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[2011] ZAECPEHC 11
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Erasmus NO and Another v Blom and Others (3311/09) [2011] ZAECPEHC 11 (31 March 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE – PORT ELIZABETH
Case No: 3311/09
In the matter between
LEON PIERRE ERASMUS N.O.
….....................................
First
Plaintiff
CRAIG TODD DE LANGE N.O.
…..................................
Second
Plaintiff
and
ANDRE BLOM
….........................................................
First
Defendant
SESHA HOMES PROJECT MANAGEMENT
(PTY) LTD
…..........................................................
Second
Defendant
KROMME HOME OWNERS ASSOCIATION
…...............
Third
Defendant
JUDGMENT
REVELAS J
[1] The plaintiffs, in their
capacities as trustees of the Bachelor Family Trust (“the
Trust”), instituted an action
for,
inter alia
, damages
in the amount of R1 200 000.00, representing the decrease
in value of the Trust’s property, caused by
the first defendant
having built his house infront of the property owned by the Trust and
therefore compromising its view of the
scenic Kromme River. In the
alternative, the plaintiffs seek an order compelling the first
defendant to demolish the house.
[2] At the onset of the proceedings
an order was made accordance with Rule 33(4) of the Rules of Court,
in terms whereof the merits
were separated from the question of
damages, or the alternative remedy of demolition.
[3] The real issue between the
parties pertains to an agreement between the first defendant and the
first plaintiff as to the height
of the first defendant’s roof
and my determination in this matter depended largely on making a
finding as to what height
was agreed upon before the defendant
started building his house.
[4] The properties in question are
situated in the Candlewood Development (“Candlewood”)
situated on the Kromme River.
The Trust bought its property, which is
not a riverfront plot for R1 150 000.00 on 10 April 2006.
The first defendant
bought his property which is a riverfront plot
opposite the Trust’s plot, for R2 000 000.00 (2
million rand) on
28 April 2007. The riverfront plots are for obvious
reasons more expensive than the other plots. Both parties built
houses on their
respective properties, and these houses adhered to
the general requirement applicable to all houses in Candlewoods,
namely that
their walls must be plastered and painted white and their
roofs must be black.
[5] At some stage during the
cross-examination of the plaintiff, an inspection in
loco
was
held at Candlewoods and both houses in question were visited. The
following observations were made:
[6] The first plaintiff is the main
occupant of the Trust’s property, which he primarily inhabits
as a holiday or week-end
home. In front of his house, a timber pool
deck had been constructed and at substantial expense, large plants
and established trees
were planted around the deck. According to the
first plaintiff, his instant garden was initially established as a
necessity to
diminish the sound of the traffic travelling along the
bridge crossing the river.
[7] The vegetation of the instant
garden is planted across approximately two thirds of the deck
(situated on the westerly corner
of the deck from east to west). From
the master bedroom and the entertainment area in the house, the first
plaintiff’s view
of the river is obscured by the roof of the
first defendant’s house immediately to the north of the deck.
The first plaintiff’s
view of the river directly in front of
the pool deck is partly obscured by the thick vegetation of his
instant garden. To the left
(west) looking at the first defendant’s
house from the first plaintiff’s house, if one is standing on
the deck facing
north, one has an unrestricted view of the river and
surrounding area.
[8] The bridge is situated to the
right (or east) as one faces the river looking north from the first
plaintiff’s pool deck.
The first plaintiff testified that the
dense vegetation of the instant garden was later increased around
part of the deck, as it
became necessary to block out his view of the
first defendant’s house, where it obscured his view of the
river from the pool
deck. The first plaintiff’s timber pool
deck runs from east to west along the north side of the residence.
The pool is approximately
1.3 metres deep.
[9] Standing on the first
plaintiff’s pool deck, looking straight at the defendant’s
house, a very small portion of
the river is visible above and behind
the pitch of the roof. The first defendant’s property is
situated on a slope with its
northern boundary lying approximately
three metres from the Kromme River in a so-called green belt area.
[10] The first defendant built a
two-storey house on his property. However, and this is very
important, the lower level of his house
is below street level.
Standing on the first plaintiff’s pool deck and below on the
road which separates the two properties,
the first defendant’s
house has the outward appearance of an average single storey house.
[11] The road between the two houses
is approximately 1.2 metres higher than the floor level of the first
defendant’s garage.
The first plaintiff’s house is a
dormitory house, which is higher than a single storey house, but is
not quite a double-storey
house. The access path to the first
defendant’s house from where one would turn out of the road
into his property is short,
and also runs along a downward slope.
Therefore the floor level of the first defendant’s house is
lower than the road.
[12] Because the first defendant’s
building plans for a double storey house had to be approved by the
Executive Committee
of the Candlewoods Home Owner’s Association
(“the Association”) of which the two plaintiffs were
members, it
stands to reason that the first defendant would have had
to come to an agreement especially with the first plaintiff, as to
the
height of his house, because it would be the latter’s view
that was at stake. According to the first plaintiff, he “had
no
problem” and was “happy” with the first defendant
building a double storey as long as his view would not be
impaired.
Naturally, the plaintiffs ought to have appreciated that at some
stage someone was going to build a house, and not a
bunker, on the
riverfront plot in front of them.
[13] It is common cause that the two
men went through an actual physical exercise, with the first
plaintiff standing on his pool
deck looking at the first defendant
who was holding a pole in a vertical position with the purpose of
satisfying the first plaintiff
as to the height of the first
defendant’s roof. The first plaintiff did not concede that the
pole held out by the first defendant
was drawn out to its full length
of five metres on the day in question, as was the case on the day the
inspection
in loco
was held.
[14] It is also common cause that
the two of them indeed reached an agreement as to roof height with
reference to the pole. The
height however is in dispute because the
two individuals gave different versions as to where exactly the first
defendant stood
with the pole when the first plaintiff intimated his
satisfaction with the roof height. That would have been the point at
which
the two parties reached agreement.
[15] Their agreement was
unfortunately not reduced to writing, nor was the agreed height
recorded on the building plans. At that
stage it was an invisible
spot in the sky above the river. Finding that exact spot later, after
building operations on the first
defendant’s property had
commenced and reached roof height, would depend on both parties
recall of that very spot. I asked
the first plaintiff why, at that
early stage, did he and the first defendant not mark the spot they
agreed upon with some fixture.
He answered that the topography did
not permit that, that and some temporary vertical structure would
have been too costly.
[16] The plaintiffs contend that the
first defendant breached the relevant terms of the Candlewoods
Constitution and Building Regulations.
These require some discussion.
[17] The standard agreement of sale
between the first and second defendants in terms whereof the first
defendant bought his riverfront
property was attached to the
plaintiffs’ particulars of claim. The agreement of sale
prescribes automatic and compulsory
membership of the Candlewoods
Home Owners’ Association for each home owner. Thus, in their
capacities, as property purchasers
in Candlewoods, both plaintiffs
and the first defendant became members of the Association. The
significance hereof was alluded
to above.
[18] The process of the overall
management of Candlewoods is regulated by its Constitution and the
Candlewoods Building Regulations.
These documents are annexures to
the standard agreement of sale aforesaid, and formed part of the
pleadings and evidence in this
matter.
[19] The provisions of the
Constitution and Building Regulations which are relevant to the
litigation at hand are the following:
[20] According the Candlewoods
Constitution, all building plans and the positioning of houses are to
be approved by the Executive
Committee (Exco) of the Association
“Members having followed Building Regulations. Drawings/designs
are to be submitted to
the Exco for approval prior to submitting to
the Kouga Municipality”. Only in exceptional circumstances,
with the approval
of Exco obtained by a written request, may the
Building Regulations be deviated from. It is common cause that the
first defendant’s
house plans were accordingly signed off, also
by the first plaintiff.
[21] Under the heading “House
Positions”, Clause 2.1.1 of the Building Regulations provides
that the positioning of
houses were subject to consultation with the
Exco or its appointed architect, “[t]he purpose being to
maximize the river
views for all members”. The first plaintiff
stressed the significance of this clause to place another relevant
clause of
the Building Regulations in perspective with regard to
their claim. This other relevant clause in the Candlewoods Building
Regulations
is Clause 2.2.3, which provides that riverfront stands 1,
2, 3 and 4 (the first defendant bought stand 3) “will be
subjected
to
height restrictions
from the Natural Ground level
to be specified at a later date. Due to the topography dormer storeys
will be permitted within the
roof space on these stands
notwithstanding the envisaged height restrictions
. I.e. the
purchaser is not restricted to a single storey” (Emphasis
added).
[22] In the terms of the Building
Regulations referred to herein, the first defendant’s house was
subject to height restrictions
because he bought a riverfront erf. He
was entitled to build a dormitory or dormer house, which is virtually
a double storey house.
He however, by way of substantial excavations,
managed to build a double-storey house which from the first
plaintiff’s physical
point of view (from his house) has the
appearance of a single storey house. The plaintiffs argued that its
roof should have been
lower permitting a greater view of the river
above the roof.
[23] During the inspection
in
loco
the first plaintiff and the first defendant pointed out two
different areas on the properties as being the position where the
first
defendant stood when they agreed on how high his roof would be.
The first defendant stood infront of his garage (floor level) holding
a pole, which at that stage was drawn out so that it was five metres
long. Holding it upwards with its one end on the ground (floor
level), the pitch of the first defendant’s roof was measured to
be 4.60 metres from the floor. The first defendant alleged
that he
stood at the very same point when he and the first plaintiff had a
site meeting and agreed upon where the highest point
of his roof
would be before the building plans were signed off.
[24] There is a distance of
approximately 2.9 metres between the road level and the ground level
of the defendant’s house.
The floor level of the first
defendant’s house is 1.2 metres below the road level. The first
plaintiff disputed that the
first defendant stood at such a low point
(in front of his garage) when they agreed on the height of the roof.
According to him,
the latter stood on the higher verge at the
relevant time. In other words, the first defendant stood on the road
level which is
1.2 metres higher than the floor level of his garage.
[25] During the inspection
in
loco
, the first defendant stood on the verge alleged by the first
plaintiff to have been the point where he stood, when they came to
an
agreement on the height of the roof. This time, the length of the
part of the pole above the roof was measured at 1.9 metres.
[26] The first defendant argued that
the plaintiffs were estopped from relying on a previous agreement by
virtue of the fact that
the first plaintiff and Mr Lillford, also a
home owner in Candlewoods and Exco Member, affixed their signatures
to the building
plans in question, thus expressing their approval of
the roof pitch height.
[27] On the first plaintiff’s
version, the roof height at present is almost two metres higher than
what was agreed upon. Because
the most material term (the height) of
their agreement was not recorded I asked the first plaintiff, with
reference to the portion
of the river which was visible just above
the first defendant’s roof, what percentage of the river he
would have liked to
see. The question was posed with the
understanding that it was accepted by all parties that the first
defendant was not to obliged
to build a house which was almost
invisible from the first plaintiff pool deck. The first plaintiff
indicated that when he and
the first defendant came to an agreement,
he could see half of the river, in other words, the middle of the
river. How much of
the river would be visible above the roof would of
course depend on the tides.
[28] Mr Lillford, whose house is
built beyond and above the first plaintiff’s house testified on
behalf of the plaintiffs.
He said that when the first defendant’s
house was in the process of being built, he visited the site and had
a general conversation
with the first defendant about the progress of
the building. During the course of their conversation the first
defendant had pointed
out to him how high the roof would be on
completion. He said that the roof height pointed out to him was two
metres lower than
its present height.
[29] Mr Lillford however, expressly
stated that he had no personal interest in the height of the first
defendant’s roof and
did not visit the site to find out how
high the roof would be. He simply recalled what was pointed out to
him some time ago. He
made no measurements. There is no reason to
reject his evidence on the basis of credibility, but Mr Lillford’s
ex post facto
estimate of the height shown to him is patently
not accurate.
[30] The plaintiffs’ argument
is simple. They maintain that the first plaintiff would not have
signed the plans if he was
not persuaded by the first defendant on
the day of their site meeting, that the roof height would be to his
satisfaction. According
to him, the pole held by the first defendant
on their one site meeting to indicate the height, was adapted to the
height which
satisfied him. He did not enquire nor was he told what
the height was, but it was adjusted to the height which he was
informed
was the intended height of the roof and he was satisfied. In
their pleadings the plaintiffs contend that the first defendant had
misled the first plaintiff. On this testimony, the implied accusation
is that the first defendant did not draw out the pole, also
called a
theodolite, to its full 5 metre capacity.
[31] The plaintiffs submitted that I
should draw an adverse inference against the first defendant because
he failed to call the
architect who was also present at the site
meeting. In addition they argued that Mr Lillford’s evidence
that the current
roof height was 2 metres higher than pointed out to
him at an earlier stage, supported the first plaintiff’s
version. Here
it must be stressed that on the evidence presented by
both parties, neither the architect, nor Mr Lillford assisted the
first plaintiff
and the first defendant with their measurements to
reach an agreed roof height at that first and only site meeting which
was scheduled
with the sole purpose of establishing an agreed roof
height.
[32] There was also evidence that
the plans of the house were amended at some stage. This did not have
any impact on the question
I have to resolve and did not support the
existence of the most material term in the agreement, as alleged by
the first plaintiff.
[33] The plaintiffs bear the onus to
prove the material term referred to in this case. The first defendant
complied with all the
necessary requirements before he built the
house on his riverfront erf. Only if I find that the first defendant
had lied about
where he stood when he held the pole on that very
important day, can I find for the plaintiffs. On the evidence
presented, nothing
emerged which could persuade me that he had lied
about where he stood or that he did not draw out the theodolite to
its full five
metres when they had the site meeting. If the roof
pitch of the house was indeed two metres lower than it is at present,
it would
have made living in it very difficult. The plaintiffs
maintain that deeper excavation should have been carried out. There
had however,
been some considerable excavation been done before
building commenced. That could be seen at the back of the house
during the inspection
in
loco
.
[34] From the first plaintiff’s
pool deck the house in question lays below, and it appears to be a
single storey-house of
average height. The first plaintiff had also
approved the building plans. The photographs that were handed in show
that from the
first plaintiff’s view, a very small portion of
the river is visible above the roof of the first defendant’s
house.
That was the observation made during the inspection
in
loco
. However, to the left of the house, the beautiful expanse of
the river, its surroundings and entirely unrestricted and beautiful
vista can be seen.
[35] The first defendant had also
lowered the 35 degree angle of the roof pitch according to his
building plans, to 30 degrees and
the first plaintiff testified that
this roof pitch was to him, “the crux” of the matter. In
my view, the first plaintiff
should have insisted on recording a
specific height on the building plans. The difference between what
the first plaintiff would
have been satisfied with and what is
presently the position, amounts to him seeing an eighth of the river
as opposed to half, above
the pitch of the defendant’s roof
from his pool deck.
[36] The first plaintiff’s
insistence on a right to an unrestricted view is based on somewhat
tenuous grounds. In South Africa
the broad consensus is that there is
no natural entitlement, based solely on the ownership of land, to
enjoy a view over or across
an adjoining property. The only way to
enforce a right against lawfully built obstructions is by way of a
negative servitude (there
are two types of negative servitudes
applicable views across a neighbouring property, namely the servitude
of unrestricted view
or
servitus
prospectus
and a
servitude of not building higher or
servitus
non altius
tollendi
),
a restrictive condition or the provisions of a town planning scheme
or other building legislation. The general rule against recognition
of the right to a view is based on the notion held in English Common
Law and Roman Dutch Law, that a view was a matter of delight
and not
necessity.
1
[37] With the constant increase of
humans on earth, the entitlement to a view has become a luxury. Such
a right can however be enforced
in certain circumstances. In a
development where the view of a river would be one of the primary
reasons for a person to buy a
property, it is to be expected that
there would be regulations and other rules in place to protect that
view as was seen in this
trial where the applicable rules regulating
buildings in the development were of principal importance. The first
defendant was
not in breach of any of them.
[38] It was also common cause in
this case, that when the builders of the house reached roof height
the first defendant telephoned
the first plaintiff who was not at his
house at that stage, and invited him to come over to Candlewoods and
see for himself whether
the roof height of the house met his
approval. Given the opaque nature of the agreement, one would have
thought the first plaintiff
would have gone to the trouble of driving
over to Candlewoods to avoid his later disappointment. He did not
deem it necessary and
added that there was not much he could do at
that stage. If the first plaintiff wanted to hold the first defendant
to a particular
roof height, he simply should have gone to more
trouble in the absence of a determined height, to come to a more
certain agreement
like for instance an agreement to the effect that
he would be able to see half of the river above the roof pitch, and
record it.
[39] The plaintiffs were unable to
discharge the onus that the first defendant’s house was built
contrary to any agreement
or regulations. Consequently, their claim
falls to be dismissed.
[40] Accordingly, the plaintiffs’
claim is dismissed with costs.
_________________
E REVELAS
Judge of the High Court
Plaintiff’s Counsel: Adv A
Beyleveld
Instructed by: Burmeister De Lange
Soni Inc
Port Elizabeth
Defendant’s Counsel: Adv B
Pretorius
Instructed by: Greyvensteins Inc
Port Elizabeth
Date Heard: 15/11/2010 –
17/11/2010
Date Delivered: 31 March 2011
1
AJ
van der Walt, The Law of Neighbours (2010) 358.