive
or
intrusive that it exceeds the legitimate expectations of the parties
to the hypothetical sale”
’.
[17]
[28]
The majority in
Turnbull-Jackson
held that the construction of the
provision applied in
Walele
had
not been
obiter
and was therefore binding.  It in any event preferred it to that
adopted by the majority in
True Motives
on the ground that the
Walele
construction was contextually more
plausible, regard being had to the objects of the legislation.
In this regard Madlanga J
observed (at paras. 88-89):
[88] We will recall that the Building Standards Act aims
to prescribe building standards. Prescribing building standards is
not
an end in itself. As much as it is about the rights of people
seeking to develop their properties, it is also about the protection

of the rights of owners of neighbouring properties.
[89] The
Walele
approach is less susceptible - if
at all - to an overly relaxed level of scrutiny insofar as the rights
of owners of neighbouring
properties are concerned. It better
protects the rights of these owners. It is more consonant with the
provisions of s 39(2) of
the Constitution. Of course, the rights of
prospective property developers are also deserving of protection. …
(Footnotes omitted.)
[29]
The learned judge expressly mentioned that
the rights of neighbours that might be implicated were the rights to
life, security of
the person, and property.  In this regard he
no doubt had in mind the disqualifying factors predicated on
buildings that would
probably or in fact be dangerous to life or
property (s 7(1)(b)(ii)(bb)) and those that would probably
derogate from the value
of neighbouring properties
(s 7(1)(b)(ii)(aa)(ccc)).  Neighbours in particular, but
also the community in general, also
enjoy rights under the Act to be
protected against the erection of buildings that would disfigure the
area (s 7(1)(b)(ii)(aa)(aaa))
and those that would be unsightly
or objectionable (s 7(1)(b)(ii)(aa)(bbb)).  Whilst it is
readily conceivable that the
latter features would often occasion a
derogation from the value of neighbouring properties, separate
reference to them in the
statutory provision suggests an intention
that the avoidance of the unacceptably adverse impacts of new
buildings on the neighbours’
aesthetic sensibilities and the
utility of their properties are to be taken into account by local
authorities, in the manner indicated
in
Camps
Bay Ratepayers’
supra, at
para. 40, as self-standing disqualifying factors.
[30]
The judgment in
Turnbull-Jackson
expressly left open who bore the onus to satisfy the local authority
on the existence or not of disqualifying factors.
[18]
‘Onus’ cannot apply in respect of the determination of a
building plan application in the same way as it does
in a trial,
where it is inextricably bound up with the duty on one or the other
side to adduce evidence to prove a pleaded claim
or establish a
defence.  The processing and determination of building plan
applications does not involve an adversarial process.
In many
cases, notice is not even given to potentially affected third
parties.
[19]
The statute places an obligation on
the
local authority
to satisfy itself that
the plans comply with all the applicable statutory requirements and
that none of the disqualifying factors
will be triggered.  The
legislative scheme envisages that the building control officer will
undertake the enquiries required
to those ends and treat of them in
the recommendation.  The decision-maker is, of course, required
to apply his or her own
mind independently.
[20]
In cases in which the content of the building control officer’s
recommendation or the additional information otherwise
available to
the decision-maker raises questions, the decision-maker is required
to investigate further.
[21]
[31]
The only relevance of ‘onus’ is
the standard by which the evidence (including any expert opinion)
must be weighed by
the decision-maker in determining whether it
supports a finding that none of the disqualifying factors will be
triggered.
The determination falls to be made on a balance of
the probabilities.  The standard for being satisfied therefore
does not
demand that the decision-maker be absolutely certain; it
requires no more than being able to reach a conclusion based on a
proper
assessment of the facts with regard to the balance of
probabilities.  If, however, upon proper investigation, and
applying
the aforementioned standard, the decision-maker is left
unable to decide on the probabilities whether the disqualifying
factors
will be triggered, it must follow that he or she cannot
express him-or herself satisfied that they will not be.
[22]
The ‘onus’ imposed by the provision
on
the local authority
will not have been
discharged.  A refusal of the application must follow.
[23]
[32]
A
decision made in the manner required in terms of s 7(1) of the
Building Act should be amenable to being reasoned by the
decision-maker in much the same way that a court is expected to be
able to reason its judgments.  Properly discharging the
duty
imposed on the local authority by s 7(1) should result in a
decision, whether it be to approve or refuse the application,
that is
demonstrably rational.  If the decision-maker, when it furnishes
its reasons, is not able to reason its decision plausibly,
the
decision is likely not to be rationally connected to the matter in
hand and accordingly vulnerable to review in terms of
paragraphs (e)(iii),
(e)(vi), (f)(ii)(cc) and (f)(ii)(dd) of
s 6(2) of PAJA, amongst other possible grounds.
[33]
The import of paragraph 55 of the judgment
in
Walele
,
quoted above, is that the character of the disqualifying factors is
factual.  The enquiry is into whether the proscribed

consequences will actually or probably eventuate if the proposed
building is erected.  Even if the determination may entail

forming an opinion based on the known facts, and therefore judgement,
the decision is not discretionary in nature.  That much
seems to
follow necessarily from Jafta AJ’s statement that ‘
An
approval can be set aside on this ground
[derogation from value]
irrespective of
whether or not the decision-maker was satisfied that none of the
disqualifying factors would be triggered. All that
is needed for an
applicant to succeed is to prove to the satisfaction of the reviewing
court that the erection of the building
will reduce the value of his
or her property
’.
[24]
[34]
Concern has been expressed that the quoted
remarks in para. 55 of
Walele
could
conduce to an unwholesome blurring of the distinction between review
and appeal.
[25]
There is no reason, however, to believe that the Constitutional Court
could have intended that.  Had any such far-reaching
departure
from established principle been intended it would surely have been
spelled out expressly.  It might be inferred
from Jafta AJ’s
statement in the same paragraph that ‘[t]
he
legislature could not have intended to authorise an invalid exercise
of power
’ that the learned judge
had the principle of legality in mind.
[26]
It seems to me that enforcing compliance with the principle of
legality in these circumstances can be approached on
common law
review principles in the manner described by Lord Wilberforce in
Secretary of State for Education and
Science v Tameside Metropolitan Borough Council
[1976] UKHL 6
,
[1976] 3 All ER 665
(CA and HL),
[1977] AC 1014
, at
pp. 681-2 (All ER), in the context of a comparable statutory
formulation:
This form of section [i.e. framed in
a “subjective” form - if the Secretary of State “is
satisfied”] is
quite well known, and at first sight might seem
to exclude judicial review. Sections in this form may no doubt,
exclude judicial
review on what is or has become a matter of pure
judgment. But I do not think that they go further than that.  If
a judgment
requires, before it can be made, the existence of some
facts, then, although the evaluation of those facts is for the
Secretary
of State alone, the court must enquire whether those facts
exist, and have been taken into account, whether the judgment has
been
made upon a proper self direction as to those facts, whether the
judgment has not been made upon other facts which ought not to
have
been taken into account. If these requirements are not met, then the
exercise of judgment, however
bona
fide
it may be,
becomes capable of challenge.
[27]
These principles have been taken up in s 6(2) of PAJA.
[35]
Section 7(1)(b)(ii) does not give the
administrator the power to determine what the relevant facts are, and
therefore does not give
rise to matters of ‘pure judgment’.
The local authority is required to have regard to the objectively
relevant
facts and make a reasonable judgement
[28]
on the basis of them.  If the existence of any of the
disqualifying factors is established on that approach, then the
principle
of legality precludes approval of the building plan.
A failure by the decision-maker to have appropriate regard to any
relevant
fact in forming the required judgement might result in the
decision being reviewable in terms of s 6(2)(e)(iii) of PAJA,
which
provides that administrative action taken because ‘irrelevant
considerations were taken into account or relevant considerations

were not considered’ can be set aside on review;
cf.
Chairpersons’ Association
v Minister of Arts & Culture and Others
[2007] ZASCA 44
,
[2007] 2 All SA 582
(SCA),
2007 (5) SA 236
, at para.
48.  As postulated in paragraph [32]
above,
depending on the facts, which might raise other matters – a
misdirection on the import of the applicable law, for example
- other
provisions of s 6(2) of PAJA could also find application.
[36]
It
has been held that s 7(1) of the Building Act places a local
authority seized of deciding an application for the approval
of
building plans in the position of the ‘guardian’ of the
interests of the owners of the neighbouring properties.

In
Odendaal v Eastern Metropolitan Local
Council
1999 CLR 77
(W) at 84-85,
Lewis AJ said ‘[B]
oth the Act and
the
[town-planning]
Scheme
are legislative instruments for ensuring the harmonious, safe and
efficient development of urban areas. . . . Local authorities
are
given considerable powers under both Act and Scheme. Onerous duties
are imposed on them by both instruments. The essential
purpose of the
powers afforded and the duties imposed is to ensure that the
objectives of the legislative instruments are achieved;
that there is
a balance of interests within a geographical community.
The
local authorities are in effect the guardians of the community
interest.
They are entrusted
with ensuring that areas are developed in as efficient, safe and
aesthetically pleasing a way as possible. They
are required to
safeguard the interests of property owners in the areas of their
jurisdiction. That is why the powers and rights
of owners of
immovable property are restricted. Power over one's property has
never, under our legal system, been unfettered. The
rights of an
owner of land have always been limited by the common law in the
interests of neighbours. But the rapid urbanization
of countries
worldwide and the inevitable need for regulation that has accompanied
it has had the effect of restricting full dominium
even further than
the common law ever did
’.
Those remarks were quoted with approval in O’Regan ADCJ’s
minority judgment in
Walele.
They
were also endorsed in Jafta JA’s minority judgment in
True
Motives.
[29]
[37]
A similar view was expressed by Cleaver J
in
Chairperson of the Walmer Estate
Residents’ Community Forum and Another v City of Cape Town and
Others
[2007] ZAWCHC 6, 2009 (2) SA 175
(C)
[30]
.
He said: ‘
While the local
authority is entrusted with the power to approve plans, it must, in a
manner of speaking, act on behalf of the neighbours
by ensuring that
the disqualifying factors mentioned in s 7(1)(b) are not present
before approving plans which otherwise comply
with all applicable
laws
’.
[31]
The tenor of Cleaver J’s remark presaged the construction
of s 7(1)(b)(ii), subsequently confirmed in
Turnbull-Jackson
,
that imposes a positive duty upon local authorities to satisfy
themselves of the absence of the ‘disqualifying factors’

before they can competently approve building plan applications.
[38]
While treating of the pertinent
jurisprudence, mention should also be made of the case involving the
Mill Row Housing Development
because of the reported reliance upon it
by the building control officer and the functionary who approved the
building plan application.
Owing to the significance the City’s
officials appear to have attached to the judgment, I have thought it
appropriate to
describe the facts and issues in some detail.
The officials must have been referring to the judgment at first
instance (per
Engers AJ),
[32]
which has not been reported.  The nature of the review challenge
and the facts of the case are, however, described in the
subsequently
given judgment on appeal to the full court, reported
sub
nom.
Gerstle
and Others v City of Cape Town and Others
[2016] ZAWCHC 102
,
[2016] 4 All SA 533
(WCC),
2017 (1) SA 11.
[39]
The Mill Row Housing Development was
described as follows in the full court’s judgment written by
Davis J: ‘
Mill Row
[is a group housing development]
consist
[ing]
of 17
properties, eight of which  are in
the back row (comprising of seven double storeys and one double
storey with a basement)
and eight of which are in the front row and,
at present, constitute single storey residential dwellings
’.
[33]
The applicants took on judicial review the approval by the City
of building plans submitted by owners of two of the dwellings
in the
front row to convert their buildings into double storey structures.
The review was founded primarily on the allegation
that the City had
failed to comply with s 7(1)(b)(i) of the Building Act by not
refusing the application for want of compliance
with the requirements
of the applicable zoning scheme.  As a second string to their
bow, the applicants in Mill Row had also
contended that the
interference with the views from their back row properties that would
be occasioned by the addition of second
storeys to the front row
houses would occasion a derogation from the value of their
properties.  It would also affect their
privacy and the amount
of natural light that they had hitherto enjoyed.
[40]
The applicants in Mill Row relied on the
provisions of the Table View Town Planning Scheme that defined a
‘
group housing scheme
’
as ‘[a]
group of separate and/or
linked and/or individual dwelling units on smaller than conventional
erven and which is planned, designed
and built as a harmonious
architectural entity with a medium density character in which the
structures vary between single and
double storeys
’.
Divergent opinions were given in evidence as to the import of the
concept of a ‘
harmonious
architectural entity
’.  In
this respect the full court held ‘…
the
court a quo was correct that the ordinary meaning of the phrase was
that “all the structures within a group housing development,

taken together, must form an orderly or pleasing style of building”.
Further, the court correctly noted that “what
constitutes a
harmonious architectural entity is a difficult question to answer”
and “this appears to me to call for
a fair amount of
subjectivity”
’.
[34]
It also held that the applicants’ architectural expert had
conceded ‘…
that, viewed
externally, Mill Row did not comprise an harmonious architectural
entity and that, at best, for appellant, when viewed
from inside, it
was a “modest attempt” at creating such an entity
’.
[35]
[41]
In the face of conflicting evidence about
whether the proposed building additions would upset the (apparently
questionable) harmonious
architectural character of the development,
and being satisfied that the building control officer’s
recommendation had carefully
addressed all the objections advanced
against the building plan applications and substantiated his reasons
for concluding that
they did not fall to be refused by virtue of the
existence of any of the disqualifying factors in s 7(1)(b)(ii),
the court
expressed its consciousness ‘
of
the need for respect for expertise in the making of policy laden or
polycentric issues
’ (cf.
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at paras. 44-45 and 48).  Davis J proceeded to
state in that regard, ‘
Once a
decision maker with the necessary expertise has set out detailed,
plausible and justifiable explanations for a decision to
which he or
she has arrived, the court should be extremely cautious before
intervening
’.
[42]
Applying that approach to the evidence
before it in the particular case, the court held that judicial review
had been correctly
refused by the court of first instance because it
could not be found that the decision to approve the building plans
was one that
a reasonable decision-maker could not have made.
[36]
The judgment makes it clear, I think, that the court was conscious
that the relevant determination was to a material extent
an
expression of the decision-maker’s value judgement formed on a
proper and conscientious assessment of all the real evidence
or
primary facts.  And that in that context it was acutely alive to
its duty of adherence to the principle that it should
refrain from
intervening on review in such a case when the judgement was one that
might reasonably be formed in the circumstances,
even if the court
might itself have had a different view had it been the administrator.
[43]
Dealing with the evidence adduced by the
appellants that the developer and its architect had expressed an
intention that the front
row would remain as single storey dwellings,
no doubt to enable both rows to benefit from the views, both the
court of first instance
and the full court pointed out, however,
that, in the absence of a servitutal restriction or a home owners’
constitution
with pertinent provisions regulating height limits, no
enforceable rights had been vested in the purchasers of erven in the
back
row by the developer’s expressions of intent to restrict
the further development of houses in the front row within limits

narrower than those imposed in terms of the zoning scheme (i.e. three
storeys).  The development was, moreover, in any event

incomplete, as provision had been made for the future development of
a third row of houses in front of the then existing front
row
dwellings.  Significantly, the court of first instance had held
in this regard (at para. 56) ‘
There
is no suggestion that the proposed second storeys are being built in
such a way as to be exceptionally unsightly or more intrusive
than
might otherwise be the case. In other words, the second storey is
exactly what any notional buyer would envisage if he or
she knew that
the single storey house could be made double storey
’
.
[44]
The Mill Row case was of an entirely
different character to the current case.  There has been no
suggestion in the current
matter that the building to be erected in
accordance with the approved building plans would not be compliant
with the zoning scheme
and the building regulations, and thus
compliant with the technical requirements of the Building Act and any
other applicable law.
The applicants in the current matter
have, however, suggested very vehemently that the effect of the
construction of a solid wall
on the common boundary would be so
exceptionally intrusive to the extent that the prospect of it being
permitted by the local authority
would not have been factored in by
the notional parties to any hypothetical sale of the affected units
in the Four Seasons building.
[45]
The adjudication of the applicants’
claim that the first respondent failed to take relevant
considerations into account must
proceed on the basis of a conceptual
understanding of what a local authority is required by the provision
to consider.  Having
regard to the recognised objects of
town-planning and zoning schemes
[37]
and s 7(1) of the Building Act, it follows, I think, that the
respective statutory instruments fall to be applied integrally
in the
consideration of building plan applications.  The object of
harmonious and co-ordinated building development is common
to the
planning and the building legislation.  This highlights the
responsibility resting on a local authority, when it considers
a
building plan application, to have regard not only to the compliance
of the proposed building with the technical restrictions
and
regulatory prescriptions in respect of building development on the
building plan applicant’s property, but also to the
contextual
effect of the contemplated finished product.  The obligation to
consider the contextual effect of the proposed
building implies that
the local authority must take account of how the proposed structure
would fit in with the existing development
of neighbouring
properties, and, of course, what might reasonably be anticipated to
be the possible future use of such properties.
[46]
The effect is that in discharging the
function of building plan approval a local authority is required in a
sense to act as a moderator
in respect of the potentially conflicting
rights and obligations of neighbouring property owners.  It is
inevitable that in
fulfilling that function the local authority will
on an incremental basis play a material role in determining the
character of
a neighbourhood.  Its decisions concerning the sort
of building development it is willing to approve on property B, will
inevitably
have some influence on what might be acceptable for the
purposes of s 7(1)(b)(ii) of the Building Act in respect of what
it
might subsequently allow on the neighbouring properties A and C.
This is so because it must take account of what it has permitted
on B
when it considers, in the context of subsequent applications, what
might acceptably be built on A and C.  If it does
not,
realisation of the object of co-ordinated and harmonious development
will be subverted.  It is not surprising therefore
that the
decision-making power in terms of s 7 was described by the
Constitutional Court in
Camps Bay
Ratepayers
[38]
and
Turnbull-Jackson
[39]
as ‘an important public power’.  Therein lies what
Lewis AJ described as the ‘onerous duty’ on the
local
authority to ensure a balancing of interests.
[40]
[47]
The statement by Mr Howard in his answering
affidavit on behalf of the City that ‘[t]
he
City cannot be expected to tailor its approach to the second building
in accordance with the approval of the first building
’
[41]
is not correct as a statement of principle if it implies, as it
appears to, that the City does not have to take into account the

effect of its approval of the first building when it considers the
application for the second building.  The Building Act

unambiguously imposes a duty of contextual assessment on local
authorities whenever they consider a building plan application.

The actual or probable effect of what is proposed on what is already
there (or which a neighbour foreseeably might reasonably wish
to put
up in the future) is central.
[48]
That does not mean that prior development
of one property dictates how the neighbour may develop its land; it
means that the local
authority must take the existing (and
foreseeably future) development appropriately into account in
deciding whether the proposed
new development would trigger any of
the disqualifying factors.  Accordingly, when deciding whether
or not to approve the
first development, the local authority must
apply its mind to the effect of the proposed building on the
neighbouring properties,
including their potential for future or
further development.  The contextual assessment occurs in the
second stage of what
the City’s counsel correctly described as
‘a two-part enquiry’.
[42]
The second part is undertaken only after the local authority has
satisfied itself that the proposal is compliant with the
zoning
scheme restrictions, the National Building Regulations and any other
law that might be applicable to the proposed development.
If
the building plan does not comply with the applicable laws, the
building plan application must be refused and second part of
the
enquiry is not reached.
[49]
A positive determination of the building
plan application in the first part of the enquiry should not be
treated as a prognosticator
of the determination of the second part;
certainly not in a manner that would deprive the second part of the
enquiry of its discrete
and substantive import.  (What might be
taken as an opposite view stated in
True
Motives
at para. 46, where
Heher JA referred with apparent (albeit qualified) approval to
the statement by a building control
officer in the employ of the City
of Johannesburg that ‘[a]
s a
general policy, once a building plan demonstrates compliance with the
Act, regulations and the scheme there arises a strong
prima facie
indication that approval should be granted
’,
falls to be understood in the context of the learned judge’s
(subsequently disapproved) appreciation of the character
of the
second part enquiry.  The notion that a ‘general policy’
could apply in respect of how what is plainly
intended to be a
peculiarly facts-sensitive second stage enquiry is determined is
inconsistent with the scheme of the provision.)
Whilst the
applicable provisions of the zoning scheme are undoubtedly an
important consideration as the indicator of the maximum
extent of
development permitted on any property, the notional properly informed
purchaser or seller considering what might be put
up on neighbouring
properties would also be cognisant of the broader regulatory
framework concerning building development, including
s 7(1)(b)(ii)
of the Building Act.  He or she would appreciate that the zoning
scheme is not, of itself, dispositive
of what may be built on a land
unit, and that a statutorily prescribed contextual assessment of the
effect of any building development
on the neighbouring properties
should prevent a building that was unreasonably intrusive,
overbearing or otherwise unsightly or
objectionable from being
erected.
[50]
The notion that a property owner may
develop its property to the maximum extent permitted by a zoning
scheme regardless of the nature
of the adverse effect on the utility
of its neighbour’s property is not only inconsistent with the
provisions of s 7(1),
it also runs counter to the precepts of
the common law.  As Steyn CJ noted in
Regal
v African Superslate (Pty) Ltd
1963 (1)
SA 102
(A), at 106
fin
– 107A, ‘
As algemene
beginsel kan iedereen met sy eiendom doen wat hy wil, al strek dit
tot nadeel of misnoeë van ’n ander, maar
by aangrensende
vasgoed spreek dit haas vanself dat daar minder ruimte is vir
onbeperkte regsuitoefening. Die reg moet ’n
reëling
voorsien vir die botsende eiendoms - en genotsbelange van bure, en hy
doen dit deur eiendomsregte te beperk en aan
die eienaars teenoor
mekaar verpligtings op te lê
’.
[43]
The moderating principle in the regulation of neighbour relations in
the common law is reasonableness (
Afr.
‘billikheid’).
One of the examples from the common law cited by the learned chief
justice illustrates that
it was considered unreasonable to put up a
structure on one’s property in a position that would have the
effect of diverting
the wind from the neighbour’s threshing
floor.
[44]
It serves as a real example of how account was required to be taken
when erecting a building of its effect on an existing
utility on
neighbouring property.
[51]
It was, no doubt, with these considerations
in mind that the Constitutional Court observed in
Walele
that notwithstanding its finding, based on the import of s 3 of
PAJA, that a local authority was not required to cause notice
of
building applications to be given to owners of neighbouring property,
it would nonetheless ‘
be helpful
and enhancing to the process if the Building Control Officer, at the
stage of compiling the recommendation invites, from
owners of
neighbouring properties, representations about the impact the
proposed building might have on their properties. Such
approach would
help in dealing with issues relating to disqualifying factors. This
would significantly reduce chances of approval
of plans in cases
where some of the disqualifying factors exist but were not discovered
by a local authority
’.
[45]
[52]
Earlier in this judgment (at
paragraph [19]) I quoted an averment from the applicants’
founding affidavit concerning
the reasonable expectations of
purchasers of units in the Four Seasons building prior to the
redevelopment of the Oracle building.
The City’s response to
that averment (at para. 80 of Mr Howard’s affidavit) was
‘
The City approved the balconies
on the Four Seasons
[building]
because
it was asked to, and they were lawful.  That cannot now bind the
City to protecting the amenities provided by those
balconies to the
detriment of neighbouring property owners
’.
In my judgment Mr Howard’s response betrays a fundamentally
misguided belief that s 7(1) allows an uncoordinated
and
potentially disharmonious approach by local authorities to the
consideration of building plan applications.  It runs directly

counter to the contextual approach demanded by the provision.
[53]
If it were foreseeable, regard being had to
the object of achieving harmonious and co-ordinated development, that
the design of
the Four Seasons building would unreasonably compromise
the ability of the owner of the neighbouring properties, like Erf
5284,
to develop their properties to full potential – thereby
no doubt derogating from the value of such properties – the

City should have refused to approve the plans for its construction,
irrespective of their being zoning scheme and building regulation

compliant.
[46]
Furthermore, the remedy for the consequences of having possibly
wrongly approved the plans for building A, does not lie in
the local
authority ignoring the characteristics of building A after it has
been erected, especially those that contribute to its
utility and
market value, when subsequently considering plans for the erection of
building B on the plot next door.  On the
contrary, it must
accept that the parties to the so-called hypothetical sale of units
in building A would reasonably take into
account for the purpose of
determining the market value of such units the character and utility
of what the local authority has
permitted to be built when they apply
their minds to what it might reasonably allow to be put up on the
adjoining property.
[54]
Turning now to consider how the City came
to approve the building plans.
[55]
It was recognised in
Walele
(at para. 70) that the building
control officer’s report required in terms of the building plan
application process under
the Building Act was intended by the
legislature to be the decision-maker’s primary source of
information on the questions
on which the local authority must be
satisfied in terms of s 7(1) before it may competently approve a
building plan.
It follows that its content and the
decision-maker’s treatment of it are foundational to the
determination of any building
plan application.
[56]
There was nothing contentious about the
application insofar as s 7(1)(a) and (b)(i) were concerned.
As to the existence
of any disqualifying factors in terms of
s 7(1)(b)(ii) of the Building Act, the essence of building
control officer’s
approach was reflected in a number of
passages in the recommendation report.  I shall identify and
comment on the salient
ones in turn.
1.
Having
referred to a discernible trend in the central parts of the City for
buildings to be erected up to the common boundaries,
he proceeded (at
para. 26.1 of the report) to say ‘
It
is clearly the trend to develop each property to its full potential
and I am of the opinion that this is fully acceptable as
long as the
set development parameters are adhered to.
’
It would seem that by ‘
set
development parameters
’, the
building control officer meant the applicable land use development
restrictions in terms of the zoning scheme.
2.
At
para. 27 of the report the building control officer stated:
‘…
most new buildings do have an
impact on their surroundings.  However, an application would be
disqualified under the Building
Act only if the building to which it
relates would disfigure the area.  The right to build on the
common boundary existed
all along.  While some may regard the
proposed building work as intrusive, unattractive and unreasonable,
development progress
makes such changes inevitable when such changes
are within the permitted parameters.
’
3.
Paragraph
29 of the report went as follows:
‘
I cannot agree with the statement that
it was expected that
[the second
respondent’s]
building would be
stepped back once it reached the residential part of the Four Season
(sic)
Building.
This expectation is nowhere established in law and upholding such an
expectation would undermine the development
rights of erf 5284, Cape
Town.  The design of the building is compliant with
architectural trends.  The building is designed
by a competent
professional person in a contemporary way and the proposal is
sensible.  The construction methods and materials
proposed for
the building are conventional and are in keeping with the acceptable
norms in the industry.  The proposed building
would be an
improvement on the subject property in the circumstances.  I
advise that the proposed building will not probably
or in fact be
unsightly or objectionable
’.
4.
At
paragraph 35, the building control officer stated:
‘
In summary an informed buyer and an
informed seller of a surrounding property would have been aware of
the long-standing right of
the subject property to develop a higher
building on the common boundary.  The proposal in my opinion is
close to common practice
in the City Centre.  The development of
a site to its full legal potential is especially likely in and sought
after (sic).
This kind of development is consistent with a
trend towards densification, which is generally promoted by the
City.  In the
circumstances, I am of the view that a developer
could reasonably be expected to erect a building of the maximum size
permitted
by the Scheme Regulations on the subject property
’.
[57]
I shall treat of each of these passages
from the report in turn.  They provide the foundation for my
observation earlier that
the building control officer’s
appreciation of the import of the relevant statutory provisions was
materially flawed.
1.
Re
para. 26.1 of the BCO recommendation
It shows a lack of appreciation that an enquiry
into the existence of any disqualifying factors arises as a second
stage enquiry,
and only in the event of the proposed building being
found in the first stage enquiry to actually be compliant with the
‘
set development parameters
’.  That much was
clearly spelled out in the Constitutional Court jurisprudence in the
majority judgment in
Walele,
and reiterated in
Camps Bay
Ratepayers
and
Turnbull-Jackson
.  Being satisfied
that the proposed building falls within the ‘
set development
parameters
’ did not afford an answer to the second part of
the enquiry, particularly in the confessedly unusual context
presented by
the case in point.  The remark calls into question
whether the building control officer properly appreciated the content
of
the statutory enquiry enjoined by the provisions of s 7(1)(b)(ii)
of the Building Act
.
2.
Re
para. 27 of the BCO recommendation:
The remarks in this paragraph underscore the
impression that the building control officer’s approach
proceeded from an understanding
that any building erected ‘
within
in the permitted parameters
’ was one that neighbours were
obliged to tolerate.  His understanding is at odds with the
provisions of s 7(1)(b)(ii)
as construed by the Constitutional
Court.
3.
Re
para. 29 of the BCO recommendation
This indicates that the building control officer
considered that the development limitations in terms of the zoning
scheme afforded
rights in favour of the second respondent, the full
availment whereof could not be prejudiced by considerations bearing
on the
effect thereof on already established adjacent development.
The indication is that no consideration was given to aspects of

unsightliness or objectionableness
from
the perspective of the extant neighbouring building
(as distinct from the impression of street level users in the general
area).  It is evident that this was because of the building

control officer’s apparent opinion that the zoning provisions
regulating development of the second respondent’s property
that
permitted development up to the boundary line conferred a virtually
absolute right.  (Zoning actually manifests a scheme
of land use
restrictions
,
not land use
rights
.
[47]
)
4.
Re
para. 35 of the BCO recommendation
Once again there is a conflation of the first and
second stages of the statutory enquiry in the building control
officer’s
evident conception of how he had to go about applying
s 7(1) of the Building Act.  His reference to the City’s
policy of densification is furthermore indicative of his introduction
of a quite irrelevant consideration into the second stage
enquiry.
Density of permitted development is something regulated by the zoning
scheme regulations.  His reference to
it being common practice
for buildings in the city centre to be built up hard against each
other fails to acknowledge that the
buildings concerned were designed
to allow for that, with blank walls provided on existing buildings to
anticipate such development
on the boundary.  Examples of this
were illustrated in a number of the photographs put in evidence; see,
for example some
of those annexed as ‘GM3’ to the
affidavit of the architect of the Oracle building, Mr Gavin Mitton.
The building
control officer fails to engage at all with the
consequences of the City’s earlier decision to approve what is
described
as the ‘unusual’ nature of development of the
Four Seasons building.
5.
Generally
Nowhere in the recommendation does the BCO deal with the particular
impact of the proposed building additions on the Four Seasons

building. He does not acknowledge that the City approved the
development of the Four Seasons site in a manner that would render

the balconies provided for in the approved building plans essentially
useless if the adjoining erf were subsequently further developed
to
the maximum extent permitted in terms of the zoning scheme.  He
also does not deal with the impression that the City’s
approval
of balconies along the common boundary with Erf 5284 would have given
to objective notional sellers and buyers of the
affected units in the
Four Seasons building as to the nature of what the City would
reasonably be likely to permit on the adjacent
property.  He
concentrates on what he conceives to be the rights attached to the
subject property (Erf 5284) and fails to
deal at all with what the
applicants had raised as the objectionable features of the building
from the perspective of owners and
occupiers of the Four Seasons
building.  He also, as counsel for the applicants stressed,
twice misstated the test as stated
in
Walele
; that is he said,
in paras. 22 and 30, that in deciding the application the City had to
consider whether it was satisfied that
the proposed building would
probably or in fact be unsightly or objectionable or disfigure the
area or derogate from the value
of neighbouring properties instead of
acknowledging that the City was empowered to approve the application
only if it were positively
satisfied that the proposed building would
not have any of those unfavourable effects.
[58]
As mentioned, Mr Howard approved the
building plans on the very day that the building control officer
produced his recommendations.
Mr Howard purported to set out
his reasons in an accompanying memorandum.  The part of the
memorandum, dealing with the issues
to be considered under
s 7(1)(b)(ii)(aa) went as follows:
Having assessed the plans and having regard to the
submissions by SVY and BDP [the respective parties’ attorneys]
I am not
satisfied that the area will be disfigured by the additions
to the existing building and nor am I satisfied that the building
will
be unsightly or objectionable.
Having considered the application in its context and the
submissions by SVY and BDP and having regard for the judgements in
various
court cases (inter alia Camps Bay Ratepayers,
Turnbull-Jackson and Mill Row Property Owners) I am not satisfied
that the additions
to the existing building will derogate from the
value of surrounding or adjoining properties.
(As an aside:  The notion that any person would
have an expectation that the City, having produced a set of
development rules
(the Zoning Scheme), would not permit a property
owner to develop his property to the extent permitted in the Scheme
is, in my
opinion, absurd.  I note also that this property lies
within the Cape Town Urban Development Zone (a Tax incentive scheme)

which was designed to encourage property owners to upgrade their
properties.)
In arriving at the decision I also had regard for the
judgement in the Mill Row case in respect of the interference of
views, light
and privacy may be impinged upon (sic) by building on
neighbouring land provided that such building is otherwise, as in
this case,
permitted.
…
I discussed some the above aspects (sic) contained in
his recommendation with the BCO.
Given the above I can find no reason not to approve the
application.
[59]
I have said that Mr Howard ‘
purported
to set out his reasons’ because, apart from the indication
given by the ‘aside’ and the not altogether coherent

reference to his regard to the judgment in the Mill Row case, the
memorandum in point of fact does not furnish any reasons for
his
having reached the stated conclusions.  It does not say what, in
particular, he engaged with in the attorneys’ submissions,
or
why he accepted or rejected the arguments advanced in them.  He
also does not identify any of the aspects in the building
control
officer’s recommendation that he found worthy of discussion
with that official.  Had he provided that information,
it might
have illuminated his conceptual approach to the task.
[60]
The
City’s counsel sought to make light of the aside, emphasising
that it had been expressly indicated to be such and that
the
functionary’s ‘views’ had already been expressed in
the preceding paragraphs.  I am unable to accept
that
submission.  Bearing in mind the expressed purpose of the
memorandum – to give his reasons for the decision - the

so-called aside is, as noted, one of only two parts of the memorandum
that approximates a reasoned indication for his stated conclusions.

Being aware of the contentious history of the building plan
application, it is most improbable that he would have included the

pungently expressed aside in the reasons document if it had not
informed his approach to the decisions he had been required to
make.
The aside is, moreover, consistent with the approach propounded by
him in various passages of his answering affidavit.
[48]
[61]
In their heads of argument the City’s
counsel submitted that the aside was ‘
clearly
a comment on one aspect of the test for derogation from value, namely
what the legitimate expectations of the parties to
the hypothetical
sale would be
’.  The
difficulty with that argument is that Mr Howard’s comment fails
to engage in any way whatsoever with the
critical question in the
matter: What the parties to the hypothetical sale would infer from
the City’s approval of the provision
of balconies along the
common boundary.
[62]
Would not the notional reasonable-minded
party to the hypothetical sale be cognisant of the duty on the local
authority to apply
the planning and building control legislation
contextually and form their opinions accordingly?  Everyone
appears to accept
that what the City had allowed in the nature of the
development of the Four Seasons building was ‘unusual’.
It
allowed windows and balconies facing onto a common boundary, when
the convention is that when the neighbour might build right up
to the
boundary a blank wall is provided.  Would the notional parties
to the hypothetical sale not reasonably accept that
the local
authority would be obliged to take the unusual characteristics that
had been permitted into account when considering
any application for
new or additional development on the adjoining erf? Would the
notional parties factor into their judgements
that the local
authority having sanctioned a design of the Four Seasons building
that provided balconies on the common boundary
would approve the
construction of an adjoining structure that would destroy the utility
of those amenities?
[63]
It is not the court’s function to
answer them, but these are the sort of questions that on the
established facts of the current
case
[49]
necessarily presented themselves to be answered in deciding whether
an aspect of the proposed building additions would be objectionable

or unsightly or give rise to a derogation from the value of some
apartments in the Four Seasons building.  They are the sort
of
questions that the building control officer should have dealt with in
his recommendation and Mr Howard in his reasons for approving
the
building plans if they had properly addressed themselves to the
requirements of s 7(1)(b)(ii).
[64]
Neither the building control officer nor Mr
Howard appears to have considered what sort of development on the
adjacent property
might qualify as unduly intrusive or unacceptably
overbearing, and therefore objectionable, notwithstanding its
compliance with
the zoning scheme.  Absent an explanation of why
the construction of a multi-storey solid wall closing off existing
balconies
would not have those effects, their recital of para. 40
of the judgment in
Camps Bay Ratepayers’
is liable to sound like so much cant.  Their failure to deal
with these questions suggests that they either did not take those

facts into account or did not properly direct themselves on them in
forming their judgement.
[65]
The only explanations that have been given
(in the answering affidavits, rather than in Mr Howard’s
contemporaneous memorandum)
are that the setback of the Four Seasons
building along the common boundary was to ensure compliance with
regulation T1 of the
National Building Regulations and that issues
concerning the distance between buildings (‘proximity’)
are regulated
in terms of the zoning scheme, not the Building Act.
The explanations suffice for the purpose of the first part of the
statutory
enquiry (viz. that required in terms of s 7(1)(a)),
but they beg the question about the second part (viz. the enquiry in
terms
of s 7(1)(b)(ii)).
[66]
The repeated reference in the memorandum to
the Mill Row Property case is also puzzling because, as discussed
earlier, the factual
and legal issues in that matter were materially
different. What it was that might have been found helpful in
comparing the factual
issues raised in the Mill Row case in respect
of a group housing development with those concerning adjoining
multi-storey buildings
in the city centre in the current case also
went unexplained.  The Mill Row case involved two rows of houses
in a suburban
setting.  The case did not raise any question
remotely comparable to that posed by an application which, if
approved, would
result in a multi-storey solid wall being built hard
up against the existing balconies on a neighbouring property.
What Mr
Howard said he drew from the judgment in that case (i.e. that
‘views, light and privacy may be impinged upon (sic) by
building
on neighbouring land provided that such building is
otherwise … permitted’) does, however, echo the nub of
his ‘aside’
and various passages of his answering
affidavit
[50]
:
That any building erected within the parameters of the
applicable zoning scheme restrictions had to be tolerated by
neighbours
irrespective of its adverse effects on their properties.
That understanding negates the distinctly
second
stage
character of the enquiry a local
authority is required to undertake in terms of s 7(1)(b)(ii).
[67]
What the absence of reasons, properly so
called, in the memorandum in respect of the implied determination of
the s 7(1)(b)(ii) does
show is that Mr Howard does not
appear to have appreciated that an important reason for the court in
the Mill Row case having declined
to interfere with the functionary’s
decision on review was its satisfaction that the decision-maker had
set out ‘
detailed, plausible and
justifiable explanations
’ for
arriving at the decision in issue in that case. In a matter like the
present that is confessedly ‘unusual’,
the reasons for
the decision are obviously a critical consideration in the
determination in a judicial review context whether the
decision is
one that an administrator could reasonably have made.  If one
were to assume that the absence of any reasons in
Mr Howard’s
memorandum falls to be understood in the context as denoting an
unqualified acceptance by him of the building
control officer’s
recommendation, then it is significant that he gave no indication of
having been astute to the material
flaws in the recommendation
identified above.  He certainly did not say anything to qualify
his approach from that evinced
in the recommendation.  Indeed,
as the applicants’ counsel pointed out, Mr Howard, in the
first of the paragraphs
of his memorandum quoted above (and indeed,
also at para. 102 of his answering affidavit on behalf of the
City) repeated the
building control officer’s incorrect
formulation of the test as expressed in
Walele
.
[68]
To recap, the decision in issue in the
current matter was made because of the functionaries’
misdirected opinion that any
conventional structure erected within
the applicable land use restrictions had to be factored in by anyone
purchasing a unit in
the adjoining Four Seasons property irrespective
of its effect on an extant building on the adjoining erf.  That
was a mistaken
view based on a misapprehension of the law.  The
functionaries failed to consider and address the question whether a
reasonable
and informed purchaser of a unit on the eighth floor of
the Four Seasons building would foresee that the regulating
authority,
having approved balconies along the common boundary would
permit the development of the adjoining erf in such a manner as to
effectively
destroy the utility of the balconies as such, and with
the degree of overbearing intrusiveness that allowing a three storey
solid
wall to be built up hard against them would unavoidably
occasion.
[69]
For these reasons I have concluded that the
applicants have established that the approval of the second
respondent’s building
plan application occurred in
circumstances in which the decision-maker was materially influenced
by an error of law (i.e. a misapprehension
of the import and
requirements of s 7(1) of the Building Act) and in which there
was a resultant failure by the decision-maker
to take into account a
relevant consideration (i.e. whether,
in
the peculiar factual circumstances
, the
construction of the second respondent’s building hard up
against the balconies on the eighth floor of the Four Seasons

building and close to the windows on the ninth and tenth floors in
the manner required by the provision gave rise to any of the

disqualifying factors).  The approval of the plans will
therefore be reviewed and set aside, and the application remitted
for
appropriate reconsideration by the first respondent.
[70]
Before concluding, I should mention that
there was quite extensive and contesting evidence adduced by the
applicants and by the
respondents concerning the impact of the
proposed additions to the Oracle Building on the market value of the
affected apartments
in the Four Seasons building.  The
applicants’ counsel submitted that if I found myself unable to
determine that issue
on the papers, they would wish it to be referred
for determination on oral evidence.  I do not propose, however,
to enter
into that question determinatively.  As mentioned, I
would imagine that if the proposed new building were found, upon
proper
enquiry in terms of s 7(1)(b)(ii), to be unacceptably
intrusive or overbearing in any relevant respect, and therefore
unsightly
or objectionable, it would probably follow that there would
be a derogation from the value of the affected apartments were its
construction to be approved.  But the question is one for the
local authority to decide in the context of a properly directed

determination of the required second stage enquiry.  If the
court were to purport to decide it, it would be overstepping its

review powers and putting itself in a role that the statute has
reserved for the local authority.  It is in any event a question

that cannot be determined in isolation from the other questions (some
of which have been indicated above) that the local authority
has to
answer in determining the building plan application.  This is
not a case in which the applicants contended for the
exceptional
remedy of a substitutive decision; on the contrary, they expressly
(and appropriately) prayed in their notice of motion
for an order
remitting the building plan application for determination by the
City.
[71]
After receiving the administrative record
produced by the City in terms of rule 53, the applicants amended
their notice of
motion to include a prayer that the building plan
application be remitted to the City to be reconsidered by a different
decision-maker
on the basis of a fresh recommendation by a different
building control officer.  The City’s counsel submitted
that the
amendment of the notice of motion was irregular because it
was not predicated on anything first disclosed to the applicants in
the administrative record.  Counsel cited
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
2009 (4) SA 529
(CC), at para. 53, in support of that argument.
They also submitted that the applicants had not adduced any evidence
in support
of the amended relief in the supplementary founding
affidavit put in in terms of rule 53(4).  The judgment in
Lufuno
is
not on point in my view.  The question in that matter was
whether the applicant had been entitled to make out an entirely
new
case in its supplementary founding affidavit.  All that the
applicants sought to obtain in terms of the contentious paragraph
in
their supplemented notice of motion in the current case was more
detailed ancillary relief in respect of the case that had been

advanced in their founding affidavit.  If the City considered
itself prejudiced by the amendment, it could have applied to
have the
supplemented notice of motion set aside as an irregular step.  I
think it was wise not to have done so.  In
my view, when a court
decides to set aside an administrative decision on review and remit
the matter for reconsideration, it is
within the court’s
discretion to decide
mero motu
,
predicated upon what appears to it to be just and equitable in the
circumstances, whether the remittal should be with or without

directions.
[51]
[72]
Meaning no discourtesy to the officials
concerned, I do think that it would be just and equitable to direct
that the reconsideration
of the second respondent’s building
plan application should be done on the basis of a freshly prepared
building control officer’s
recommendation and by a different
decision-maker.  (I understand that Mr Howard has in any event
retired, even though he reportedly
does still work for the City on an
ad hoc contract basis.)  It is desirable, particularly, in view
of the trenchantly expressed
aside by Mr Howard, that someone without
his preconceived opinion should decide the matter.  I should
make it clear, however,
that the order to be made does not require
the recirculation of the application for departmental comment.
An expeditious
determination is to be encouraged.  The building
control officer and decision-maker may, of course, make whatever
further
enquiries from any source they may consider appropriate.
[73]
Costs were sought only against the second
respondent in the notice of motion.  In argument, however, the
applicants’
counsel sought costs also against the City because
it had chosen to enter the fray and oppose the application.  The
City sought
costs against the applicants in the event of the
application being dismissed.  The usual consequence of an
administrator adopting
an actively oppositional role is an exposure
to costs.  I see no reason why the current case should be an
exception to that
rule.
[74]
The following order is made:
(a)
The
decision by the first respondent made on 25 February 2015, in terms
of s 7(1) of the National Building Regulations and
Building
Standards Act 103 of 1977 (‘the Act’), to approve the
building plan application submitted by the second respondent
under
plan no. 70155981 in respect of Erf 5284, Cape Town, at 41
Buitenkant Street, Cape Town, is reviewed and set aside.
(b)
The
building plan application is remitted to the first respondent for
reconsideration, with the following directions:
(i)
the
application is to be decided with reference to a fresh recommendation
in terms of s 6(1)(a) of the Act to be rendered by
a different
building control officer from that who prepared the recommendation
dated 25 February 2015; and
(ii)
the
decision is to be made by a person other than Mr Peter
Henshall-Howard
(c)
The
first and second respondents shall be liable jointly and severally
for the applicants’ costs of suit, including the costs
of two
counsel.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’ counsel:

J.G. Dickerson SC
D.W. Baguley
Applicants’ attorneys:

Slabbert Venter Yanoutsos
Wynberg
Norton Rose Fulbright
Cape Town
First respondent’s counsel:
S.P. Rosenberg
SC
E.F. Van Huyssteen
First respondent’s attorneys:
Webber Wentzel
Cape Town
Second
respondent’s counsel:
H.J. De Waal
Second respondent’s attorneys:
Brink De Beer & Potgieter Inc.
Tyger Valley
MacRobert Inc.
Cape Town
[1]
The relevant text is set out in
paragraph [21]
below.
[2]
The second respondent’s valuer
determined the distance as ‘
±
2.8’
metres.  (See para. 2.8 of the report of Mr. Saul Du Toit,
dated 8 February 2015.)  At the inspection
in
loco
, the depth of
the balconies was paced out and estimated to be between 3 and 3,5m.
[3]
The parking levels in the Four
Seasons building reportedly make provision for parking not only for
the residential units in the
building itself, they also provide 120
bays for The Square sectional title development on the opposite side
of Buitenkant Street.
[4]
Annexure PH2 to the City’s
answering affidavit.
[5]
The nature of the assessment
required in terms of the application for consent in terms of reg.
108 of the zoning scheme regulations
was described in the
departmental report as ‘… to determine the impact of
the proposed changes to the building façade
on the heritage
fabric of the area’.  The enquiry, as the report itself
points out more than once, was discrete from
that which it was
appreciated would require to be undertaken in terms of the Building
Act before the building plans could be
approved.  Obtaining the
consent required in terms of reg. 108 was one of the steps that the
second respondent had to take
to qualify their building plans as
compliant for the purposes of s 7(1)(a) of the Building Act.
The building plan
application was resubmitted to the City for
approval in terms of the Act in June 2014, approximately four months
after consent
had been obtained in terms of reg. 108.
[6]
See
De
Jong and Others v Trustees of the Simcha Trust and Another
[2012] ZAWCHC 387.
[7]
The respondents’ counsel did
not concede that an inspection
in
loco
would be
relevant to the determination of the case, but they raised no
objection to it.  At the court’s request the
parties put
in a minute constituting an agreed record of the observations made
at the inspection.  The most relevant part
of it goes as
follows:
3
The parties
then inspected unit 806 at Four Seasons, on the eighth floor.
On the balcony of this unit it could be seen that
the second
respondent’s building (‘the Oracle’) was built
hard up against the balcony of the units on the eighth
floor of Four
Seasons.
4
It was pointed
out that the Oracle had reached its maximum height, at least in
respect of the area in the vicinity of where the
parties were
standing.
5
It could be
seen that the façade of the room was glass and it was noted
that the distance from the glass façade
of the unit and (sic)
the balcony parapet wall is between 3 and 3.5 metres.  Stated
differently, the balcony is 3 to 3.5
metres deep.
6
The parties
then inspected unit 903 on the ninth floor of Four Seasons.
The unit had no balcony, but also had a glass façade.

It was pointed out that, while from that level one could ‘see
through’ the Oracle, this was temporary because that
part of
the Oracle will be walled in.  It was not clear whether this
was the case along the entire façade of the
Oracle; it was
pointed out, for example, that the lift wells would always be set
back from the common boundary.
[8]
Section 6(1)(a) provides: ‘
(1)
A building control officer shall-
(a)
make recommendations to the local authority in question, regarding
any plans, specifications, documents and information submitted
to
such local authority in accordance with section 4 (3)
’
.
Section
4 of the Act contains the provisions that make it compulsory for any
person desiring to erect a building to apply to the
local authority
for approval of the building plans.  The judgment in
Walele
held that the building control officer’s recommendation
was required to contain a motivated indication concerning the
existence
or not of disqualifying factors in terms of s 7 of
the Building Act.
[9]
The second respondent sought the
compensatory order purporting to rely on s
8(1)(c)(ii)(bb)
of the
Promotion of
Administrative Justice Act 3 of 2000
.
See
De Jong and Others
v The Trustees of the Simcha Trust and Another
[2013] ZAWCHC 178
,
2014 (4) SA 73
(WCC) and, on appeal from the
latter judgment,
Trustees
of the Simcha Trust v De Jong and Others
[2015] ZASCA 45, 2015 (4) SA 229 (SCA), [2015] 3 All SA 161.
[10]
In
De
Jong and Others v The Trustees of the Simcha Trust and Another
[2013] ZAWCHC 178
,
2014 (4) SA 73
(WCC) supra, at para. 30, the judge noted an undertaking given
on behalf of the City from the bar that it would not charge
the
second respondent a scrutiny fee if the plans were resubmitted in
the same form as those approved in 2008.
[11]
Section 7(5)
provides in material
part:
Any application in respect of which a local
authority refused in accordance with subsection (1)(b) to grant its
approval, may,
notwithstanding the provisions of
section 22
, at no
additional cost and subject to the provisions of subsection (1) be
submitted anew to the local authority within a period
not exceeding
one year from the date of such refusal-
(a) (i) if the plans, specifications and other
documents
have been amended in respect of any aspect thereof
which gave cause for the refusal
; and
(ii) if the plans, specifications and other
documents in their amended form do not substantially differ from the
plans, specifications
or other documents which were originally
submitted; or
(b)   ….
(Underlining
provided for emphasis.)
[12]
In paras. 78 and 81.
In
their heads of argument the City’s counsel submitted that
‘City officials cannot be expected to gain access to
all
neighbouring properties when considering applications for building
plan approval, inspect the subject property from that
vantage point,
and take that into account.  That would place an intolerable
and unjustified burden on the City officials,
who have limited time
and resources and have to deal with many thousands of applications
for building plan approval’.
This sort of generalisation
exaggerates the potential for burdensomeness.  Dealing with a
similar argument, the Constitutional
Court pointed out in
Turnbull-Jackson v
Hibiscus Court Municipality and Others
[2014]
ZACC 24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR 1310
, at para. 81,
‘
the level of
scrutiny by the decision-maker will depend on the facts of each
case’.  Gaining access to neighbouring
properties will
not be necessary in most cases. As will be described, the facts of
the current case were unusual - even the second
respondent’s
representatives had emphasised that aspect in their submissions to
the building control officer (quoted in
paragraph [15]
above) - and it was contended by
some of the affected parties that an inspection from their vantage
point was required for a proper
understanding of their arguments.
As it was, the building control officer reported that he had been to
the site on several
occasions. He did not explain why he could not
have accessed any of the affected Four Seasons apartments on any of
them.
Nor, for that matter, did he explain what it was about
the proposed development that had made him sufficiently anxious to
undertake
so many visits to the site.
[13]
National Building Regulations (made
in terms of s 17 of the Building Act).
[14]
At para. 49.
[15]
See
True
Motives
at
para. 30, where Heher JA illustrated the point as follows:
‘
Take, for
example, the case of a developer who builds to maximum bulk
[in
terms of the town planning scheme]
in
reckless disregard of market opinion. Such a person might well find
that his development, although falling within the strict
confines of
existing developmental controls, derogates from the value of an
adjoining property because the hypothetical purchaser
and seller of
that property would have regarded the likelihood of such a
development as too remote to influence their price
’.
[16]
In paras. 46-48.
[17]
In para. 79
[18]
In para. 76, holding that the
question was not before the court.
[19]
It is therefore not altogether
clear, with respect, what Brand AJ intended to convey in para. 33 of
Camps Bay
Ratepayers
when he
stated ‘
The
practical implication of the difference
[between
the majority judgment in
Walele
and the majority judgments in
True
Motives
]
appears
to be this: under Walele it is the applicant for approval of the
plans who must satisfy the local authority that the disqualifying

factors do not exist. Under True Motives it is the objector to the
plans who must satisfy the local authority about the positive

existence of the disqualifying factors.
’
Indeed, it was for that reason that I omitted the statement when
quoting from the paragraph at para. [25],
above.
[20]
Walele
at
para. 56.
[21]
Cf.
Turnbull-Jackson
at para. 82 and also at para. 110 (minority judgment).
[22]
Compare the reasoning of Heher JA
in respect of the effect of s 7(1)(a) in
True
Motives
supra, at
para. 19 (an aspect unaffected by the subsequent Constitutional
Court judgments).  As Froneman J implied
in para. 110 of
his minority judgment in
Turnbull-Jackson
,
a situation in which the decision-maker is left uncertain should
occur very rarely, if at all.  Any initial uncertainty
should
be almost always be capable of being resolved by further
investigation.
[23]
Cf.
Mobile
Telephone Networks (Pty) Ltd v Beekmans NO and Others
[2016] ZASCA 188
, at para. 23, on the relevant import of the
judgments in
Walele
and
Turnbull-Jackson
.
[24]
Compare the observations by Heher JA
in
True Motives
supra, at para. 34, with reference to the passages in para. 55 of
Walele
highlighted
by the learned judge in italics, and also the remarks of Cameron JA
at para. 94.  As Cameron JA acknowledged
in
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007 (1) SA 576
(SCA), at para. 31, the distinction can be
‘
notoriously
difficult to draw
’.
The learned judge of appeal identified part of the reason for the
difficulty as follows: ‘
This
is partly because process-related scrutiny can never blind itself to
the substantive merits of the outcome. Indeed, under
PAJA the merits
to some extent always intrude since the Court must examine the
connection between the decision and the reasons
the decision-maker
gives for it, and determine whether the connection is rational. That
task can never be performed without taking
some account of the
substantive merits of the decision.
’
See further Hoexter,
Administrative
Law in South Africa
2ed. (Juta), at pp. 108-111 and 351-352.
[25]
See
True
Motives
supra, at
para. 36
[26]
Cf.
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1998 (12) BCLR 1458
(CC),
1999 (1) SA 374
, at paras. 56-59 and
Pharmaceutical
Manufacturers Association of SA and Another: In Re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
,
2000 (2) SA 674
(CC),
2000 (3) BCLR 241
, at para. 17.
[27]
Referred to with approval in
Pepcor
Retirement Fund and Another v Financial Services Board and Another
[2003] ZASCA 56
,
[2003] 3 All SA 21
(SCA),
2003 (6) SA 38
, at para.
36.  Compare also the approach in respect of the review of
executive conduct under legislation framed using the
phrase ‘if
it appears to the Minister’ in
Minister
of Home Affairs and Another v Austin and Another
1986 (4) SA 281
(ZS), at 293H-294, and in similar vein
Office
of Fair Trading and others v IBA Healthcare Ltd
[2004] 4 All ER 1103
(CA), at para. 45.
[28]
In the sense of ‘reasonable’
that is well understood in the context of judicial review; cf. e.g.
Bel Porto School
Governing Body and Others v Premier, Western Cape, and Another
[2002] ZACC 2
,
2002 (3) SA 265
(CC),
2002 (9) BCLR 891
, at para. 87.
[29]
At para. 71.
[30]
Which was the
Walele
case at first instance.
[31]
At para. 26.  Cited with
approval in
Walele
at para. 56.
[32]
Delivered on 20 February 2015 in
case no.s 15073 and 15074/2013.
[33]
At para. 2.
It
appears from the first instance judgment that there were in fact
nine dwellings in the back row and eight in the front row,
which
solves the arithmetical puzzle of how the full court arrived at the
total of 17.
[34]
At para. 26.  The court did not
suggest, however, that it was not bound to determine the meaning of
the term, whatever the
difficulty that its inherent vagueness might
have presented.  It adopted the quoted definition given by the
court of first
instance.  The element of subjectivity that
necessarily followed from the employment of that definition was what
afforded
the wide degree of latitude consequently to be given in
assessing the reasonableness of any decision applying the concept.
[35]
Which, if correct, would suggest
that the original building plans for the development perhaps should
not have been approved on
account of non-compliance with the zoning
scheme’s requirements concerning the planning, designing and
building of a group
housing scheme.  The first instance
judgment in
Gerstle
indicates that the development was put up ‘in the 1980’s’,
so the building plans may have been approved before
the Building Act
came into operation in 1985.
[36]
At para.s 35-36.
[37]
The ‘co-ordinated and
harmonious development’ of land;
cf.
e.g.
Broadway
Mansions (Pty) Ltd v Pretoria City Council
1955 (1) SA 517
(A) at 523B;
Esterhuyse
v Jan Jooste Family Trust and Another
1998 (4) SA 241
(C) at pp. 253H-254B;
Intercape
Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs
and Others
2010
(5) SA 367
(WCC) at para. 104, and
JDJ
Properties CC and Another v Umngeni Local Municipality and Another
2013 (2) SA 395
(SCA),
[2013] 1 All SA 306
at para.s 28-29.
[38]
In para. 27.
[39]
In para. 18.
[40]
See the quotation from
Odendaal
v Eastern Metropolitan Local Council
in
para. [36]
above.
[41]
In para. 80.
[42]
First respondent’s heads of
argument, at para. 12.
[43]
As a general rule anyone may do with
his property what he wishes, even if it is to the disadvantage or
displeasure of another,
but when it comes to adjoining fixed
property it is readily apparent that there is less scope for the
unrestricted exercise of
rights.  The law has to make provision
for the clashing proprietary and utility interests of neighbours –
and it does
so by restricting property rights and imposing mutual
obligations on the owners.  (My translation.)
[44]
Regal v African Superslate
supra,
at 107C, citing
Cod.
3.34.14(1), which reads ‘
As
that is a perfectly plain rule of law which forbids a neighbour to
erect a building opposite the threshing floor of another,
where, by
trampling the dry grain, its benefit and utility may be secured,
but, by the construction of such a building, the wind
will be
obstructed, and, in consequence, the straw cannot be separated from
the grain, the wind being prevented by the building
aforesaid from
exerting its force everywhere, and, because of its position, the
wind will be of no advantage to the threshing
floor, We hereby
decree that no one shall be permitted either to build any house, or
do anything else to prevent the wind from
being made use of in a
proper and sufficient manner for the above-mentioned purpose, and
thereby render the threshing floor useless
to its owner, and
unavailable for the separation of
grain
’
(Scott’s translation.)
[45]
Walele
supra,
at para. 71.
[46]
The possible liability that the
local authority might have to the owner of the neighbouring plot in
such a case in respect of
the knock-on consequences for having
wrongly approved plans for building A to be erected is not a
question for decision in the
current case.
[47]
Cf. the definitions of ‘zoning’
and ‘land use restriction’ in s 2 of the Land Use
Planning Ordinance
15 of 1985 (Cape).
[48]
Examples were quoted at para. 52 of
the applicants’ counsel’s heads of argument.  I
take four of them:
‘
I
respectfully submit that the notion of intrusiveness as employed by
the Constitutional Court in this regard cannot mean proximity
as
regulated by the applicable zoning scheme
’.
‘
Proximity
would presumably be relevant, for example, to the consideration by
the local authority of a departure from the zoning
scheme to exceed
the building line.  The approval of such building line can then
possibly be said to exceed the legitimate
expectations of an
informed hypothetical buyer, even though they are lawful
’.
‘
Mr.
Jonker
[a property
valuer engaged by the applicants]
says
that a hypothetical informed purchaser would not have expected “a
building hard up against another residential building”.

But that is precisely what such a purchaser would have expected,
because that is permitted by the zoning scheme
’.
‘
What
has to be demonstrated is that a hypothetical informed purchaser
would not have expected a building so unattractive or intrusive
–
and intrusive in this context cannot mean proximity (because that is
regulated by the zoning scheme)
’.
[49]
Each case will call for a
determination on its own facts.  The hypothesis by the City’s
counsel that if the local authority
were required to take account of
the existence of the balconies in the current case, it would also
have to consider refusing
permission for the otherwise lawful
erection of a four storey house in front of an existing single
storey dwelling because it
would destroy the latter’s view
does not follow.  It is well-established that there is no such
thing as a ‘legitimate
expectation’ to the preservation
of a view; whether a neighbour might have a legitimate expectation
to the accommodation
of the ordinary utility of part of the built
component of its building when an adjoining property is developed is
quite a different
question.  How it might be answered will
always be peculiarly facts-dependent.
[50]
See note 48
above.
[51]
See s 8(1)(c)(i) of PAJA.