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[2021] ZAWCHC 114
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Christopher v Verster and Others (9001/2020) [2021] ZAWCHC 114 (4 June 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 9001/2020
In the matter
between:
MARK WAYNE
CHRISTOPHER
Applicant
and
JOLINDI
NICOLENE
VERSTER
First Respondent
PIETER
JOHANNES
VERSTER
Second Respondent
PUPPY
TOWN
Third Respondent
THE CITY
OF CAPE
TOWN
Fourth Respondent
Date of hearing: 8 March
2021
Date of Judgment: 4 June
2021 (delivered by email to the parties’ legal representatives
and by release to SAFLII. The
Judgment shall be deemed to have
been handed down at 13h11)
JUDGMENT
Henney, J:
[1] The
applicant and the first and second respondents are neighbours. The
purpose
of this application is to prohibit these two respondents from
operating a business known as Puppy Town (the third respondent,
hereinafter
referred to as Puppy Town), that is described as a
daycare centre offering supervision and care for a number of dogs
during certain
hours in the week. I will, for the sake of
convenience, refer to them as the respondents. The City of Cape
Town, cited
as the fourth respondent (hereinafter referred to as the
City), does not oppose the application. The applicant alleges
that
this business being operated by the respondents, is a
distraction to the peace and serenity that he is entitled to as a
neighbour,
and is unlawful on several grounds, to which I will refer
later in this judgment.
[2] The
applicant seeks the following relief in his notice of motion:
1)
prohibiting
the respondents from operating a puppy or dog daycare, or any similar
animal care or custody business, on their property
at 11 Shilling
Road, Vierlanden, Durbanville;
2)
directing
them to forthwith cease the operation of a puppy or dog daycare, or
any similar animal care or custody business, from
the property.
The applicant’s case
[3] The
applicant works from home as a pastor, and requires a peaceful
environment to
write, research, study and counsel his congregants.
His property abuts the property occupied by the respondents.
The
second respondent owns the property. The first
respondent operates Puppy Town from the property, and on Puppy Town’s
website, it is described as a daycare centre which, inter alia,
offers constant supervision, structured playtime, potty training,
basic training, socialisation with different dogs and constant
feedback to the owners about their dogs. Every morning Puppy
Town’s clients drop their dogs off at the property and collect
them again in the evening. There are up to 17 dogs present
on
the property at any given time during business hours.
[4] The
property is a residential property, and the dogs are accommodated in
the garden.
Puppy Town’s advertised operating hours are
from 7h00 to 18h00 from Monday to Friday. It also runs puppy
training
sessions on Saturday mornings. Clients drop off the
dogs at the property from 6h30 during the week. The applicant
alleges
that the fact that the business operates from 6h30 until
18h00 is one of the grounds upon which its operations are unlawful.
This
is because the property zoning permits businesses that are
allowed to run from home to operate only from 08h00 to 17h30 from
Mondays
to Fridays.
[5] The
applicant alleges that every time a client drops his or her dog off
at the property,
or picks them up, the other dogs on the property
start barking. This is disturbing and disruptive to the
peaceful enjoyment
of his property and to his daily activities. The
dogs barking on the property also trigger a cacophony of barking from
all
the dogs in the neighbourhood, which aggravates matters
considerably.
[6] He alleges
that throughout the day the dogs on the property sporadically begin
barking,
again triggering a symphony of barking throughout the
neighbourhood. On some days he says he endures up to 8 hours of
barking.
He is not the only neighbour who is disturbed by Puppy
Town, and as proof of this he filed the confirmatory affidavit of
David
Austin, who resides at 13 Shilling Street, who has similar
complaints to his. He also refers to the confirmatory affidavit
of Rehan Celliers, who rented his property while he was abroad for
some period of time.
[7] Before the
applicant moved into the area on 7 December 2015, he and his family
viewed
the property over a weekend and at that time it was quiet,
since Puppy Town operates only during the week and on Saturday
mornings.
He specifically asked the previous owner if there
were any dogs barking in the neighbourhood and adjoining properties.
He
was concerned about this issue due to his need for a quiet
working environment.
[8] He had
several discussions with the respondents about the constant noise
emanating
from the property, and to enquire about what could be done
to stop the dogs’ incessant barking. He also informed
them
on several occasions that he found it to be a nuisance and
unacceptable. As from February 2016, after having made several
attempts to get the respondents to limit the noise coming from the
property, he reported them to the City.
[9] After
several complaints to the City, which included allegations that the
business
being operated by the first respondent is unlawful, did not
have the desired result, he had no other alternative than to seek
redress
in this court in the form of interdictory relief. These
complaints started in February 2016 and continued up until July 2019,
and were in the form of emails, telephone calls, Facebook messages,
direct interactions with City officials and letters sent by
his
attorney to the City.
[10] These complaints
resulted in the City issuing a compliance notice, dated 9 March 2020,
to the
respondents in terms of section 126 of the City’s
Development Management Scheme which is a scheme to the City’s
Municipal
Planning By-Law (“DMS”). It also resulted
in the City instituting an unsuccessful attempt to prosecute the
respondents,
which resulted in the withdrawal of the case on 29
January 2020, which, on the version of the applicant, was as a result
of the
witnesses not having been subpoenaed. The respondents
contend rather that the case was withdrawn due to insufficient
evidence.
According to the record as set out in the applicant’s
founding affidavit, during this period more than 40 requests were
made
by either the applicant or his attorney to investigate and take
action against the respondents for their alleged failure to adhere
to
the provisions of the DMS. The complaints, it seems, were
predominantly aimed at the noise which emanated from the respondents’
property.
The arguments
[11] The applicant submits
that the operation of Puppy Town (including the unacceptable level of
barking
from the dogs on the property) is unlawful on the following
grounds:
a)
the
property is zoned as Single Residential Zoning 1 (“DMS”).
The DMS is a schedule to the City’s Municipal
Planning
By-Law (“the planning by-law”). According to the
applicant, the zoning of the property does not permit
the operation
of Puppy Town from the property and the business therefore
contravenes the DMS. Further, even if the DMS permitted
the
business to operate from the property, its operating hours
contravenes the DMS.
b)
the
dogs’ loud and incessant barking also contravenes regulation 3
(c) of the Western Cape Noise Control Regulations 2013
(“the
Noise Control Regulations”), which prohibits any person from
allowing an animal to make a noise insofar as it
causes or is likely
to cause a ‘noise nuisance’, which is defined in the
Noise Control Regulations as ‘any sound
which impairs or may
impair the convenience or peace of a reasonable person’.
c)
the
dogs’ barking on the property further constitutes a common law
nuisance, which is a serious impediment to the ordinary
and
reasonable enjoyment of the applicant’s property.
d)
Puppy
Town contravenes the City’s Animal By-law 2011 (“the
Animal By-law”), for the following reasons:
1) the respondents keep more than six dogs over the age
of six months on the property without a permit, in contravention of
section
2 (2) of the Animal By-law; and/ or
2) the respondents keep dogs which bark, yelp, howl or
whine for more than six accumulated minutes in an hour, or more than
three
accumulated minutes in half an hour, in contravention of
section 6 (e) of the Animal By-law.
[12] I will now deal in
more detail with the specific grounds upon which the applicant avers
that
the respondents’ conduct is unlawful. The applicant
firstly submits that the respondents contravened the DMS, as their
property is zoned for Single Residential Zone 1 (“SR1”)
[1]
under the DMS. The additional use rights
contemplated in section 21 (b) include a ‘home occupation’,
which stipulates
that the conditions listed in subparagraphs (i) –
(vi) must be complied with. These include (in terms of
subparagraph
(iv)) the conditions as mentioned in section 23 of the
DMS.
[13] The relevant
conditions in terms of section 23, as it applies in the instant
matter, are the
following: in terms of subparagraph (a): ‘No
home occupation shall include . . . activities that are likely to
generate a
public nuisance, . . .’
The applicant alleges that subparagraph (e) is also
applicable: ‘No activities shall be carried out which
constitute or are
likely to constitute a source of public nuisance,
generate waste material which may be harmful to the area . . .’
Further also subparagraph (g), which states: ‘The
total area used for all home occupation activity on a land unit,
including
storage, shall not consist of more than 25% of the total
floor space of the dwelling units on the land unit or 50m²,
whichever
is the lesser area’.
[14] The applicant submits
that the respondents have contravened all of these conditions.
He
submits, firstly, that Puppy Town is an activity that is likely to
generate a public nuisance as contemplated in section 23 (a),
or is
likely to constitute a source of public nuisance, or to generate
waste material which may be harmful to the area and which
requires
special waste removal processes. His submission is that this
business is therefore prohibited under section 21 (b)
(iv), read with
section 23 (a) and (e) of the DMS. Secondly, the area of the
property used for the ‘home occupation’
exceeds the
lesser of either 25% of the floor space of the dwelling units on the
property, or 50m²; the business is therefore
prohibited under
section 21 (b) (iv), read with section 23 (g) of the DMS.
Thirdly, the applicant alleges that the operation
of the business in
any event contravenes the DMS, because under section 23 (j), the
hours of operation shall not extend beyond
08h00 to17h30 on Mondays
to Fridays, and from 08h00 to 13h00 on Saturdays. Puppy Town
advertises its hours of business as
07h00 to 18h00 on Mondays to
Fridays, and the business in fact commences operations from 06h30 on
weekdays when the clients begin
dropping off their dogs.
[15] Regarding the
allegation that the respondents did not comply with the maximum
permitted area
in which they may operate the business, the applicant
contends that the respondents accept that under the DMS the maximum
permitted
area of the business must be the lesser of either 25% of
the total floor space of the dwelling units on the property, or 50m².
He contends that Puppy Town does not operate in an area that is
limited to 50m². He says this for the following
reasons:
Firstly
, the respondents’
temporary departure application to the City, which was signed by both
first and second respondent, clearly
shows that the operation of the
business was in an area that exceeds 50m². In this regard
they state in their application,
under the heading ‘Contravention
extent’, that: ‘the existing garage on the property (36m²
in extent) and
the hardened gravel area of approximately 110m²
in extent are being used for the puppy day care centre.’
Therefore,
on their own temporary departure application to the City,
they admitted that the business operates in an area of 146m²,
and
sought a departure for this very reason. They have not
explained the contradiction between the temporary departure
application
and the allegation in the answering affidavit that the
business operates within an area of 50m².
Secondly
, in this regard, the
applicant attached to his replying affidavit several photographs from
Puppy Town’s Facebook page, that
shows that the dogs are
roaming free on the gravel area that runs along the side of the
property next to the vibracrete wall. It
is furthermore clear
from the diagram attached to Van Gend’s (an expert the
respondents consulted) affidavit that the gravel
area is
approximately 110m², which corresponds to the hardened gravel
area of 110m² referred to in the temporary departure
application. The gravel driveway that appears on the
photographs is next to the 1.8m pre-fabricated wall, as shown in Van
Gend’s diagram, which is also visible on the attached
photographs. The applicant submits that the photographs are
recent, some dating from August and September 2020. A
photograph from July 2020 depicts an event evidently sponsored by
Hills
(a pet food manufacturer), with dog training apparatus set up
in the gravel driveway. Self-evidently such a training event
could never have taken place in an area measuring 16m². The
applicant submits therefore that Puppy Town consistently and
predominantly operates on the gravel driveway area, which measures
110m², and consequently exceeds the parameters of the DMS.
Thirdly
, the applicant
alleges that photographs from Puppy Town’s Facebook page show
that the dogs in any event are not confined
to the driveway area.
The Facebook page has many photographs showing the dogs playing
throughout the garden. According
to a diagram attached to Van
Gend’s affidavit, there is a pool on the other side of the
garden, opposite the garage and the
driveway. The photographs
show that some of dogs can be seen near the pool and on the other
side of the 1.2m wire fence,
shown on the diagram separating the
driveway from the rest of the garden. The videos on Puppy
Town’s Facebook page
also show the dogs running around the
garden, and one can also hear the dogs barking and yelping.
Fourthly
, the applicant
contends that it is in any event entirely implausible that the
respondents would run a puppy daycare, consisting
of approximately 15
puppies, together with their two own dogs, for an entire day, in an
outside area of only 16m². According
to the applicant,
under these conditions it would be inhumane to accommodate those
animals, and it would not allow sufficient space
within which to
train them.
The applicant therefore submits that the first
respondent’s business unquestionably breaches the permitted
maximum area limitations
applicable to ‘home occupations’
prescribed by the DMS.
[16] Regarding the
respondents’ contravention of the operating hours as prescribed
by the DMS,
the applicant alleges that Puppy Town’s advertised
operating hours are 07h00 to 18h00 from Monday to Friday, whereas it
should
have been from 08h00 to 17h30 (and from 08h00 to 13h00 on
Saturdays). He submits that the first respondent’s
assertion,
that she has changed the operating hours of the business
from 08h00 to 17h30, is unsustainable, because the operating hours on
the website have not been changed. The applicant further
alleges that the puppies are still being dropped off between 07h00
and 08h00. He furthermore alleges that he has recently
witnessed dogs be dropped off shortly after 07h00. From this
he
submits that it is clear the respondents run their business from
07h00, and need to open early enough so that clients can drop
off
dogs before going to work. From this it is clearly evident that
Puppy Town contravenes the operating hour restrictions
set out in the
DMS.
[17] Regarding the
allegation that the business is likely cause a public nuisance, as
contemplated
in Section 23 (a) of the DMS, the applicant submits that
the respondents have not addressed this ground of contravention of
the
DMS at all. They have merely sought to contend that the
business does not cause a nuisance, because the puppies are kept
quiet by giving the them toys to play with and dog chews to eat. The
applicant denies the dogs are being kept quiet, or that
it would be
possible to do so by merely giving them toys and things to eat.
[18] Even if the
respondents were by some miracle able to keep 17 dogs quiet, the
applicant submits
this is not an answer to the contravention of the
DMS. According to him, the DMS prohibits businesses that
constitute a public
nuisance, or that are likely to constitute public
nuisance, or generate waste material. He submits that whether
or not the
respondents manage to keep the puppies on their premises
quiet, is not the issue, but whether a puppy daycare in general is
likely
to constitute a nuisance. He submits that a puppy
daycare, by its nature, is likely to do so.
[19] According to the
applicant there can be no question that Puppy Town operates as an
animal care
centre, and thus contravenes the DMS on this further
basis also. It advertises itself as a puppy ‘daycare
centre’,
and its attorney’s letter of 29 November 2018
states that the first respondent was in talks with the City to
facilitate her
caring for animals. He therefore submits that
apart from failing to comply with the conditions applicable to home
occupations
as set out in the DMS, Puppy Town contravenes the DMS on
the further basis that it’s an animal care centre which
impermissibly
operates on this residentially-zoned property. On
each of the independent grounds as stated, Puppy Town contravenes the
DMS
and its operations are unlawful. He submits that on that
basis alone, he is entitled to the relief he seeks.
[20] The dogs’ loud
and incessant barking also contravenes regulation 3 (c) of the Noise
Control
Regulations.
[21] The applicant submits
that the barking dogs on the property also constitute a common law
nuisance,
which is a serious impediment to the ordinary and
reasonable enjoyment of his property. In this regard, he relies
on the
case of
De Charmoy v Day Star
Hatchery(Pty) Ltd
[2]
,
which I will refer to later in this judgment. The applicant
submits that, objectively considered, the operation of a puppy
daycare centre in a quiet residential area, constitutes a serious
impediment to his ordinary and reasonable enjoyment of his property,
particularly given the following circumstances:
1)
the
volume of barking generated by the large number of dogs on the
property and the fact that those dogs trigger other dogs in the
neighbourhood too;
2)
the
fact that the noise is particularly loud and disturbing in the
mornings and evenings when families typically spend time together;
3)
the
location of the property in a quiet residential area.
[22] This, according to
the applicant, has an impact on his enjoyment of his property, in the
following
respects:
1)
he
has never been able to enjoy his back garden due to the constant
paroxysms of barking emanating from Puppy Town. He cannot
even
enjoy a morning cup of coffee in his back garden before starting his
day, due to it being so unpleasant, as puppies are being
dropped off
and are barking continuously during that period. Also, if he
wants to use his back garden on a weekday evening,
he has to wait
until around 18h15 or 18h30 before the noise quietens down
sufficiently. As a result of this, applicant reserves
the back
garden area and patio for Saturday evenings or Sunday lunch;
2)
this
restriction in his ability to use his back garden is a severe
limitation on the enjoyment of his property. According
to him,
the back garden should be a place where he and his family are able to
enjoy some quiet and privacy. His back garden
is also the main
garden area of his property where the pool is located. This
section of his property unfortunately abuts
respondents’
property;
3)
as
a result of the fact that he and his family are unable to use his
back garden during the week, they often sit on the front porch
in the
morning to have coffee, but even then there are days when the barking
is such a nuisance that they can clearly hear it from
the front
porch. According to him, this barking embraces the property
‘like a surround sound system’. He
further states
that on days when the barking is particularly bad, there is
absolutely no sanctuary from the noise anywhere on the
property;
4)
according
to him, he cannot easily sell his property and move anywhere else,
because principally the presence of Puppy Town has
had a serious
negative effect on the value of his property. He also cannot,
in good conscience, conceal its existence from
a prospective
purchaser of the property as it was concealed from him before he
bought it. As a result of this, he would therefore
make a
significant loss from the sale of the property.
[23] He further submits
that the respondents’ contention that the business does not
generate
a nuisance, is based on their allegation that they are able
to calm the puppies on the property by giving them toys to play with
and dog chews to eat, and also by training them. The applicant
submits that the contention that 17 dogs can be kept quiet
in this
manner is plainly risible. Furthermore, that the first
respondent’s contention that she employs ‘one
caretaker
to assist in the management and cleaning of the premises’,
which would mean that only two people, herself and the
caretaker, are
able to keep 17 dogs quiet by giving them toys and chews, is
far-fetched and untenable. According to him,
in any event, the
videos on the respondents’ Facebook page shows the puppies
running around the garden and parking area without
any effort to keep
them quiet.
[24] He furthermore
contends that the neighbours’ statements upon which the
respondents rely
to contend that the business is not a nuisance,
constitutes inadmissible hearsay evidence. He therefore submits
that Puppy
Town contravenes the Noise Control Regulations and
constitutes a common law nuisance, and that the respondents have
advanced no
sustainable basis for showing that it does not.
[25] He submits that he
has also clearly shown that the loud and incessant barking emanating
from
Puppy Town is a contravention of the Animal By-law, because of
the following facts:
1)
the
respondents keep more than six dogs over the age of six months in the
property without a permit, in contravention of section
2 (2) of the
Animal By-law; and/or
2)
the
respondents keep dogs which bark, yelp, howl or whine for more than 6
accumulated minutes in an hour, or more than 3 accumulated
minutes in
half an hour, in contravention of section 6 (e) of the Animal By-law.
[26] As far as dogs over
the age of six months are concerned, the applicant referred in his
founding
affidavit to photographs on Puppy Town’s Facebook page
of birthday parties held for the dogs on the property. In one
instance, there was a 1
st
birthday party and in another a
7
th
birthday party. On this basis the applicant
contends that Puppy Town does not cater exclusively for puppies under
the age
of six months.
[27] The respondents in
their answering affidavit do not deny that they have accommodated
animals
older than six months, and in response to this allegation
they simply state that ‘it happened on specific occasions that
parties were held as per the owners requests and that party
activities have as stopped since March 2020’. They
consequently
do not deny that they have accommodated dogs older than
six months, and therefore breached the Animal By-law on that basis.
Further,
the allegation that they have ceased holding animal
birthday parties does not constitute an undertaking that they would
not accommodate
dogs that are older than six months in future.
[28] The applicant
contends that even if Puppy Town accommodated only dogs younger than
six months,
that in any event circumvents the purpose of the Animal
By-law. Also that even if Puppy Town did not contravene section
2
(2) of the Animal By-law, it unquestionably contravenes section 6
(e) thereof, as it accommodates dogs which bark, yelp, howl or
whine
for more than six accumulated minutes in an hour, or more than three
accumulated minutes in half an hour; in the hours that
the puppies
are dropped off and picked up, the barking continues uninterrupted
for more than two hours each day.
[29] The applicant
therefore contends that he has satisfied the requirements of an
interdict by, firstly,
showing that the operation of Puppy Town is
unlawful on the four independent grounds he set out in his heads of
argument. Furthermore,
he has a right to the ordinary and
reasonable enjoyment of his property, which is being infringed by
Puppy Town. He also
has a right to require that the activities
carried out on the property are lawful insofar as those activities
impact on his enjoyment
of his property. In this regard, he
submits that he has shown that he has a clear right.
[30] He furthermore
submits that an injury was actually committed, or that there is a
reasonable apprehension
thereof. In this regard he says that he
has had to endure the sound of the dogs barking on the property since
he purchased
his home at the end of 2015. This impacts on his
right to exercise his profession as a pastor who works from home.
While he accepts that the usual sound of a few neighbourhood dogs is
to be expected in a residential area, the sound of 17 dogs
on a
neighbouring property is intolerable and cannot be expected to be
endured by any reasonable person. He is not the only
resident
in the area that has a problem with the dogs, his surrounding
neighbours also do. It cannot be expected of him to
endure the
barking that emanates from Puppy Town.
[31] The respondents
furthermore do not dispute that the area in which they live is a few
minutes
from the suburban edge of Durbanville, and that it would be
difficult for them to find nearby premises suitable for the needs of
themselves and their clients. They have chosen not to do so and
have instead established the business unlawfully in a residential
area. They have also not denied that their reasons for doing so
are financial, by operating their business from their home,
and that
they are unable to afford the rent for other premises from where they
can operate. They expect the whole neighbourhood
to endure the
cacophony of dogs barking on the property so that they may enjoy the
relatively minimal financial advantage of saving
the rental of
alternative premises.
[32] The applicant submits
that he has shown that he has no alternative remedy. He has
lodged
complaints with the City for nearly 4 years, which yielded no
effective results and they have afforded him no relief. He
tried everything in his power short of approaching this court, and
has brought this application out of desperation and as a last
resort.
He had no option but to apply for an interdict.
The Respondents’ case
[33] The respondents, in
answer to these allegations, submit that the application should be
dismissed
with costs. They contend that they are conducting a
legitimate business from the property, and that their home is zoned
as
a single business residence and has additional use rights in terms
of Section 21 (b) that categorises it as home occupation under
Section 23 of the DMS. They further submit that the noise
levels from Puppy Town are not unreasonable and that the respondents
are within their rights as defined in the relevant by-laws. They
submit that there is no evidence that Puppy Town’s
noise levels
exceed the rating level for the specific area.
[34] They further argue
that it is unreasonable for the applicant to demand a quiet working
environment
from them if they have a legitimate business next door to
the applicant. There was, in any event, no evidence submitted
by
the applicant that Puppy Town’s noise levels exceed the
limits of expected toleration in the given circumstances. They
submit they have instructed a town planner (Van Gend) to advise them
on how to proceed with an application for a temporary departure
from
the zoning regulations.
[35] They were accordingly
advised that in terms of the planning by-law and, more specifically,
the
DMS, the first respondent can, as of right, conduct her home
occupation without permission from the City of Cape Town. Based
on Van Gend’s diagram and affidavit, part of the property can
be used for home occupation. According to them, Van Gend
relied
on the following factors:
1)
the
property concerned is known as a single residential and in terms of
Section 23 of the DMS a home occupation is conditionally
allowed;
2)
the
first respondent only used the double garage on the property for her
property occupation, which constitutes 36m², and as
such it is
less than 50m² as illustrated on the diagram “SVG 1”;
3)
the
respondents further state that Van Gend informed the first respondent
that an application for a temporary departure, and the
seeking of an
administrative penalty, is not warranted, as the first respondent’s
business constituted a home occupation.
The first respondent
submitted in her answering affidavit that Puppy Town operated as a
home occupation; the operational
hours had been changed to 8h00 to
17h30; and that the puppies are accommodated in the double garage.
[36] The applicant’s
contention that Puppy Town is not a home occupation in terms of the
DMS,
as well as the basis and facts upon which he relies, is not
correct. They submit that Puppy Town indeed qualifies as a home
occupation as defined in the DMS, for the following reasons:
1)
According
to them Puppy Town is conducted as an enterprise from an outbuilding
on the property in terms of the definition of home
occupation.
2)
An
outbuilding is defined as: ‘. . . a structure
,
whether attached or separate from the main building, which is
normally ancillary and subservient to the main building on a land
unit, and includes a building which is designed to be used for the
garaging of motor vehicles. . .’.
They
contend that the double garage that Puppy Town occupies, qualifies as
an outbuilding in terms of this definition.
3)
In
terms Section 21 (a) of the DMS they submit that even though the
property is zoned for singular residence, additional use rights
are
allocated to the residential zoning. This additional right is
categorized as a home occupation within a single residential
zone.
4)
They
further submit that if Puppy Town is a source of public nuisance the
City must investigate the complaint under section 125
of the planning
by-law, and if the City is of the opinion that they are in
contravention of the by-law, it must issue a directive
under section
128 in the form of a notice. In such a notice provision is made
for the submission of representations and reasons
by the owner; even
though criminal steps were taken by the City the case was later
withdrawn.
5)
According
to them, the total area of floor space in which Puppy Town operates
is within the prescribed floor space for home occupation,
as per the
expert report.
6)
They
contend that the definition of additional use rights under Section 11
of the DMS is as follows: ‘An activity or use described
as an
additional use right in a particular zoning is permitted in that
zoning without the approval of the City, provided that any
condition
or further provisions specified for such activity or use are adhered
to.’
There was thus no need to apply to the City for the use
of the property as a home occupation.
[37] Regarding their
alleged contravention of the Noise Control Regulations, which inter
alia defines
a noise nuisance, prohibits a noise nuisance, sets out
the procedure for the control of noise and sets out the manner in
which
a noise nuisance complaint must be investigated, the City’s
law enforcement confirmed that Puppy Town causes no legal
disturbance.
The respondent submits further that in terms of
regulation 12 of the Noise Control Regulations, the local authority
may exempt
any person or venue from any of the provisions of the
Noise Control Regulations either on their own initiative or on
application
by any person. Based on this provision, even if the
local authority is of the opinion that the barking of the puppies is
the cause of the noise nuisance, the respondents can still apply to
be exempted from the relevant regulation. The local authority
may even impose conditions in granting any permission to be exempted
from the provisions of these regulations, in terms of regulation
11
(1) (a).
[38] Regarding the
applicant’s contention that the respondents have created a
nuisance under
common law, the respondents refer to various cases
that, inter alia, deal with the question whether or not a nuisance is
actionable,
the relevant factors a court has to consider, when the
noise causing a disturbance can be accepted as reasonable and when an
applicant
in cases like these is entitled to interdictory relief.
[3]
[39] They further submit
that, as can be seen from the statements given by neighbours at 9
Shilling,13
Shilling, and 7 Shilling Street, these neighbours state
that the puppy daycare is of no concern to them and they have no
objections
thereto; that they do not have an issue or problem with
the first respondent running the puppy daycare from her house; that
one
neighbour in particular (Mr. Robert Upton) has for the last 17
years been doing work from home; that his workspace is situated at
the back of his house which faces the border wall of the Puppy Town
residence; that this neighbour has indicated that he spends
most of
his time on conference calls with customers and that although the
puppies from Puppy Town occasionally bark and cry during
the course
of any working day, it is usually negligible for periods of time and
that he can, with absolute certainty, confirm that
it does not in any
way interfere with his work.
[40] The respondents also
submit that the City’s law enforcement, who on occasion came to
their
property unannounced, confirmed that there was no legal
disturbance from Puppy Town. Furthermore, that Puppy Town never
received
any warnings, either written or verbally from the City’s
law enforcement department. According to the first respondent,
there are many pet owners in the suburb and some dogs bark on the
slightest whim. She keeps her puppies under control and
they do
not bark for any reason. Various things trigger the barking of
dogs. The City’s law enforcement spent one morning
at Puppy
Town and they could not pinpoint or show that it was Puppy Town that
was responsible for the barking. The respondents
submit that it
is not unreasonable to accept that the puppies will bark when dropped
off or collected.
[41] The applicant, being
a pastor, expects the noise level in the residential area to be of
such
a low volume that he can write, research and counsel, and he
wants a quiet working environment. This expectation is
unreasonable,
because a lot of people in the area have dogs and there
is no evidence to support his conclusion that Puppy Town is
responsible
for the barking of a large number of dogs in the area.
Even the City’s law enforcement department concluded that
the
barking from the puppies were not at a nuisance level and various
neighbours confirm that on occasion barking can be heard, but
it is
not disturbing.
[42] They contend that
whilst the barking that results from the puppies being dropped off
and collected
is most disturbing for the applicant, that that only
happens for a short period of time during the day. In any
event, the
noise measurements that were taken during this time show
that the barking is not a disturbing noise (or nuisance), and it does
not exceed the rating level by 7dBA. Because Puppy Town is a
business it will generate noise, and the noise generated can
be
expected in the circumstances and is therefore reasonable. They
submit that a ‘disturbing noise’ in terms
of the Noise
Control Regulations defines noise nuisance as ‘any sound which
impairs or may impair the convenience or peace
of a reasonable
person’, and that the City‘s law enforcement has
confirmed that there is no legal disturbance from
Puppy Town.
[43] In the context of a
business that generates noise, they contend that such noise must be a
disturbing
noise. A ‘disturbing noise’ is a noise,
excluding an unamplified human noise, which: (a) exceeds the rating
level
by 7dBA; (b) exceeds the residual noise level where that level
is higher than the rating level; (c) exceeds the residual noise level
by 3dBA, where that level is lower than the rating level; or, in the
case of low-frequency noise, exceeds the level specified in
annex B
of SANS 10103.
[44] Furthermore, in terms
of regulation 2 of the noise control regulations, a person may not:
(a)
cause a disturbing noise; or (b) allow a disturbing noise to be
caused by any person, animal, machine, device, apparatus, vehicle,
vessel or model aircraft, or any combination of the aforegoing.
When a person lodges a complaint to the local authority regarding
a
disturbing noise, it must be investigated and measures must be taken
to determine the level of noise. There is no evidence
that any
measurements were taken by local authority officials of the noise
levels at Puppy Town. The respondents submit that
the applicant
has not provided any evidence that he sustained or apprehended actual
harm.
[45] Regarding the
complaint that they contravened the Animal By-law, and in particular
section 2
(2) which places restrictions on the number of dogs on any
premises, they submit that notwithstanding Puppy Town having been
visited
on more than one occasion by law enforcement officers, each
and every time it was confirmed that no legal disturbance was caused
by Puppy Town. They therefore contend that, based on the facts
and the submissions they made, they have not been in contravention
of
any of the Animal By-laws. They furthermore argue that the
applicant has not made out a case that he is entitled to interdictory
relief.
[46] The applicant has not
shown, firstly, that he has a clear right. Also there is no
evidence
that he endured actual harm, or that there is an
apprehension of harm. The only harm the applicant relies on is
when the
barking of the puppies gives rise to actionable private
nuisance. They furthermore contend that they acted within the
provisions
of the law, in terms of the DMS and the Animal By-laws.
[47] They further submit,
as to the second requirement for interdictory relief, that on 9 March
2020
a compliance notice in terms of section 126 of the planning
by-law was issued to the First Respondent by an employee of the City.
As per the notice, the first applicant was instructed to comply
with the terms of the notice within 30 days, failing which
further
steps could be taken by the City. As of the date of these
proceedings, no action has been taken by the City to enforce
the
notice. The applicant should have applied for a mandamus
against the City to enforce the notice issued on 09 March 2020.
The Applicant has therefore not established, on a balance of
probabilities, that he has is no alternative remedy.
Analysis
[48] I agree with the
respondents’ submissions that Puppy Town’s operations
fall within
the definition of additional use rights as a ‘home
occupation’. I will now deal specifically with the
allegations
that the applicant relies on where he states that the
respondents failed to comply with the conditions set out in Sections
23 (a),
(e), (g) and (j) of the DMS. Whilst the complaints that
the applicant lodged against the respondents seems to be
wide-ranging,
the principal complaint, in terms of variously the DMS,
the Noise Control Regulations, the Animal By-laws and the common law,
is
based on the noise which emanates from the respondents’
property while they’re conducting their business. I will
deal firstly with the various complaints as set out in the DMS, the
Noise Control Regulations, and the Animal By-laws, and lastly
with
the common law grounds upon which the applicant submits the
respondents’ conduct is unlawful.
The contraventions of the DMS
[49] The applicant alleges
that in terms of Section 23 (a) the respondents are conducting a home
occupation
activity that is ‘likely to generate a public
nuisance’. Further, that in terms of Section 23 (e) the
respondents
are engaging in an activity which constitutes, or is
likely to constitute, ‘a source of public nuisance’, or
generate
waste material which may be harmful to the area’. On
a conspectus of the applicant’s case, it is clear that he
bases
the allegation of a contravention by the respondents of Sections 23
(a) and (e) on the level of noise emanating from the
respondents’
property. The question to consider is what is required to be
shown where it is alleged that a business
is likely to generate a
public nuisance. One has clearly to understand and examine what
is meant by public nuisance.
[50] In terms of Section 1
of the DMS, ‘public nuisance’ is defined as: ‘. . .
any
act, omission or condition which in the City’s opinion is
offensive, injurious or dangerous to health, materially interferes
with the ordinary comfort, convenience, peace or quiet of the public,
or which adversely affects the safety of the public, having
regard
to: (a) the reasonableness of the activities in question in the area
concerned, and the impacts which result from these
activities; and
(b) the ambient noise level of the area concerned’.
[51] In my view, the
applicant has not made out a case that the business of the
respondents constitutes
a public nuisance, or is likely to constitute
a public nuisance, based on the level of noise emanating from the
respondents’
property. For this to have happened, the
respondents’ conduct had to involve an ‘act, omission or
condition which
in the City’s opinion is offensive, injurious
or dangerous to health, materially interferes with the ordinary
comfort, convenience,
peace or quiet of the public, or which
adversely affects the safety of the public’.
[52] There is no evidence
that the City formed an opinion that the respondents’ conduct
falls
within the aforegoing definition, although it did issue a
compliance notice on 9 March 2020, and instituted a prosecution
against
the respondents. In fact, it did not proceed to act
upon the compliance notice, and it seems that it withdrew the charges
against the respondents. As will be pointed out later, the
City’s response to the applicant’s complaints was
totally
inadequate and not in keeping with its constitutional obligation to
serve the public. The mere fact, however, that
the noise
emanating from the respondents’ property is offensive, or
materially interferes with ordinary comfort, convenience,
peace or
quiet of the applicant, and at least one of his neighbours (David
Austin), and had been experienced by a person (Rehan
Celliers) to
whom he rented his premises for almost 18 months, would not, in my
view, constitute the likelihood of a public nuisance.
[53] In our law, public
nuisance is defined by Joubert (Ed)
The Law of South Africa
Vol 19 (2
nd
Edition Replacement) para 214 as:
‘In the result the term “public
nuisance” in South African law has the simplified meaning of an
ordinary nuisance
so extensive in its effect or range of operation as
to discomfort the public at large.’
In this regard, the learned authors refer to the
decision of
Queenstown Municipality v Wiehahn
1943 EDL 134
, at
140, and go on to state the following: ‘
There
is no usually cited definition of “public nuisance” in
South African law. The following definition which
appears in
the Municipal Ord 20 of 1974 (Cape) s 1 would seem to provide a
satisfactory statement of the South African concept
of a public
nuisance: “Any act, omission or condition which is offensive,
which is injurious or dangerous to health, which
materially
interferes with the ordinary comfort, convenience, peace or quiet of
the public or which adversely affects the safety
of the public.”’
This definition
accords with the definition of public nuisance in the DMS.
[54]
In para 216 it is further stated: ‘There is authority for the
proposition that where a
nuisance is so extensive or widespread as to
affect the public at large
or
threatens the public health, civil proceedings may be instituted for
the suppression of the nuisance. Such proceedings
are usually
instituted by a local authority, although a private individual may in
appropriate circumstances go to law.’
(Internal
footnotes omitted.)
.
None of the conduct complained of by the applicant, in
my view, falls within the definition of public nuisance, since there
is no
evidence that the noise emanating from the respondents’
property, as a result of the business they conduct, is so extensive
or widespread as to affect the public at large, or to threaten the
public health. As said earlier, it seems to be a nuisance
that
affects the applicant and, at the very least, one of his neighbours.
I base this conclusion solely on what the applicant
alleges in
his founding affidavit, as confirmed and corroborated by Austin and
Celliers in their affidavits.
[55] I agree with the
applicant’s contention that the evidence of the first
respondent, to the
effect that some of the neighbours do not find the
business, and more especially the noise generated by the incessant
barking of
the dogs, disturbing or a nuisance, is inadmissible
hearsay. I did not rely on that evidence for the conclusion I
came to.
[56] At the very least,
based on the above definition, the conduct must be shown to be such
that it
is likely to cause a nuisance that is widespread and
extensive, meaning that it must have the potential to affect the
public at
large, in order for it to be likely to cause a public
nuisance. In my view, therefore, the applicant has failed to
show that
there was a contravention by the respondents of sections 23
(a) and (e) that is likely to generate a public nuisance, based on
the level of noise emanating from the respondents’ property in
conducting their business as a home occupation. The applicant
has also failed to show that the respondents carried out any activity
which is likely to generate waste material requiring special
waste
removal processes.
[57] Regarding the
allegation that the respondents contravened section 23 (g) of the
DMS, I am satisfied
on the evidence presented by the applicant, as
supplemented by the affidavit of the respondents’ expert Van
Gend, that the
respondents indeed contravened section 23 (g), by
exceeding the lesser of 25% of the total floor space of the dwelling
units on
the land unit, or 50m². This is based on the
diagram attached to Van Gend’s affidavit, which shows the area
in
which the business operates to be approximately 146m²,
consisting of the driveway area of 110m² and the garage area of
36m².
[58] I am also satisfied
that the respondents contravened Section 23 (j) of the DMS, in that
it did
not operate the business during the hours of 8h00 and 17h30 on
Mondays to Fridays, and from 08h00 to 13h00 on Saturdays. It
was not disputed by the respondents that Puppy Town advertised its
operating hours to be from 07h00 to 18h00 on Mondays to Fridays.
I
furthermore agree with the applicant’s submission that the
first respondent’s assertion that she has changed
the business’
operating hours, is unsustainable, because it seems that the
operating hours listed on the website have not
been changed, even
after the applicant lodged a complaint. The applicant also
stated in his evidence that puppies were still
being dropped off
between 7h00 and 8h00, and he has witnessed dogs being dropped off
shortly after 7h00.
Noise Control Regulations
[59] The applicant’s
allegation that the respondents contravened regulation 3 (c) of the
Noise
Control Regulations, is based on the fact that the respondents,
by allowing the dogs to bark incessantly on their property, caused
a
noise nuisance as defined in the regulations. The applicant
further bases this allegation on the fact that there can be
no
question that the barking on the property is permitted and
facilitated by the respondents, as a natural consequence of the
business they have chosen to operate. Also that this barking is
a sound which impairs the convenience or peace of a reasonable
person.
[60] The applicant states
that a reasonable person cannot be expected to endure the sounds of
17 dogs
barking on one property in a residential area. The
respondents, in answer to this, merely deny the allegation. This,
in my view, constitutes a bare denial, and of an allegation that
cannot be disputed, because it is a natural and inherent consequence
of the business that the respondents operate, that a noise will be
created because of the number of dogs present on the property.
The
argument raised by the respondents in their heads of argument, that
the applicant has failed to show that the noise is
a “disturbing
noise” as defined, is totally irrelevant as to what constitutes
a noise nuisance such as that which the
applicant complains about, as
set out in the regulations. The probabilities clearly favour a
conclusion that, given the intensity
and continuous noise generated
by dogs barking, and the number of dogs on the property, it evidently
impairs the convenience or
peace of a reasonable person.
Contravention of Animal By-law
[61] I agree with
applicant that the respondents contravene the Animal By-law, firstly,
in that the
respondents keep more than six dogs over the age of six
months on the property without a permit, in contravention of section
2
(2); and secondly, in that the respondents keep dogs which bark,
yelp, howl or whine for more than six accumulated minutes in an
hour,
or more than three accumulated minutes and half an hour, in
contravention of section 6 (e). The respondents have not
denied
this allegation in their answering affidavit
[4]
.
[62] The first respondent
furthermore does not deny the allegation that on Puppy Town’s
website
it is shown that the business does not exclusively cater for
puppies under the age of six months, and that there is an album of
photographs on Puppy Town’s Facebook page devoted to the 1
st
and 7
th
birthdays of certain dogs. Furthermore, the
first respondent’s denial that the dogs bark, yelp, howl or
whine more than
six accumulated minutes in an hour is, given the
nature of the business and the number of dogs kept on the premises
per day, unsustainable.
This is sufficient evidence to show
that the respondents contravened the provisions the Animal By-law.
[63] In my view, it is not
a sufficient excuse or justification for the respondents to merely
state
that because the City did not act against them, their conduct
was not unlawful. The failure of an organ of state to act
against
unlawful conduct does not make such conduct lawful. Their
evidence in this regard is in any event not admissible, as it amounts
to hearsay. This cannot be a reason not to conclude that the
conduct of the respondents was not unlawful, where there is
objective
and certain undisputed evidence as pointed out above, that there were
indeed breaches of the law.
[64] Furthermore, given
the number of times the applicant complained and received no
assistance from
the City, it is clear there was a dereliction of duty
on the part of the City’s officials, who failed to come to the
applicant’s
assistance. They were clearly uncooperative
and grossly inept in carrying out their duties. There was
plainly a reluctance
to assist the applicant. Having said that,
as will be shown later on, the mere fact that the respondents have
contravened
certain by-laws, does not entitle the applicant to
interdictory relief. He must clearly show that he suffered harm
as a result
of the respondents’ contraventions. I will
deal with this aspect later in this judgment.
Common Law Nuisance
[65] A further ground upon
which the applicant alleges that the business which respondents are
unlawful
because it constitutes a common law nuisance. It would be
appropriate to have regard to the principles relating to the
so-called
law of Neighbours, which includes the use of a neighbour of
his or her property where such use has an impact of the rights of
other
neighbour. Van der Walt & Pienaar:
Law
of Neighbours
(1
st
Ed)
[5]
thus states:
‘In South African neighbour law, neighbours are expected to
tolerate a reasonable level of interference resulting from the
use of
neighbouring land, but when the use of land affects neighbours in
ways that exceed that level it becomes unlawful and thus
actionable
nuisance. The applicant's right to interdict the offending
behaviour results from the nuisance being unlawful,
and unlawfulness
is predicated upon the judgment that the effects of the nuisance
exceed (in its nature, scope or level) what could
reasonably be
expected of the neighbour to accept or tolerate. As will appear
from the analysis and discussion below, the
reasonableness standard
plays a large part in reaching this conclusion.
Continuing, ongoing and repetitive infringements of the use and
enjoyment of neighbouring land have become known as nuisance in
the
narrow sense. This form of nuisance, also known as annoyances,
primarily hinders or disturbs the neighbour in the use
and enjoyment
of her property and may cause personal discomfort or even injury,
although it can also result in patrimonial loss.
The principle
is that any use of land that causes ongoing immissions of water,
unpleasant smells, smoke, vibrations or noise
on neighbouring land or
that in any other way infringes the normal use and enjoyment of
neighbouring land, in an ongoing and unreasonable
manner, constitutes
a nuisance in the narrow sense, which is unlawful and could therefore
be interdicted. Nuisance in this
sense infringes the affected
landowner's use and enjoyment of her property, although it has also
been said (confusingly) that the
nuisance impinges on the personal
comfort and wellbeing of its user. . . .
It is usually said that the owner or user of the affected
neighbouring land can obtain any or all of the following remedies in
nuisance cases: an interdict to prevent or terminate the offending
behaviour; a delictual remedy to claim compensation for accompanying
damages; and a claim for compensation, based on the actio
inuriarum or the action for pain and suffering, for
infringements
of the plaintiff's personality rights such as her
personal integrity or health. For nuisances that amount to
annoyances
as defined earlier, the interdict is by far the most
important remedy, since the object in these cases is primarily to
either prevent
a nuisance from occurring or to terminate an ongoing
nuisance. The nature and goal of the remedy, the requirements
for success
and the considerations taken into account by the courts
to decide whether the remedy is available differ according to the
facts
of each case, the context within which the nuisance occurred
and the remedy sought or provided.’ (Internal footnotes
omitted.)
[66] It seems that,
generally speaking, an annoyance that causes personal suffering (such
as ongoing
loud noise) and that will interfere with the affected
owner’s use and enjoyment his or her land, constitutes a
nuisance.
In a case like this, aimed at preventing or stopping
a nuisance, the relief that is available to an affected person is in
the form of an interdict, in terms of which the applicant has to show
a clear right, an injury actually suffered or reasonably
apprehended,
and the absence of any other remedy
[6]
.
Fault is not a requirement but nuisance should be unlawful.
All that is required is proof of an infringement.
In a case
like this, the following factors are relevant:
[7]
a)
the
infringement will be unlawful when (and because) it results from
abnormal use of the neighbouring property;
b)
unlawfulness
thus follows from the fact that the nuisance imposes an unreasonable
infringement of the applicant’s rights,
established in
accordance with the reasonable standard;
c)
when
applying for an interdict to prevent or terminate a nuisance
emanating from a neighbouring property, the applicant has to show
that the use of the neighbouring land, or the state of affairs that
causes (or threatens to cause) the nuisance, is excessive and
unlawful, and also that the nuisance occurs repeatedly or
continuously. A single occurrence of such a nuisance would be
insufficient to obtain an interdict;
d)
to
obtain an interdict to prevent or terminate a nuisance, the applicant
must show that an infringement emanating from the neighbouring
land,
in the form of smoke, noise and unpleasant smells, is excessive and
therefore unlawful;
e)
to
conclude that the nuisance is excessive, the courts apply a
reasonableness standard, which entails a balancing of the mutual
and
reciprocal rights and obligations of neighbours. Owners and
users of land are expected to accept a reasonable volume
of smoke,
noise and other immissions from neighbouring land, and can only
complain when those immissions transgress the limit of
reasonableness, for instance when they result from abnormal use of
the property; exceed the limits of reasonable forbearance expected
of
neighbours, or when they cause serious physical damage or seriously
and urgently endanger the physical integrity, health and
well-being
of the neighbour;
f)
the
assessment of whether a particular interference is unreasonable is
purely a contextual question, in which the court considers
such
factors as the suitability of the respondent’s use of the
property; the extent and the duration of the interference;
the time
or times when the interference are caused; the nature of the property
and the locality where the harm was caused or where
it occurred; the
sensitivity of the applicant of the particular emission or in
general; and the possibility, and practical and
economic feasibility,
of actually preventing, terminating or mitigating the harm.
Actual or apprehended harm
[67]
It has clearly been shown that the respondents have contravened the
provisions of Section 23
(g) and (j) of the DMS, regulation 3 (c) of
the Noise Control Regulations, and section 2 (2) and 6 (e) of the
Animal By-laws. In
my view, all three pieces of legislation
were enacted for the general benefit of the public. In such a
case, as pointed out
by the court in
Laskey
(supra), para 13, where the court relied on the decision of
Patz
v Greene & Co
[8]
and
Roodepoort- Maraisburg Town
Council v Eastern Properties (Prop) Ltd
[9]
‘
.
. .
when
it appears that a statute was enacted in the interests of a
particular person or any class of persons, a party who shows
that he or she is one of such persons or such class of persons and
seeks judicial intervention by way of the grant of interdictory
relief premised on the Act is not required to show harm as a result
of the contravention of the statute, such harm being presumed.
But
that when a statutory duty was imposed, not in the interest of a
particular person or a particular class, but in the public
interest
generally, the applicant must show that he or she has sustained, or
apprehends, actual harm in order to obtain interdictory
relief on the
grounds of a breach of the statute
.’
[68] In my view, given the
nature of the DMS, the Noise Control Regulations, as well as the
Animal
By-laws, it was clearly enacted for the benefit of the general
public and not for the benefit of any particular person or class
of
persons like the applicant. In order for the applicant to
secure an interdict, he has to show that a breach or a contravention
of any of the mentioned legislation, regulations or by-laws, has
occasioned or is likely to occasion harm.
[69] The respondents may,
on application, be exempted by the City from any provision of the
mentioned
laws, and as pointed out by Binns-Ward AJ (as he then was)
at para 18 in
Laskey
, the fact that the respondents have been
shown to be in an apparent contravention of the statutory provision
does not
per se
entitle an applicant to interdictory relief.
In order for an applicant obtain such relief it is necessary
for him/her to show
that the breach or contravention has occasioned
him or her harm, or is likely to do so. In this regard, the
learned judge
was of the view that the requirement of harm would be
established if the conduct of the respondents which the applicant
complained
of gave rise to a private nuisance actionable at the
applicant’s instance. In that particular case, the
applicants
founded their claim in the alternative on the common law
remedy and its consideration in that context may be determinative of
the
application. Similarly, in this case the applicant has also
founded his claim in the alternative on the common law remedy
of a
so-called noise nuisance.
[70] I am satisfied that
the applicant has made out a case that his use and enjoyment of his
property
has been infringed by the respondents in the conduct of
their business, and that the infringement is continuous and
repetitive.
He has clearly shown that he cannot enjoy a
peaceful environment where he can live and work unhindered. In
this regard
it is clear that the noise is generated by the incessant
barking of a large number of dogs. According to the evidence,
there
are about 17 dogs (which includes the first and second
Respondents’ own two dogs) on any given day. The noise is
particularly
loud and disturbing in the morning and evening. This
occurs in a scenario where the property is located in a quiet
residential
area. The applicant states that due to the
continuous barking, he and his family cannot enjoy a morning cup of
coffee in
the back garden and finds the circumstances very
unpleasant. Furthermore, if they want to use the back garden on
a weekday
evening, they have to wait until around 18h15 or 18h30
before the noise quietens down sufficiently.
[71] The applicant further
states that every time a client of the business drops his or her dog
off
at the property or picks it up, the other dogs on the property
start barking. This triggers a cacophony of barking from all
the dogs in the neighbourhood, which aggravates matters considerably.
Furthermore, that throughout the day the dogs on the
property
sporadically begin barking, which again triggers barking of the dogs
throughout the neighbourhood. The applicant
has put up a case
which is corroborated by one of the neighbour, David Austin, and the
applicant’s former tenant, Rehan Celliers.
[72] Austin states in his
affidavit, inter alia, that he and his family find Puppy Town to be a
serious
nuisance which adversely affects their lives on a daily basis
in many ways; that the noise nuisance is perhaps the single greatest
annoyance; that Puppy Town also increases traffic volumes in a quiet
residential area and clients park on the verge of his house
and cause
a disturbance; that the dogs in the neighbourhood join in the ‘canine
chorus’ every time a puppy is dropped
off or picked up; that
the noise emanating from Puppy Town adversely affects his ability to
work from home, in particular his ability
to conduct Skype calls;
that he cannot enjoy a coffee in his back garden on a Saturday
morning without having to listen to Puppy
Town; that Puppy Town has
adversely impacted upon the value of his property; that he is
concerned with questions of hygiene and
the welfare of the dogs; that
the operation of Puppy Town is extremely inconsiderate of the
legitimate interests and desires of
neighbours in the area; and that
the business seriously prejudices their ability to enjoy their
properties.
[73] Celliers in his
affidavit similarly confirms that the noise from Puppy Town was very
disruptive.
He used to live at 5 Obol Road, as a tenant at the
applicant’s property; during that time, he says it was
particularly bad
in the mornings and after the dogs were dropped off
and picked up; and that they bark several hours at a time with little
interruption.
In answer to these allegations made by these two
witnesses, the first respondent has responded with bald denials, and
attached
to her affidavit letters of support from other neighbours,
instead of affidavits. As I said earlier, I view this as
inadmissible
hearsay evidence. No application was made by the
respondents for this evidence to be admitted in terms of the
provisions
of
section 3
of the
Law of Evidence Amendment Act 45 of
1988
.
[74] I furthermore agree
with the applicant that the first respondent’s contention that
she
is able to control 17 dogs barking, by any means, is not
plausible. It is a natural and inherent consequence of the
business
which the respondents conduct, where they have permitted a
number of dogs to be on their premises which is situated next to that
of the applicant, that such a business creates a noise nuisance
because of the natural inclination of dogs to bark. Especially
when you have about 17 dogs housed together in the relatively
confined space in which the respondents conduct their business.
On their own version this space is 36m
2
.
[75] Whilst it is true
that anyone is permitted to use their property for any purpose they
choose
and, in this particular case, the respondents are entitled to
conduct their business from their home, the law requires them to do
so without unreasonably infringing on the use and the enjoyment by
the neighbours of their own properties. In
De
Charmoy
supra, at page 191F-G, the court
said, with reference to the case of
Regal v
African Superslate (Pty) Ltd
1963 (1) SA 102
(A)
[10]
:
‘
The principal in our law is this: although an
owner may normally do as he pleases on his own land, his neighbour
has a right to
the enjoyment of his own land. If one of the
neighbouring owners uses his land in such a way that material
interference with
the other’s rights of enjoyment results, the
latter is entitled to the relief.
“
Die reg moet ‘n reëling voorsien vir
botsende eiendoms- en genotsbelange van bure, en hy doen dit deur
eiendomsregte
te beperk en aan die eienaars teenoor mekaar
verpligtings op te lê.”. . .
The Chief Justice went on to refer to commentators on
the Roman and Roman-Dutch law and, after pointing out,
inter alia
,
that an owner was not required to endure “bomatige”
disturbance caused by smoke emanating from his neighbour’s
property, he observed
“
Dit lê voor die hand dat dieselfde beginsel
ten aansien van ander stoornisse soos gerase en reuke aanwending sou
kon vind.”’
In
Laskey
, para 19, it was said: ‘What
constitutes reasonable usage in any given case is dependent on
various factors, including the
general character of the area in
question - persons living and working in an urban area would, for
example, reasonably be expected,
in general, to be more forbearing
about a higher level of noise intrusion into their lives than
neighbours living in a rural housing
estate.’
[76] This is not a case
where you have one or two dogs of a neighbour that would occasionally
bark
at a stray cat, a stranger knocking at the door, an intruder or
something unusual in their surroundings, which would normally occur
in a quiet neighbourhood. It is not normal or reasonable use of
the respondents’ property. It is abnormal use,
which in
my view exceeds the limits of reasonable forbearance to be expected
from a neighbour like the applicant, who lives in
a quiet
neighbourhood away from the hustle and bustle of city life. The
nuisance caused by the barking is incessant, repetitive
and
continuous during the day. It is not a single or sporadic
occurrence, which a neighbour is expected to forebear. While
such noise may be bearable in a busy City, where there is a lot of
activity, such as large volumes of traffic, the constant movement
of
people and crowds and noise created by businesses, it would
definitely disturb the peace and serenity of a quiet neighbourhood
where such noises are not expected, and to which the applicant is
entitled.
[77] I agree with the
applicant that the noise not only impacts on his right to exercise
his profession
as a pastor who works from home, but more importantly
it also impacts on his right to the peaceful use and enjoyment of his
property,
by himself and his family in general. It is
furthermore not disputed that the area in question is a few minutes
from the
suburban edge of Durbanville, and that it would not be
difficult for the respondents to find premises nearby, for them to
conduct
their business from. They have chosen not to do so and
have instead established the business unlawfully in a residential
area. The applicant in my view, has clearly shown that as a
result of noise created by the respondent’s business, he
has
suffered harm.
No alternative remedy
[78] I also agree that
given his continuous complaints to the City covering a period of 4
years, since
February 2016 until March 2020, about the nuisance
caused by the respondent, where it was clearly evident that the
respondents
had breached the DMS, the Noise Control Regulations as
well as the Animal By-laws, that he has clearly shown that he has no
alternative
remedy, other than applying for interdictory relief.
In my view, the applicant has satisfied the requirements
for interdictory relief. In cases like these an order is sought
to
either prevent the respondent from proceeding with the actions
that subject the applicant to the nuisance, or to compel the
respondent
in particular circumstances to avert an imminent threat of
nuisance. Also to compel a respondent to terminate ongoing
action
or the ongoing state of affairs that causes the nuisance.
[79] This court is mindful
of the effect and consequences which the order the applicant seeks
will
have on the respondents’ business. Whilst this court
found that the respondents in the conduct of their business
contravened
or breached the provisions of the DMS, the Noise Control
Regulations and Animal By-laws, the grounds for the interdict were
not
found to be on that basis, but on the basis of respondents
creating a common law nuisance.
[80] In my view, given the
circumstances of this case, it would not be appropriate for the court
to
exercise its discretion to suspend its order, so as to grant the
respondents an opportunity to abate the nuisance it caused by their
business. Such an order would defeat the whole purpose of the
relief, because they would then continue with their business
on their
property which is situated next to that of the applicant. Whilst
they would not be required to close down their
business, they will be
required to discontinue from operating their business whilst it is
situated next to the applicant’s
property, in order for them to
discontinue with the nuisance. They will clearly have to
relocate their business to another
location to prevent the nuisance
from continuing in order to comply with the interdict. In the
result therefore, I make the
following order:
1)
The First to Third Respondents are prohibited
from operating a puppy or dog daycare, or any similar animal care or
custody business
from Erf 5818, 11 Shilling Road, Vierlanden,
Durbanville (“the property”);
2)
They are directed forthwith to cease the
operation of a puppy or dog daycare, or any similar animal care or
custody business, from
the property;
3)
The First to Third respondents are ordered to pay
the Applicant’s costs, jointly and severally, the one paying
the other to
be absolved
R.C.A. Henney
Judge of the High Court
[1]
‘
Section 21 Use of the
property
.
. .
(a)
Primary uses are dwelling house, private road and additional use
rights as specified in paragraph (b).
(b)
Additional use rights which may be exercised by the occupant of a
property are home occupation, bed and breakfast establishment
and
home child care, subject to the following conditions:
.
. .
(iv) The conditions stipulated in
sections 23, 24, or 25 (whichever is applicable) shall be adhered
to; . . .’
[2]
1967 (4) 188 (D) at 192, cited with
approval in Laskey and Another v Showzone CC and Others
2007 (2) SA
48
, para 22.
[3]
PGB Boerdery Beleggings (Edms) Bpk
and Another v Somerville 62 (Edms) Bpk and Another
2008 (2) SA 428
(SCA) para 9; De Charmoy v Day Star Hatchery supra fn 2; Moskeeplein
(Edms) Bpk an ‘n Ander v Die Vereniging van Advokate
(TPA) en
Andere
1983 (3) SA 896
(T) 900G-H and 901A; Laskey and Another v
Showzone CC and Others supra fn2, para 32.
[4]
Paragraphs 152-155, page 41 -41.
[5]
Chapter 6.2.1 at page 262-263.
[6]
Laskey supra fn 2.
[7]
Pages 264-273, Van Der Walt &
Pienaar.
[8]
1907 TS 427
[9]
1933 AD 87
at 95-96.
[10]
See also Moskeeplein, supra fn 3.