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Monday Jan 23, 2017

Cape Town's planning by-laws require caution

The latest revision of Cape Town's Municipal Planning By-law has as many permutations as a Rubik's cube, and signing an offer to purchase can be a very costly mistake if you haven't done your homework.

Owning property in Cape Town is a dream for many, but if you're not well-versed in the city's stringent planning and zoning by-laws which are more complex in areas where there are overlay zonings like a declared heritage protection area, or scenic drives or certain historic special controls including Llandudno, Constantia, Clifton, Strand, Gordon's Bay, Harfield Village, St James, Boyes Drive, and parts of the CBD.

Heritage plays a significant role in determining how a property can be altered and as a rule of thumb, all structures older than 60 years are protected in terms of the National Heritage Resources Act.

"Be sure to ask your agent about the age of the property as well as its fixtures and fittings. This is particularly advisable in older suburbs such as Wynberg and Harfield Village where heritage regulations are stringent," says Lew Geffen, chairman of Lew Geffen Sotheby's International Realty.

"A building plan that affects heritage aspects would have to be submitted to Heritage Western Cape first, and only after its decision has been handed to the city can the rest of the planning processes proceed."

Geffen cites several suburbs where buyers should exercise additional caution.

Along Victoria Road in Clifton no building on the upper side of the street may extend more than 13m above street level, and Camps Bay, Bakoven and Llandudno are also subject to height restrictions of two or three storeys depending on location.

The bungalow areas of Bakoven, Clifton and Glen Beach, meanwhile, have a raft of aesthetic regulations applicable to fencing, lighting, solar water heaters and satellite dishes.

He says the Municipal Planning By-law also has subdivision regulations which apply to areas such as Constantia, Tokai, Hout Bay and Noordhoek based on property size, whereas in Muizenberg, a second dwelling on a property is likely to be more permissible.

Despite the economic slump affecting South Africa's housing market, Cape Town's standout double-digit property price inflation is still largely driven by increasing numbers of buyers from other provinces, says Geffen. But since average property prices in the city are generally much higher than the rest of the country, most home buyers are looking for affordable options.

"For people looking to buy in the best location with the intention of knocking down an existing building or renovating an older property, it can be an absolute minefield if they're uninformed," says Geffen.

The City of Cape Town's Development Management Scheme (DMS) forms part of its 2015 Municipal Planning By-law and is a legal tool used to determine the use of rights of a property by giving it a particular zoning category. It also lays down development parameters and restrictions for each type of property.

Geffen says that no matter how well-versed you may think you are in town planning and property development, unless you intend to move into a house as is, the smart move is to appoint and thoroughly brief a qualified town planner who has previously engaged with the City of Cape Town, before making an offer to purchase.

Specialist conveyancing attorney Elana Hopkins of Dykes Van Heerden says: "Buyers should request building plans before making an offer to purchase a property and, if possible, consult an architect about what they intend to do. An architect will be able to advise whether the desired alterations are permissible and will also consult with the relevant city departments if necessary.

"Should you find yourself jostling with other prospective buyers for a sought-after property and time is of the essence, it's a good idea to add a due diligence clause to the purchase offer regarding the viability of the property for the purpose for which it is being bought. In fairness and consideration to all parties, this should not exceed the bond approval period.

Hopkins says the absence of a suspensive or resolutive condition would put the buyer in breach of contract and liable for damages as well as agent's commission should the property not be found suitable after the agreement us entered into, resulting in the buyer wanting to withdraw from the sale.

The City of Cape Town strongly advises that prospective buyers should take the time to visit a local planning office if they are at all in doubt about building or development applications.

"Residents should always verify the zoning of a particular property, what uses are permitted and what rights they would need to apply for to enhance its rights," says Priya Reddy, spokesperson for the City of Cape Town.

A property's current zoning can be verified online through the city's online zoning viewer by inputting an erf number or street address. (http://www.capetown.gov.za/ work% 20and% 20business/ planning- portal/ online- planning- and- building- resources/ online-zoning-viewer)

Hopkins also warns buyers not to start renovating too soon, and definitely not before registration of transfer, which can be scuppered by a number of things, such as a seller's insolvency or attachment of the property.

"In the event of the transfer not proceeding, the buyer would then face an almost insurmountable task of attempting to recoup damages."

Reddy also advises buyers to take note of potential title deed restrictions such as municipal servitudes which can be done by requesting a conveyancer's certificate from your conveyancer.

Hopkins says: "There are often conditions behind those contained in the title deed of the property that need to be researched by a conveyancer, and looking at the title deed only is therefore not sufficient in most instances."

Says Reddy: "The planning regime has changed substantially over the past few years. Therefore, always first visit your local district planning office and consult an experienced town planner or architect to reduce the chances of poor advice given by some agents and even attorneys."

Geffen says: "Always be absolutely sure that you are armed with all the information about the property you wish to buy. Work closely with your estate agent and your attorney to find out what, if any, restrictions there are on a property from the start, so that you understand exactly what you can and can't do before you sign on the dotted line."

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