next door right argued in court 
21 February 2008

The Constitutional Court is considering whether neighbours should have the right to object to building plans of adjacent properties before they are approved by local authorities.

Legal counsel for the cities of Johannesburg and Cape Town, represented by constitutional experts Jeremy Gauntlet and Geoff Budlender, told the court that such a decision would slow down the processing of building plan applications.  According to court documents, Johannesburg alone processes 2000 applications a month, which were estimated in 2006 to be worth about R9,3bn.

Gauntlet, representing Johannesburg, appealed to the court to first consult the South African Local Government Association and small municipalities before deciding whether to give neighbours such a right.

The case has been brought by Cape Town resident Azeem Walele, who is objecting the city’s approval of a plan for a four-storey block of flats on an adjacent property.

The city said the building plans were in line with town planning and zoning requirements, including whether the building was a safety hazard and if it would lead to devaluation of property in the area.  Walele is arguing that the city was obligated in terms of the National Building Regulations and Building Standard Act to give him notice and allow him a hearing before the plans were approved. He also said the city had not properly applied its mind, which it denies.

The high court dismissed Walele’s application with costs in March last year and the Supreme Court of Appeal dismissed his application for leave to appeal in July on the grounds that local authorities had complied.

Legal counsel for the cities argued that there was nothing in the building legislation that provided for a hearing for people affected by the development.

Budlender, for Cape Town, said even if Walele did have a case, the courts were slow to interfere with administrative action by government “which is decided by people who are experts in the matter and who deal with such decisions every day”.

While the City of Cape Town could allow a hearing for affected parties in cases where there were zoning or town planning infringements, the City of Johannesburg did not allow this , Gauntlet said.

Judge Sandile Ngcobo asked why constitutional democracy, the Constitutional Court, should not consider issues of transparency, accountability and human dignity when it came to an issue of this nature. “Is it acceptable that local authorities get to decide matters that affect life behind closed doors? ”

Judge Johann van der Westhuizen asked whether people should be forced to wait until building had started before objecting. This might not be fair.

Budlender said people who bought land in an urban setting understood that their neighbouring properties might be developed.

Chantelle Benjamin, www.businessday.co.za