The Constitutional Court has ruled that municipalities are obliged to consider the possibilities that a new development could devalue nearby properties before approving building plans.
The court said that when a proposed building is being considered, the decision-maker should check against whether the proposed property could disfigure the area, or reduce the value of the adjacent properties.
The ruling comes as the apex court heard whether the legitimate expectations test, which is used to assess building plans that might affect the value of neighbouring properties, should also apply to approving building plans that might disfigure a neighbouring area or be unappealing.
The court considered the application brought forth by the Simcha Trust, and cited the City of Cape Town as one of the respondents.
In 2005, the City approved a development application by the Four Seasons sectional title scheme. The building plan entailed building balconies up to the boundary of the Four Season’s property.
Four Seasons in 2007 erected a 17-storey building with balconies leaning into the Simcha Trust’s property, which prevented Simcha from constructing an additional four storeys to its building.
The Western Cape High Court set aside the approval of Simcha’s development, in which they wanted to add the four storeys. The court ruled that the City official in approving the plans, was materially influenced by an error of law and that the official failed to take into account a relevant consideration on whether the proposed development gave rise to any disqualifying factors. Simcha Trust then approached the Constitutional Court.
The Constitutional Court held that the municipal decision-makers had applied the incorrect test when deciding if the building application should be disqualified.
Note added by EMFSA:
Cell tower applications are often pushed through and approved as “minor building” works with no apparent concern for the devaluation of nearby properties.
Post Judgment Media Summary Trustees of the Simcha Trust v Da Cruz and Others (2)
This Court also confirmed the Full Court’s finding that the legitimate expectations of an objective, hypothetical neighbour must be considered when assessing all disqualifying factors. This includes the possibility of derogation of value, but also the possibility of disfigurement and unsightliness. In other words, when considering a proposed building, the decision-maker should consider whether the proposed building would probably, or will in fact, be so disfiguring of the area,objectionable or unsightly, or derogate from the value of adjacent properties, that it would exceed the legitimate expectations of a hypothetical owner of a neighbouring property.