About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2011
>>
[2011] ZAECELLC 8
|
|
Nowers NO and Another v Burmeister and Another (EL 1038/08, ECD 2338/08) [2011] ZAECELLC 8 (2 August 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL
DIVISION)
CASE NO: EL 1038/08
ECD 2338/08
Heard on: 26 January
2010
Delivered on: 02
August 2011
In the matter between:
GEO NOWERS NO
…..................................................................
FIRST
APPLICANT
VENESSA ELIZE NOWERS
NO
….........................................
SECOND
APPLICANT
and
SHEILA MARGARET BURMEISTER
…....................................
FIRST
RESPODENT
PETER BURMEISTER
…...................................................
SECOND
RESPONDENT
JUDGMENT
Makaula J
:
A.
Introduction
:
[1] The applicants instituted
proceedings against the respondents seeking an order in the following
terms:
1.1 That the respondents are ordered,
within ten days of service of this order, to remove the structure
erected on the common boundary
of
Erven 10214
and
31352
and to comply in all further respects with the terms of the Deed of
Servitude Annexure “E” hereto;
1.2 That the first respondent is
interdicted and restrained from erecting any structure or permitting
any tree, shrub or plant to
grow to a height in excess of
0.6120
metres within ten metres of the common boundary between
Erven
10214
and
31352, East London,
as represented on the Line
AB
on diagram
SG Number 8565/77
and in contravention of
the servitude, Annexure “E” hereto;
1.3 Further or alternative relief; and
1.4 That the respondents pay the costs
of this application.
[2] The respondents opposed the
application on various grounds and filed a counter application
seeking the following reliefs:
2.1 Declaring that the servitude
provided for in paragraph 2 on p. 4 of the Deed of Servitude
(protocol no. 414) which is annexed
to the Applicants’ founding
affidavit has been abandoned by the Applicants Trust and/or its
predecessors, alternatively declaring
that such servitude has been
lawfully revoked by the First Respondent;
2.2 That the Registrar of Deeds take
such steps as are necessary to effect the cancellation of the
servitude in the records of the
Deeds Registry;
2.3 Directing the Applicants to remove
the garage on the north-west corner of
erf 10214
to within the
building line stipulated in the municipal regulations and zoning
scheme;
2.4 Directing the Applicant Trust to
remove those portions of the swimming pool on
erf 10214
which
extend beyond the building lines and onto municipal land;
2.5 Directing the Applicant Trust to
demolish the second double garage and/or the entrance thereto;
2.6 Directing the Applicant Trust to
remove the power supply which extends beyond the building line onto
municipal land and the
pole bearing the electrical flood light on
municipal land;
2.7 Directing the Applicant Trust to
reduce the height of the boundary wall adjacent to the courtyard on
erf 31352
by two courses of bricks and to make good;
2.8 Directing the Applicant Trust to
remove the carport metal roof structure;
2.9 Directing the Applicant Trust to
demolish the wall built on the pavement adjacent to the common
boundary between
erven 10214
and
31352;
2.10 Directing the Applicant Trust to
remove the plinth and door-frame across the front of the carport;
2.11 Directing the Applicant Trust to
remove the fence erected on municipal and/or state owned land;
2.12 Directing the Applicant Trust to
pay the costs of this counter- application;
2.13 Further and/or alternative
relief.
B.
Parties
:
[3] The first and second applicants
are
Trustees
of
RVG Trust
(the Trust)
and sue in
their representative capacities as such.
[4] The first respondent is
Sheila
Margaret Burmeister,
an adult female who resides at
1 Torquay
Road, Bonnie Doon, East London.
The second respondent is
Peter
Burmeister,
an adult male business person who is married to the
first respondent and also resides at
1 Torquay Road, Bonnie Doon,
East London
.
[5] The
Trust
is the registered
owner of
Erf 10214, East London
situate at
3 Torquay Road,
East London.
[6] The first respondent is the
registered owner of
Erf 31352, East London
, situate at
No 1
Torquay Road, East London
.
[7] The second respondent is married
to the first respondent.
C.
The Properties
:
[8] The properties are adjacent to
each other and are bordered on the western side by
Torquay Road
and on the eastern side by the
Nahoon River
.
[9] On the 30
th
August 1985
a restrictive servitude was registered over the property of the first
respondent which was then described as
erf 10213, East London
but
which has since been renumbered
31352,
in favour of
erf
10214
. Page 4 of the Deed of Servitude over
erf 31352
reads that
erf 10213
;
“
.
. . shall be subject to a Servitude restricting the Owner or his
Successor –In-Title from erecting any structure or growing
any
tree, shrub or plant that exceeds a height of 0,6120 metres within
the area ten metres wide, of the north-western boundary
of which is
represented by the line AB on Diagram SG No. 8565/7.
Subject to the condition
that this restriction shall not apply to any structure or tree, shrub
or plant in existence as at the 1
st
January, 1978.”
D.
The facts
:
[10] It is worth-mentioning at this
stage that it is common cause that the relationship between the
applicants and the respondents
is really bad to an extent that it is
the genesis of the various applications between them.
[11] During or about 2002 the
applicants raised a portion of the common boundary wall between the
two properties by approximately
1 metre in the entrance area facing
the street. Applicants contend that it did so for aesthetic reasons
as
erf 31352
encroaches on
erf 10214
. The second
respondent approached the municipality authorities regarding the
construction of that wall. The applicants contend
that the municipal
inspectors found nothing wrong with the wall.
[12] During 2006 the applicants
demolished the existing house on their property and constructed a new
one. The cost of the construction
of the new dwelling was about
R7 000 000.00
. They also installed a security system
which encompassed security cameras.
[13] During October 2008 the first
applicant noticed that there was a metal structure
(the structure)
which was erected on the common boundary wall between their
properties. The structure was covered in a sack like material. He
went to the structure to examine it and as he was shaking it to check
whether it was properly fixed, the son of the respondents
confronted
him alleging that what he was doing amounted to malicious injury to
their property. He further told the first applicant
that the reason
they installed that structure was because the camera which the first
applicant had installed on the south western
corner of the property
invaded their privacy. The first applicant explained to him that the
camera was a fixed camera focused on
his lawn and not their property.
[14] In an effort to resolve the
concern of the respondents, the first applicant approached the
Protek
Security Company
to investigate the positioning of the camera. On
19
th
November 2008,
Protek Security Systems
compiled a report which was annexed as annexure
C
to the
papers together with the photographs reflecting the positioning of
the camera and photographs obtained from the camera which
confirm
that in no way was it directed at the respondents’ property.
The report was therefore sent to the respondents under
a covering
letter by his attorneys. The respondents according to him never
responded and hence he approached the court because
the structure
erected by the respondents really constituted a nuisance in that it
detracts from the beauty and aesthetic appeal
of his erf and
unfairly, unreasonably and materially interferes with the use and
enjoyment of his property. The applicants contend
that the structure
fall within the restricted area and contravenes the terms of the
servitude referred to above.
[15] The applicants further contend
that the respondents have also allowed numerous shrubs to grow beyond
the height referred to
in the restrictive servitude which are
blocking the view they have been enjoying to the
Nahoon River
in
a south easterly direction thus contravening the conditions of the
servitude.
[16] The respondents confirm that the
relationship between them and the applicants soured over the years.
They blame the deterioration
of the relationship on the applicants.
They aver that since they took occupation of their property, the
present existing vegetation
within the servitude area has continued
to grow to heights far in excess of the height referred to in the
servitude without any
complaints from either the applicants of their
predecessors. The respondents allege that the newly built double
storey building
was constructed on a higher level
(approximately
500 mm)
than the previous dwelling and is approximately five
metres forward towards the river than the previous dwelling. The
respondents
therefore contend that the servitude area is now
irrelevant to view from the new dwelling on
erf 10214
, that
being so because the servitude as agreed upon and registered was
plainly designed to preserve such view as the previous dwelling
had
of the
Nahoon River
to that extent possible. Relying on the
comparison of the photographs taken of the previous dwelling the
respondents contend that
the effect of the new dwelling is that the
view is no longer across the area of
erf 31352
which is the
subject of the servitude. The respondents submit that the ultimate
effect of this is that the purpose for which the
servitude was
initially granted has fallen away and the construction of the new
dwelling manifests a clear intention to abandon
the servitude.
[17] The second thrust of the
respondents’ argument is that the applicants built a boundary
wall which is far above the height
of
0.6120 metres
required
by the servitude. The wall in certain sections is as high as
2.63
metres
and therefore renders the servitude meaningless. The point
the respondents make is that had the original dwelling still existed,
any view it may have had across
erf 31352
would have been
completely blocked by the wall. Even the construction of this wall
constitutes the clearest evidence of abandonment
of the servitude
alternatively of a waiver of any rights to rely upon the terms
thereof.
[18] The respondents submit that the
applicants failed to establish that some of the trees, shrubs and
plants which are above the
height of
0.6120 metres
were not in
existence as at 1 January 1978 as required by the terms of the
servitude. That is so because the shrubs which were planted
by them
form part of the vegetation in the servitude area and their removal
would not have any significant impact.
[19] It is common cause that after the
completion of the new dwelling, the applicants installed
CCTV
cameras all around their property. Of much concern and that which led
to the present application, is the positioning of a camera
which is a
darkened glass dome type fitted approximately two or three metres
from the common boundary higher than the boundary
wall. The
respondents submit that they are concerned by the position of that
camera as it is in such a position and height that
its area of
coverage clearly includes their yard, entertainment area, the
municipal area in front of their property lounge and
dining room. Of
much concern to the respondents is that they have a daughter who is a
young lady and who is conscious of her privacy
when swimming and
tanning in a costume. Because of their bad relations, the respondents
aver that they were extremely concerned
that their privacy was being
invaded by the applicants more so that they could not be able to see
when the camera was pointed in
their direction.
[20] It is worth mentioning that there
was at some stage correspondence which was exchanged between the
parties regarding the concerns
the respondents had. Their engagement
bore no fruits hence the respondents decided to erect the structure.
[21] In an effort to resolve the issue
of the camera amicably, the respondents aver that they contacted the
installer of the cameras
AVG
who gave them a response which
they could not accept.
AVG
informed them that the camera was
pointing away from their property. Despite the assurance by
AVG
and the applicants that the camera was not pointing in their
direction, the respondents did not accept that based on the attitude
and behaviour of the applicants and decided to put up the structure
in a way which would blend with the boundary wall. The respondents
deny that the structure is unsightly. The respondents tendered to
remove it on condition that the issue of the camera can be resolved.
The respondents submit that they came up with suggestions which would
make them feel comfortable with the camera but the applicants
did not
heed them.
Furthermore, the respondents claim
that they responded through their attorneys to the letter annexing
the report from
Protek
requesting an extension of time until 5
January 2009. But to their surprise, the applicants launched this
application and did not
afford them an opportunity to respond on a
matter which they feel could have been easily resolved.
[22] The respondents in answer went
home in trying to highlight the history of their relationship. I feel
I cannot traverse that
part of the papers unless I would overburden
this judgment because it runs into a number of pages. Suffice for me
to state that
the intention to do so was to try and gainsay the
version of the applicants as to the history and unreasonableness of
their conduct.
[23] In reply the applicants contend
that they have a view over the property of the respondents which is
obscured by the structure
erected by the respondents. Applicants
allege further that the new dwelling was moved forward by
3.6
metres
and the ground level was raised by
170 centimetres
.
Applicants deny that the servitude
was “designed to preserve
such view as that dwelling had of the river to the extent that this
was possible”.
[24] The applicants submit that they
were entitled to exploit and make use of the benefits of the
servitude as they saw fit without
the contrived limitation suggested
by second respondent. The applicants deny that the purpose of the
servitude had fallen away
or that the construction of the new
dwelling manifested an intention to abandon the servitude for the
reasons that originate from
the history of the servitude which are
that (a) the dwelling on applicants’ property encroaches across
the boundary line
between applicants’ property and respondents’
property, (b) upon a plain reading of the Deed of Servitude,
applicants’
property is subject to a servitude of encroachment
in favour of respondents’ property and as a reciprocal
obligation respondents’
property is subject to a servitude
preserving the view from applicants’ property over respondents’
property thus meaning
that it is not open to the respondents to
contend that, that which is in favour of the respondents is presumed
and that which is
in favour of the applicants is cancelled.
[25] The applicants further aver that
the boundary wall adjacent to the area of the servitude, the first
ten metres, measures:
1.24 metres
for the
first 2.34
metres; 1.96 metres
for the last portion thus suggesting that it
is not obscuring the view but the structure does.
E.
Counter claim
:
[26] In the counter-application the
respondents claim that the double garage on the north-west boundary
of the applicants’
property encroaches on the lateral building
line of which a neighbours’ consent was required together with
that of the municipality
before such encroachment. The respondents
further contend that the existing double garage crosses the building
line inside and
that required a municipal consent to be lawful. In
respect of the swimming pool the respondents complain that part of
the swimming
pool constructed by the applicants lies upon municipal
land and is constructed across the building line and for which
municipal
consent was also required. Furthermore the respondents
complain of a power supply which runs beyond the building line of
applicants’
property to a pole upon which is fitted a light
allegedly without the approval of the municipality. It is further
part of the counter-application
by the respondents that the common
boundary wall erected by the applicants adjacent to their kitchen
area has been erected in excess
of the required height and should
have sought their permission before doing so. The respondents seek
the removal of a metal frame
above the carport of the applicants’
property and further removal of the plinth and door-frame across the
front of that carport.
The counterclaim is based on the opinion given
by
Mr Webber
who practises as an
Architect
regarding
the
Land Use Planning Ordinance Act 15 of 1985
(LUPO)
and the contravention of the
Buffalo City Zoning Scheme
(the
Zoning Scheme).
Mr Webber
in his affidavit filed of record
opined that he found it extremely doubtful that the municipality
would have approved the carport
as it appears on the plans and
constructed. The respondents further require that the extension of
the common boundary wall be demolished.
The respondents complain of
the fence which has been erected on the municipal and/or state land
towards the
Nahoon River
.
[27] In answer the applicants respond
to the contentions by the respondents pertaining to the garages, the
swimming pool, the boundary
wall, the carport and the wall on the
pavement by alleging that they were constructed in terms of the
building plans which were
submitted and approved by the municipality.
The applicants contend that the municipality would not have approved
the building plans
if it was not agreeing with the contraventions
referred to or complained of by the respondents. The applicants state
that the power
line was removed a long while ago.
[28] The respondents further argue
that the onus is on the applicants to establish that the servitude
remains operative and binding
on the respondents more so that the
respondents have pertinently placed in issue that the servitude has
been abandoned or revoked
by the applicants. The respondents contend
that the abandonment
per se
is clear between the parties and
that it is difficult to conceive of any clearer indications of an
abandonment of a servitude in
the circumstances than by the
applicants themselves constructing a boundary wall significantly
higher than the height provided
for in the servitude in circumstances
where the servitude area is pertinently no longer required for the
purposes of maintaining
a river view which was initially rational for
such servitude. It is further clear, so it was argued on behalf of
the respondents,
that the applicants have for so many years permitted
trees and shrubs in the servitude area and on the municipal property
adjacent
thereto to grow to a height many times in excess of the
limit in the servitude area without complaining or objecting and have
only
now sought to register objections opportunistically, by reason
of the dispute between themselves.
F.
Analysis
:
[29] Before I should deal with whether
the applicants have proved that the actions of the respondents by
erecting the structure
amount to nuisance or not, I feel it is
necessary to evaluate the reasons for the erection of the contraption
by the respondents.
[30] At least there is agreement
between the parties to some extent that the wall where it runs across
the servitude area is higher
than the required height. It is apparent
from the photographs submitted by the applicants that the shrubs,
foliage and the vegetation
have grown beyond the height of the wall
and the structure in the servitude area. I am unable, on the evidence
tendered and the
photographs submitted, to agree with the applicants
that the structure obstructs their view to the
Nahoon River
.
It is the trees, foliage and vegetation that obscure their view.
[31] The reason proffered for the
erection of the structure is the uncertainty about the direction of
the camera which is above
the boundary wall. The applicants submitted
a letter from
Protek
which seeks to allay the fears of the
respondents that the camera is focused on their property. I am of the
view that an affidavit
by technicians from
Protek
confirming
the contention by the applicants would have been sufficient to prove
the direction of the camera. In the absence of such
proof I am unable
to find that the fears of the respondents are unfounded.
Consequently, the actions of the respondents in erecting
the
structure cannot be said to be unreasonable.
G.
Nuisance
:
[32]
In the sphere of neighbour relations, nuisance includes conduct
whereby a neighbour’s health, well-being or comfort in
the
occupation of his land is interfered with.
1
[33]
In
Holland
v Scott
,
2
Buchanan J
formulated
the following test for nuisance;
“
.
. .[T]he plaintiff must show that the inconvenience complained of is
in fact more than fanciful, more than one of mere delicacy
or
fastidiousness; that it was inconvenience materially interfering with
ordinary comfort, physically, of human existence, not
merely
according to elegant or dainty modes and habits of living, but
according to plain and sober and simple notions.”
[34]
In
Prinsloo
v Shaw
,
3
De Wet JA
said:
“
The
standard taken must be the standard not of the perverse or finicking
or over-scrupulous person, but of the normal man of sound
and liberal
tastes and habits.”
[35]
The test applicable is an objective weighing-up of the interest of
the various parties and taking into account all the relevant
circumstances.
4
[36] In the instant matter it is
apparent that the structure is directly opposite where the camera
complained of is located. It
is a size reasonably necessary to block
the view of the camera towards the respondents’ property. It
has been further painted
to blend with the colour that is on the wall
as it appears from the colour photographs. It does with respect not
appear to be unsightly
as contended by the applicants. It is clear
from the papers that the respondents have tried to prevail upon the
applicants to do
something about the camera by either painting the
glass dome on the side facing them or simply swaping the camera with
another
etc. The respondents tendered at their expense to do anything
which would satisfy them that the camera is not pointing in their
directions and thus spying on them.
[37]
Having regard to the reason for the erection of the structure, I am
of the view that the conduct of the respondents is not
unreasonable
and cannot in the circumstances adumbrated above be said to have been
actuated by malice or any bad intentions for
that matter. It further
cannot be gleaned from the evidence and the photographs that the
structure complained of has been erected
with a view to prevent the
view across the property of the respondents to the
Nahoon
River
.
The photographs reveal clearly that the structure is below and
covered by the foliage, shrubs and vegetation that have overgrown
in
the servitude area. The foliage, shrubs and vegetation are far taller
than the structure and cannot serve any measure in obscuring
the view
that the applicants used to enjoy. It is common cause that even the
boundary wall is higher than the required height.
I say this in the
backdrop of the submission by the applicants that the new dwelling
has been built on a higher ground and brought
forward a bit.
[38] There is uncontroverted evidence
that shows that some of the shrubs in the servitude area have been
there before both the applicants
and the respondents took occupation
of their respective properties. It is not in dispute that, the
shrubs, foliage and vegetation
in the servitude area also include
those which have been planted by the Municipality as well. The
respondents correctly in my view,
make the point that it would be
impossible for it to cut that which was planted by them.
[39]
A servitude is a
uis
in re aliena
or
limited real right which entitles its holder
entior
to
the use and enjoyment of another person’s property or to insist
that such other person shall refrain from exercising certain
powers
flowing from his right of ownership over and in respect of his
property which he would have if the servitude did not exist.
5
The servitude that
obtains in this matter is a praedial servitude in that it confers a
benefit on the dominant tenement
(applicants’
property)
and
imposes a corresponding burden on the servient tenement
(respondents’
property).
[40] A servitude can be terminated
through abandonment if proof of the intention to abandon can be
inferred from the conduct of
the
dominus,
provided that such
conduct is consistent only with an intention to abandon the
servitude.
[41] The servitude in the instant
matter prevents the “
. . . erection of any structure or . .
. that exceeds a height of
0.6120 metres
within
the area of ten metres wide.”
Though the parties do not
agree on the height of the boundary wall, but it is obvious that it
is above the required height in terms
of the servitude. The servitude
further prevents the growing of any “
tree, shrubs or plant”
in excess of
0.6120 metres.
The trees, shrubs or foliage in
the servitude area is far in excess of the required height. This has
been the position for some
time, if I have regard to the evidence.
The conduct of allowing the shrubs and foliage to grow beyond the
required height contravenes
the conditions of the servitude.
[42] I find that the conduct of the
applicants to build a wall in excess of the required height and their
allowing trees, shrubs
and plants to grow in contravention of the
provisions of the servitude, amounts to an abandonment of the
provisions thereof.
[43] As correctly pointed out by
Mr
Ford SC
, for the respondents, the abandonment in order to bind
third parties, would have to be published. I therefore do not find
anything
to hinder the granting of prayers 1 and 2 of the
counter-claim in view of the finding that the applicants by their
conduct have
abandoned the servitude.
[44] The applicants have argued that
the respondents do not have
locus standi
to bring an
application where they seek orders prayed for in paragraphs 3-11 of
the counter-application. Reliance is sought by the
applicants on the
National Building Regulations and Building Standards Act 103 of
1977
which, so they argued, provides for the requirement of and
approval of plans for the construction of any building by the
Local
Authority
, in this instance the
Buffalo City Municipality
(the
Municipality).
The applicants contend that the respondents, if
aggrieved by the approval of their building plans, should have sought
a review
of that decision and not follow the process they embarked
on. The applicants make the point that the Municipality approved
their
building plans years before, consequently, they relied on such
approval when they built the new dwelling. In a nutshell, the
applicants
argue that the effect of what is sought by the respondents
amounts to a review of the approval of applicants building plans in
circumstances where the Municipality has not been joined in the
proceedings.
[45] The respondents on the other
hand, argue that the actions of the applicants in contravening the
Building Regulations are unlawful
and therefore they have a legal
right to prevent that which is unlawful. If the court does not uphold
their counter-application
in respect of prayers 3-11 that would
amount to confirmation of a behaviour which is unlawful. The
respondents contend that they
have a substantial interest in the
issues arising from the applicants’ unlawful actions and the
corresponding entitlement
to bring these proceedings.
[46] The respondents rely mostly on
the affidavit by
Mr Webber
in contending that the applicants
have contravened the relevant regulations and legislation.
Mr
Webber
in his affidavit testifies that for the applicants to have
built their new dwelling as they did, they should have made an
application
in terms of
Section 15 of LUPO and the Zoning Scheme
Regulations
.
Section 15
basically requires that an
application be made if there is to be an alteration of the land use
restrictions applicable to a particular
zone in terms of the scheme
regulations concerned. Such an application may be granted or refused
by an Administrator if authorised
thereto by scheme regulations or a
council. Such an application would have to be advertised if in the
opinion of the town clerk
or secretary any person may be adversely
affected.
[47] It is common cause that such a
procedure was not followed by the applicants or the Municipality. The
respondents submit that
the applicants’ dwelling has not been
built according to the plans allegedly approved by the Municipality.
Respondents refer
to the swimming pool which has been moved forward
onto Municipal Land contrary to the alleged approved plan and many
other facets
of the building which are not subject of the
counter-application. The respondents state in their replying
affidavit that the Municipality
erred in its approval of the building
plans because there has been a clear contravention of the building
regulations and they,
as neighbours, have not consented to the
contravention as it affects them. The respondents strongly contend
that they have a substantial
interest in this matter and have legal
rights to prevent the contravention of the by-laws which are meant to
protect them as the
people who live in that area or zone and would
never allow the abuse of State and Municipal land.
[48] It is my view that at the helm of
this application is the conduct of the Municipality which has led to
the exacerbation of
the relationship between the parties. The failure
lies at the door step of the Municipality for failing to enforce the
regulations
and legislation relevant to the construction of this new
dwelling.
[49]
Be that as it may, the courts have a duty to prevent unlawful
activity where to refuse such relief would amount to confirmation
of
such an activity.
6
[50]
The respondents served the Municipality with the papers in this
matter but it seems they decided not to join as a party. The
respondents allege that the Municipality has instructed the
respondents’ attorneys to
“
.
. . proceed against the owners of the property (presumably the
applicants herein) for violation of the National Building Regulations
and Standards Act.”
This
has not been denied by the applicants. As shown above, the
respondents have made out a case establishing that they have a
substantial interest in issues arising from the contravention of
LUPO
and the Zoning Scheme
.
[51]
It is now trite that
LUPO
and the Zoning Schemes
are
meant to protect the interests of the community to which they apply.
7
[52]
It cannot be gainsaid that the applicants have failed to comply with
the provisions of
Section
15 of LUPO
referred
to in paragraph 48 above. The applicants have further failed to
comply with certain provisions of the
Zoning
Scheme
as
alluded to by
Mr Webber
.
[53]
The following provisions of
Section
3.4.3 of the Zoning Scheme
provide:
“
(b)
The Council may approve the erection of an outbuilding that exceeds
the side and rear building line by means of a departure
subject to:
compliance with the
street building line;
no doors or windows
being permitted in any wall situated within 1 meter of such building
line; and
consent of the affected
neighbours.
(c) The Council may also
permit the erection of screen and yard walls and pergolas or similar
unroofed ornamental structures within
the building lines of the erf
subject to such structures being erected in such manner and of such
dimensions as in the opinion
of the Council would not be likely to
cause injury to the amenities of neighbouring properties, provided
that the heights of such
structures shall not exceed 1,8 metre unless
accompanied by a building plan.
(e) No portion of a
swimming pool may be erected nearer to the erf boundary than the
maximum depth of the pool, or 2,0 metre whichever
is the more
restrictive.”
[54]
Section 4.15 of the Zoning Scheme
requires
council approval for the building of any carport that would exceed a
street or side building line and stipulates conditions
under which
such could be done. In the instant matter, the swimming pool built
contravenes the
Zoning Scheme
in
that it extends beyond the building line. Council approval should
have been obtained.
[55]
It is uncontroverted that the building plans approved a single
‘
double garage’
but what has been built is two
‘
double garages’.
Mr Webber
pertinently makes the
point that it is
“
illegal
to have the whole frontage of one’s property providing access
to it thereby preventing the public from parking in
front of the
property”.
This
result in visitors not being able to park in the space in front of
the applicants’ property necessitating them to park
in front of
the respondents’ properties. He doubts if such contravention
would have been approved by the Municipality based
on his past
experience. Be that as it may, the
‘
double
garage’
on the
north-west corner of
erf 10214
does
encroach on the building line and there has been no Municipal and
neighbours’ consent to such contravention. Even the
‘
second
double garage’
has
been shown to breach the boundary and site boundary lines. There is
no consent to this breach as well.
[56]
Section 4.15.9 of the Zoning Scheme
requires
that
“
written
confirmation, from the adjoining owner(s) of both adjoining land
units if a street building line will be exceeded, to the
effect that
they have no objection to the proposed carport, shall be obtained.”
The respondents complain
of the south west corner, occupying a section of the area demarcated
as servitude, that it is roofed with
a metal structure, draining
towards gutters (over) their property. The respondents never
consented to this as is required by
Section 4.15.9 of the
Zoning Scheme
referred to.
[57]
The applicants did not deal in detail with the issues raised by the
respondents in the counter-claim, more so with regard to
compliance
with the provisions of
LUPO and the Zoning Scheme
.
The only aspect raised by the applicants is that the building plans
were approved by the Municipality. With respect, I am of the
view
that the approval of the plans does not suffice as a justification
for the non-compliance with the provisions of
LUPO and the
Zoning Scheme
. It is my finding
that the respondent have made out a case for the grant of the orders
prayed for in paragraph 3-11 of the notice
of motion.
Consequently I make the following
order:
1. The application is dismissed with
costs;
2. The reliefs sought in the
counter-application are granted;
3. The applicants are ordered to
comply with orders granted in 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10
and 2.11 of the notice of
motion within 362 days of the date hereof;
4. The applicants are ordered to pay
the respondents’ costs in the counter-application.
_________________________
M MAKAULA
JUDGE OF THE HIGH COURT
Counsel for the Applicants: Adv D H de
la Harpe
Attorneys for the Applicants: Drake
Flemmer & Orsmond
Tewkesbury House
22 St James Road
EAST LONDON
Counsel for the Respondents: Adv A E S
Ford SC
Attorneys for the Respondent: Bax
Kaplan Inc
Clevedon House
Selborne
EAST LONDON
1
Silberberg
and Schoemann’s ,
The Law of Property, Third
Edition, p 168
2
1882
EDC 307
at 332
3
1938
AD 570
at 575
4
Gien
v Gien
1979 (2) SA 1113
(T) at 1122
and
Dorland v Smits
2002
(5) SA 374
(C) at 384B
5
Silberberg
and Schoemann’s (
supra)
p
367
6
See:
Chapmans Peak Hotel (Pty) Ltd &
Another vs Jab & Annalene Restaurants CC t/a O’Hagans
2001
(4) ALL SA 415
(C) page 422 C-D para 27
7
Pick
‘n Pay Stores Ltd vs Teazers Comedy & Revue CC
2000
(3) SA 645
(W) at 653 H and
BEF (Pty)
Ltd vs Cape Town Municipality & Others
1983
(2) SA 387
(C) at 401 B-F cited therein