City of Cape Town and Another v Da Cruz and Another (A313/17) [2018] ZAWCHC 5; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (2 February 2018)

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[2018] ZAWCHC 5
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City of Cape Town and Another v Da Cruz and Another (A313/17) [2018] ZAWCHC 5; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (2 February 2018)

In
the High Court of South Africa
(Western
Cape Division, Cape Town)
[REPORTABLE]
Case no: A313/17
In
the matter between:
THE
CITY OF CAPE
TOWN
First
Appellant
THE
TRUSTEES OF THE SIMCHA
TRUST
Second
Appellant
(IT
1342/93)
and
JOAO
JOSE RIBEIRO DA
CRUZ
First
Respondent
THE
BODY CORPORATE OF THE
FOUR
SEASONS SECTIONAL TITLE SCHEME
(SS
269/08)
Second
Respondent
Coram
:
Hlophe JP, Fortuin et Sher JJ
Heard:
31 January 2018
Delivered:
2 February 2018
JUDGMENT
SHER
J (HLOPHE JP and FORTUIN J concurring):
1.
This is an appeal against a judgment and order which was handed down
by this court
[1]
in terms of
which it set aside the approval by the City of Cape Town (the 1
st
appellant) in February 2015 of certain building plans which were
submitted to it by the Simcha Trust (the 2
nd
appellant) in respect of erf 5284 Cape Town, and remitted such plans
for reconsideration. This was the second occasion on which
such
building plans were set aside on review. The first occurred in August
2013.
2.
The matter concerns the application of s 7(1) of the so-called
Building Standards Act,
[2]
which
regulates the conditions under which a local authority shall either
grant or refuse approval in respect of building plans,
which the Act
requires
[3]
must be submitted
to, and approved by it, before any building may be erected.
3.
As the court a
quo
remarked
in the introductory paragraph of its judgment s 7 has been a fertile
site for litigation and its interpretation has been
the subject of
divergent reported judgments of the Supreme Court of Appeal
[4]
and the Constitutional Court.
[5]
That it concerns a somewhat vexed area of the law is evident from the
fact that in two of these matters it took the Supreme Court
of Appeal
and the Constitutional Court in the order of 7 months before judgment
was handed down,
[6]
with the
former describing the structure of the provision as ’confusing’
[7]
and the latter as the subject of much contestation.
[8]
Furthermore, an offshoot of the present dispute has also been the
subject of 2 reported judgments, one by this court
[9]
and one by the Supreme Court of Appeal.
[10]
The
background
4. The respondents are
the owner of a residential unit in, and the body corporate of, the
Four Seasons sectional title scheme which
manages the Four Seasons
building which is situated in Buitenkant street, Cape Town. The
building was erected between 2005 and
2007 and occupies some 17
storeys.
5. The Simcha Trust is
the owner of an adjoining property on erf 5284 which it acquired in
October 2006 and which is situated on
the corner of Buitenkant and
Commercial streets. At the time when the Trust acquired the property
there was an old four-storey
office block on it. The Trust’s
intention was to redevelop the property into an upmarket hotel
complex which was to be known
as the ‘Oracle’.
6. In terms of the City’s
zoning scheme the area in which the 2 buildings are situated is zoned
for mixed use, thereby permitting
both commercial and residential
buildings to be erected. This zoning allows for so-called 100%
coverage ie property owners have
the right to build over their entire
erf and unlike areas which are zoned residential there is no
stipulation in respect of any
setback, in terms of which building
works may not extend up to a common boundary and may only go up to a
set building line. However,
although there is no legal prohibition to
this effect, as a matter of common practice in such mixed-use areas
habitable spaces
with windows or balconies are not usually
constructed along common boundaries, and in the case of 2 adjoining
erven with such coverage
rights façades on the common boundary
are ordinarily reserved for non-habitable utility areas such as
lifts, stairwells,
passages, or storerooms. As these spaces are
non-habitable they do not require windows for light and ventilation
in terms of the
National Building Regulations.
7.
The developers of the Four Seasons building did not follow this
architectural convention and, as it was somewhat euphemistically
put,
in order to extract ‘maximum value’ from their
development from the 8
th
floor upwards (the levels below that were reserved for parking)
provided in their building plans for apartments which faced towards

the common boundary with erf 5284. In order to comply with the
requirements of the Building Regulations in relation to the risk
of
fire spreading to or from an adjoining building,
[11]
and sufficient light and ventilation,
[12]
these apartments were required to be stepped back a distance of
approximately 3m from the common boundary. The plans made provision

for the erection of balconies for the 8
th
floor apartments (over the roof of the garage level underneath),
which extended over the 3m setback up to the common boundary.

Although (as an architect and a former Head Principal Planner of the
City’s central zoning section who deposed to supporting

affidavits on behalf of the Trust pointed out
[13]
),
the plans were thus contrary to well-established practice and ‘out
of kilter’ with the rest of the buildings in the
area, they
were approved by the City’s planning department without demur.
The court a
quo
commented that from the aerial photographs which were annexed to the
parties’ affidavits the Four Seasons building thus constitutes

a ‘striking exception to the rule’ in relation to
buildings in the area.
[14]
8. The Trust delivered
its plans for the Oracle development to the City in October 2007. By
that time the adjoining Four Seasons
development was complete. The
plans provided for the renovation of the existing four-storey
building and the erection on
top of it of a further four storeys,
with a terrace on the roof. In essence the plans, if implemented,
would result in the top
three storeys of the Oracle building
virtually ‘abutting’ as a blank and solid wall, against
the apartments on the
8
th
to 10
th
storeys of
the Four Seasons building, along the common boundary. As is customary
in such matters copies of the plans were not provided
to the owners
of any of the neighbouring buildings. and the affected owners of
units in the Four Seasons building were thus unaware
of what was
envisaged. After the plans were approved by the City in September
2008 the Trust commenced preliminary construction
work, but the
project was called to a halt shortly thereafter following the global
economic downturn.
9. Building work only
resumed some 4 years later, in May 2012. The affected owners of units
in the Four Seasons building were initially
unconcerned by the
construction that was taking place, until or about September, when
they noticed that the adjacent building works
were being erected
flush on the common boundary and at zero setback, ‘hard-up’
against the balconies on the eighth
floor. They pointed out in a
letter of objection from their attorneys, that they were unaware that
the City had approved plans
which allowed for this and that they had
expected that the Trust’s building would be stepped back once
construction reached
the residential part of the Four Seasons
building.
10. A request to cease
work pending a review of the approval of the building plans was not
acceded to and consequently in November
2012 an application for an
interdict preventing any further building work pending the outcome of
such review was launched. After
hearing argument and conducting an
inspection in
loco
Dolamo J granted the interdict, and the
review was launched soon thereafter.
11.
The state of construction at the time when the building works were
interdicted can best be seen and understood from the photographs
[15]
at pages 48-60 of the record, which the court a
quo
said amply illustrated the “
confining
effect
”
on units in the Four Seasons building of the construction on the
common boundary, an effect  which was most striking
at the 8
th
floor level, where the balconies had effectively been converted into
“
small
courtyards confined between towering walls
”.
[16]
12.
The review was eventually conceded by the City and the Trust, and by
agreement between the parties an order was taken in August
2013
whereby the City’s approval of the plans was set aside. The
concession followed upon the fact that contrary to the injunction
by
the Constitutional Court in its judgment in
Walele
[17]
(which was handed down some 4 months before the plans were approved),
the functionary who made the decision to approve the plans
did so on
the basis of a simple endorsement from the City’s Building
Control Officer
[18]
instead of
a properly considered and motivated recommendation.
13. It is not necessary
to say much more about the first review application, other than to
point out that apart from the grounds
on which they eventually
succeeded the affected owners and the body corporate also averred, in
their papers, that the plans were
liable to be set aside on the basis
that if implemented they would result in a derogation of value to
affected units, within the
meaning ascribed to that term in s7. But
more about that later.
14.
After conceding the review the Trust made application for an order
that the City should compensate it
[19]
for the legal costs it had incurred in the interdict and review
proceedings and in respect of certain building expenses and related

costs which it alleged flowed from the City’s failure to give
proper effect to the judgment in
Walele
.
The claim was dismissed by Rogers J in November 2013 and a subsequent
appeal to the SCA was dismissed in February 2015.
15.
In the absence of any further building works, and on the
understanding that the review court had set aside the plans for the

Oracle development and no new plans had been submitted to the City
for approval, during October 2014 the Four Seasons body corporate

launched an application for an order directing that the partially
constructed building works on erf 5284 be demolished. In response
the
Trust indicated that a new application for approval of building plans
had been submitted to the City during June 2014. In this
regard it
appears that the City was of the view that the process would have to
commence from scratch and it had required the Trust
to submit a fresh
set of plans for reconsideration. This time round the process was
more rigorous in that the City required the
Trust to advertise the
plans for public comment in relation to certain heritage aspects.
[20]
After a lengthy public consultation process and the processing of
objections the heritage aspect of the application was approved
in
January 2014.
16. In December 2014 the
City invited the affected owners and the Four Seasons body corporate
to comment on the re-submitted plans.
On 23 January 2015 their
attorneys duly delivered a detailed submission to the Head of the
City’s Building Development Management
Section (who was the
relevant delegated functionary responsible for considering whether or
not to approve the plans), which outlined
the history of the matter
and the case law in respect of s 7 of the Building Standards Act, and
with reference to the requirements
contained therein set out a number
of objections to the plans.
17. The body corporate
and affected owners contended that in terms of s 7 the City was
required not only to consider whether the
plans were technically
compliant with the standards demanded by the Act and the Building
Regulations promulgated in terms thereof,
but also whether the
building to be erected in terms of such plans would be “
unsightly
or objectionable
”, or would derogate “
impermissibly
”
from the value of adjoining or neighbouring properties. In their
view, the plans failed on each of these counts and should
therefore
be refused.
18. They submitted that
in terms of
Walele
the City was required to positively satisfy
itself that none of these disqualifying factors were present, and to
this end  requested
an opportunity to meet on site with the Head
of the Building Development Management Section, as well as the
relevant plans examiner
and the Building Control Officer as in their
view this was indispensable for a proper appreciation of whether or
not the building
works carried out by the Trust were “
unsightly
or objectionable
” or would derogate “
impermissibly
”
from the value of  neighbouring properties. In this regard they
contended that the Oracle building was so “
intrusive and
overbearing
” that it exceeded the legitimate expectations
of any notional informed buyer of an affected unit on the 8
th
to 10th floors of the Four Seasons building, in regard to what might
be built along the common boundary.
19.
From the answering affidavit which was filed by the Head of the
Building Development Management Section it does not appear that
he
did anything in response to the submissions that were made to him, at
that point in time. He said he did have regard for the
contents
thereof at a later stage, when considering whether or not to approve
the plans, after the Building Control Officer had
favoured him with
his recommendations. He did not take up the invitation to attend an
inspection in
loco
and adopted the attitude that City officials could not be expected to
gain access to neighbouring properties when considering applications

for building plan approval, in order to inspect the subject property
from “
that
vantage point
”
(sic) and take what they saw into “
account
”,
as that would place an “
intolerable
and unjustifiable burden
”
on them, as they had limited time and resources and had to deal with
many thousands of such applications.
[21]
20.
The submissions by the affected Four Seasons owners and its body
corporate found their way to the Building Control Officer.
He
said
[22]
that in order to
ensure a fair and transparent process he forwarded it on to the
Trust’s attorneys, and on 9 February 2015
he received an
equally detailed submission in response, from them, which included a
memorandum prepared by the Trust’s legal
representatives
together with copies of the papers in the pending application for
demolition and reports by an expert valuer (Du
Toit) and a planner
(Saunders).
21.
I do not think it will be unduly brief or unfair to summarize the
contents of the memorandum and the expert reports by saying
that, in
essence, they each claimed, in their own way, that although the
building works could indeed be viewed by the neighbouring
affected
owners of units in the Four Seasons as “
intrusive
or unattractive
”,
inasmuch as their design and construction were conventional and in
line with contemporary architectural trends and existing
surrounding
developments, they were not unsightly or objectionable within the
meaning of s 7, nor did they derogate from the value
of neighbouring
properties. Insofar as the latter was concerned it was submitted
(with reference to the decisions of the Constitutional
Court in
Camps
Bay Ratepayers
[23]
and the Supreme Court of Appeal in
True
Motives
[24]
)
that derogation of value could only be constituted where the building
was so intrusive that it exceeded the legitimate expectations
of
parties to a hypothetical sale, and inasmuch as the zoning scheme
allowed for 100% coverage and zero set-back, the notional
parties to
such a sale of any affected Four Seasons units would always have had
in mind that the owners of erf 5284 could build
right up to, and on
the common boundary, thereby obliterating whatever view, space and
light they might have had. Thus, there could
never be any claim for
derogation of value by such affected parties.
22. Following receipt of
the Trust’s response the Building Control Officer conducted a
number of what he described as “
site inspections
”.
Presumably this was a reference to the building site on erf 5284, as
it is not expressly apparent from his report that
he ever inspected
any other properties. Thereafter, the Building Control Officer
compiled a report dated 25 February 2015, which
he forwarded on to
the Head of the Building Development Management Section. The contents
of the report are dealt with in some detail
below. It will suffice,
at this stage, merely to point out that the Building Control Officer
concluded that the application complied
with the legal and technical
requirements of the Building Standards Act, and there was “
no
basis to be satisfied
” (sic) that the “
proposed
”
building (this is a somewhat peculiar formulation as the plans he was
assessing were in respect of a largely existing building
which was
substantially complete) would be erected in such a manner or would be
of such a nature or appearance that it would disfigure
the area, or
that it would be unsightly or objectionable or would derogate from
the value of adjoining properties.
23. On the very same day
that the Building Control Officer’s report was forwarded to him
the Head of the Building Development
Management Section approved the
application.
The law
24.
S 7(1) has two parts. S 7(1)(a) provides that if a local authority,
having considered a recommendation by the Building Control
Officer,
is satisfied that an application for the approval of building plans
complies with the requirements of the Building Standards
Act and any
other applicable law it shall grant its approval in respect thereof.
S 7(1)(b) provides that if it is not so satisfied,
[25]
or if it is satisfied that the building to which the application
relates is to be erected in such a manner or will be of such nature

or appearance that it will probably or in fact be “
unsightly
or objectionable
”
[26]
or will derogate from the value of adjoining or neighbouring
properties,
[27]
it shall
refuse to grant its approval.
25.
In
Walele
[28]
the Constitutional Court held that third party owners of adjoining
properties could not claim, on the basis of the
audi
alteram partem
principle, that they had either a right or a legitimate expectation
to being heard in pending applications for building plan approvals

which had been lodged by neighbours. This was because the approval of
such plans by a local authority could not in itself cause
any
prejudice to them, and it was only the erection of any building in
terms of such plans which might do so.
[29]
But, because of this, and motivated by the provisions of s 39 of the
Constitution
[30]
the Court was
of the view that the provisions of s 7 had to be construed not in a
literal but in a purposive manner, which took
account not only of a
landowner’s rights of ownership, but also the rights of owners
of neighbouring properties which might
be adversely affected by the
erection of buildings in terms of plans which had been
authorized.
[31]
Consequently,
the Court was of the view that the relevant decision-maker who had to
consider an application for the approval of
building plans had to be
satisfied, not only that the plans complied with the necessary legal
requirements
[32]
(ie with the
Building Standards Act, the Building Regulations and the zoning
scheme regulations), but  also had to be satisfied
that none of
the disqualifying factors set out in s 7(1)(b)(ii) would be triggered
by the erection of the building concerned.
[33]
Construed in such a manner the section would strike the right balance
between the landowner’s rights of ownership over the
subject
property, and the rights of owners of neighbouring properties, and
would promote both such sets of rights.
[34]
26.
The interpretation afforded to s 7(1) by the court in
Walele
was understood to mean that a functionary who had to consider whether
to grant approval for building plans had a
positive
duty
to satisfy him- or herself not only that the plans were legally
compliant, but also that the building which was to be erected in

terms thereof would
not
(actually or probably) disfigure the area
[35]
or be unsightly or objectionable
[36]
or derogate from the value of neighbouring properties.
[37]
According to such an interpretation in the case of doubt an
application for the approval of building plans would therefore have

to
fail
.
[38]
27.
However, in
True
Motives
[39]
the Supreme Court of Appeal differed from this interpretation which
it held it was not bound to follow as, in its view, it was
wrong and
obiter
.
Although the controversy over the proper interpretation of s 7(1) was
subsequently laid to rest by the Constitutional Court in
the decision
in
Turnbull-Jackson
[40]
(which affirmed the interpretation adopted in
Walele
and held that it was not
obiter),
it is necessary to discuss the approach which was adopted by the SCA
in
True
Motives
in more detail as, in our view, if one carefully considers the
contents of the report of the Building Control Officer and the
memorandum of the Head of the Building Development Management Section
in this matter, it appears that the authors thereof incorrectly

applied the test which was espoused in
True
Motives
,
rather than that which was laid down in
Walele
and confirmed in
Turnbull-Jackson.
28.
On their interpretation of s 7(1) the majority of the Court in
True
Motives
agreed (as per
Walele
)
that as far as the requirements of subsection (a) were concerned,
framed as it was it imposed a duty on the local authority to

‘positively’ satisfy itself that an application for the
approval of building plans was technically and legally compliant.
In
respect of s 7(1)(b) and the disqualifying factors set out therein
however, it was of the view that the subsection did not authorize
a
local authority to refuse to grant its approval if there was only a
mere possibility that one of those factors might eventuate-it
needed
to be a probability or an actuality. As the Court put it: “
The
Act is not to the effect that the local authority may withhold
approval because it is not satisfied that the building will not
cause
one of those outcomes”.
[41]
According to this approach therefore, where a local authority
might have some “
level
of concern
”
about whether a proposed building would disfigure the neighbourhood
or would be unsightly or objectionable, or would derogate
from the
value of neighbouring properties, if it was not at a “
high
enough level
”
for it to be satisfied that such an outcome was probable, it was
required to approve the application.
[42]
According to such an interpretation in the case of doubt an
application for the approval of building plans would therefore have

to
succeed
.
29.
In
Camps
Bay Ratepayers
[43]
Brand AJ explained that the practical effect of this difference meant
that under the
Walele
approach it would inevitably be the
applicant
for approval of the plans who would have to satisfy the local
authority that the potentially disqualifying factors
did
not
exist,
whereas in terms of
True
Motives
it would be the
objector
to the plans who would have to satisfy the local authority about the
“
positive
existence
”
of such factors. And importantly, whereas in terms of
Walele
there would be an obligation on the local authority to “
ensure
the absence
”
of such factors before it could grant approval, no such obligation
would exist in terms of
True
Motives
.
[44]
The law applied
(i)
The report of the
Building Control Officer
30. It is time to
consider the Building Control Officer’s report, which was the
bedrock for the decision which was ultimately
made by the Head of the
Building Development Management Section, and the memorandum prepared
by the latter, which sets out the
basis for how and why he arrived at
his decision to approve the application. The court a
quo
made
detailed reference to these documents in its judgment.
31. Having received a
copy of the detailed objections from the affected owners and Four
Seasons body corporate the Building Control
Officer was clearly alive
to the complaints raised therein. In relation to the disqualifying
factors listed in s 7(1)(b)  he
divided his assessment into 2
groups: Firstly, whether the area would be disfigured or the
‘proposed’ building would
be unsightly or objectionable
and secondly, whether there would be derogation in the value of
adjoining properties.
32. In
regard to the former he said he was required to advise whether there
was “
any
basis to be satisfied
”
that any of the relevant factors “
would
“ actually or probably occur.
[45]
The appellants submit that in phrasing the test which he adopted in
the way that he did the Building Control Officer was doing
no more
than to follow the literal wording of the subsection in question, and
it did not mean that he misapplied the requisite
test which was laid
down in
Walele
,
or that he wrongly adopted the test which was set out in
True
Motives
instead.
We do not agree. In our view, from an overall reading of his report
it is abundantly clear that the Building Control Officer
wrongly
applied the
True
Motives
test instead of that in
Walele
.
The words he used indicate that he understood his duty to be one of
assessing whether or not there were sufficient grounds (a
“
basis
”)
for him to conclude, on a balance of probabilities, that any of the
potentially disqualifying factors
would
eventuate. The proper approach which he should have adopted was to
determine whether he was positively satisfied, on a balance
of
probabilities, that any of such factors
would
not
.
That we are in fact not just dealing with semantics but with the
adoption of the wrong test is borne out by a number of other
comments
in like vein which are interspersed throughout his report.
33.
So, for example, he said that whilst the new development might be
“
controversial
”
and notwithstanding its ‘height and placement’ on erf
5284, he could “
find
no reason to be satisfied
”
that it
would
disfigure the area (instead of determining that it would not.)
[46]
Once again, the test which he applied appears to be based on the
True
Motives
interpretation of s 7(1), instead of that adopted in
Walele
.
34.
In dealing with the issue of disfigurement he pointed out that the
area concerned was characterized by a mix of buildings (which
varied
in age, height, bulk and architectural form), of which a number were
taller than the ‘proposed’ building and
were erected on
common boundaries.
[47]
In
fact, according to him there was a trend in the CBD to develop
properties to their ‘full potential’ and this was
the
‘norm’ for developments in the City.
[48]
He did not however mention, as the respondents and the court
a
quo
pointed out, that whilst it is apparent
[49]
that there are buildings in the area which abut against one another
along a common boundary, none of the abutting portions of such

buildings consist of habitable accommodation.
35.
Notwithstanding this, the Building Control Officer was of the view
that as the right to build on the common boundary existed
‘all
along’, whilst some might indeed regard the proposed building
as “
intrusive,
unattractive and unreasonable
”
(sic) the march of progress made such “
changes
inevitable”
as they occurred within the permitted ‘parameters’ for
development.
[50]
He therefore
did not ‘agree’ that the possibility of allowing a
building zero metres from the boundary was so remote
as to justify
dismissing it.
[51]
He also did
not ‘agree’ with the affected owners’ contention
that they expected that the Trust’s building
would be stepped
back, once it reached the residential levels of the Four Seasons
building. He said such an expectation was “
nowhere
established in law
”
(sic) and upholding such an expectation would undermine the
development rights of erf 5284.
[52]
36. These remarks not
only reflect a number of material flaws in the logic of the Building
Control Officer’s reasoning, but
further vividly illustrate the
fundamental misconceptions he laboured under in regard to the
applicable law.
37. In the first place,
the fact that owners of immovable properties in the CBD of Cape Town
which have been zoned for mixed use
enjoy 100% coverage rights, and
therefore in the absence of any required setback may be able to build
across their entire property
up and onto a common boundary with an
adjoining property, does not necessarily mean that they should, or
will, be entitled or permitted
to do so, nor does it mean that they
can therefore build what they like.
38.
As the court a
quo
pointed out, in our law rights of ownership over immovable property
have never been considered to be either supreme, or absolute.
They
are subject to all manner of restrictions both at common law (where
the law pertaining to relations between neighbours is
moderated by
the principle of reasonableness
[53]
)
as well as by the provisions of various statutes, which in the
context of this matter include those pertaining to zoning scheme

restrictions and s 7, which allows expressly for the refusal of
building plans where these would result in the erection of a building

which would be objectionable, unsightly or a danger to life or
property, or which would derogate from the value of neighbouring

properties. As such, as the court a
quo
rightly pointed out
[54]
in
discharging its functions in regard to the evaluation and the
approval or refusal of building plans a local authority is required

to act, in a sense, as a moderator between the potentially
conflicting rights and obligations of neighbours.
39.
In the circumstances, the basic premise from which the Building
Control Officer proceeded to consider the objections by the
affected
owners and the Four Seasons body corporate was flawed. His
understanding was that as long as the owner of the subject
property
sought, in its plans, to put forward a construction which was
permitted by the zoning scheme and which was otherwise legally

compliant (in a formal sense), the owners of neighbouring properties
had to accept any intrusiveness which would result, even if
it were
gross and unreasonable, because this was the inevitable consequence
of progressive development within the City. This amounted
not only to
a basic misunderstanding of the legal position but to an abdication
of the duty which the Building Control Officer
had to weigh up the
envisaged development against the probable negative effect it would
have on neighbouring properties. As the
court a
quo
pointed out,
[55]
it is very
noticeable that in his detailed report the Building Control Officer
failed to set out and evaluate the possible effect
which the
construction on erf 5284 would have on the owners of units in the
Four Seasons building, from their perspective.
40.
Secondly, it is not clear what the Building Control Officer meant
when he referred to there being no ‘established expectation
in
law’ that the building works on erf 5284 would be stepped back
at a certain level of the Four Seasons building. Usually,
when such
language is used one is understood to be referring to a so-called
‘legitimate expectation’, a concept which
has been
developed by the courts to protect a substantive benefit, advantage
or privilege which a person is expected to acquire
or retain, and
which it would be unfair to deny him or her, without prior
consultation or an opportunity to be heard.
[56]
41.
The rationale for the development of the concept was to cover
situations where there was no existing right which could be relied

upon, and thus ordinarily no remedy when, as a matter of fairness,
the facts cried out for one in order to protect an individual
from
decisions being arrived at unfairly by public authority.
[57]
In its ordinary and usual application it operates to afford affected
persons a right to be heard, prior to a potentially adverse
decision
being taken against them which would affect their rights or status in
some way or other.
[58]
Thus,
it has traditionally been considered to afford only a procedural and
not a substantive remedy to an affected person,
[59]
and whether or not a legitimate expectation has been established is
primarily a factual enquiry based on the objective facts, and
the
parties’ state of mind is irrelevant.
[60]
Commonly, it is constituted by or founded upon a practice which has
been followed, or some undertaking, promise or representation
which
is made by one party to another.
[61]
42.
This accepted understanding of a legitimate expectation must be
distinguished from the wording used in
Camps
Bay Ratepayers
,
[62]
where Brand AJ spoke of the ‘legitimate expectations’ of
notional informed parties to a sale. The remarks which the
learned
judge made in that matter were in the context of derogation of value
in terms of s 7(1)(b)(ii). He pointed out that the
reference in the
subsection to ‘value’ was to be understood as ‘market
value’,
[63]
which
commonly was defined as the price which an informed buyer would pay
an informed seller in a notional transaction, where the
parties would
have contemplated all the potential risks, both realized and
unrealized, in respect of a
merx
.
One of the unrealized risks that such parties would contemplate would
be that a neighbouring property, if unimproved at the time,
might in
future be built upon in a manner which might detract from the views,
privacy, position etc which the subject property
previously enjoyed.
However, as a ‘counterbalance’ to this the parties would
have in mind that any such future building
works would be constrained
by the restrictions imposed by town planning, zoning scheme and
building regulations. As a result, if
any such risk was later
realized it would ordinarily not have any effect on the market value
of the subject property as it would
already have been discounted,
given that it would have been within the parties’ contemplation
at the time of the notional
transaction. Consequently, the fact that
a neighbouring building may be erected which interferes with the
previously existing attributes
of an adjoining property will not in
itself necessarily be regarded as derogating from the value of such
property.
[64]
43.
Thus, Brand AJ pointed out,
[65]
derogation from market value would only commence when the negative
attributes or effect of the new building would contravene zoning,

building or planning restrictions
[66]
or when the new building, although legally compliant with such
restrictions would, by way of example, be “
so
unattractive or intrusive
”
that it would be considered to exceed the “
legitimate
expectations
”
of the parties to the hypothetical sale.
[67]
44. The reference to
‘legitimate expectations’ in
Camps Bay Ratepayers
is therefore to be understood as a reference to the hypothetical
range of future possibilities which the parties to a notional
sale
would, as a legal construct, be considered to have had in the
forefront of their minds, at the time, and is not to be confused
with
the concept of a ‘legitimate expectation’ as it has been
established in law, in order to protect a party, by way
of a
procedural remedy, from the adverse consequences of a decision being
taken by another without a prior opportunity to be heard.
45. As the concept of the
legitimate expectations of hypothetical parties, as referred to in
Camps Bay Ratepayers
, requires a determination of what would
have been in their minds at the time of a notional sale, this is an
issue which will need
to be determined based on the peculiar facts
and legal constraints of an individual application for the approval
of building plans.
It is not predicated upon some fixed or
established expectation in law. As such, on this aspect too, the
Building Control Officer
made no proper determination and erred in
his appreciation of the legal test which was applicable.
46.
The Building Control Officer also erred materially in regard to his
treatment of the issue of potential derogation of value
to
neighbouring properties. Once again, at the outset,
[68]
he wrongly postulated the test as being whether the City was
satisfied that the proposed building
would
have such a deleterious effect (as per the
True
Motives
approach), instead of whether it was satisfied that it
would
not
(as required in terms of
Walele
).
47.
And once again, in respect of this issue too, his recommendation was
based on the starting premise of what was permitted by
the applicable
zoning restrictions, which he said provided the subject property with
a ‘long-standing right’ to develop
a ‘higher’
building on the common boundary, which was in accordance with the
common practice within the CBD and what
he considered to be a trend
towards densification. Therefore, in his view a developer could
reasonably be expected to erect a building
of the ‘maximum
size’ permitted by the scheme regulations, on the property.
[69]
48.
In like vein, whereas he found that the proposed building would
interfere with the existing views and the privacy and light
of
surrounding properties he was of the opinion that so long as it was
legally compliant with the restrictions imposed by law,
such
interference could not ‘in itself’ be regarded as
derogating from the value of the surrounding properties.
[70]
49.
Insofar as the issue of possible derogation from value in terms of s
7(1)(b)(ii) is concerned, as we explained earlier the fact
that plans
for a proposed building are legally compliant with zoning, planning
and building requirements, does not mean that the
building which is
to be erected in terms thereof should, on this account alone, be
permitted to be erected by a local authority,
particularly if the
negative attributes of the proposed building are considered not to
have been within the legitimate expectations
of the notional informed
parties to a hypothetical sale. As such, it is not whether the height
or size of the building on the subject
property was within the
legally permitted parameters that was the issue to be postulated and
determined by the Building Control
Officer, but whether the erection
of the proposed building hard-up on the common boundary, abutting the
balconies on the 8
th
floor (in such a manner as would render them essentially
useless),
[71]
and the units on
the 9
th
-10
th
floors of the Four Seasons building, fell within the notional
contemplation of the aforesaid hypothetical parties. On this score

too, it is apparent that he failed signally to appreciate the nature
of what the proper legal test was, and misunderstood it.
Given
that the Building Control Officer himself recognized that the
‘proposed’ building was intrusive and affected
the
privacy and light of neighbouring Four Seasons units, what he needed
to ask himself was whether a construction on the common
boundary of
erf 5284, which had such an effect could reasonably be expected to
have been one of the unrealized risks in the minds
of informed
parties to a notional sale, or whether it was too remote, in which
case derogation from value would have been established.
50.
Even if the Building Control Officer only had regard for the decision
in
True
Motives
he should have realized that the ‘development rights’ of
an owner in regard to the maximum permissible size or height
of a
building which he might put up, could not trump the restrictions
imposed on such rights in terms of s 7(1), as was clearly
illustrated
in
True
Motives.
As Heher JA put it:
[72]
“
Take,
for example, the case of a developer who builds to maximum bulk in
reckless disregard of market opinion. Such a person might
well find
that his development, although falling within the strict confines of
existing development 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
.”
51. Finally, and
consistent with his earlier approach, in the concluding paragraphs of
his report the Building Control Officer again
stated that in his view
there was ‘no basis to be satisfied’ that any of the
disqualifying factors set out in s 7(1)(b)
were present or were
likely to occur, which again confirms that he incorrectly applied the
True Motives
test instead of that in
Walele
.
(ii)
The memorandum by
the Head: Building Development Management
52. We now turn to deal
with the memorandum by the Head: Building Development Management,
which is all of a single page long. He
stated therein that he
received the application forms together with the full set of plans,
‘Land Use documentation’,
and the detailed submissions
made by the various parties, as well as the Building Control
Officer’s report, duly considered
these and concluded that he
could find no reason not to approve the application. According to his
answering affidavit, all of this
was done on one and the same day, 25
February 2015. This alone is cause for alarm, given the volume of
paperwork concerned and
the thorny issues raised by the parties.
53. The submissions which
were made by the affected owners and the Four Seasons body corporate
were in the order of 13 pages, and
those made in response by the
Trust comprised a memorandum from counsel of 13 pages, a report from
a valuer comprising 23 pages
and an 8 page report from an erstwhile
town planner, as well as an album of photographs and presumably also
the papers in the demolition
application (which were not included as
part of the papers in the review, but which on their own were likely
to be voluminous).
And no doubt there would also have been a file of
sorts in respect of the previous application for the approval of
plans for erf
5284, and the legal challenge thereto, which he would
have had regard to. If one considers that in addition to all of this,
in
order to arrive at a properly considered decision he was also
required to have careful regard for the contents of the report by
the
Building Control Officer and to find his way around complex and
sometimes conflicting legal principles (set out in the various

Constitutional Court and Supreme Court of Appeal judgments which we
have referred to above), which were expounded upon in the report
and
in the parties’ respective submissions, than it is
inconceivable that he could have read all the papers and given the

matter the kind of careful consideration it required in order to
arrive at a reasoned and balanced decision, on one and the same
day,
even if this was the only such application which he was required to
attend to on that day.
54.
The impression which one gets from a reading of the memorandum which
he supplied, which appears also to have been drafted on
the same day
that he made his decision, is that he had a cursory and uncritical
look at the report of the Building Control Officer
and simply
endorsed the general approach which it adopted and its conclusions.
As the court a
quo
rightly pointed out,
[73]
although
in his answering affidavit
[74]
he
claimed that the reasons for his decision were set out in his
memorandum, in fact apart from certain comments which he made as
an
aside, and a “
not
altogether coherent reference
”
to his understanding of certain case law, the memorandum does not
furnish any reasons, as such, for the conclusions which
he arrived
at. If we are correct in this regard the decision which he ultimately
arrived at was therefore not one made in the course
of a proper,
reasoned and independent application of the mind, and amounted to
little more than a rubber-stamping exercise.
55. The memorandum
adopted the same categorisation which the Building Control Officer
did, and divided the assessment into 3 categories:
Firstly, whether
or not the plans were legally compliant and secondly, whether or not
if implemented they would result in a building
which would disfigure
the area or which would be unsightly or objectionable and finally,
whether or not they would result in additions
which would derogate
from the value of adjoining properties.
56. It is noticeable that
it is only in regard to the first issue that the Head: Building
Development Management said that he considered
the recommendations by
the Building Control Officer, and after assessing the plans and the
specifications annotated thereon he
was satisfied that they were
compliant. In marked contrast to this, when he dealt with the other
two aspects he was required to
consider he did not state that he had
regard for the contents of the report of the Building Control Officer
at all. In this regard
he pertinently stated in respect of the second
issue, that having assessed the plans and having regard for the
submissions by both
parties he was “
not satisfied
”
that the area would be disfigured, nor was he satisfied that the
building would be unsightly or objectionable. Similarly,
in regard to
the issue of derogation from value he said that having considered the
application ‘in its context’ and
the parties’
submissions, and having regard for the decisions in various cases, he
was “
not satisfied
” that the additions would
derogate from the value of adjoining properties.
57.
It is thus apparent that the decision which the Head: Building
Development Management arrived at, insofar as the material essence
of
the s 7(1)(b)(ii)(bbb) and (ccc) objections by the affected owners
and the body corporate were concerned, was made without regard
for
the views and recommendations of the Building Control Officer, and on
this ground alone the decision which he arrived at was
fundamentally
flawed and liable to be set aside.
[75]
58.
But even if it were to be assumed (on the basis of the ‘catch-all’
statement in the first paragraph of his memorandum),
that he did in
fact have some regard for the entire contents of the report of the
Building Control Officer and the full recommendations
made therein,
when considering the s 7(1)(b)(ii) issues, the difficulty which we
have is that it is not apparent that notwithstanding
the errors which
the Building Control Officer made in regard to his understanding and
application of the relevant legal principles,
the Head: Building
Development Management sought to apply the correct test to what he
was required to determine. In fact, from
the language used by him in
his memorandum it is equally apparent that he also wrongly applied
the test in
True
Motives
,
rather than that in
Walele
.
Instead of ‘positively’ satisfying himself, on a balance
of probabilities, that the relevant s 7(1)(b)(ii) factors
would not
probably occur in the future, as in the case of the Building Control
Officer he simply said he was not satisfied that
they
would
eventuate. Contrary to what the appellants assert, these are not one
and the same tests, which are simply stated from opposite
ends. In
the words of Heher JA in
True
Motives
[76]
the
approach adopted by the Head: Building Development Management allowed
him to have a ‘level of concern’ about whether
the
building works would be objectionable (because they were unduly
intrusive) and would result in a derogation of value (albeit
that in
his mind it was not enough of a concern for him to be satisfied, on
balance, that such negative consequences would in fact
eventuate). It
follows axiomatically that, if this was the case, he was not able to
exclude the likelihood that one or more of
such disqualifying factors
would manifest themselves in future, and would therefore not have
been able to say that he was
positively
satisfied that they
would
not
occur. On this basis, in terms of the prevailing authority of
Walele
and
Turnbull-Jackson
he was therefore obliged to refuse the application and not to approve
it.
59.
In addition, that the basic premise from which the Head: Building
Development Management proceeded to consider the application
suffered
from the same fundamental flaw as that on which the Building Control
Officer based his report, is evident from the remarks
which he made
as an aside, and those he made with reference to what he called the
“
Mill
Row
”
case.
[77]
In
this regard he said that the notion that any person would have an
expectation that the City would not permit a property owner
to
develop a property to the extent permitted by the zoning scheme was
“
absurd
”,
and that the “
Mill
Row
”
case had confirmed that views, light and privacy may be impinged upon
by a neighbouring building, provided that such building
was
‘otherwise’ permitted.
60. In the first instance
the remarks he made in his aside constitute a fundamental
misapprehension of the objectors’ case.
They were not alleging
that they had any expectation that the City would compromise or
restrict the Trust’s
development
rights
in terms
of the zoning scheme. Their claimed expectation was that the City
would never approve plans for construction works which
would abut
hard-up on the common boundary at zero set-back, in a manner that
would result in an unduly intrusive (‘over-bearing’)

structure which rendered the balconies on the 8
th
floor of
the Four Seasons building utterly useless (‘confined between
towering walls’ as the court a
quo
put it). In this
sense their claim was that the Trust never had any such development
rights to exercise. Put simply, their claim
was that the Trust had no
legal right to develop its property in a way that would result in
harmful and unlawful consequences,
either at common law or in the
context of s 7 of the Building Standards Act.
61.
Secondly, as in the case of the Building Control Officer the flaw in
this reasoning is that it is predicated on the invalid
assumption
that simply because the Trust was entitled to build up and onto the
common boundary, the owners of neighbouring properties
were obliged
to tolerate whatever the Trust wanted to build in fulfilment of this
right. Once again, this is not the legal position,
either at common
law (where  ownership rights are not absolute and may only be
exercised reasonably and without causing a
nuisance) or in terms of s
7(1)(b) jurisprudence, which directs local authorities to refuse an
application for the approval of
building plans where it will result
in an unsightly, objectionable or dangerous structure, or one which
impermissibly diminishes
the market value of an adjoining property,
as explained in
Camps
Bay Ratepayers
.
[78]
Furthermore,
the assertion that the decisions in the ‘Mill Row’ case
constitute authority for the impingement of views,
light and privacy
provided that the building works are ‘otherwise permitted’,
is also not correct, and no such
bald generalization is to be found
therein.
62. As
the court a
quo
pointed out
[79]
the
decision(s) in the ‘Mill Row’ case were not germane to
the facts of the instant matter, and were not helpful at
all with a
view to resolving the questions which the Head: Building Development
Management was required to consider, and to answer.
Those matters
concerned the review of approval which had been granted for the
erection of upper storeys on top of two single storey
townhouses in a
group housing development. In upholding the judgment of the court a
quo
a full bench of this division held
[80]
on
appeal (in contradistinction to the findings of the court a
quo
in this matter), that the report of the Building Control Officer
contained a “
carefully
considered and justifiable set of
recommendations
”
and the City’s decision-maker had set out “
detailed,
plausible and justifiable
”
reasons for why he had approved the plans in question, and in the
light of the deference which courts were required to show
[81]
to
‘polycentric’ and policy-laden decisions which are made
by persons with specific expertise in a certain area, which
require a
balance to be struck between a range of competing interests or
considerations, there was no warrant for it to interfere.
But neither
the court a
quo
nor the court of appeal in that matter held that views, light and
privacy may be violated, simply because an application for approval

of building plans is compliant with building, planning and zoning
legislation.
63.
Of course, as much as deference must be shown where it is due, so too
in
Bato
Star
[82]
the
Constitutional Court also held that this does not mean that where an
administrative decision is not reasonably supported on
the facts (or
is not reasonable in the light of the reasons given for it) a court
may not review it, nor should a court ‘rubber-stamp’
a
decision which is unreasonable (or irrational) simply because of its
complexity or the identity of the decision-maker.
[83]
64. As they did in the
court a
qu
o, the appellants make much of the fact that in his
answering affidavit the Head: Building Development Management
postulated the
correct legal test as laid down in
Walele,
and
not that in
True Motives,
and fervently declared that both he
and the Building Control Officer had applied this test in their
evaluation of the application
as well as when he ultimately arrived
at his decision to approve it. Without being unduly cynical, one
would expect that having
received guidance and assistance from his
legal representatives in the preparation and drafting of his
answering affidavit the
Head: Building Development Management would
postulate the correct test therein. However, whether we can accept
his assurance that
this was the test which was applied by him and the
Building Control Officer, is in issue. The difficulty we have is that
notwithstanding
their avowed application of the correct test, and as
we have indicated above, in both the report of the Building Control
Officer
as well as in the memorandum by the Head: Building
Development Management there are numerous indications that they were
under a
misapprehension as to the test which was to apply, and that
they in fact wrongly adopted the interpretation espoused in
True
Motives
, instead of that in
Walele
. In the circumstances,
at the very least there is a large question mark to be placed behind
the credibility of their assertions,
given the inconsistency between
their affidavits and their report and memorandum.
65.
A similar situation faced the Constitutional Court in
Walele
.
In that matter too, the decision-maker asserted in his answering
affidavit that he had been satisfied, before approving certain
plans,
that none of the disqualifying factors in s 7(1) would be triggered.
As in this matter, the Court pointed out that the difficulty
it had
with this assertion was that it was not borne out by the objective
contents of the underlying documents which the local
authority
furnished in support thereof, and as a result the decision-maker
could not have been truly satisfied of the conclusion
he asserted,
and if he was, his ‘satisfaction’ was not based on
reasonable grounds, as the underlying documents fell
short of
constituting a basis for a rational opinion.
[84]
In
our view these remarks are equally apposite in this matter.
(iii)
The challenge a
quo
66.
The respondents challenged the second decision to approve the plans
for erf 5284 on the grounds that it was 1) materially influenced
by
an error of law
[85]
2)
not rationally connected to the information which was before the
decision-maker at the time
[86]
3)
taken because relevant considerations were not taken into account
[87]
and
4) so unreasonable that no decision-maker could have arrived at it.
The court a
quo
upheld the challenge on the first and third grounds.
67.
It concluded, after evaluating the evidence, that the decision in
question had been made because of the functionaries’

‘misdirected opinion’ that any structure erected within
the applicable land use restrictions had to be factored in
by a party
to the notional purchase of a unit in the Four Seasons building,
irrespective of its effect, a view which it held was
based on a
misapprehension of the law.
[88]
68.
The court a
quo
further held
[89]
that
the decision had been arrived at because the Head: Building
Development Management had failed to take into account certain

materially relevant considerations including, most importantly,
whether in the particular factual circumstances the construction
of
building works hard-up against the balconies on the 8
th
Floor of the Four Season building and ‘close to’ the
windows on the 9
th
and 10
th
floors, gave rise to any of the disqualifying factors listed in s
7(1)(b).
69.
In this regard the court was of the view that both the Head: Building
Development Management  and the Building Control
Officer had
failed in particular to consider whether the reasonable and informed
notional purchaser would have contemplated that,
having approved
balconies for the Four Seasons building along the common boundary,
the local authority would permit the development
of a building on the
adjoining erf flush against it, in such a manner as would
“
effectively
destroy the utility of such balconies with the degree of overbearing
intrusiveness that allowing a 3 storey solid wall
to be built hard
against them would unavoidably occasion
”
(sic).
[90]
70.
The appellants contend that in making the remarks it did about the
effect of the building works on the balconies the court a
quo
acted as a court of appeal instead of review
[91]
and
went too far, in that it made findings which were not common cause
and which amounted to a pronouncement on the merits of the

application, something which fell within the exclusive domain of the
decision-maker who was required to make a value-based polycentric

determination, based on his technical and specialized expertise.
71.
In our view, even if there is merit in these submissions (and nothing
we have said herein is to be understood as constituting
a
determination in this regard), the court a
quo
cannot be faulted in regard to its findings that both the principal
functionaries who were responsible for determining the outcome
of the
application laboured under a mistaken apprehension as to the relevant
legal principles and erred in numerous respects in
regard to their
application thereof.
[92]
By
way of a summary: they both incorrectly applied the test laid out in
True
Motives
instead
of that in
Walele
,
and both erred in their fundamental premise that development rights
of the Trust in terms of zoning, building and planning legislation

reigned absolute and supreme over the rights of adjoining affected
owners of units in the Four Seasons building, irrespective of
the
effect of what was to be built. In addition, both failed to perform
the necessary ‘statutorily prescribed contextual

assessment’
[93]
which
s 7(1) required, of the building plans which were the subject of the
application. Such an assessment required them to evaluate
the likely
effect of the erection of the building in terms of the plans, on the
adjoining properties in the Four Seasons building,
and not only to
consider the plans, on a one-sided basis, from the point of view of
the ‘development rights’ of the
owners of the adjoining
property.
72.
Furthermore, in having regard for the findings and recommendations of
the Building Control Officer only in respect of the issue
of
compliance in terms of s 7(1)(a) and not in respect of the
disqualifying factors raised in terms of s 7(1)(b)(ii), the Head:

Building Development Management misdirected himself fundamentally and
failed to take into account materially relevant considerations,
and
this failure also rendered the decision he arrived at reviewable
[94]
(as
per the decisions in
Walele
and
Turnbull-Jackson
[95]
).
As the decision-maker he was obliged to have regard for all the
recommendations of the Building Control Officer, in arriving
at his
decision, and not just some of them.
73.
In terms of the language of review set out in PAJA, it is but a short
and inevitable hop to finding that, inasmuch as the decision
which is
the subject of this appeal was predicated on a failure to have regard
for material considerations (in terms of s 6(2)e)(iii)
of PAJA) and
was the result of numerous material errors of law (in terms of s
6(2)(d)), it was not rationally connected to the
information which
was before the decision-makers (in terms of s 6(2)(f)(ii)(c)). Put
differently, because of their failure to have
regard for a number of
material considerations they were supposed to take into account, and
because of their misapprehension as
to the relevant legal principles
and their incorrect application thereof, the decisions which they
arrived at were not rational
in relation to the information which was
before them.
[96]
In
our view, it must therefore follow that in addition to the two
grounds on which the respondents succeeded they could equally
have
succeeded on this further ground as well.
(iv) G
rounds of
challenge on appeal
74.
The appellants contend that the court below ‘inappropriately’
extended the test for derogation of value, as developed
by the
Constitutional Court in
Camps
Bay Ratepayers
[97]
in
relation to s 7(1)(b)(ii)(ccc), to the disqualifying factors referred
to in subsections (aaa) and (bbb), which deal with disqualification

on the grounds that either the area will be disfigured, or that the
building to be erected will be unsightly or objectionable.
As we
understand their argument, it is predicated on the submission that it
is not in every instance of potential disfigurement,
unsightliness or
objectionableness that there will necessarily be a derogation of
value, and the subsections of s 7(1)(b) must
not be read as if this
is so. With such a submission as to the meaning to be afforded to the
provisions in question there can be
no disagreement. There may well
be instances where a building is objectionable or unsightly, or
disfigures an area,
[98]
but
does not necessarily result in derogation of value to a building
which adjoins it. Similarly, there may be instances where a
proposed
building, if erected, may constitute a danger to life or property (in
terms of s 7(1)(b)(ii)(bb)), without there being
any derogation to
the value of an adjoining building.
75. But this does not
mean that what the court below did was to wrongly conflate or extend
the test for derogation of value to the
disqualifying factors
referred to in subsections (bbb) and (ccc). In this matter the
respondents contended that because the building
works on erf 5284
were unduly and unreasonably intrusive, they were objectionable and
the plans should therefore be refused on
the grounds of s
7(1)(b)(ii)(bbb), but they also contended that as a result of this
they had suffered a derogation of value in
terms of the provisions of
subsection (ccc), and that this constituted a further ground for
disqualification. So, inasmuch as
derogation of value and not
only objectionableness
per se
was expressly raised, the test
for determining whether there was such a derogation, as laid down in
Camps Bay Ratepayers
, was clearly of application.
76.
Where derogation of value is raised in such a context, the cause of
it can range from “
aesthetics,
intrusion and overshadowing
”
[99]
to
invasion of privacy, amongst others. In
True
Motives
the
SCA held
[100]
that
in every case involving assessment of value under s 7(1)(b) the local
authority is “
entitled
and, indeed obliged to take into account adverse aspects of this
nature where the informed willing buyer and seller would
factor them
into their purchase price
”.
That is done in order to arrive at market value. Derogation from such
value only commences when “
the
influence of such aspects exceeds the contemplation of the
hypothetical informed parties
”.
[101]
So
the nub of it is that already in 2009 the SCA held that where
disqualifying factors are raised in a s 7 matter, in the context
of a
derogation in value, the ‘legitimate expectations’ test
(as it was described a year later in the decision in
Camps
Bay Ratepayers
),
applies. And in
Camps
Bay Ratepayers
the
Constitutional Court similarly adopted the position that where
features such as ‘unattractiveness’ or ‘intrusiveness’

are raised in the context of a derogation in value, the question
which must be answered is what would have been in the contemplation

of the minds of parties to a hypothetical sale. In the circumstances
there is no merit in the appellants’ submissions in
this
regard.
77. The City further
criticized the decision of the court a
quo
on the basis that
inasmuch as it requires functionaries (seized with applications for
the approval of building plans) to consider
what might reasonably be
anticipated to be the possible future use of neighbouring properties,
it requires them to engage in conjecture
and speculation, which it
said was untenable, because it places ‘too great a burden’
on them as they would have to
evaluate “
the possible impact
of each individual feature of every proposed building on each
adjacent or adjoining property
”(sic). In our view, as was
said by the court a
quo
in this regard, the City has
misconstrued what is required of its officials, and has exaggerated
the duty which lies upon them.
78.
A similar argument was raised in
Turnbull-Jackson.
[102]
In
dismissing it the Constitutional Court pointed out that the level of
scrutiny required from a decision-maker dealing with an
application
for the approval of building plans will depend on the facts of each
case. Where the characteristics of a proposed development
(such as
its bulk, height, general aesthetic character, placement and
coverage) compare favourably with existing developments in
the area,
this will usually warrant the approval of building plans “
without
much effort
”.
[103]
In
such instances there will be no need or cause to engage in any
speculation or conjecture as to what may happen on adjoining
properties sometime in the future.  By far and large the
overwhelming majority of applications for the approval of building

plans probably fall into this category and are likely to be
uncontentious and easily approved (or rejected) on the papers before

the decision-maker. On the other hand, where a proposed development
may be so out of character in relation to what exists in the
area
(one might describe the Four Seasons development in such terms), a
‘heightened’ level of scrutiny will be required.
[104]
In
situations where the requisite information which the decision-maker
needs in order to determine an application is absent, he
can interact
with the Building Control Officer and make use of the extensive
resources he has at his disposal in order to obtain
it and if
necessary, may even engage an expert such as a valuer to assist
him.
[105]
In
addition, as was stated in
True
Motives
,
[106]
where
necessary the Building Control Officer should engage with the
applicant or his representative or potentially affected parties,
or
conduct an inspection in
loco,
to obtain the information he needs. Again, no speculation or
conjecture need be resorted to.
79. In this matter the
court a
quo
did nothing more than to set out what the
applicable law was, which as we have pointed out above required the
decision-makers to
conduct a ‘contextual assessment’ of
the likely effect of the implementation of the plans on the
neighbouring Four
Seasons properties, and to consider whether the
decision-makers had complied with their obligations in this regard,
or whether
they had failed to do so. Its judgment does not, as was
submitted, constitute a ‘radical change’ in the manner in
which
building plans are to be assessed, nor will it place
“
impossible burdens
” (sic) on planning authorities
or “
introduce a measure of uncertainty
” (sic) into
this area of the law.
80.
The court a
quo
set out very clearly, with reference to the various Constitutional
Court and Supreme Court of Appeal decisions we have referred
to
above, and decisions which were referred to therein, what such an
assessment entailed. One such decision (which was referred
to with
approval in
Walele
and
True
Motives
)
is that in
Odendaal
v Eastern Metropolitan Local Council
[107]
which
serves as a lodestar in matters such as these. Lewis AJ held therein
that
the
Building Standards Act and the applicable zoning scheme are
legislative instruments for ensuring the “
harmonious,
safe and efficient development of urban areas
”
and they require local authorities, when carrying out the duties
imposed upon them, to ensure that there is a balance of
interests
within a geographical community, as they are in effect the guardians
of the community interest and are required to “
safeguard”
the interests of property owners in the areas of their jurisdiction,
and to ensure that such areas are developed in as “
efficient,
safe and aesthetically pleasing a way as possible
”.
These are onerous responsibilities indeed, which require a contextual
assessment having regard not only for the subject
property, but also
for the neighbourhood in which they are located, but in order to
discharge them in accordance with what is required
in terms of the
prevailing case law there is no need to indulge in speculation or
conjecture, all the more so in a matter such
as this, where the
building in respect of which the plans needed to be considered had
already been partially erected and the effects
of its construction
were plain for all to see, on photographs and on site.
81.
Usually a building envisaged by plans which are under consideration
will not yet have been built and in such a case the local
authority
must, as the court a
quo
put it, take account of how the proposed structure would fit in with
the existing developments on neighbouring properties and “
what
might reasonably be anticipated to be the possible future use of such
properties
”.
[108]
Such
an exercise hardly requires conjecture or speculation, and is not
unduly onerous. A simple look at the zoning restrictions
and the
general structure and characteristics of buildings in the area,
either by looking at their approved plans or by using aerial
or
street-view photographs (in this regard free software applications
such as Google Maps are in common every-day use), or by means
of an
inspection of the area, if necessary, will surely do. Such an
exercise also does not require the local authority to consider
the
possible effect of every ‘feature’ of every proposed
building on neighbouring properties. It is the effect of the
proposed
building works
as
a whole
that will ordinarily need to be considered, not each and every
feature thereof.
[109]
At
worst it will surely only be features which may adversely impact on
the rights of the owners or occupiers of neighbouring properties,
or
which may have an adverse effect on their market value (outside of
the range of ‘legitimate expectations’), that
will
require consideration. To an experienced and appropriately qualified
Building Control Officer such features will no doubt
be manifest from
a simple consideration of the plans, which ordinarily require views
from different elevations. One must remember
that before the matter
comes to the Building Control Officer it will pass through the hands
of a number of other persons with specialized
skills, such as plan
examiners, who will consider the plans in the light of the zoning
scheme and will have regard for matters
such as where the site on
which the building is to take place is located with reference to
nearby roads, as well as the boundaries,
building lines and coverage,
and the proposed placement, height and earmarked use of the
building.
[110]
82.
The fact of the matter is that already from the decision in
Walele
[111]
in
2008 it was made clear by the Constitutional Court that in giving
effect to their duties in terms of s 7(1)(b), local authorities
are
required to strike a balance between the rights of the owner of the
subject property for which building plan approval is sought,
and the
rights of the owners of neighbouring properties. This cannot be done
by the simple expedient of having regard only for
the building plans
under consideration, in isolation, and without any regard for what
exists, and what might reasonably be anticipated
is likely to be put
up in the future, on neighbouring properties. And whether or not a
proposed building will disfigure an area,
be unsightly or
objectionable, or derogate from the value of adjoining properties
requires a judgment call that can only properly
be made if it has
regard for the area concerned and the neighbouring buildings in it.
Conclusion
83. In the result, and
for the reasons set out above, there is no merit in the appeal and it
must fail. We make the following Order:
The
appeal is dismissed with costs, including the costs of two counsel
where so employed
.
HLOPHE
JP
FORTUIN
J
SHER
J
Attendances
:
First appellant’s
counsel: SP Rosenberg SC (with EF Van Huyssteen)
Fist appellant’s
attorneys: Webber Wentzel (Cape Town)
Second appellant’s
counsel: G Budlender SC (with HJ De Waal)
Second appellant’s
attorneys: Brink De Beer & Potgieter Inc (Tyger Valley);
MacRobert Inc (Cape Town)
Respondents’
counsel: JG Dickerson SC (with D Baguley)
First Respondent’s
attorneys: Slabbert Venter Yanoutsos (Wynberg)
Second
Respondent’s attorneys: Norton Rose Fulbright (Cape Town)
[1]
Reported
sub
nom Da Cruz & Ano v City of Cape Town & Ano
2017 (4) SA 107
(WCC)
.
[2]
T
he
National Building Regulations and Building Standards Act 103 of
1977.
[3]
In terms of
s
4.
[4]
T
rue
Motives SA (Pty) Ltd v Mahdi and Ano
2009 (4) SA 153 (SCA).
[5]
Walele v City of Cape Town
and Ors
[2008] ZACC 11
;
2008 (6) SA 129
(CC);
Camps Bay Ratepayers
and Residents Association and Ano v Harrison and Ano
2011 (4) SA 42
(CC);
Turnbull-Jackson
v Hibiscus Coast Municipality and Ors
2014 (6) SA 592 (CC).
[6]
In
True
Motives
(n 4) judgment was handed down on 3 March 2009 after argument was
heard on 28 August 2008, and in
Turnbull-Jackson
(n 5) argument was heard on 4 February 2014 and judgment was handed
down on 11 September 2014.
[7]
True Motives
para
[17].
[8]
Turnbull-Jackson
para
[46].
[9]
De Jong and 16 Ors v the
Trustees of the Simcha Trust and 1 Or
2014 (4) SA 73
(WCC), in which Rogers J dismissed a claim by Simcha
against the City for compensation for plan and scrutiny fees and
legal costs
incurred in relation to an interdict and the earlier
review application which the City conceded, a decision which was
upheld
by the SCA on appeal.
[10]
Trustees of the Simcha
Trust v De Jong and 16 Ors
2015 (4) SA 229 (SCA).
[11]
Reg T1 of the National Building Regulations.
[12]
Id
,
Reg O1.
[13]
Vide
para 69.2 of the answering affidavit of Harrison, on behalf of the
Trust.
[14]
Paragraph [8] of the judgment.
[15]
Annexures “JC8.1-8.19”to the founding affidavit. S
ome
of these photographs can also be seen at pp 482.27-482.30 of the
record.
[16]
Paragraph [10] of the judgment.
[17]
Note 5.
[18]
In terms of s 6 of the Act a building control officer is required to
make a recommendation to the local authority in regard to
any plans
that are submitted to it for approval (which the court in
Walele
held must be a properly motivated and reasoned recommendation and
not just a simple endorsement on a form).
[19]
I
n
terms of s 8 (1)(c)(ii)(bb) of the Promotion of Administrative
Justice Act 3 of 2000 (‘PAJA’).
[20]
In terms of
s 108 of the zoning scheme.
[21]
Paragraphs 78 and 82 of his affidavit.
[22]
In his memorandum dated 25 February 2015.
[23]
Note 5 at paras [39]- [40].
[24]
Note 4
at para [30]
.
[25]
S 7(1)(b)(i).
[26]
S 7(1)(b)(ii)(bbb).
[27]
S 7(1)(b)(ii)(ccc).
[28]
Note 5 at para {52].
[29]
Id
.
[30]
Which requires a court to interpret any legislation in a manner
which will promote the spirit, purport and object of the Bill
of
Rights.
[31]
Walele
n 5 at para [55].
[32]
In terms of s 7(1)(a) of the Act.
[33]
Walele
at
para {55].
[34]
Id.
[35]
S
7(1)(b)(ii)(aaa).
[36]
S
7(1)(b)(ii)(bbb).
[37]
S
7(1)(b)(ii)(ccc).
[38]
Per Brand AJ in
Camps Bay
Ratepayers
n 5 at para
[33].
[39]
Note
4 at paras [33]–[35].
[40]
Note 5.
[41]
True
Motives
n 4
, at para [21].
[42]
Id
,
para [23].
[43]
Note 5 at para [33].
[44]
Id.
[45]
Para 22 of the BCO’s report, at p 344 of the record.
[46]
Id
,
para 28.
[47]
Id
,
p
ara 26.1.1 p 345.
[48]
Id
.
[49]
This can clearly be seen on the photographs which were submitted by
the Trust.
[50]
Id
,
p
ara 26.1.1 p 345
.
[51]
Id
.
[52]
Id,
at
para [29].
[53]
Vide
the reference to
Regal v
African Superslate
(Pty)
Ltd
1963 (1) SA 102
(A) at para [50] of the judgment a
quo
.
[54]
At para [46] of its judgment.
[55]
At para [57.5] of its judgment.
[56]
Administrator, Transvaal &
Ors v Traub & Ors
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 758D.
[57]
Id
,
p
er Corbett CJ at
761E-G.
[58]
In
Walele
for example the issue was whether on the basis of the doctrine of
legitimate expectation, owners of neighbouring properties should
be
heard in regard, and prior to, the approval of building plans for
adjoining properties-
vide
para 25 above.
[59]
I
n
Minister of Home Affairs &
Ors v Saidi & Ors
2017
(4) SA 435
(SCA) at para [33] the Supreme Court of Appeal held (with
reference to decisions of both the SCA as well as the Constitutional

Court), that it was an ‘open question’ whether a party
could be granted substantive as opposed to procedural relief
on the
basis of a legitimate expectation.
Vide
the remarks of O’Regan J in
Joe
Slovo Community, Western Cape v Thubelisha Homes
2010 (3) SA 454
(CC) at para 306 cited with approval in
Gerstle
& Ors v City of Cape Town & Ors
2017 (1) SA 11
(WCC) at para [44].
[60]
Walele
n 5 at para [38].
[61]
Id
at paras [35] and [39],
Traub
n 56,
President
of the Republic of South Africa & Ors v South African Rugby
Football Union & Ors
2000
(1) SA 1 (CC).
[62]
Note 5
at
para [40].
[63]
See also
Paola v Jeeva NO &
Ors
2004 (1) SA 396 (SCA).
[64]
Camps Bay Ratepayers
n 5 at para [39].
[65]
Id
at para [40].
[66]
In such a case there would be derogation of value as a result of
non-compliance with s 7(1)(a).
[67]
In
such a case there would be derogation of value as a result of
non-compliance with s 7(1)(b).
[68]
Para 30 of his report.
[69]
Id,
p
ara
35.
[70]
In terms of s 7(1)(b)(ii)(ccc) of the Act.
[71]
Paras [62] and [68] of the judgment.
[72]
At para
[30].
[73]
At para [59] of its judgment.
[74]
At para [41].
[75]
On the basis of a failure to have regard for materially relevant
considerations, contrary to the provisions of s 6(2)e)(iii)
of the
Promotion of Administrative Act (‘PAJA’ ), Act 3 of
2000.
[76]
As set out
In para 28 above.
[77]
This is a reference to the decision by a single judge as upheld by a
full bench of the WCHC (reported
sub
nom
Gerstle
& Ors v City of Cape Town & Ors
n 59),  in respect of the approval of plans for additions to
townhouses in the Mill Row group housing development
in Sunset
Beach, Cape Town.
[78]
Note 5.
[79]
At para [66] of its judgment.
[80]
Gerstle
n 59
paras
[36] and [37].
[81]
In terms of the decision in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para
[48]
.
[82]
Id
.
[83]
Id
.
[84]
Walele
n 5 at paras [59] and [60].
[85]
In terms of
s 6(2)(d) of PAJA.
[86]
In terms of
s 6(2)(f)(ii)(cc) of PAJA.
[87]
In terms of
s 6(2)(e)(iii) of PAJA.
[88]
At para
[68] of the judgment.
[89]
Id
.
[90]
Id
,
at p
ara [68].
[91]
Appellants refer to the well-established principle that a review is
not concerned with the correctness of a decision which is
made by a
functionary, but whether he performed the functions with which he
was entrusted, and where such functions involve the
exercise of a
discretion it is not open to a court to ‘second-guess’
him:
vide
MEC for Environmental
Affairs and Development Planning v Clairison’s CC
2013
(6) SA 235
(SCA) at para [18].
[92]
In
Long
Beach Homeowners Association v Department of Agriculture, Forestry
and Fisheries
[2017] ZASCA at para [16] the SCA confirmed that w
here
in making a decision a public official misconstrues the powers and
the discretion he is required to exercise because he is
materially
influenced by an error of law, the decision is reviewable in terms
of s 6(2)(d) of PAJA.
[93]
Vide
paras
[45]- [49] of the judgment a
quo
.
[94]
In terms of
s 6(2)(e)(iii) of PAJA.
[95]
Turnbull-Jackson
n
5 at para [75].
[96]
Democratic Alliance v
President of South Africa & Ors
2013
(1) SA 248
(CC) at para [39], explained it as follows: “
If
in the circumstances of a case, there is a failure to take into
account relevant material that failure would constitute part
of the
means for which the power was conferred. And if that failure had an
impact on the rationality of the entire process, then
the final
decision may be rendered irrational and invalid by the irrationality
of the process as a whole
.”
[97]
Note 5 at paras [38] – [40].
[98]
As to what
this would constitute
vide
the
remarks of Madlanga J i
n
Turnbull-Jackson
as set out at n 109 below.
[99]
True
Motives
n
4 para [30].
[100]
Id
.
[101]
Id.
[102]
Note 5 at paras [77] –[82].
[103]
Id
at
para [81].
[104]
Id.
[105]
Id
at
paras [82] and [84]. See also
True
Motives
n4 at para [31].
[106]
Id
.
[107]
1999 CLR 77
(W) at 84-85 .
[108]
Para [45] of the judgment.
[109]
I
n
Turnbull-Jackson
n 5 at paras [79]-[80] Madlanga J held that ‘unattractiveness’
and ‘intrusiveness’ and other disqualifying
factors such
as ‘disfigurement’, ‘unsightliness’ and
‘objectionableness’ are (largely) matters
of fact “
on
which it should not be difficult to make a judgment call
”.
[110]
Vide
the remarks by O’Regan ADCJ in
Walele
n 5 para [93], in regard to the process of approval of plans in the
City of Cape Town.
[111]
Note 5 paras [2] and [55].