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Monday Oct 08, 2012

Objections could lead to demolition of properties

Whether you are erecting a new building, making additions or changing the original plan of a house, you may be tempted to think you don't have to abide by municipal rules, says Lanice Steward, managing director of Knight Frank Anne Porter.

However, a recent court case in a Smith Tabata Buchanan Boyes newsletter shows that in doing so, the person who goes ahead without approval could lose when objections are made.

In the case Ndlambe Municipality v Lester and Others, the property owner submitted his plans and had them approved by the municipality.

The plan was to build a second, larger building on the property, as the one that existed was a small shack. The problem was that a second dwelling was prohibited by the township conditions.

A neighbour, Haslam, objected and obtained an interdict against the building. Lester amended the plans and these were approved.

Lester then decided to proceed with a building that differed from the amended plans, as his circumstances had changed and he needed to make provision for his mother to live with him.

He submitted another set of plans, which were approved by the municipality, but Haslam was not informed of the subsequent changes.

When the building was almost complete, Haslam realised the plans were different and brought an application to the review board because Lester's building took away 75 percent of his sea view.

After a series of amendments and resubmissions, which were re j e c t e d by Haslam, the last review ended in an order prohibiting the municipality from approving new plans, which meant the only set approved were the original 2002 plans. Because the building was different from these, Haslam applied to the court to have the building demolished.

The court ruled in Haslam's favour, citing section 21 of the Building Standards Act.

"The court has the discretion to issue a demolition order on a building even if the municipality has approved [the plans]. This shows that all due processes are necessary, the neighbour's approval in this case being the all-important step that was missed," says Steward. "There is a question to be asked here; how did the municipality approve the plans in the first place?"

In another case, Pellencin v City of Tshwane Metropolitan Municipality, Pellencin appealed to the review board against the municipality, which was refusing to issue an occupation certificate.

Pellencin's plans had been approved but during the building process some deviations from the approved plans took place. He then applied for the amended plans to be approved, showing the construction as "built". The municipality refused but the review board upheld his appeal. However, when Pellencin asked for an occupation certificate it was denied.

Pellencin went to the High Court for an order to compel the municipality to issue the certificate. The court ordered the municipality to do so, as the building plans complied with the Building Standards Act and all applicable laws.

"In all agreements of sale, sellers need to warrant that all buildings on their properties are to specified plans or that, in the event that they're not, they would be required to either have the plans redrawn and submit them for approval or the buyers should sign an acknowledgement that there are no existing plans available," says Steward.

Weekend Argus (Sunday Edition)

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