Building plans: You don’t need your neighbour’s consent
Can neighbours object to and prevent the approval of building plans? It is important to understand that often an application for the approval of building plans is made in conjunction with an application to rezone the property, or to relax building lines, or to remove a restrictive condition or covenant in a title deed.
All three of these applications are completely different to the application for approval of building plans itself. This article, therefore, deals only with the application for approval of building plans.
The process of applying for and obtaining approval for building plans is set out in the National Building Regulations and Building Standards Act 103 of 1997 (“the NBA”). Very basically, the process is that the proposed plans must be submitted for approval to the local authority’s building department – which then considers them – and if it is happy with them, they are approved. But, is it necessary to notify neighbours?
There is no legal requirement in the NBA requiring an applicant to inform neighbours of an application to approve building plans. However, there might be such a requirement imposed by the by-laws or a policy of the local municipality. If there are simultaneous applications for rezoning, relaxation of the building lines, or the removal of a restrictive condition or covenant, then the neighbours will be given notice – not because of the building plan application, but because it is a requirement that the neighbours be given notice for these other three types of applications. It often happens that the first time an owner finds out about an application for the approval of building plans is after the application has already been submitted by his neighbour, approval for same has been given, and the building works are starting.
Do neighbours have a right to object?
In terms of the NBA, neighbours do not have a right to object, unless they are given this right in another law, or the municipality has done something to create an expectation on the part of the neighbours that they have a right to object – such as telling them that they have this right, or inviting them to object, or a practice exists and has existed for some time in terms of which neighbours are given the opportunity to object. This has been confirmed by our courts in the Walele v City of Cape Town and Others.
If an objection is submitted, will this prevent approval? Not necessarily: The municipality is bound to consider the objection, but must still make up its own mind as to whether the plans should be approved or not.
Does this mean that the rights of neighbours are not taken into account at all? No. The municipality is obliged to take into account the rights of neighbours (and how the proposed building will affect the rights of the neighbours) in terms of section 7 of the NBA. It is precisely because the law provides that the municipality must, as a default position, take into account the rights of neighbours that no provision for neighbours to object is provided for in the NBA. In addition, if a neighbour catches wind of a pending application and is unhappy with it, the neighbour can submit objections or comments to the local municipality, which is then bound to consider those submissions when making its decision as to whether or not to approve the plans.
Is there any right of appeal for unhappy neighbours? Not in terms of the NBA. Some legal practitioners are of the view that it is possible for an aggrieved neighbour to appeal the decision to the Municipal Manager in terms of section 62 of the Local Government: Municipal Systems Act 32 of 2000. The court held in Municipality of the City of Cape Town v Reader and Others, however, that it is not open to aggrieved neighbours to appeal to the Municipal Manager in this fashion.
The only recourse an aggrieved neighbour has is to bring an application to court in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) for the court to review (and possibly set aside or amend) the decision to approve the plans. They will succeed in this application only if they can convince the court that there was a procedural flaw in the approval process, or that the approval should not have been granted because the proposed plans would impact adversely on the neighbour’s property as contemplated in section 7 of the NBA.
The municipality is obliged, as a matter of course, and regardless of whether any objections/comments are submitted, to take into account the rights of neighbours and how the proposed building plans will affect the neighbours when assessing an application for the approval of building plans.
As neighbours are already protected in this fashion, the law generally does not provide them with an opportunity to object/comment before the plans are approved. Although there are exceptions to this rule, they are few and far between. It is thus generally not necessary for a neighbour to inform you about his building plan approval application, nor is it necessary for him to acquire your consent before he can obtain approval and consequently start building.
It may, however, be a requirement of other applications submitted for approval (for example for relaxation of a building line) that your neighbour gives you notice and/or obtains your consent, but this is not applicable to building plan approval applications specifically.
Words: Chantelle Gladwin, partner, and Maike Gohl, associate, at Schindler’s Attorneys