Paola v Jeeva NO and Others (475/2002) [2003] ZASCA 100; [2003] 4 All SA 433 (SCA) (26 September 2003)

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[2003] ZASCA 100
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Paola v Jeeva NO and Others (475/2002) [2003] ZASCA 100; [2003] 4 All SA 433 (SCA); 2004 (1) SA 396 (SCA) (26 September 2003)

REPUBLIC
OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case
number: 475/2002
Reportable
In
the matter between:
GREGORY
JOSEPH PAOLA APPELLANT
and
JAIVADAN
JEEVA N.O FIRST RESPONDENT
TARULATA
JEEVA N.O SECOND RESPONDENT
NORTH
AND SOUTH CENTRAL
LOCAL
COUNCIL THIRD RESPONDENT
CORAM
: HOWIE P, FARLAM, LEWIS,
HEHER JJA et MOTATA AJA
HEARD
: 4
SEPTEMBER 2003
DELIVERED
: 26
SEPTEMBER 2003
SUMMARY:
Building
plans – National Building Regulations and Building Standards Act
103 of 1977, ss 5, 6 and 7 – building control officer,
non-appointment of – derogation of value caused by impairment of
view – Town Planning Regulations, Durban, regulation 19, ‘rear
space’, meaning of.
___________________________________________________________
JUDGMENT
___________________________________________________________
FARLAM JA
INTRODUCTION
[1]
This is an appeal from a
judgment delivered by Kondile J in the Durban and Coast Local
Division of the High Court, dismissing an application
brought by the
appellant for an order reviewing and setting aside a decision of the
third respondent, the North and South Central
Local Council. The
first and second respondents are trustees of a trust, which sought
the approval of plans submitted in respect
of alterations and
additions to be carried out on the trust’s property in Queen’s
View Place, Umgeni Heights, Durban. In what
follows I shall refer to
this property as ‘the trust property’.
FACTS
[2]
The appellant is the owner of two adjacent
erven situated in McMahon Avenue, Umgeni Heights: in what follows I
shall refer to these
erven as ‘the appellant’s property’. The
trust property is situated on the southern side of, and somewhat
lower than, the appellant’s
property, which is at the top of a
hill. The trust property is contiguous to the appellant’s property
with its north-eastern corner
marked by a boundary peg which also
marks the southern-eastern corner of the appellant’s property. The
trust property’s north-western
corner is marked by a peg placed on
the appellant’s property’s southern boundary some distance to the
west of the peg which is
at the southern end of the line which
separates the appellant’s two erven. At the southern end of the
trust property’s western
boundary is a peg which demarcates the
south-western corner of the trust property, which is on Queen’s
View Place. The south eastern
corner of the trust property is what
may be described as a splayed corner because Queen’s View Place,
after having proceeded for
most of its extent from west to east,
turns northeastwards at the bottom end of the splayed corner before
proceeding northwards from
the top end of the corner towards the
property situated immediately to the east of the trust property. The
western boundary of the
trust property’s eastern neighbour runs
from the peg which demarcates the south-eastern corner of the
appellant’s property and
the north-eastern corner of the trust
property to a point about halfway to the top end of the splayed
corner.
[3]
The appellant’s house, constructed about
twenty years ago at a time when the existing house on the trust
property had already been
built, was specifically designed and
positioned to maximize the outlook and surroundings, taking into
account the development on
the trust property. As a result it has, as
appears from the photographs annexed to the papers in this case, what
the appellant describes
as an ‘unsurpassed view covering Burman
Bush, the City Centre, the Umgeni River, the Bluff, the harbour
entrance, the sea and the
north of Durban’. If the alterations set
forth in the approved plan are constructed, the appellant’s
exceptional view will be
substantially impaired. In addition, the
size and bulk of the proposed development and the fact that its
nearest point will be located
a mere nine metres from the
appellant’s living room, combine to create an intrusive obstruction
on the outlook from that room and
the south side of the appellant’s
house generally.
[4]
Affidavits were filed, deposed to by an
estate agent and a valuer, who expressed the view that the market
value of the appellant’s
property will be significantly diminished
by the proposed developments on the trust property. No attempt was
made by the respondents
to place evidence before the court to rebut
this evidence, which must accordingly be accepted as correct for the
purposes of this
case.
[5]
The distance between the proposed building to
be erected on the trust property and the northern boundary of that
property is about
three metres although the relevant clause of the
applicable Town Planning regulations provides for rear space between
a dwelling
house and the rear boundary of the site of not less than
five metres in width unless the owner of the adjoining property has
consented
in writing to a lesser rear space (which has not happened
in the present case).
THE APPELLANT’S ATTACK ON THIRD RESPONDENT’S
DECISION TO APPROVE THE PLANS
[6]
The appellant’s attack
on the third respondent’s approval of the building plans in
question was originally based on three grounds,
viz:
(a) that due to its size, proximity
and position relative to his own house and its effect on his
amenities the proposed development
would probably or in fact derogate
from the value of his property, with the result that the third
respondent was by virtue of the
provisions of section 7(1) (b) (ii)
(aa) (ccc) of the National Building Regulations and Building
Standards Act 103 of 1977 (to which
I shall refer in what follows as
‘the Act’) precluded from approving the plans;
(b) that the relevant official failed
to apply her mind properly to the consideration of the plans; and
(c) that the plans were approved in breach of the
provisions of the Town Planning Regulations because the rear space
between the rear
of the building and the rear boundary of the trust
property was less than five metres.
[7]
Subsequently, after judgment had been given
by the court
a quo,
the appellant discovered that at the
relevant time the third respondent did not have a building control
officer, as is required by
section 5(1) of the Act. It had
accordingly made its decision to approve the plans relating to the
trust property development without
considering a recommendation made
by its building control officer as is provided for in section 7(1) of
the Act. The appellant then
applied to this Court for leave to adduce
evidence relating what it had discovered in this regard. This
application was not opposed
by the respondents who contended,
however, that the respondent’s failure to have a building control
officer at the relevant time
and to consider a recommendation from
such officer had not prejudiced the appellant.
RELEVANT STATUTORY PROVISIONS
[8]
Before the contentions of the parties are
considered it is desirable to set out the relevant provisions of the
Act and the Town Planning
Regulations, as far as they are material.
[9]
Sections 5(1), 6(1) and 7(1) of the Act read
as follows:
‘
5(1) … [A] local authority shall appoint a person
as building control officer in order to exercise and perform the
powers, duties
or activities granted or assigned by or under this
Act.’
‘
6(1) A building control officer shall – (a) make
recommendations to the local authority in question, regarding any
plans, specifications,
documents and information submitted to such
local authority in accordance with section 4(3) …’
‘
7(1) If a local authority, having considered a
recommendation referred to in section 6(1)(a) –
is satisfied that the application in question complies
with the requirements of this Act and any other applicable law, it
shall
grant its approval in respect thereof;
(i) is not so satisfied; or
is satisfied that the building to which the
application in question relates –
is to be erected in such manner or will be of such
nature or appearance that-
(aaa) the area in which it is to be erected will
probably or in fact be disfigured thereby;
(bbb) it will probably or in fact be unsightly or
objectionable;
it will probably or in fact derogate from the value of
adjoining or neighbouring properties;
will probably or in fact be dangerous to life or
property such local authority shall refuse to grant its approval
in respect
thereof and give written reasons for such refusal …’
[10]
Regulation 19(1) of the third respondent’s
Town Planning Regulations, which is headed ‘Side and Rear Space’,
reads as follows:
‘
(1) Every dwelling house … shall have between the
external rear wall of the
building and the rear boundary of the site a space free
of all buildings of:-
(a) not less than 5 metres in width …’
Sub-regulation (2), the terms of which need not be
quoted, speaks of the front and side boundaries of sites.
THE FAILURE TO APPOINT A BUILDING CONTROL OFFICER
[11]
I turn now to consider the appellant’s
attack on the approval by the third respondent of the plans submitted
by the first and second
respondents. It will be convenient to
consider first the appellant’s contention that the approval was
invalid by reason of the
fact that the third respondent had not at
the relevant time appointed a building control officer and did not
consider a recommendation
made by a building control officer before
it approved the plans. In this regard the appellant’s counsel
submitted that the appointment
of a building control officer and the
recommendation by such officer to the local authority are necessary
pre-conditions to the exercise
by the local authority of its powers
to approve or reject building plans. They contended that each of
these pre-conditions constitutes
a jurisdictional fact, the existence
of which is a necessary pre-requisite to the exercise of the
statutory power, and relied in
this regard on the judgment of Corbett
J in
SA Defence and Aid Fund v Minister of Justice
1967 (1) SA
31(C)
, which, as the Constitutional Court pointed out in
President
of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1(CC)
at 76, para [168], footnote 132, remains the
leading case in our law on jurisdictional facts. Counsel for the
appellant contended
further that as the plans were not considered by
a building control officer and no recommendation was made by such
officer for consideration
by the local authority it was not empowered
to approve them.
[12]
Counsel for the first and second respondents
contended that the purpose of the relevant provisions of the Act
regarding building control
officers and their recommendations had
substantially been complied with as the plans were approved on the
basis of recommendations
made by people who had the qualifications
and experience required of a building control officer by regulations
promulgated under
the Act and that the third respondent’s decision
to approve the plans was not invalid.
[13]
Counsel for the third respondent submitted
that while it could not be disputed that the lack of a building
control officer means that
a condition precedent to the exercise by
the third respondent of its discretion had not been fulfilled,
nevertheless this amounted
to what was described as ‘a mere
irregularity of no real consequence’. This was because, so it was
argued, the third respondent
had expert advice available to it when
it made its decisions and the formal appointment of a building
control officer would have
made no difference to its decision. In
particular the official who had since been appointed to that post had
actually approved the
plans. Accordingly, counsel argued, the
appellant had not been prejudiced by the lack of a formally appointed
building control officer
with the result that the principle approved
by this court in
Rajah and Rajah (Pty) Ltd and Others v
Ventersdorp Municipality and Others
1961 (4) SA 402(A)
at 407H -
408A that a court will not interfere on review with the decision of a
quasi-judicial tribunal where there has been an irregularity
if the
complaining party has suffered no prejudice.
[14]
I cannot agree that the third respondent’s
decision to approve the plans without considering a recommendation
from a duly appointed
building control officer can be regarded as
valid, or that the fact that a necessary condition precedent to the
exercise by the third
respondent of its discretion to approve plans
was not fulfilled can be regarded as ‘a mere irregularity of no
real consequence’.
I agree with counsel for the appellant’s
contention that jurisdictional facts necessary for the exercise of
the statutory power
were not present. It is not possible, in my view,
to interpret sections 5, 6 and 7 of the Act in any other way.
[15]
The
Rajah
case,
supra,
is
clearly distinguishable because it was not suggested that the
irregularity complained of in that case in any way related to the
power the municipality had to issue the certificate which it later
sought to have set aside. No authority was cited to us, nor am
I
aware of any, which lays down that the purported exercise of power,
the existence of which depends on the presence of a jurisdictional
fact which is absent, will be validated or not able to be attacked
because the party complaining has not been ‘prejudiced’.
[16]
The simple facts are that a power to approve
plans was purportedly exercised, which, in the absence of the
necessary jurisdictional
facts, did not in law exist. There was
therefore no valid approval. It follows that the appellant’s attack
on the third respondent’s
approval of the plans must succeed and
the decision concerned must be set aside.
THE APPELLANT’S OTHER CONTENTIONS
[17]
We were requested by counsel for all the
parties, if the appeal were to succeed on the jurisdictional fact
point, also to state our
views on the first and third points as they
were fully argued and it was probable that they would still be the
subject of dispute
between the parties: the third respondent has
since appointed a building control officer and the first and second
respondents are
still desirous of developing the trust property in
accordance with the plans invalidly approved by the third respondent.
We were
also asked to embody our views on these points in the form
of declarations in our order. In the circumstances it seems
appropriate
to accede to counsel’s first request. I do not think it
necessary or appropriate to accede to their second.
DEROGATION FROM VALUE
[18]
I accordingly proceed to consider the first
basis for the appellant’s attack on the third respondent’s
decision, viz that the
construction of the alterations and extensions
depicted on the plans will derogate from the value of the appellant’s
property.
[19]
In this regard the appellant’s counsel
contended that it was clear on the uncontested facts that the value
of the appellant’s
property would be significantly diminished if
the proposed developments on the trust property went ahead and that
what would cause
this diminution in value would be the nature and
appearance of the proposed structure, both as to its position and as
to its height,
which would drastically impair one of the major
attributes of the appellant’s property, namely the view which can
be enjoyed from
it. Accordingly, so it contended, on the ordinary
meaning of the provisions of s 7(1)(b)(ii)(aa)(ccc) of the Act, the
third respondent
was precluded from approving the plans. In this
regard it was argued that the word ‘value’ bears its ordinary
meaning of market
value. For this submission reliance was placed on
the decision of this Court in
Pietermaritzburg Corporation v South
African Breweries
1911 AD 501.
Counsel for the appellant stressed
that the appellant was not contending that he had a right to a view
that was being infringed but
that he did have a right not to have
plans passed in respect of an adjoining erf in circumstances where a
statute prohibited the
passing of such plans.
[20]
Counsel for the first and second respondents
submitted that for the purposes of s 7 of the Act the loss of a view
is not something
that should be taken into account in determining
whether there will be a derogation from the value of adjoining or
neighbouring properties.
It was stressed in this regard that the
appellant did not have a servitude of prospect over the trust
property and that the proposed
development on the site was to the
extent permitted by the Town Planning Regulations. It was argued
further that what was contemplated
by ‘adjoining or neighbouring
properties’ in S 7(1)(b)(ii)(aa)(ccc) was all the adjoining or
neighbouring properties and not
simply one of them.
[21]
The third respondent’s counsel argued on
this part of the case that the derogation from value contemplated by
the section is a diminution
of value of the neighbouring properties
as a group. It was also submitted that the reference to value in the
section referred to
value assessed on the basis that no value is
attributed to a view for planning purposes.
[22]
Counsel for the appellant answered the
submissions of counsel for the respondents that the use of the plural
‘adjoining or neighbouring
properties’ by reference to s 6(b) of
the Interpretation Act 23 of 1957 which provides that in every law,
unless the contrary intention
appears, words in the plural include
the singular.
[23]
In my view it is not possible to interpret
the section so as to give the word ‘value’ a meaning other than
its ordinary meaning,
namely market value. The proposed exclusion for
planning purposes of value flowing from a view which can be enjoyed
from a property
is not one which can be based on the words used by
the legislature. Nor can the use of the plural (which normally, as s
6 of Act
23 of 1957 indicates, includes the singular) indicate an
intention to refer to all adjoining or neighbouring properties. What
if
there is only one adjoining property, such as an erf by the
seaside surrounded by one other property? Does the section only begin
to apply if that other property is subdivided so that there is a
group of adjoining or neighbouring properties from whose value there
will be a derogation? Once it is clear, as it is on the facts
presently before us, that the execution of the plans will
significantly
diminish the value of the adjoining property then on
its plain meaning the section prevents the approval of the plans.
Whether an
insignificant diminution (not so slight as to bring the
de
minimis
principle into operation) is to be regarded as a
derogation for the purposes of the section need not be considered at
this stage.
In the circumstances I am satisfied, on the facts
presently before us, that the appellant’s first ground of attack on
the third
respondent’s approval of the plans must be sustained.
REAR SPACE
[24]
The final point to be considered is that
relating to the rear space. The respondents contended that the trust
property constitutes
a corner stand with two street frontages and
side space but no rear space. Alternatively it was contended that
because the new entrance
foyer and formal lounge to be constructed on
the trust property will face east, the rear boundary of the trust
property is on the
western side and not the northern side as alleged
by the appellant.
[25]
In my view both these contentions are
manifestly without substance. I do not think that the Town Planning
Regulations can be so interpreted
that the identity of the rear
boundary of a site can change according to the design of the building
to be erected on it. As I have
pointed out the regulations clearly
indicate that a site is regarded as having a front boundary, side
boundaries and a rear boundary.
In the present case the western and
eastern boundaries are clearly the side boundaries.
[26]
Normally the front boundary of a property
will be the boundary between the property and the street on which it
abuts:
cf Kingsford v Phillips and Jutsum
[1931] St R Qd 122
at 132, cited in
Words and Phrases Legally Defined,
3 ed, vol
2,
s.v.
‘front’ p 296, and the seventh definition of
‘front’ given in the
Oxford English Dictionary,
2 ed, vol
VI. In this case the matter is complicated by the splayed corner and
the portion of street frontage to the north of that
corner but this
does not make it difficult to identify the rear boundary, which is
clearly the northern boundary. That was the position
before a house
was built on the property, and nothing done or proposed to be done by
the owners of the trust property can, as I have
said, change the
identity of the rear boundary. On a proper construction of the
regulations the expression ‘external rear wall’
can only mean the
wall closest to the rear boundary. That being so, it is clear that
the appellant’s contentions on this part of
the case must also be
upheld.
ORDER
[27]
The following order is made:
1. The appeal is upheld with costs, such costs to
include the out-of-pocket expenses of the appellant’s two counsel.
2. The order of the court
a quo
is set aside and
replaced by the following:
‘
(a) Third respondent’s decision on or about 13
April 2000 to approve the amended plans submitted by the J Jeeva
Family Trust under
plan number 0503/02/99/7 in respect of certain
alterations to be carried out on the immovable property described as
portion 5 of
erf 219 Durban North and situated at 9 Queen’s View
Place, Umgeni Heights, Durban is set aside.
(b) Respondents are ordered to pay the costs of the
application jointly and severally, one paying the others to be
absolved.’
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING:
HOWIE P
LEWIS JA
HEHER JA
MOTATA AJA