Wednesday, November 12, 2008

The right of an adjoining owner regarding the approval of plans


Since 1999 there has been confusion regarding a neighbour's right to a hearing prior to the approval of plans but the matter seems to have been settled when on 13 June 2008 the Constitutional Court in the Azeem Hassan Walele vs The City of Cape Town case (CCT 64/07 (2008) ZACC 11) handed down its judgement.

In this case Dr Walele noticed that his neighbour had received permission to erect a four storey building next to his property. It was held that the purpose of the recommendations of the Building Control Officer was to furnish the local authority with the grounds upon which his decision was based, thus enabling the decision makers to apply their minds independently to the matter.

The mere pro forma endorsement and signature of the Building Control Officer did not therefore constitute a recommendation and did not provide a sufficient basis for the independent decision required of the decision-maker. On this basis the approval of the plans was set aside and the matter referred to the City for re-consideration.

The Court however did not agree with the applicant's contention that the owners of neighbouring properties have a right or a legitimate expectation to receive a hearing prior to the approval of a neighbour's building plans.

Bruce Lyle
Membership Services Manager

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