The increase of state regulation and adjudication of neighbour disputes about building works has now migrated from the private law context of reasonableness to the public law context of legality. The consequence of this shift is that any and all building works first need to comply with statutory and regulatory requirements before reasonableness is considered in terms of any impact the ‘building work’ may have on the neighbour. Building works that that do not comply with the applicable formal requirements are illegal regardless of their effect on neighbours.
- Permission to develop or subdivide.
- Compliance with zoning restrictions and approval of building plans.
To have building works declared illegal, with the end result being that the building work is stopped or to have the completed building demolished, a neighbour therefore need not prove that the building is unnatural, abnormal or unreasonable in the context- the mere fact that it does not comply with the formal requirements is enough to render it illegal.
In the case of City of Tshwane v Ghani the court emphasised that building and zoning regulations are normally enforced by the relevant local authority, but if it fails to do so, neighbours have the necessary legal standing to apply for a court order to enforce compliance with the relevant laws and regulations
A building work may technically comply with the relevant local authority requirements but still constitute unreasonable use in relation to the neighbours by reason of its characteristics or placement on the plot. The local authority or neighbours can obtain a court order to have illegally built structures demolished.
There have been cases where the courts have decided that an action may be brought against a landowner whose building works (although comply with statutory requirements) negatively affect the value of the surrounding properties. However the Supreme Court of Appeal decision in the case of True Motives 84 (Pty) v Madhi has held that the local authority must only refuse an application for building plans if the proposed building will negatively affect a surrounding property.
It has been decided that courts have a discretion to award monetary compensation rather than an order of demolition, but such courts are not precluded from handing down demolition orders simply because buildings have been completed or because of the cost or value of the completed building works. The discretion not to order demolition will therefore probably not be exercised only on the balance of convenience.
Currently in South African Law the consensus view is that there is no natural entitlement, based on ownership of land, to enjoy a view over or across adjacent land.
In recent case law, an attempt to protect an existing view has often been based on an attack against the local authority’s approval of the building plans. In the case of Walele v City of Cape Town the court held that neighbours do not have a right to be informed of or to have access to building plans or to object against them prior to approval.
National Building Regulations and Building Standards Act (NBR Act)
Building plans have to be approved by the local authority in terms of section 7 of the NBR Act. In the Walele case the Constitutional Court confirmed that the rights of neighbouring owners are protected by the duty which section 7 places upon the local authorities to consider the rights of neighbouring landowners when considering the approval of building plans.
Section 7 of the NBR Act raises two questions, namely, do neighbours have a right to the preservation of existing views, access to sunlight and so forth, and secondly, if no such right exists whether such a right is indirectly created by section 7 (1) (b)? That section states that a local authority may refuse an application if it is satisfied that the building that will be erected will be in such a manner or will be of such a nature or appearance that the area in which the building will be erected will be disfigured, unsightly, objectionable or will derogate the value of the adjoining or neighbouring properties.
Academics have argued that such questions have enjoyed little attention in South African Law.
The NBR Act provides that whether the construction of a building work on property requires the authorisation of the local authority and submission of the plans is dependent on the size of the building work and its classification